Individual Application

The Facts

The applicants’ passports were cancelled pursuant to the Decree Law no. 667 on Measures to be Taken under the State of Emergency (Decree Law no. 667) and Law no. 6749, which prescribes that the passports possessed by those who have been considered to have relation and connection with a terrorist organisation shall be cancelled as a general measure, and they were not granted a regular passport despite their demands.

The applicants’ respective challenges before the administrative courts against the cancellation of their passports were rejected. Upon the applicants’ subsequent appeals, the regional administrative courts dismissed their appeals, stating that the decisions issued by the inferior courts complied with the law and procedure.

The Applicants’ Allegations

The applicants claimed that their right to respect for private life had been violated for cancellation of their passports.

The Court’s Assessment

It has been understood that the applicants had close professional and personal ties with the country to which they wanted to go and that therefore the denial to issue them a passport affected their private life. In consideration of this situation, it has been concluded that the measures taken, namely the cancellation of the passports and the rejection of the request for regular passports, constituted an interference with the right to respect for private life enshrined in Article 20 of the Constitution.

The impugned interference would be in breach of the guarantees afforded to the applicants under Articles 13 and 20 of the Constitution, if applied during ordinary period; however, whether it constituted a legitimate measure during the state of emergency period should be addressed under Article 15 of the Constitution, whereby the suspension and restriction of fundamental rights and freedoms in times of emergency is regulated.

Pursuant to Article 15 of the Constitution, in times of war, mobilization or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken. However, this provision should not necessarily be interpreted as granting unlimited powers to the public authorities. The measures that are contrary to the safeguards enshrined in other constitutional provisions shall not set aside the rights and freedoms laid down in Article 15 § 2 of the Constitution, not violate the obligations arising from international law and be to the extent required by the exigencies of the situation.

The right to respect for private life is not among the inviolable core rights enumerated in Article 15 § 2 of the Constitution, that is to say, it may be suspended in times of war, mobilization or a state of emergency. It is therefore possible to take measures regarding this right, during the state of emergency, contrary to the safeguards enshrined in the Constitution.

Accordingly, in the present cases, it should be determined whether the cancellation of the applicants’ passports was a measure to the extent required by the exigencies of the situation under Article 15 of the Constitution. Undoubtedly, in this determination, the circumstances causing the declaration of the state of emergency in our country and the conditions that emerged after such declaration and changed within the process, as well as the particular circumstances of the present cases and the applicants’ attitude will also be considered.

As regards the applicant Onur Can Taştan

It has been observed that there was no criminal investigation or prosecution conducted against the applicant, nor was there a court decision prescribing a ban on his travel abroad, for his alleged affiliation with a terrorist organisation and thus having been involved in activities posing a threat to the national security. It has therefore been understood that the impugned measure was solely based on an administrative act.

Besides, in view of the decision issued by the inferior court, it has also been observed that the incumbent court confined itself to the ground submitted by the administration for cancelling the applicant’s special passport and failed to elaborate the grounds for rejection of the applicant’s request for a regular passport, in consideration of his particular circumstances.

In addition, the applicant’s special passport was cancelled on 18 August 2016; his request of 3 March 2017 for a regular passport was dismissed; and he could obtain a regular passport on 7 February 2020. In this regard, given that there was no criminal investigation or prosecution initiated against the applicant or a court decision precluding his travel abroad, the impugned measure was applied for a long time based on an administrative act.

Application of Article 15 of the Constitution

In the circumstances of the case, it should be underlined that no criminal investigation was launched against the applicant for his alleged involvement in the coup attempt or affiliation with the Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY) staging the coup attempt or any other terrorist organisation. For this reason, the aim pursued by the impugned acts against the applicant cannot be said to prevent his fleeing abroad so as to preclude him from rendering the investigation and prosecution processes ineffective. The only measure applied with respect to the applicant was his dismissal from the public service under a Decree Law issued during the state of emergency.

Restriction of entry to and exit from the country for a definite period of time, during the state of emergency, in respect of those suspected of having links with certain formations or groups posing a threat to the national security may be considered legitimate; however, such a measure should not be applicable for an indefinite period of time, and the process of getting a passport should not be rendered indefinite.

In this sense, regard also being had to the adverse effect of the impugned measure on the applicant’s private life, it has been considered that the obligations incumbent on the state especially in terms of the proceedings should also be fulfilled under the state of emergency. It has therefore been concluded that the applicant’s having been denied to obtain a regular passport, as a measure, continued for an indefinite period of time based on an administrative act and regardless of his particular circumstances, which was neither compulsory nor proportionate.

Hence, Article 15 of the Constitution, whereby the suspension and restriction of the exercise of fundamental rights and freedoms during the state of emergency is regulated, did not justify the impugned interference with the right to respect for private life -namely cancellation of the applicant’s passport and his deprival of the opportunity to obtain a passport for a long time- which was incompatible with the safeguards enshrined in Articles 13 and 20 of the Constitution.

Consequently, the Court has found a violation of the right to respect for private life.

As regards the applicant Yağmur Erşan

It has been observed that cancellation of the applicant’s passport as a measure was based on a criminal investigation conducted against her and the aim pursued through the said measure was to ensure the effective conduct of the investigation process.

Besides, in view of the decision issued by the inferior court, it has also been observed that the incumbent court confined itself to the general reason submitted by the administration for cancelling the applicant’s passport, that no further examination and assessment was carried out regarding the criminal investigation conducted against her, and that the grounds underlying the impugned administrative acts against the applicant were not elaborated in view of her particular circumstances. Therefore, it can be said that the measure taken against the applicant was not proven to be proportionate in a democratic society, also given her close personal ties with the country she wanted to go.

Application of Article 15 of the Constitution

In the present case, there was an ongoing investigation conducted against the applicant for her alleged membership of the FETÖ/PDY. Accordingly, the investigation authorities reached certain data indicating that the applicant had used the ByLock application, a program designed exclusively for the members of the said terrorist organisation to enable the organisational communication. In addition, the reply letter submitted by the administration to the court clearly stated that the impugned administrative acts constituted the measures taken so as to ensure the effective conduct of the criminal investigations under the state of emergency. Thus, in consideration of the applicant’s situation and attitude during the investigation process, it can be said that the measures intended to prevent the applicant’s fleeing abroad should be considered legitimate under the state of emergency.

Besides, the administrative acts regarding the cancellation of the applicant’s special passport and dismissal of her request for a regular passport were performed on the same grounds and in accordance with the same legislation during the state of emergency; her allegations were mainly related to the grounds of the administrative acts; and the applicant did not make any explanation nor did she submit documents regarding the subsequent process.

It has been understood that the court reached a conclusion by considering the relevant legislation, the findings specified in the administration's reply letter, the conditions of the state of emergency and the aforementioned measure as a reasonable way to maintain public order and security in terms of the fight against terrorist organizations. In this regard, it has been considered that the cancellation of the applicant's passport was a measure to the extent required by the exigencies of the situation under the conditions of the state of emergency.

Thus, it has been concluded that the impugned interference with the applicant’s right to respect for private life, which was incompatible with the safeguards enshrined in Articles 13 and 20 of the Constitution, complied with the criteria laid down in Article 15 of the Constitution allowing for the suspension and restriction of the exercise of fundamental rights and freedoms during the state of emergency.

Consequently, the Court has found no violation of the right to respect for private life.