The Turkish Constitutional Court’s (“TCC”) Decision No. 2020/67 (“Decision”) has been published in the Official Gazette dated 20.06.2023 and numbered 32148. The Decision includes the individual application regarding Article 15 of the Law on the Protection of Competition No. 4054 (“Law”).
With the Decision, it was stated that the Article 15 of the Law violated the right to the immunity of domicile, which is guaranteed under Article 21 of the Constitution of the Republic of Turkey.
In the individual application made by Ford Otomotiv Anonim Şirketi, it was claimed that the examination carried out at the workplace in accordance with Article 15 of the Law is in violation of the immunity of domicile. The TCC has made the following evaluations on this issue.
- Article 21 of the Constitution regulating the immunity of domicile is as follows:“The domicile of an individual shall not be violated. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on these grounds, no domicile may be entered or searched or the property seized therein…”·
- In Article 21 of the Constitution, it is stated that no one’s domicile can be entered, searched, and the property seized unless there is a court decision duly given. In the same paragraph, it is stated that in cases where delay is prejudicial, procedures such as search, seizure, and entry into the residence can be carried out if there is a written order given by an authorized officer.
- However, it was concluded by the TCC that this authority, which is given to the authorities outside the court in emergency situations by Article 15 of the Law, is not in accordance with the guarantee of the immunity of the domicile set forth in Article 21 of the Constitution.
- In the Decision, it was clarified that the management or working areas of private enterprises, where everyone cannot freely enter, will be considered as domicile within the scope of private property. In this respect, it has been stated that obtaining data from the computers of the company and the act of inspection carried out at the workplace are against the right to the immunity of the domicile.
- Therefore, it was considered that the examination carried out at the applicant’s workplace constituted an interference with his right to the immunity of his property, taking into account that documents were obtained from the computers of the company officials.
It has also been stated that the incident that is the subject of the application is contrary to the right to a fair trial of individuals and businesses and leads to an increase of unqualified evidence which interferes with the judicial process.
In the light of these evaluations, the TCC concluded that the concept of “domicile” also covers the private areas of workplaces and offices and concluded that the current wording in Article 15 of the Law violates the right to the immunity of domicile provided for individuals in Article 21 of the Constitution.
It should be noted that, due to the nature of the application, this decision will have consequences only for the applicant, Ford Otomotiv Anonim Şirketi. However, in order to remedy this contradiction, the TCC recommended to the Grand National Assembly of Turkey to introduce amendments to Article 15 of the Law.
You can reach the relevant decision from the link below.
https://www.resmigazete.gov.tr/eskiler/2023/06/20230620-5.pdf
