A. Rule Governing the Issuance of Special Passports to Lawyers
Rule Subject to Dispute
The rule subject to dispute stipulates that lawyers under investigation or prosecution for certain crimes shall not be issued special passports for the duration of the investigation or prosecution.
Reason for the Request
The petition summarizes that the subject of the case is to preserve the conditions for lawyers to hold special stamped passports, and that the condition restricting freedom of travel is contrary to the Constitution.
The Court’s Assessment
Th e rule states that if the investigation or prosecution finds that the person concerned has committed a crime, they shall not be issued a special stamped passport, provided that the person is not found guilty and no permanent criminal penalty is imposed on them.
The legislature’s anticipation of the conditions of the relationship when regulating the persons who may benefit from special stamped passports is merely a restriction on obtaining such passports. Accordingly, the rule in question, which can be summarized as the establishment of conditions based on permits to ensure the security of the country as a holder of a special stamped passport, does not have a perspective that does not restrict the freedom to leave the country, which is guaranteed under Article 23 of the Constitution.
It is possible to argue that the rules create a distinction between lawyers who are under investigation or prosecution for certain crimes and those who are not, as they are in a similar situation.
The inability of lawyers covered by the rule in question to obtain special stamped passports is not permanent but is limited to the duration of the investigation or prosecution of the aforementioned crimes against them.
An appropriate balance has been established between the purpose pursued by providing for a difference in the possibility of obtaining a special stamped passport and the means of change provided by the rule. The difference introduced by these rules does not impose an excessive burden on the lawyers covered by the rule in accordance with the purpose for which it was envisaged. In this respect, there is nothing in the rule that is contrary to the principle of freedom.
The court ruled that the legal regulation was contrary to the Constitution and rejected the request for annulment.
B. Rule Restricting Freedom to Leave the Country
Rules Subject to the Case
The rules subject to the case generally stipulate that the Ministry may issue passports based on the results of investigations conducted by law enforcement agencies, provided that the conditions specified in the rules are met, to individuals whose passports have been revoked due to their membership in structures, formations, or groups determined to pose a threat to national security, or due to their connection to or medical contact with terrorism, and to whom administrative procedures have been initiated to deny passports. The rules stipulate that passports may be issued by the Ministry based on the investigation conducted by law enforcement agencies, provided that the conditions specified in the rules are met.
Reason for the Request
The petition summarized that the rules were applied by the administration in an area governed by the general rule of law as stipulated by the Constitution, that they eliminated the user’s opportunities to work abroad, that they constituted an interference with information relating to their private lives, and that the existing additional rules were contrary to the Constitution.
The Court’s Assessment
Article 23 of the Constitution states that a citizen’s freedom abroad can only be restricted for reasons of criminal investigation or prosecution and only by a court order.
Since the rules governing passport registration permit approval are subject to certain conditions set forth in the rules of the case, the rules are subject to conditions that restrict the freedom to leave the country. The rules prevent some individuals from earning money by denying them the opportunity to obtain a passport, and therefore the rights of these individuals are restricted by the rules in question.
A regulation concerning the freedom to travel abroad, which is a dimension of freedom of movement and is specifically guaranteed, must not violate the restrictions set out in Article 13 of the Constitution and the security guarantee provided therein.
The restriction of the passport in the procedures subject to the lawsuit is not based on the criminal investigation and prosecution reason and the judge’s decision.
It is seen that some of the reasons for restriction stipulated by the rules, when the case is one where the freedom to cross national borders can only be restricted in terms of criminal investigation or prosecution and is subject to a judge’s decision, do not comply with the exceptions specified in the aforementioned article of the Constitution and that there is no guarantee that they comply with these reasons. Therefore, the rules do not restrict the freedom to leave the country in a manner contrary to the Constitution.
The amendments to the Constitutional Court are contrary to the Constitution, and it is decided that they shall be annulled one year after the publication of the decision in the Official Gazette.