Events
The applicant, while working as an examining judge at the Council of State, was dismissed from his profession by the Council of Judges and Prosecutors based on the Decree Law No. 667 on the Measures Taken within the Scope of the State of Emergency on the grounds that he was in contact or affiliation with the Fetullahist Terrorist Organisation; thereupon, he requested to be enrolled as a lawyer in the bar association’s register. This request was accepted by a decision of the Board of Directors of the Bar Association. The Board of Directors of the Union of Turkish Bar Associations (TBB) decided that this decision, which was submitted for review by the Union of Turkish Bar Associations (TBB), was appropriate. The decision in question was sent back to the UMT by the Ministry of Justice (the Ministry) for reconsideration.
The Board of Directors of the UMT insisted on its previous decision and decided to enrol the applicant on the bar register. The Ministry filed an action for annulment before the administrative court upon the finalisation of the TBB’s decision on the applicant’s re-enrolment in the bar register. The administrative court accepted the applicant’s request to intervene in the case and at the same time decided to suspend the execution of the action taken by the UMT. The objection against the said decision was rejected by the regional administrative court and the court ruled for the cancellation of the action. The appeal application of the UMT and the applicant was rejected by the regional administrative court.
Allegations
The applicant claimed that his right to respect for private life was violated due to the cancellation of the court’s decision regarding his enrolment in the bar register as a result of his dismissal from public service.
Assessment of the Court
In the concrete case, the court decided to annul the administrative act regarding the registration of the applicant to the bar association on two grounds. The first one is that the outcome of the criminal investigation should be awaited considering the nature and importance of the profession of lawyer, and the other one is that there is an ongoing prosecution against the applicant as of the date of the decision. First of all, in its Mehmet Çetinkaya and D.K. (B. No: 2018/27392, 15/4/2021) decision, the Constitutional Court emphasised that there is no regulation in the legislation that the existence of a criminal investigation against a person constitutes an obstacle to registration in the bar register, and that the courts subjected the regulations in the relevant legislation to an unreasonably expansive and unpredictable interpretation, and ruled that the intervention in the form of cancellation of registration in the bar register on the grounds that there is a criminal investigation against them does not have a legal basis. In the concrete case, there is no reason to depart from this conclusion in terms of the first ground of the court.
The second justification of the court has been examined separately in terms of the cancellation of the registration to the bar register. In this context, when Articles 5 and 8 of the Attorneyship Law No. 1136 are evaluated together, it is seen that a detailed regulation has been made regarding the authorities that will take the decision regarding the requests of those who are under criminal prosecution to be enrolled in the bar association and the appeal process. It has been understood that the legislator has left the authority to evaluate the requests for registration to the bar to the board of directors of the bar association at first hand, and that the TBB and then the Ministry are foreseen as the approval authority, and that the TBB may take an insistence decision with a qualified majority if the Ministry returns it for reconsideration. The final decision on acceptance or rejection reached by applying the aforementioned procedure may be reviewed by the administrative courts through appeal.
From this point of view, considering Article 5 of the Law No. 1136, it is clear that the legislator does not foresee a direct prohibition on those who are prosecuted for certain offences, but gives discretionary authority to the bar association and ultimately to the UMT as the approval authority. The aforementioned institutions should exercise their discretionary power by investigating whether the person requesting registration in the bar register has any impediment to practising as a lawyer, and evaluating the results of the investigation -if any, the nature of the prosecution- within the scope of the legislation.
Within the framework of these explanations, the aforementioned discretionary authority is a requirement of the fact that the bar associations and the UMT are professional organisations in the nature of public institutions, which are responsible and authorised in the development of the profession of lawyer, in ensuring the order and dignity of the profession, in determining the rules of the profession, and ultimately, that law is a free profession. Considering this situation, it has been assessed that the granting of discretionary power to the aforementioned professional organisations is intended to ensure a fair balance between the public interest and the interest of the person in being able to practice the profession of lawyer until the conclusion of the proceedings against him, taking into account the nature of the prosecution.
Administrative courts, on the other hand, have limited authority to review the final decision of the UMT (upon appeal). In annulment actions, it is a rule that the judicial review of the conformity of administrative acts with the law shall be carried out according to the situation at the time of the establishment of the acts in question. In this case, it can be said that the courts can examine whether the discretionary power of the BAT is used in accordance with the law by taking into account the conditions of the concrete event at the time when the administrative act subject to the annulment case was established, and that it is not possible to consider a situation that is understood to be out of the question for the BAT to evaluate at the decision-making stage and that has developed later in the objection examination, and that an interpretation to the contrary would render the discretionary power granted to the aforementioned professional organisation dysfunctional.
When the concrete case is evaluated within the framework of the explanations, it is clear that it is not possible for the Bar Association and the UMT to reject the applicant’s request for registration to the Bar on the grounds that there is a criminal investigation against the applicant, and a contrary decision would be devoid of legal basis.
In addition, although there was no prosecution against the applicant at the time of the administrative act, it has been observed that the court made a decision of cancellation considering the fact that the prosecution started against the applicant on 2/10/2018. Therefore, it has been observed that the court did not carry out judicial review of the administrative act by taking into account the situation at the time of its establishment, and made a direct decision regarding a situation that occurred later, in a way to prevent the exercise of the discretionary power granted to the professional organisation. In this case, there is no legal basis for the court to make a direct decision on a matter that did not exist at the time of the administrative act subject to the annulment action, based on a situation that developed later and within the scope of the discretionary power granted to professional associations.
As a result, it is understood that the court’s decision to annul the administrative act based on the criminal investigation and the fact that there was a criminal prosecution as of the date of the decision, despite the fact that there was no final conviction decision and criminal prosecution for crimes preventing the applicant from practising as a lawyer at the latest on the date of the TBB’s insistence decision, lacks a legal basis.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained.
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