EVALUATION ON THE DECISION OF THE CONSTITUTIONAL COURT DATED 23.03.2023 AND APPLICATION NUMBER 2019/40991
With its decision dated 23.03.2023 and numbered 2019/40991, the Constitutional Court (“CC”) found the Applicant’s claim that the inspection carried out by the Competition Board at his workplace was unlawful and therefore violated his right to residential immunity, and decided that the on-site inspection carried out without a judge’s decision based on Article 15 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) was contrary to Article 21 of the Constitution and violated his right to residential immunity.
Subject and Grounds of Application
In the case subject to the relevant decision, the Competition Board (“Board”) decided to conduct a preliminary investigation in order to obtain documents and findings on whether there are any agreements or concerted practices restricting competition between the companies operating in the automotive sector, including the Applicant, and for this reason, the Board visited the workplaces of the relevant companies and conducted on-site inspections. As a result of the preliminary investigation, it was assessed that the companies violated Article 4[1] of the Law No. 4054 and it was decided to open an investigation and as a result of the investigation, the Board concluded that the Applicant violated Article 4 of the Law No. 4054 and decided to impose an administrative fine.
As a result of this decision, the Applicant applied for administrative judicial remedy and claimed in the petition that Article 15 of Law No. 4054, which regulates the on-site examination procedure, is contrary to Articles 20 and 21 of the Constitution. After the Council of State and the Council of State Board of Administrative Chambers approved the decision, the Applicant applied to the Constitutional Court claiming that in addition to the violation allegations in the petition, the right to be tried within a reasonable time was violated due to the long duration of the proceedings.
Constitutional Court’s Review and Conclusion
Article 21 of the Constitution titled “Immunity of Residence” reads as follows: “No one’s residence may be touched. No one’s residence may be entered, searched or seized unless there is a duly issued judge’s decision based on one or more of the following reasons: national security, public order, prevention of crime, protection of public health and morals or protection of the rights and freedoms of others; and in cases where delay is inconvenient due to these reasons, unless there is a written order of an authority authorised by law. The decision of the competent authority shall be submitted to the approval of the judge in charge within twenty-four hours. The judge shall announce his/her decision within forty-eight hours of the seizure; otherwise, the seizure shall be automatically cancelled.”
The Constitutional Court, in its assessment of the Applicant’s claim that the on-site examination carried out by the Board was contrary to the Constitution;
The concept of residence in Article 21 of the Constitution also includes workplaces; in this context, the office where a person carries out his profession, the registered headquarters where the activities of a company operated by a private person are carried out, the registered headquarters, branches and other workplaces of legal entities can be considered within this scope, but the public and public areas of workplaces that do not contain a private element may not be considered within the scope of residence,
Pursuant to Article 15 of Law No. 4054, the Board conducted an on-site inspection at the workplace and interfered with the right to residential immunity by obtaining documents from the computers of the Company officials,
One of the criteria for the limitation of rights and freedoms in Article 13 of the Constitution is compliance with the words of the Constitution and pursuant to Article 21 of the Constitution, no one’s residence may be entered, searched or seized without a duly issued judge’s decision; however, in cases of delay, the written order of the authority authorised by law may be deemed sufficient and even in these cases, it is stipulated that the decision of the relevant competent authority must be submitted to the approval of the judge in charge within twenty-four hours,
Article 15 of the Law No. 4054 stipulates that the on-site examination can be carried out by the Board’s decision, and that the regulation is contrary to Article 21 of the Constitution, since it is not exclusive to the cases that are inconvenient in case of delay as stipulated in Article 21 of the Constitution,
In Article 15 of the Law No. 4054, it has been determined that the ability of competition experts to conduct on-site examinations is not subject to a judge’s decision as a rule, therefore, competition experts are authorised to enter areas deemed as residential areas without a judge’s decision, which is contrary to the guarantee in Article 21 of the Constitution.
In line with the above-mentioned explanations, the Constitutional Court concluded that the interference with the Applicant’s right to inviolability of residence constituted a violation of the second sentence of the first paragraph of Article 21 of the Constitution and violated the right to inviolability of residence.
In its assessment of the Applicant’s allegation that the time periods stipulated by law were not complied with in the preliminary investigation phases;
The proceedings are related to an administrative fine, the criminal process subject to the application has a general effect that is binding for everyone, it is carried out by a public authority using public power, the process has a punitive and deterrent purpose, and considering the amount of the fine, the sanction should be considered as a criminal charge in the context of the right to a fair trial,
In assessing the reasonableness of the duration of criminal proceedings, the complexity and number of levels of the proceedings, the behaviour of the parties and the relevant authorities during the proceedings and the nature of the interest in the expeditious conclusion of the proceedings are taken into account,
For these reasons, in the concrete case, it was concluded that the period of 9 years, 10 months and 26 days between 24.06.2009, when the second preliminary investigation period was initiated against the Applicant, and 20.05.2019, when the administrative judgement was finalised, was not reasonable.
In line with the above-mentioned explanations, the Constitutional Court decided that the right to be tried within a reasonable time within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution was also violated.
GRC LEGAL Comment
The relevant decision is of great importance due to both the definition of the concept of dwelling and the fact that the examinations carried out by the Board in places other than public and public areas of workplaces without a judge’s decision are considered within the scope of violation of the right to inviolability of dwelling.
With this decision, how on-site inspections will be carried out and how they will be implemented from now on, how the relevant decision will affect the on-site inspections to be carried out by other regulatory and supervisory authorities, and how these inspections will be evaluated,
For example, many questions such as whether the right to privacy, the right to property or other rights will be violated in addition to the rights in the relevant decision in an on-site inspection carried out by other authorities of the same quality, and finally, with the amendment made in Article 79 of the Execution and Bankruptcy Law No. 2004, many questions such as whether the approval of the execution court will be obtained in order to carry out the seizure process in areas outside the public and public areas of the workplaces that do not contain an intimate element, since the approval of the execution court is required for the seizure process to be carried out in the residence.
As these and similar examples are experienced, the Constitutional Court Decision discussed in this study will be the subject of frequent discussions and it will be expected that the case law will be settled in the established order.
