Constitutionality Review

Contested Provision

The contested provision envisages that the licenses issued in relation to the activities carried out within the scope of Law no. 4733 shall be suspended in respect of those who were found to have committed certain acts prescribed in the Tax Procedure Law (Law no. 213) and the Anti-Smuggling Law (Law no. 5607) until a decision of non-prosecution or a court decision becomes final, and that during this period, no licenses for the impugned facility or workplace shall be granted to any other natural or legal person.

Ground for the Request for Annulment

It was maintained in brief that the contested provision suspending the licenses related to the activities carried out within the scope of Law no. 4733 had placed disproportionate restriction on the freedom of enterprise; that such process amounted to an injunction involving uncertainties as to its nature and as to the authority who would conduct the said process; and that this ambiguity had been in breach of the principle of separation of powers between the executive and the judiciary. In addition, it was also indicated that imposing an injunction for an extended period of time in the absence of a conviction decision was not proportionate and would infringe the presumption of innocence. It was accordingly argued that the contested provision was unconstitutional.

The Court’s Assessment

Pursuant to the contested provision, the act of suspending the issuance of the licenses concerning the activities does not require the existence of a judicial process nor any conviction decision by a criminal court against the concerned person. Additionally, the question as to whether those concerned who will be subject to an injunction measure of an administrative nature have committed the offences laid down in the Law is ascertained not through a final decision issued at the end of the proceedings by a court, but through an administrative process. Imposing the impugned injunction measure through an administrative process on the concerned person in the absence of a final conviction decision finding that person committed an offence is contrary to the presumption of innocence.

Moreover, the freedom of private enterprise, being a component of the freedom of labour, is also guaranteed under the Constitution. The freedom of enterprise means that any natural or legal person may establish an enterprise to engage in economic and commercial activities in the preferred field, carry out activities in any professional sphere of his/her choice, and conduct his/her profession and activities as he/she wishes without any interference by the state or third parties. It has been observed that the suspension, pursuant to the impugned provision, of the licenses in relation to the activities until a decision of non-prosecution is issued or a court decision becomes final places restriction on the freedom of enterprise on the grounds that such a suspension would preclude any possibility to carry out important commercial and professional activities for a certain period of time. The regulations restricting fundamental rights and freedoms must be introduced by law and must be proportionate and appropriate to the grounds for restrictions laid down in the Constitution. The contested provision does not allow for the discontinuation of the injunction measure through a review at the investigation and prosecution stage in light of the changing conditions. It has been also found that the contested provision places an excessive burden on those concerned as it does not provide for the possibility to impose more lenient measures than the suspension of the licenses related to the activities.

Having regard to these considerations, the Court has concluded that although the impugned restriction aims to protect public interest, a reasonable balance could not be struck between this aim and the restriction imposed on the freedom of enterprise, and therefore the contested provision constitutes a disproportionate restriction.

Consequently, the contested provision has been found unconstitutional and therefore annulled.