14/7/2021

Press Release No: Plenary Assembly 26/21

Press Release concerning the Decision Annulling the Provisions Restricting the Freedom to Go Abroad

The Constitutional Court, at its session dated 3 June 2021, found unconstitutional and annulled a certain part of and some phrases included in the provision regarding Additional Article 7 of the Passport Law no. 5682, and held that the relevant decision would be effective after one year as from the date of its publication in the Official Gazette (file no. E.2019/114).

A. Provision on Issuance of Special Passport to Lawyers

Contested Provision

The contested provision stipulates that the lawyers against whom there has been an ongoing investigation or prosecution for certain offences shall not be issued with a special passport during the period spent for the said processes.

Ground for the Request for Annulment

It was maintained in brief that the contested provision, prescribing certain conditions for lawyers in order to hold a special passport, restricted the freedom of travel in breach of the Constitution.

The Court’s Assessment

As can be clearly understood from the impugned provision, denial to grant a special passport to lawyers due to the existence of an ongoing investigation or prosecution against him for certain offences should not necessarily be interpreted as defining him as a criminal or requiring the imposition of a criminal sanction.

The impugned requirement to satisfy certain conditions concerns only special passports. Accordingly, the contested provision stipulating certain conditions in order to avail of the opportunities afforded to the holders of special passport places no restriction on the right to go abroad safeguarded by Article 23 of the Constitution.

The lawyers who are under investigation or prosecution for certain offences and those who are not are in a comparable situation; therefore, the contested provision makes a distinction between them.

In addition, the impugned restriction is not of a continuous nature since it is applicable only during the period when the investigation or prosecution process continues.

A fair balance has been struck between the aim sought to be achieved through the said distinction and the means employed in accordance with the contested provision. Thus, given the aim pursued through the contested provision, the lawyers concerned does not bear an excessive burden in this regard.

Consequently, the contested provision has been found constitutional, and therefore the request for its annulment has been dismissed.

B. Provision Restricting the Freedom to Go Abroad

Contested Provisions

The contested provision allows for issuance of a passport by the Ministry of Interior to those whose passports have been revoked for membership of, or relation or connection with, a terrorist organisation or a structure, formation or group posing a threat to the national security and as well as to those against whom an administrative action has been taken preventing the issuance of a passport on their behalf, provided that they satisfy the conditions laid down in the relevant provisions, in accordance with the outcome of the inquiry to be conducted by the law enforcement officers.

Ground for the Request for Annulment

It was maintained in brief that the contested provisions empowered the administration within an area explicitly requiring a court decision and that the individuals concerned were deprived of the opportunity to work abroad, thus constituting a disproportionate interference with their private lives in breach of the Constitution.

The Court’s Assessment

Article 23 of the Constitution provides that a citizen’s freedom to go abroad may be restricted only by the decision of a judge based on a criminal investigation or prosecution.

Since certain conditions are laid down in the contested provisions in respect of those allowed to hold a passport, a restriction is imposed on the freedom to go abroad. While some are allowed to hold a passport, some others are not allowed. Thus, the second group face a restriction in so far as relating to their aforementioned freedom.

Any arrangement regarding the freedom to go abroad, which is a special aspect of the freedom of travel and is subject to a particular protection, should not be contrary to the grounds for restriction laid down in Article 13 of the Constitution as well as the safeguards provided therein.

It is clear that the contested provision imposes a restriction in terms of granting a passport regardless of the existence of an ongoing criminal investigation or prosecution or a court decision.

Regard being had to Article 23 of the Constitution, it is observed that some of the grounds for restriction set forth in the contested provisions do not comply with the grounds stipulated in the Constitution and that they run contrary to the condition requiring the existence of a decision rendered by a judge. Thus, the freedom to go abroad has been restricted unconstitutionally by the relevant provisions.

Consequently, the contested provisions have been found unconstitutional and therefore annulled, and it has been held that the relevant decision will be effective after one year as from the date of its publication in the Official Gazette.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.