Individual Application

The Facts

The applicant is a joint-stock company operating in the automotive market. The Competition Board (the Board) decided to conduct a preliminary investigation to determine whether certain entrepreneurs, including the applicant, had violated the Act no. 4054 on the Protection of Competition.

The authorised competition experts carried out an on-site inspection in the applicant's premises. As a result of the inspection, documents consisting of electronic mails were obtained from the computers of the company's employees. The report prepared at the end of the preliminary investigation recommended the initiation of an investigation and, in line with this recommendation, the Board decided to conduct an investigation against the undertakings, including the applicant. The report issued by the rapporteurs from the Competition Authority as a result of the investigation concluded that the entrepreneurs, including the applicant, had committed acts contrary to Article 4 of Act no. 4054 and recommended that administrative fines be imposed on the impugned entrepreneurs. The Board decided that an administrative fine be imposed on the applicant.

The applicant brought an action before the 13^th Chamber of the Council of State (the Chamber) for annulment of the administrative fine and of the regulation under which the impugned fine was prescribed. The Chamber dismissed the impugned action. The applicant’s subsequent appeal was dismissed by the Plenary Session of the Chambers for Administrative Cases of the Council of State (İDDK), on the grounds that the Chamber’s decision was in compliance with the procedure and the law.

The Applicant’s Allegations

The applicant maintained that its right to respect for home had been violated due to the unlawfulness of the search conducted at the workplace.

The Court’s Assessment

The concept of home is generally defined as a materially determined place where private and family life flourishes. In addition, the concept of home includes workplaces and, in this sense, includes the office where a person pursues his or her profession, the registered office of a company run by private persons, and the registered office, branches and other workplaces of legal persons. However, public areas of the workplace that do not contain a private element and are accessible to everyone may not be considered to fall within the scope of the concept of home.

A search is a protective measure carried out in order to prevent an offence, either before or after it has been committed, in order to obtain evidence and/or to arrest the accused person or suspect, which may lead to the restriction of certain fundamental rights of individuals. The search constitutes a restriction of fundamental rights such as the right to respect for private life, the right to respect for home and corporal inviolability.

In the present case, the competition experts conducted an on-site inspection at the applicant's workplace pursuant to Article 15 of Act no. 4054. The on-site inspection, stipulated in the impugned Article, is the inspection carried out on the premises by the Board officials through paying visits to the workplaces of undertakings or associations of undertakings. To this end, the Board is entitled to examine the books, all types of data and documents of undertakings and associations of undertakings kept on physical or electronic media and in information systems, and take copies and physical samples thereof, request written or oral statement on particular issues, perform on-site inspections of any assets of undertakings. In view of the competencies provided in Article 15 of Act no. 4054, it is understood that the on-site inspection is an activity carried out in the head offices, branches and facilities where a given undertaking exercises its administrative functions. Undoubtedly, the places where the administrative affairs of the undertakings are carried out and the areas which are not freely accessible to everyone, such as workrooms, are considered to be homes. Accordingly, in view of the fact that the documents had been obtained from the computers of company officials, it has been concluded that the inspection carried out at the applicant's workplace constituted an interference with the right to respect for home.

Article 21 § 1 (2) of the Constitution stipulates that unless there exists a decision duly given by a judge, no home may be entered or searched or the property seized therein. The same paragraph also provides that, in cases where delay is prejudicial, a written order of an agency authorized by law may be deemed sufficient instead of the decision directly rendered by a judge.

An examination of Article 15 of Act no. 4054 suggests that on-site inspection to be carried out by competition experts shall not, as a rule, be conditional upon a court decision. Furthermore, although Article 15 of Act no. 4054 provides that on-site inspections may be carried out upon a decision rendered by the Board, it is considered that the conducting on-site inspections by an order of the Board is not limited to cases where delay is prejudicial. Article 21 § 1 of the Constitution stipulates that, only in cases where delay is prejudicial, a written order of an agency authorized by law may be deemed sufficient instead of the decision directly rendered by a judge. It has been concluded that the regulation, which does not restrict the possibility of performing on-site inspections upon the order of the Board to the cases where delay is prejudicial, is contrary to Article 21 of the Constitution. In addition, even if it is acknowledged for a moment that the Board's decision to carry out an on-site inspection is limited to cases where delay is prejudicial, the lack of an obligation to submit the Board's decision for the approval of the judge within twenty-four hours is also deemed incompatible with the additional safeguard provided in Article 21 of the Constitution.

Since there was no attempt by the applicant to prevent the on-site inspection, an on-site inspection was carried out at the applicant's workplace without the requirement of a judge's decision. It is evident that this procedure, which apparently complies with Article 15 of Act no. 4054, was in breach of the safeguard stipulated in Article 21 § 1 (2) of the Constitution. It has been understood that the violation arose out of the failure to regulate the authority to conduct an on-site inspection provided in the relevant provisions of Act no. 4054 in accordance with the safeguards established in Article 21 § 1 of the Constitution.

Since the impugned violation of the right to respect for home is irrespective of the outcome of the proceedings, there is no legal interest in conducting a retrial. However, it is within the discretion of the legislative authority to review the legal provision leading to the violation, in order to prevent similar violations. Accordingly, a copy of the decision should be duly submitted to the legislative authority for reference, since making certain regulations by taking into account the aforementioned constitutional principles, would be consistent with the purpose and function of the individual application in terms of preventing similar violations.

Consequently, the Court has found a violation of the right to respect for home.