A. Examination of the Sections Added to the First Sentence of the First Paragraph of Article 18 of the Law No. 6831
The rule subject to the lawsuit stipulates that the General Directorate of Forestry may grant permission for up to twenty-nine years for the establishment of forest plant nurseries in degraded forest areas, mushroom and medicinal aromatic plant cultivation, and the establishment of facilities for the processing of non-wood products produced from forest areas as finished or semi-finished products.
Although the rule subject to the lawsuit allows some activities to be carried out in degraded forest areas, there is no legal regulation on what should be understood by degraded forest areas. The conditions, basic principles and principles for determining where the degraded forest areas in the rule are located are not determined by law, and the authority to regulate this issue is used by the administration through the regulation.
A legal regulation for the determination of degraded forest areas is a requirement of the provision in the first paragraph of Article 169 of the Constitution stating that ‘The State shall make the necessary laws and take the necessary measures for the protection of forests and the expansion of their areas’. In this context, the criteria to prevent arbitrary intervention in forests must be clearly set forth by law. Without determining the aforementioned basic principles and legal framework in the law, allowing the establishment of forest plant nurseries, mushroom and medicinal aromatic plant cultivation, and the establishment of facilities for the processing of non-wood products produced in forest areas as finished or semi-finished products in degraded forest areas – determined by administrative action – is contrary to the aforementioned provision of the Constitution.
However, in accordance with Article 169 of the Constitution, it is essential that forests are managed as forests. On the other hand, allowing the buildings and facilities related to public services, which have priority in this context, to be located or constructed on state forests depends only on the existence of public interest and necessity. In this framework, the situations necessitated by the public interest must be determined by considering whether there is the possibility of realising the activity for which permission is requested outside the forest ecosystem.
On the contrary, the rule authorises the establishment of a facility for the purpose of processing non-wood products produced from forest areas as finished or semi-finished products without making any distinction between them and without considering whether the activity for which permission is requested is possible to be carried out outside the forest ecosystem. In this respect, it is not clear from the rule which public benefit or necessity is involved in the establishment of the facilities envisaged by the rule.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
B. In the Fourth Paragraph Added to Article 2/A of Law No. 4634, ‘…may take copies,...’ and ‘…may utilise all kinds of technological means.’ Examination of the Phrases
The rules subject to the lawsuit authorise the Ministry of Agriculture and Forestry (the Ministry) to take copies of all kinds of books, documents and documents of persons operating in the sugar sector and to make use of all kinds of technological means.
While the phrase ‘…may take copies of,…’ foresees that the Ministry may take copies of all kinds of books, documents and papers while carrying out its duties of examination, research and audit, and access information in the nature of personal data within this scope, the Law does not regulate how and for how long this information will be kept, whether the relevant persons have the opportunity to object to the information in question, whether the information will be deleted after a while, if so, what the procedure to be followed in this order, and what kind of supervision will be carried out to prevent the abuse of the authority.
On the other hand, it is understood from the phrase ‘…may utilise all kinds of technological means.’ that the Ministry may request and utilise all kinds of digital, audio and video technologies for monitoring and inspection activities. However, the Law does not explain how the installation procedures will be carried out and what the scope of digital, audio and video technologies will be.
Allowing the Ministry to receive, use, process and utilise all kinds of technological facilities for the collection, use and processing of information in the nature of personal data and to make use of all kinds of technological facilities while performing its examination, research and supervision duties is incompatible with Articles 13 and 20 of the Constitution without determining the guarantees and basic principles by law.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.