A. Rule Governing the Issuance of Specially Stamped Passports to Lawyers
Subject Rule
The rule in question provides that lawyers who are under investigation or prosecution for certain crimes should not be given special stamped passports, limited to the duration of the investigation or prosecution.
Reason for Cancellation Request
In summary, in the petition; It has been argued that the rule in question limits the freedom of travel by stipulating certain conditions for lawyers in terms of holding a special stamped passport, and that the rule is unconstitutional.
Court’s Evaluation
As stipulated in the rule, it is clear that not giving a passport with a special stamp to the person concerned on the grounds that he is being investigated or prosecuted for certain crimes does not result in the person being described as a criminal and penal sanction.
The fact that the legislator stipulates certain conditions while making arrangements regarding the persons who can benefit from special stamped passports is only a limitation for obtaining such passports. Accordingly, the rule in question, which can be summarized as stipulating certain conditions in order to reach the opportunities provided by being able to go abroad as a special stamped passport holder, does not have any aspect that restricts the freedom to go abroad, which is guaranteed in Article 23 of the Constitution.
Since it can be said that lawyers who are under investigation or prosecution for certain crimes and those who are not, are in a similar situation to make comparisons, it can be said that there is a difference between them with the rule.
The fact that lawyers within the scope of the rule subject to the case cannot obtain special stamped passports is not of a permanent nature and is limited to the duration of the investigation or prosecution carried out for the aforementioned crimes.
An appropriate balance has been established between the aim pursued by foreseeing the said difference in the conditions for obtaining the opportunity to obtain a special stamped passport and the means envisaged by the rule. In this context, according to the purpose of foreseeing the said difference brought by the rule, an excessive burden was not imposed on the lawyers within the scope of the rule. In this respect, there is nothing contrary to the principle of equality in the rule.
For the reasons explained, the Constitutional Court decided that the rule was not unconstitutional and that the request for annulment was rejected.
B. The Rule Restricting the Freedom to Travel Abroad
Subject Matter Rules
Those whose passports have been revoked due to their membership or affiliation with or affiliation with structures, formations or groups, or terrorist organizations, which are determined to pose a threat to national security in the rules subject to the case, and those whose passports are not issued with an administrative action, shall be made by law enforcement units, provided that they meet the conditions specified in the rules. According to the results of the research, it has been regulated that passports can be issued by the Ministry of Interior.
Reason for Cancellation Request
In summary, in the petition; It has been argued that the rules are in violation of the Constitution, stating that the rules authorize the administration in an area where the Constitution explicitly stipulates a judge’s decision, eliminate the opportunities for individuals to work abroad, and create a disproportionate intervention in their private lives.
Court’s Evaluation
Article 23 of the Constitution states that a citizen’s freedom to go abroad can only be limited by a judge’s decision, depending on the reason for a criminal investigation or prosecution.
Since certain conditions are stipulated by the rules in question for those who are allowed to obtain a passport, the rules impose a limitation on the freedom to go abroad. Granting this opportunity to some people by the rules results in the fact that passports cannot be obtained for those who are not given the opportunity, therefore, for these people, the rules in question impose a limitation on the aforementioned freedom.
A regulation regarding the freedom to go abroad, which is one of the dimensions of freedom of movement and which is specially guaranteed, must not be contrary to the reasons for limitation specified in Article 13 of the Constitution and the guarantee envisaged here.
It is clear that in the rules subject to the case, issuing passports to individuals regardless of the reason for the criminal investigation and prosecution and the decision of the judge is limited.
Considering that the freedom to go abroad can only be limited due to a criminal investigation or prosecution and is subject to the guarantee of a judge’s decision pursuant to Article 23 of the Constitution, it is seen that some of the reasons for restriction stipulated by the rules in the case do not comply with the reasons for restriction set forth in the aforementioned article of the Constitution and are contrary to the guarantee of a judge’s decision attached to these reasons. . In this respect, the rules limit the freedom to go abroad in violation of the Constitution.
For the reasons explained, the Constitutional Court decided that the rules were unconstitutional and that they were annulled, and that the decision would enter into force one year after its publication in the Official Gazette.
