Press Release No: Individual Application 54/20
Press Release concerning the Judgment Finding a Violation of the Right to Respect for Private Life due to the Annulment of the Registration with the Bar Association for Being Dismissed from Public Office
On 23 July 2020, the Plenary of the Constitutional Court found a violation of the right to respect for private life safeguarded by Article 20 of the Constitution in the individual application lodged by Tamer Mahmutoğlu (no. 2017/38953).
The applicant, a bachelor of laws, was dismissed from his public office due to his involvement, relation or link with the Fetullahist Terrorist Organisation/Parallel State Structure (“the FETÖ/PDY”).
He then filed a request with a Bar Association to enter on its registry; however, the Bar Association refused the request. Thereafter, he challenged the refusal before the Union of Turkish Bar Associations (“the TBB”). The TBB accepted the applicant’s challenge, considering that the profession of lawyer was not a public office and the applicant’s registration with the Bar Association could not be qualified as a type of employment. It accordingly annulled the Bar Association’s decision refusing the applicant’s request. However, the Ministry of Justice (“the Ministry”) did not find the TBB’s decision appropriate and remitted it for re-consideration.
Upholding its original decision, the TBB allowed for the applicant’s registration with the Bar Association. After the decision had been finalised, the Ministry brought an action for annulment before the incumbent administrative court (“the court”). The court annulled the decision issued by the TBB, stating that the profession of lawyer had been attributed with further characteristics of public service and that those who had been dismissed from public office by virtue of the decree-laws issued under the state of emergency could not be allowed to register with the bar association as, and to use the title of, a lawyer. The appeal against the court’s decision was dismissed by the Regional Administrative Court.
On the other hand, the applicant was acquitted at the end of the criminal proceedings conducted against him for his alleged membership of the FETÖ/PDY.
The Applicant’s Allegations
The applicant maintained that his right to respect for private life had been violated as his dismissal from public office did not pose an obstacle to his practising as a self-employed lawyer.
The Court’s Assessment
It has been concluded that there was an interference with the applicant’s right to respect for private life as he had been precluded from practising as a self-employed lawyer after the TBB’s decision -whereby the applicant was allowed to enter on the registry of the Bar Association- had been annulled by the court’s decision which had been finalised upon the Regional Administrative Court’s decision.
The first and basic condition for finding an interference with the right to respect for private life compatible with the constitutional safeguards is the existence of a legal basis for the interference.
The decree-laws issued under the state of emergency, which formed the basis of the annulment decision rendered by the inferior court, were enacted pending the proceedings in the applicant’s case. However, the mere existence of laws -relied on as a ground for restricting the fundamental rights and freedoms- in form is not per se deemed sufficient to acknowledge that the lawfulness requirement has been satisfied. Besides, the relevant law must have a substantive content to the extent that would justify a given interference and ensure accessibility, foreseeability and certainty of a given restriction. The judicial bodies are liable to examine whether the statutory arrangements relied on as a ground for impugned interferences are accessible, foreseeable and certain and, first and foremost, to implement the given statutory arrangements within the prescribed framework in dealing with cases before them.
In the present case, the statutory arrangements relied on in the inferior courts’ decisions set forth that those who have been dismissed from their public offices would no longer hold a public office and can no longer use their titles. However, given that the applicant did not get the title of lawyer by virtue of the public office he held as an expert but had already obtained it before holding his public office, it is difficult to say that the provisions, which preclude entrance to public service, pose an obstacle to the re-use of his title as a lawyer and the exercise of this profession as self-employed. The inferior courts did not provide any explanation as to why the provision in question was applied to the present case.
Besides, in the present case, the profession of lawyer, which is clearly a public service, must be examined also in terms of type of employment, with a view to ascertaining whether the impugned interference had a legal basis. It is undoubted that the notion of employment in public service covers the public officers; however, it is possible to employ officers in public services through a contract governed by private law. Nevertheless, it cannot be considered that lawyers -who are not public officers and who practise the profession as self-employed- are holding a public office. That is because, unless the said circumstances exist, the profession of lawyer is, in principle, a self-employed profession which is not subject to an administrative hierarchy.
Moreover, the self-employed lawyers do not practise for and on behalf of the State. They are in principle free to continue practising their profession after being registered with the bar association and to choose their clients. They do not receive a salary from the state, and their incomes are mainly composed of counsel fees paid by clients. No financial contribution, save for the assignments such as compulsory advocacy or arbitration, is provided by the State for self-employed lawyers. No financial or legal liability can be attributed to the State on account of the acts and actions performed by them. All rights emanating from the contract signed by the self-employed lawyers and their clients are enjoyed by, and the liabilities resulting therefrom are binding for, them. These issues are also in support of the above-mentioned findings and considerations.
In the present case, the act performed by the TBB does not fall within the scope of the ban on holding a public office, which is prescribed in the given statutory arrangements. Any interpretation to the contrary may give rise to the application of the given arrangements not only for the profession of lawyer but also for the other self-employed professions likely to be regarded as a public office, namely professions of doctor and engineer.
The applicant is not employed in a public office through an administrative, commercial or industrial contract. Nor is there an employment relationship in the particular circumstances of the present case. Accordingly, it has been considered that in considering that the practice of self-employed lawyer was within the scope of the ban on holding a public office, the inferior courts interpreted the said statutory arrangements in an unreasonably broad and unforeseeable manner.
Accordingly, it has been concluded that the interference whereby the applicant was precluded from entering on the registry of bar association had no legal basis.
Consequently, the Court has found a violation of the right to respect for private life safeguarded by Article 20 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.