In its decision dated 23.03.2023, published in the Official Gazette dated 20.06.2023, the Constitutional Court ruled that the right to inviolability of residence guaranteed under Article 21 of the Constitution was violated in terms of the on-site inspection conducted by the Competition Board (¨Competition Board¨) in the concrete case. In the Constitutional Court’s decision, it was decided that the reason for the violation in question was that the on-site inspection authority granted by the Law No. 4054 on the Protection of Competition (¨RKHK¨) was not in compliance with the guarantees stipulated in the first paragraph of Article 21 of the Constitution.
- Case Summary
The Competition Board decided to conduct a preliminary investigation to determine whether certain economic operators, including the applicant operating in the automotive market, violated the provisions of the LPCL. Pursuant to this decision, competition experts authorized to conduct a preliminary investigation conducted an on-site investigation at the applicant’s address. During the examination, documents consisting of electronic mails obtained from the computer of the company personnel were received. The report prepared as a result of the preliminary investigation recommended the opening of an investigation and the Board decided to open an investigation against the undertakings, including the applicant.
In the report prepared as a result of the investigation conducted by the Board rapporteurs, it was concluded that the economic operators, including the applicant, violated Article 4 of the CPL and it was recommended that administrative fines be imposed on the undertakings in question. The Board decided to impose an administrative fine on the applicant.
Upon this decision, the applicant filed a lawsuit for the annulment of the administrative fine and the regulation on which the fine was based, but the 13th Chamber of the Council of State dismissed the lawsuit. Based on this decision, the applicant appealed to the legal remedy of appeal, but the Council of Administrative Chambers of the Council of State upheld the decision of the Chamber.
Following this decision, the applicant applied to the Constitutional Court with the claim that certain of his rights were violated.
- Allegations Subject to the Application
The applicant summarized;
- The inspection at the workplace was unlawful, thus violating the right to residential immunity,
- Administrative fines were imposed on the grounds of anti-competitive behavior, thus violating the right to property,
- The export turnover of other economic operators was not taken into account in determining the amount of the fine, whereas the applicant’s export turnover was taken into account, thus violating the prohibition of discrimination,
- The same act was investigated a second time, thus violating the principle of non-retrial and non-punishment,
- Violation of the right to a trial within a reasonable time due to the long duration of the proceedings,
- The law, which entered into force while the proceedings were in progress, abolished the decision revision stage, thus violating the right of access to the court,
He claimed that a number of rights and principles were violated.
- Constitutional Court Review and Reasons
- Regarding the Allegation of Violation of the Right to Housing Immunity
In its decision, the Constitutional Court referred to Article 21 of the Constitution titled “Immunity of residence” and stated that the applicant’s allegations regarding the violation of the inviolability of residence were admissible.
The relevant article reads as follows:
“No one’s residence may be touched. No one’s residence may be entered, searched or seized unless there is a duly issued judge’s decision based on one or more of the following reasons: national security, public order, prevention of crime, protection of public health and morals or protection of the rights and freedoms of others; and in cases where delay is inconvenient due to these reasons, unless there is a written order of an authority authorized by law. The decision of the competent authority shall be submitted to the approval of the judge in charge within twenty-four hours. The judge shall announce his decision within forty-eight hours of the seizure; otherwise, the seizure shall automatically cease.”
In its assessment, the Constitutional Court stated that the concept of “dwelling” is generally defined as a materially determined place where private and family life develops, and that the concept of dwelling also includes workplaces; in this context, the office where a person pursues his/her profession, the registered headquarters where the activities of a company operated by a private person are carried out, the registered headquarters, branches and other workplaces of legal entities can also be considered within this scope. However, it is also stated in the text of the decision that the public areas of the workplaces, which do not contain a private element, may not be considered within the scope of the concept of residence.
In the assessment made, it was stated that considering the powers listed in Article 15 of the OPCL, it is understood that on-site inspection is an activity carried out in the headquarters, branches and facilities where the undertaking carries out its management activities, and that there is no hesitation that the parts where the management activities of the undertakings are carried out and the areas such as workrooms, which are not freely accessible to everyone, will be considered as dwellings.
The decision states that the examination subject to the concrete case was conducted by competition experts at the applicant’s workplace pursuant to Article 15 of the OPCL. It is stated that the on-site examination referred to in the aforementioned article refers to the on-site examination of the Board officials by visiting the workplaces of undertakings or associations of undertakings, and within this scope, the Board officials may examine the books, all kinds of data and documents kept in physical and electronic media and information systems of the undertaking, take copies and physical samples of them, request written or oral explanations on certain issues, and conduct on-site examinations regarding all kinds of assets of the undertakings. However, as stated above, it was emphasized in the decision that there is no doubt that the parts of the undertakings where the administrative affairs of the undertakings are carried out and the areas such as workrooms, which are not freely accessible to everyone, are considered as residences, and considering the fact that documents were obtained from the computers of the company officials, it was concluded that the examination carried out at the applicant’s workplace constituted an interference with the right to residential immunity.
- Constitutional Violation and Grounds for Violation in Respect of Article 15 of the Law No. 4054 on the Protection of Competition
In the continuation of the decision, a reference was made to the second sentence of the first paragraph of Article 21 of the Constitution, and it was stated that no one’s residence may be entered, searched or seized without a duly issued judge’s decision, and in cases of delay, the written order of the authority authorized by law may be deemed sufficient instead of a direct judge’s decision.
In this respect, the Constitutional Court evaluated Article 15 of the Law No. 4054 in terms of the concrete case in which the on-site inspection was carried out at the applicant’s workplace without the need for a judge’s decision, since there was no attempt to prevent the applicant from conducting the on-site inspection, and concluded that according to Article 15, it is understood that the on-site inspection can be carried out by the Board’s decision, but the regulation that does not limit the on-site inspection by the Board’s order to cases where there are inconveniences in delay is not in compliance with Article 21 of the Constitution.
In the decision, it is stated that it is clear that this practice, which is understood to be in compliance with Article 15 of the OPCL, violates the guarantee in the second sentence of the first paragraph of Article 21 of the Constitution, and that the violation arises from the fact that the on-site inspection authority in the relevant provisions of the OPCL is not regulated in accordance with the guarantees in the first paragraph of Article 21 of the Constitution.
- Regarding the Allegation of Violation of the Right to Property
In its assessment of the applicant’s allegations of violation of the applicant’s right to property, the Constitutional Court stated that since the imposition of an administrative fine will undoubtedly lead to a decrease in the applicant’s assets, this money constitutes property for the applicant, in this respect, it is clear that the imposition of an administrative fine on the applicant on the grounds that it violates Article 4 of the RKHK in the concrete case constitutes an interference with the right to property. Stating that the right to property is not regulated as an unlimited right in Article 35 of the Constitution, the Constitutional Court stated that this right may be restricted for public interest purposes and by law; therefore, in order for the interference with the right to property to be in compliance with the Constitution, the interference must be based on the law, have a public interest purpose and be made by observing the principle of proportionality.
In its assessment, the Constitutional Court stated that the penalty imposed on the applicant was based on an accessible, specific and foreseeable law and the intervention had a legal basis, the legal regulations that were the basis of the administrative fine imposed on the applicant aimed to protect competition, and sanctioning the sharing of information on the price strategy that had the potential to distort competition was conducive to achieving the purpose of protecting competition, Considering the weight of the public interest in protecting the consumer and competition, it was concluded that the interference with the right to property by imposing an administrative fine of nine per thousand of the applicant’s 2010 net income on the applicant, who was found to have participated in the agreement restricting competition, did not impose an excessive burden on the applicant and that the fine did not disrupt the fair balance between the public interest and the individual interest. The Court held that the right to property guaranteed under Article 35 of the Constitution was not violated.
- Regarding the Allegation of Violation of the Prohibition of Discrimination
In its assessment of the allegation of violation of the prohibition of discrimination, the Constitutional Court stated that when the third paragraph of Article 16 of the RKHK is examined carefully, it is foreseen that “annual gross income” is taken as the basis for determining the penalty to be imposed, thus there is no distinction between the types of gross income of the economic operators to whom the penalty is imposed, and that the only reason for the inclusion of foreign income in the penalty base of other economic operators is that they do not have foreign income.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the prohibition of discrimination in connection with the right to property was inadmissible as it was manifestly ill-founded.
- Regarding the Allegation of Violation of the Right to a Fair Trial
In its assessment of the applicant’s claim that his right to a fair trial was violated, the Constitutional Court stated that in the concrete case, it was understood that the second investigation was initiated on the basis of two new evidences that were not available during the previous investigation, that the principle of not being retried and punished for the same act, which is guaranteed under Article 36 of the Constitution, does not prevent the initiation of a new investigation in case new evidence is obtained regarding an act that resulted in a previous acquittal. Article 36 of the Constitution does not prevent the initiation of a new investigation in case new evidence is obtained in relation to an act that has previously resulted in acquittal, and the initiation of an investigation upon obtaining new evidence is accepted as an exception to the prohibition of double trial and investigation, therefore, it is understood that the re-investigation of the period after the special consumption tax discount is based on the reason for the presence of new evidence, which is one of the exceptions to the principle of not being tried and punished again for the same act.
Based on these reasons, the Constitutional Court ruled that the principle of not being retried and punished for the same act, which is guaranteed under Article 36 of the Constitution, has not been violated.
- Regarding the Allegation of Violation of the Right of Access to Court
In its decision, the Constitutional Court stated that the right of access to the court is an element of the freedom to seek rights guaranteed under Article 36 of the Constitution. is an element of the freedom to seek rights guaranteed in Article 6545, and that the legal existence of the remedy mechanism of decision correction in the administrative procedure has ended as of 28/6/2014, when Law No. 6545 entered into force, However, considering that the right of access to a court does not guarantee the right to take a legal remedy against a court decision, it was stated that the abolition of the remedy of rectification of judgment in the Turkish administrative procedure and making it current in the pending proceedings did not constitute an interference with the right of access to the court and since there was no interference with the applicant’s right of access to the court, it was decided that this part of the application was inadmissible due to manifest lack of grounds.
- Regarding the Allegation of Violation of the Right to a Reasonable Trial
In the Constitutional Court’s decision, in terms of the applicant’s claim that his right to be tried within a reasonable time has been violated; when determining the duration of criminal proceedings, the starting date of the period is the date when a person is notified by the competent authorities of the allegation that he has committed a crime or when certain measures such as search and detention are applied where the person is first affected by the allegation; It was stated that the date of the expiry of the period will be based on the date of the final decision regarding the criminal allegation and the date of the Constitutional Court’s decision on the complaint regarding the violation of the right to be tried within a reasonable period of time for the cases pending trial, and in the concrete case, it was concluded that the period of 9 years, 10 months and 26 days between 24/6/2009, when the second preliminary investigation process was initiated against the applicant, and 20/5/2019, when the administrative judicial process was finalized, was not reasonable.
In its decision, the Constitutional Court stated that there is no legal interest in ordering a retrial since the violation of the right to residential immunity is independent from the outcome of the trial, however, the legislative body has the discretion to review the legal provision that led to the violation in order to prevent similar new violations, and that a copy of the decision should be sent to the legislative body for information and appreciation in order to make regulations taking into account the constitutional principles mentioned in the text of the decision and to prevent similar violations.
- Conclusion
In light of the above-mentioned decision of the Constitutional Court, although the on-site investigation in the concrete case subject to the application was carried out in accordance with the competition law legislation, it was concluded that the relevant provision of Law No. 4054 is not in conformity with the Constitution. In this framework, considering that the Constitutional Court ruled that the decision should be communicated to the legislative body for the revision of the relevant provision of the OTRL, it is understood that the issue will be of greater importance in the upcoming period.
The full text of the relevant Constitutional Court decision is available here.
