Events
The applicant, who is a lawyer, presented his professional identity card at the entrance of the courthouse, but despite being warned, he entered the courthouse without passing his bag through the X-Ray device. This was recorded by the officials and the Administrative Sanctions Office of the Chief Public Prosecutor’s Office decided to penalise the applicant with an administrative fine. The applicant’s objection to the aforementioned decision was rejected by the criminal court of peace.
Allegations
The applicant claimed that the right to respect for private life and the principle of legality in offences and punishment were violated due to the imposition of an administrative fine on him for not passing his bag through the X-Ray device at the entrance of the courthouse.
Court’s Assessment
1. Regarding the Allegation of Violation of the Right to Respect for Private Life
In the concrete case, the administrative fine imposed on the applicant was based on Article 32 of the Law No. 5326 on Misdemeanours. According to the aforementioned article, acting contrary to the order given by the competent authorities in accordance with the law due to judicial proceedings or for the protection of public security, public order or public health is considered a misdemeanour and an administrative fine is stipulated for this misdemeanour.
First of all, it should be noted that as long as the order given by the competent authority or the punishment of the behaviour contrary to this order does not constitute an interference with a constitutional right, the issue of whether the conditions for the application of the misdemeanour stipulated in the Law are present in the concrete case and what the elements of the misdemeanour should be in order to punish the misdemeanour of disobeying the order in Article 32 of Law No. 5326 is outside the field of interest of the Constitutional Court.
In the concrete case, it has been observed that the chief public prosecutor’s office has a written order to control the entrance and exit of the courthouse due to the terrorist incidents in the country, in order to control the entrance and exit of the courthouse, the lawyers, courthouse personnel and all persons entering and exiting the courthouse must pass through the sensitive door and their bags and belongings must be taken inside by passing through the X-Ray device. In its decision within the scope of norm review, the Constitutional Court stated that the general security control activity to be carried out on people’s clothes and belongings is different from the classical search, which is subject to special guarantee in the second paragraph of Article 20 of the Constitution (AYM, E.2018/137, K.2022/86, 30/6/2022, §§ 97-99). The applicant’s complaint that his bag was passed through the X-Ray device at the entrance of the courthouse or that he was subjected to such a coercion is not in question.
On the other hand, pursuant to Article 32 of Law No. 5326, it is clear that the administrative sanction decision can be issued by administrative units expressly authorised by law. However, in the concrete case, there is no legal provision stating that the chief public prosecutor’s office is authorised to issue administrative sanction decisions for the misdemeanour of breach of order. Moreover, in the decision of the judgeship, no evaluation was made regarding the existence of a previously announced order regulated by law and the determination of the behaviour of persons contrary to this order, which are among the elements required for the misdemeanour of contravening an order pursuant to Article 32 of Law No. 5326.
As a result, it has been concluded that the applicant did not meet the requirement of legality of the intervention since the applicant was punished with an administrative fine based on the interpretation of the public authorities without the elements of the misdemeanour of breach of order in the concrete case.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained.
2. Regarding the allegation that the principle of legality in crime and punishment has been violated
In the concrete case, since there is no legal regulation regarding the authority of the Attorney General’s Office to impose administrative sanctions within the scope of the right to respect for private life, a violation has been concluded. The findings regarding Article 32 of Law No. 5326 and the ability to impose sanctions under the said provision are also valid in terms of the principle of legality in crime and punishment.
For the reasons explained above, the Constitutional Court decided that the principle of legality in offence and punishment was violated.
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