04 July 2018 Wednesday

S.K. (B) (no. 2014/18275, 4 July 2018)

The Facts

The applicant, who engages in prostitution for a living, lodged a request in order to work in a brothel. The incumbent commission rejected the applicant’s request as the physical conditions in the brothel did not ensure safety of life and property.

Thereupon, the applicant filed an action for annulment before the administrative court. However, the administrative court, which found that the decision of the commission decision complied with the law, dismissed the applicant’s action.

However, similar cases against refusal of such requests were accepted by different administrative courts. Those cases eventually became final upon the appellate review of the Council of State.

The impugned first instance court decision was first quashed by the Council of State at the appellate stage. However, as the first instance court reinstated its original decision, the Plenary Session of Administrative Law Chambers of the Council of State upheld the decision.

Thereafter, the applicant filed an individual application with the Constitutional Court.

The Applicant’s Allegations

The applicant maintained that, in spite of professionally engaging in prostitution and fulfilling all conditions specified in the relevant legislation, her request to be granted work permit was rejected, which was in breach of the right to respect for private life.

The Court’s Assessment

The notion of private life is interpreted quite broadly and not susceptible to exhaustive definition. The legal value which is protected in respect thereof is essentially self-dependence. Particularly, the sexual acts and behaviours in the field of privacy are also encompassed by this notion. However, it cannot be concluded that every kind of sexual acts and behaviours of adults are under the protection of the right to respect for private life.

The preamble of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others stresses that prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with human dignity and endanger the welfare of the community.

Prostitution is not, regardless of whether with or without consent, compatible with the dignity and worth of the human person. At this stage, it is not possible for the act of prostitution to be protected within the framework of personal autonomy.

In spite of providing a sphere whereby everyone may freely establish and develop his own personality, it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world. Therefore, this notion also encompasses the right to develop social relationship with other human beings and the outside world.

Prostitution has deep impacts, in several terms including health, morals and individual rights, not only on those who engage in this act but also on other individuals of the community. It would not be compatible with human dignity to regard the act of prostitution as a profession based on training or competency.

To consider prostitution as a professional activity would result in deeming human body (especially women’s body) to become an economic good, which is regarded as a regression in terms of human rights. Besides, taxation of prostitution income or registration of such persons in the social security system are inevitable results of keeping prostitution under control by way of restriction rather than prohibition, as is the case in some countries including Turkey. However, such requirements cannot be construed to regard prostitution as a profession.

It is considered that acts of those who demand prostitution may fall within the limits of sexual life, which is protected under the right to privacy; however, the situation differs for individuals engaging in prostitution as a means of earning money because it then falls into the scope of an economic activity. As the applicant, asserting that she professionally engages in prostitution, has not raised an allegation that her sexual acts and behaviours are within the sphere of her privacy, it has been concluded that her demand cannot be protected within the scope of the right to privacy.

For the reasons explained above, the Court concluded that the act of prostitution was not an issue requiring protection under the right to respect for private life and accordingly declared the application inadmissible for lack of jurisdiction ratione materiae.