Constitutionality Review

The impugned Law no. 7071 entered into force after the approval by the Grand National Assembly of Turkey of the Decree no. 678 issued under the state of emergency. The applicability of the impugned provisions is not restricted to the state of emergency period. Thus, these provisions are of a nature allowing for general regulations going beyond the state of emergency period. For this reason, Article 15 of the Constitution, which regulates the restriction of fundamental rights and freedoms during the state of emergency, is not applicable in the constitutionality review of these provisions.

A. Provision stipulating that the real and legal persons reported to have connections and relations with terrorist organizations cannot participate in public tenders. 

Contested Provision

The contested provision stipulates that the real and legal persons reported by the General Directorate of Security and the Undersecretariat of the National Intelligence Agency to have connections and relations with terrorist organizations cannot participate in public tenders. 

Ground for the Request for Annulment

It was maintained in brief; that banning the real and legal persons from participating in public tenders constituted an interference with the freedom of contract; that the contents of the terms “connection and relation” were unclear and unpredictable; and that imposition of such a measure in the absence of a main legal arrangement, but relying on sub-arrangements, would amount to the delegation of the legislative prerogative. In this regard, it was argued that the impugned provision was unconstitutional.

The Court’s Assessment

The impugned provision restricts the freedom of labour and contract. This restriction is envisaged for national security reasons, by the nature of the process, in terms of the participation in public tenders, and therefore it pursues a legitimate aim.

In addition, as frequently emphasized by the Constitutional Court, it is not sufficient for a law restricting fundamental rights to exist in form; the legal provisions should also be precise, accessible and foreseeable, thereby preventing any arbitrariness.

The impugned provision stipulates that the real and legal persons having connections and relations with terrorist organizations cannot participate in public tenders. The phrases “connection” and “relation” are general concepts; however, they cannot be said to be categorically ambiguous and unpredictable, for the reasons specified in the Constitutional Court's decision no. E.2018/89.

The provision prescribing the individuals’ inability to participate in public tenders due to their acts and situations that may pose a threat to the national security is an administrative measure introduced by the legislator.

 However, the ability for resorting to administrative measures does not necessarily mean having unlimited power in terms of these measures. The impugned provision relies on the notification to be made by the General Directorate of Security and the National Intelligence Agency; therefore, in the presence of such a notification, the individuals concerned shall automatically be banned from participating in public tenders or disqualified from tender. Such a decision is not limited to a certain period of time. In addition, it is understood that the impugned provision may limit the effectiveness of a judicial review on this matter. In other words, as regards the judicial review of the relevant administrative act, it provides an authority to review only whether there has been any notification by the relevant law-enforcement unit that the real and legal persons who will participate in the tender have connections and relations with terrorist organizations.

The notification to be made by the General Directorate of Security and the National Intelligence Agency are not necessarily required to be predicated upon the information and documents that may form a basis for the criminal investigation. In other words, it is highly probable that the facts taken as the basis for the assessment to be made in this respect are of intelligence value. Therefore, the judicial review of the actions to be taken by the administrations carrying out public tenders becomes much more important. As a result of the fact that the assessments to be made by the security institutions, which are not obliged to rely on information and documents that might be taken as a basis for criminal investigation, will have automatic results, the administrations and the courts that should in fact review the relevant administrative action will be denied to make an assessment as to whether the real and legal persons concerned have connections or relations with the terrorist organizations. Thus, the possibility of verifying such notifications and taking the proper administrative action is significantly restricted.

The impugned Law does not provide any legal safeguards ensuring the exercise of the relevant authority in compliance with its legislative intent and preventing any potential arbitrariness in this respect. 

Considering the consequences of the impugned regulation, which is not limited to a certain period of time and which does not, as a rule, give the administrations carrying out public tenders and the courts that will review such actions the opportunity to make an assessment in this regard, it has been concluded that there has been a disproportionate restriction on the freedom of labour and contract.

The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 48 of the Constitution and therefore annulled it.

B. Provision allowing for the postponement of a legal strike or lockout

Contested Provision

The contested provision stipulates that a legal strike or lockout in mass transportation and banking services, which has been decided or already started but is disrupting the economic and financial stability, may be postponed for a period of 60 days. 

Ground for the Request for Annulment

It was maintained in brief; that the contested provision imposed an excessive and disproportionate restriction on the right to strike, which was in breach of the order of the democratic society as well as the international instruments; that the executive organ was vested with an authority that could only been enjoyed by the judiciary; and that the right to strike could be restricted only in vital or essential public services, but that the services set forth in the relevant provision were not of that nature. In this regard, it was argued that the impugned provision was unconstitutional.

The Court’s Assessment

The impugned provision restricts the right to strike by allowing for the postponement of a legal strike or lockout which has been decided or already started. Any restriction on the right to strike, which is an important right in terms of the functioning of democracy, must pursue a pressing social need.

Strike or lockout may be prohibited or postponed in cases where the safety of life or health of the whole or part of the population will get into danger if the relevant work or service is suspended, in other words, where the work subject of the strike or lockout is among the vital and essential services.

Mass transportation and banking services are not among the vital or essential public services classified by the International Labour Organization.

It is always possible that a strike in banking services may affect the economic and financial stability to a certain extent. In a sector that cannot be considered as an essential service in a democratic society, restriction of the right to strike, which is enshrined in the Constitution, due to financial concerns is unacceptable. In cases where the right to strike is not ensured, freedom of association as well as the right to collective bargaining will make no sense.

Therefore, the restriction prescribed in the impugned provision, stipulating that a legal strike or lockout in mass transportation and banking services that are not of vital nature for the society, which has been decided or already started, may be postponed, does not comply with the requirements of the order of the democratic society. 

The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 54 of the Constitution and therefore annulled it.