Events
The applicant is a joint stock company operating in the automotive market. The Competition Board (Board) decided to conduct a preliminary investigation to determine whether certain economic operators, including the applicant, violated the Competition Act No. 4054.
Competition experts authorised to conduct a preliminary investigation visited the applicant’s address and conducted an on-site investigation. As a result of the examination, documents consisting of electronic mails obtained from the computer of the company personnel were received. In the report prepared as a result of the preliminary investigation, a recommendation was made to open an investigation, and in line with this recommendation, the Board decided to open an investigation against the undertakings, including the applicant. In the report prepared by the Competition Authority rapporteurs as a result of the investigation, it was concluded that the undertakings, including the applicant, had committed acts in violation of Article 4 of Law No. 4054, 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.
The applicant filed a lawsuit before the Thirteenth Chamber of the Council of State (Chamber) for the cancellation of the administrative fine and the regulation on which the fine was based; the Chamber dismissed the lawsuit. The applicant appealed against this decision to the Administrative Appeals Board (İDDK) of the Council of State. The İDDK upheld the Chamber’s decision, stating that it was in accordance with the procedure and the law.
Allegations
The applicant claimed that his right to inviolability of residence was violated as the inspection at his workplace was unlawful.
The Court’s Assessment
The concept of residence is generally defined as a materially determined place where private and family life develops. On the other hand, the concept of dwelling also includes workplaces; in this context, the office where a person pursues his/her profession, the registered headquarters of a company operated by a private person, the registered headquarters, branches and other workplaces of legal entities can also be considered within this scope. However, public areas of workplaces that do not contain a private element and are open to everyone may not be considered within the scope of the concept of residence.
Search is a protection measure carried out in order to prevent crime by limiting some fundamental rights of individuals in order to obtain evidence before or after the crime is committed and/or to apprehend the accused or suspect. The search restricts fundamental rights such as the right to privacy, the inviolability of the dwelling and the inviolability of the body.
In the concrete case, competition experts conducted an on-site inspection at the applicant’s workplace pursuant to Article 15 of Law No. 4054. The on-site inspection regulated in the aforementioned article is the on-site inspection carried out by the Board officials at the workplaces of undertakings or associations of undertakings. 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 undertakings, take copies and physical samples thereof, request written or oral explanations on certain issues, and conduct on-site examinations regarding all kinds of assets of the undertakings. Considering the powers listed in Article 15 of Law No. 4054, it is understood that on-site inspection is an activity carried out at the headquarters, branches and facilities where the undertakings carry out their management activities. 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 cannot be freely accessed by everyone, are considered as dwellings. Therefore, considering the fact that documents were obtained from the computers of the company officials, it was evaluated that the examination carried out at the applicant’s workplace constituted an interference with the right to residential immunity.
In the second sentence of the first paragraph of Article 21 of the Constitution, it is stated that no one’s residence may be entered, searched or seized without a duly issued judge’s decision. In the same paragraph, it is stated that in cases of delay, the written order of the authority authorised by law may be deemed sufficient instead of a direct decision of a judge.
Since the violation of the right to inviolability of residence is independent from the outcome of the trial, there is no legal benefit in ordering a retrial. On the other hand, the legislative body has the discretion to revise the legal provision that caused the violation in order to prevent new similar violations.In this framework, a copy of the decision should be sent to the legislative body for its information and appreciation, since making regulations by taking into account the constitutional principles mentioned above will be in line with the purpose and function of the individual application in terms of preventing similar violations.
The Constitutional Court decided that the right to inviolability of residence was violated for the reasons explained.