Constitutionality Review

Contested Provisions

In the contested provisions, it is stipulated that those who are in relation or connection with any terrorist organization cannot become a notary public, arbitrator and expert.

Ground for the Request for Annulment

It was maintained in brief that the terms, relation and connection, were by their very nature uncertain and unpredictable; that the application of the contested provisions was not limited only to the duration of the state of emergency, but they were of permanent nature; and that they constituted an interference with the right to hold public office, which was incompatible with the criteria set for the restriction of the fundamental rights and freedoms. Therefore, the contested provisions were alleged to be unconstitutional.

The Court’s Assessment

The contested provisions are undoubtedly statutory arrangements intended for elimination of the threats and dangers giving rise to the declaration of the state of emergency. However, as the application of the contested provisions is not limited only to the duration of the state of emergency, they were dealt with according to the review regime prescribed by the Constitution for the provisions of ordinary period.

In Article 70 of the Constitution, where the right to hold public office is enshrined, it is set forth that no criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service. The statutory arrangements restring this right must pursue the aims of restriction prescribed in the Constitution, must be introduced by law and be proportionate.

The contested provisions set the condition, inter alia, of having no connection or relation with any terrorist organization for becoming a notary public, arbitrator and expert.

Notary office is a public service whereby legal deeds are certified so as to ensure legal certainty and avoid conflicts. The importance attached to performance of this service by individuals who have no link with any terrorist organization for achieving legal certainty and public interest is undoubtedly clear. In this regard, the condition “having no connection or relation with any terrorist organization”, which is sought for becoming a notary public, is one of the qualifications for the office itself. It has been accordingly concluded that the restriction imposed by the contested provision pursues the aim of restriction specified in Article 70 of the Constitution.

The term “connection” included in the provisions means cohesion, union and link while the term “relation” means related. These terms are of general nature but cannot be said to be uncertain and unpredictable. Legal nature and objective meaning of these terms may be ascertained through judicial case-law. 

Pursuant to the contested provisions, any link with a sufficient factual basis, which would justify the impugned prohibition to hold these public offices, are to be considered as relation and connection. Undoubtedly, such assessment will be limited only to an inquiry as to whether an individual is qualified to be appointed to these public offices, irrespective of any criminal liability in this respect. This assessment will be conducted by the Ministry competent to make appointments to the notary office. In making such an assessment, the Ministry will freely take into consideration all facts, information and findings, not being bound by the reports made to it.

Besides, as having connection or relation with any terrorist organization, which is prescribed in the contested provisions, may arise in different terms in every individual case, such circumstances cannot be expected to be pre-determined by the legislator and specified individually in the law. As a matter of fact, laws are formulated in a general and abstract fashion so as to embody all possible types of solutions that may vary according to the particular circumstances of every concrete case. In this sense, the contested provisions are in no aspect contrary to the constitutional provision which stipulates that the fundamental rights and freedoms be restricted by law.

It is also possible to bring an action in case of any dispute resulting from the application of the contested provisions, which are clearly appropriate and necessary for achieving the aims of legal certainty and public interest. In this sense, they do not introduce any restriction with respect to the right to have recourse to judicial remedies. There is no obstacle before the individuals, who have recourse to judicial remedy for having no connection and relation with any terrorist organization and whose claim is found justified, to hold these offices. It has been observed that as the Law provides a legal safeguard to prevent the arbitrary application of the provisions, the reasonable balance between the public interest involved in the aims pursued by the provisions and the individual’s right to hold public office has not been upset. In this respect, it has been concluded that the contested provisions imposing restriction on the said right have not led to any incommensurate interference and do not therefore impose a disproportionate restriction on it.

Pursuant to the other contested provision, a restriction has been imposed on the right to work by stipulating that those who would be registered in the arbitration system, in other words who would perform arbitration services, must not have any connection or relation with terrorist organizations. This right may be restricted in order to achieve the aim of public interest by ensuring that all legal acts and actions be performed in an accurate, impartial and credible manner.

Arbitration is a procedure where the arbitrator is liable to equally and impartially perform the duty, where the letter signed by the parties if they reach a settlement at the end of the negotiations is considered as a verdict and recourse to which is prescribed as a cause of action in certain cases. Given these characteristics, the requirement that the arbitration procedure be conducted by those who have no link with terrorist organizations is clearly intended for attaining the public interest. In this sense, the provision cannot be considered neither inappropriate nor unnecessary. Besides, nor is it contrary to the proportionality requirement on the same grounds as those applied to the provision concerning notary office. 

Expertise is a procedure where experts are asked by judges to provide information and assist the judges in reaching a decision in cases which require special and technical information to assess the facts and are entitled to put questions directly to the witnesses or the accused upon the judge’s permission and to examine any kind of information and documents within the case-file. The experts entrusted these powers and undertaking important roles in performance of judicial services are entitled to take part in the trial, which is a public service, and contribute to the functioning of the judicial process. 

In this respect, it has been understood that the contested provision requiring the expertise services to be performed by individuals who have no link with any terrorist organization is intended for achieving the public interest by ensuring that the public service be conducted in an accurate, impartial and credible manner. It has been accordingly concluded that the restriction imposed by the provision with respect to the experts is in no aspect contrary to the test of appropriateness, necessity or proportionality.

Consequently, the Court has found the contested provisions unconstitutional and accordingly dismissed the request for their annulment.