Individual Application

The Facts

The applicant, holding office as a public prosecutor, was dismissed from his public office following the coup attempt of 15 July by the decision of the High Council of Judges and Prosecutors on the basis of the Decree-Law no. 667. Following his dismissal from public office, the applicant filed a request with a Bar Association to enter on its registry. The Bar Association accepted the request and referred it for the consideration of the Union of Turkish Bar Associations (“the TBB”). The TBB approved the bar association’s decision. However, the Ministry of Justice (“the Ministry”) did not find the TBB’s decision appropriate and remitted it for re-consideration. Upholding its original decision, the TBB allowed for the applicant’s registration with the Bar Association. After the TBB’s decision had been finalised, the Ministry brought an action for annulment of the registration before the incumbent administrative court (“the court”) which ordered the stay of execution and also annulled the TBB’s decision. The TBB’s and the applicant’s appeals against the court’s decision were rejected.

On the other hand, a decision of non-prosecution was issued at the end of the criminal investigation conducted against the applicant.

The Applicant’s Allegations

The applicant maintained that his right to fair proceedings had been violated due to the unforeseeable interpretation of the relevant provisions in the action brought for the annulment of the applicant’s registration with the bar association.

The Court’s Assessment

In the present case, the action for annulment was brought due to the applicant’s registration with the Bar Association. The basic question to be resolved in this case is whether the applicant met the necessary conditions sought for practising as a lawyer.

In the court’s annulment decision, the applicant was found not to have satisfied the conditions sought for practising as a lawyer on the basis of the relevant provisions of the Decree-Law no. 667 (enacted through Law no. 6749) and this profession was considered to fall into the scope of the ban on holding a public office.

It is principally for the inferior courts to assess whether the relevant provision in Law no. 6749, which sets forth that those who have been dismissed from public office can no longer hold a public office, also covers the profession of lawyer. However, in cases where the inferior courts’ interpretation has been found to be manifestly unforeseeable or erroneous and where the procedural safeguards have thereby become dysfunctional, it is the Constitutional Court’s duty to assess the effects thereof.

Despite being defined as a public service in Article 1 of Law no. 1136, the profession of self-employed lawyer is not undoubtedly a public service in form. That is because the lawyers registered with a bar association, save for those practising this profession in public institutions and organisations, do not have any direct or indirect affiliation with the State. Lawyers have their own offices and they do not receive any instruction from the State in choosing their clients and conducting their actions but act of their own free will. Lawyers undertake all responsibilities resulting from their own acts and actions. They themselves enjoy the rights, and bear the obligations, resulting from the contracts signed between them and their clients. Their incomes are composed of counsel fees paid by their clients. The fees they will receive are designated through the contracts signed between them and their clients within the boundaries set in Law no. 1136.

Besides, in its decisions, the Court has stated that although the profession of lawyer is defined as a public service in the relevant law, lawyer is not indeed a public officer; and that the definition by the legislator of a self-employed profession as a public service would not render it a public service within the meaning of Article 70 of the Constitution.

It has been considered that in the present case, the court qualified every kind of the profession of lawyer, a self-employed practice, as a profession performed within an employment relationship, which is an incomprehensible interpretation straying from the substance of the law.  As a matter of fact, the employment relationship clearly requires working in an affiliated way. The grounds submitted by the court are not plausible to reach a conclusion to the contrary.

Moreover, seeking a relationship of confidence and trust between a self-employed lawyer and the State similar to that of the public officers is not reasonable within the democratic legal order established by the Constitution. Democracy, which is safeguarded by the Constitution and based on pluralism, rejects the understanding that requires a hierarchical relationship between the professional organisations -an element of civil society- as well as the professionals, and the State.

The broad interpretation by the public authorities of the provisions restricting rights and freedoms may lead to unforeseeable consequences for individuals, which is both contrary to the state of law and impairs the right to a fair trial.

In the Turkish constitutional system, it is the legislator that is vested with the power to introduce regulations imposing restrictions on rights and freedoms. Any interpretation and practice which extends the scope of a given law restricting a right or freedom may give rise to the imposition of a restriction, which has not indeed introduced by the legislator, by administrative and judicial authorities.

In the light of these explanations, the Court has considered that the conclusion to the effect that the applicant did not meet the necessary conditions to practise as a lawyer was reached as a result of the broad and unforeseeable interpretation of the relevant provision of law. Such interpretation rendered dysfunctional the procedural safeguards in the proceedings concerning the applicant’s civil right and played a decisive role in the court’s ruling against him. Therefore, it has been concluded that these factors undermined the fairness of the proceedings as a whole.  

Consequently, the Court has found a violation of the right to fair proceedings.