New Development
The Turkish Constitutional Court (“Court“) concluded, inter alia, that an applicant’s right to residential immunity was violated due to the lack of a judge’s decision prior to the on-site inspection conducted by the Turkish Competition Authority (“TCA“) in its individual application judgment (“Judgment“),[1] published in the Official Gazette on 20 June 2023. The Judgment may prompt different opinions both in terms of the current processes and the upcoming on-site inspections to be carried out by the TCA.
Assessments
In the present case, the applicant argued that pursuant to Art. 21 of the Turkish Constitution (“Constitution“), the right to residential immunity could only be interfered with by a judge’s decision and that the on-site inspection carried out by the TCA’s case-handlers at the applicant’s workplace did not provide adequate legal safeguards.
At the outset, the Court elaborated on the concept of residence and stated that the concept of residence is generally defined as a physically designated place where private and family life flourishes and underlined that the concept of residence also encompasses workplaces. In this regard, the Court pointed out that the office where a person pursues their occupation, the registered headquarters where the activities of a company operated by a person are carried out, and the registered headquarters, branches and other workplaces of legal entities could also be considered under such scope. Explaining that the concept of warrant search is a protective measure carried out to prevent crime in such a way that some fundamental rights of individuals are restricted, the Court emphasized that protective measures are, as a principle, measures that require a judge’s decision.
The Court stated that the on-site inspection procedures, regulated under Art. 15 of the Law No. 4054 on the Protection of Competition (“Law No. 4054“), are generally carried out at the headquarters, branches and premises where the undertaking conducts its administrative affairs. According to the Court, there is no doubt that the premises where the undertakings carry out their administrative affairs and areas such as offices, which are not freely accessible to the public, are deemed to be residential premises.
In the relevant case, the TCA’s case handlers conducted an on-site inspection at the applicant’s workplace. As a result of the on-site inspection, the TCA’s case handlers obtained 78 documents consisting of emails seized from the computers of the undertaking’s employees. The Court stated that the on-site inspection at the applicant’s workplace constituted an interference with the right to residential immunity, as the relevant documents were obtained from the computers of the undertaking’s employees.
After noting that the on-site inspection at the applicant’s workplace constituted an interference with the right to residential immunity, the Court analyzed whether the relevant interference amounted to a violation of the Constitution. The Court stated that, pursuant to Art. 13 of the Constitution, restrictions on fundamental rights and freedoms cannot be contrary to the wording of the Constitution and underlined that the Court will also assess whether the interventions by the public authorities utilizing public power on fundamental rights or freedoms conform with the wording of the Constitution, if appropriate to the particular case.
The Court stated that the on-site inspections of the TCA’s case handlers are not, in principle, subject to a judge’s decision, and underlined that these on-site inspections are mostly conducted in the headquarters, branches and premises of the undertakings, which are deemed to be residential premises. Law No. 4054, on the other hand, allows case handlers to conduct on-site inspections without a prior judge’s decision. The relevant provision stipulates that the judge’s decision is only required in cases where the on-site inspection is obstructed or there is a possibility of obstruction.
In this context, the Court stated that the protection of the right to residential immunity set out in Art. 21 of the Constitution covers all cases where public officials attempt to intrude into the residences of individuals without their consent, and ruled that the provision requiring a judge’s decision only in cases where the on-site inspection is obstructed or there is a possibility of being obstructed is contrary to the protection set out in the Constitution. The Court also pointed out that according to Art. 21 of the Constitution, the decision of an authority powered by law may be considered sufficient instead of a decision of a judge only in cases where there is an imminent delay; however, the Court stated that the provision that does not make the on-site inspection by decision of the Turkish Competition Board (“TCB”) exclusive to cases where there is an imminent delay is not compatible with Art. 21 of the Constitution.
Moreover, even if it is accepted that the TCB’s decision to conduct an on-site inspection is limited to cases where there is an imminent delay, the Court also points out that the absence of the obligation to submit the TCB’s decision for the approval of a judge within 24 hours is not compatible with the safeguard in Art. 21 of the Constitution.
In the present case, the Court concluded that the interference with the applicant’s right to residential immunity was contrary to Art. 21 of the Constitution and as a result, the right to residential immunity was violated. However, as the applicant did not request compensation, the Court did not make a ruling in this respect.
In addition to the assessment regarding the violation of the right to residential immunity, the Court also concluded that the period of 9 years, 10 months and 26 days between 24 June 2009, the date of the second preliminary investigation, and 20 May 2019, the date of the final decision, cannot be considered as a reasonable length of trial, and, therefore, the right to be heard within a reasonable time, which is covered by the principle of the right to a fair trial, was also violated. The Court did not accept the applicant’s arguments regarding the right to property, discrimination based on the right to property, ne bis in idem and the violation of the right of access to the court.
Lastly, in the Court’s previous judgment[2] published in the Official Gazette dated 30 March 2023, which is also related to privacy and protection of personal life, the Court examined the argument that the provision— “(the TCB) take copies and physical samples” — in Art. 15 of Law No. 4054 within the scope of the amendments made on 16 June 2020 is contrary to Arts. 2, 13, 20, 35 and 90 of the Constitution and stated that the relevant provision meets the condition of legality, that the relevant provision is legitimate in the context of the duties entrusted to the state under Art. 167 of the Constitution, that there is no aspect contrary to the democratic social order.
Even though the assessment of the Court here is just limited to the phrase of “taking copies and physical samples” and does not provide insights regarding the examination powers of the TCB on books, all types of data and documents of undertakings and associations of undertakings kept on physical or electronic media and in information systems, these two decisions indicate that provisions and practices regarding constitutional safeguards in the context of the protection of the right to privacy, Article 20 in and 21 of the Constitution, may be construed differently.
Conclusion
The implications of the Judgment, which ruled that conducting on-site inspections without adequate safeguards in the context of residential immunity, in other words, without obtaining a judge’s decision, constitutes a violation of rights, on competition law practices and judicial decisions are still uncertain.
[1] Turkish Constitutional Court, Constitutional Complaint No: 2019/40991, T. 23 March 2022.
[2] Turkish Constitutional Court, E. 2020/67 K. 2022/139, T. 09.11.2022.
