Events
The applicant, a lawyer, presented his professional ID 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 punish 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 crime and punishment were violated due to the administrative fine imposed on him for not passing his bag through the X-Ray device at the entrance of the courthouse.
Assessment of the Court
- 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 Misdemeanors. 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 misdemeanor and an administrative fine is stipulated for this misdemeanor.
First of all, it should be noted that as long as the order given by the competent authority or the punishment of the behavior contrary to this order does not constitute an interference with a constitutional right, the issue of whether the conditions for the application of the misdemeanor stipulated in the Law are present in the concrete case and what the elements of the misdemeanor should be in order to punish the misdemeanor of disobeying the order in Article 32 of Law No. 5326 is beyond the scope 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 by allowing the lawyers, courthouse personnel and all persons entering and exiting the courthouse to pass through the sensitive door and to take their bags and belongings 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 guarantees in the second paragraph of Article 20 of the Constitution (AYM, E.2018/137, K.2022/86, 30/6/2022, §§ 97-99). There is no complaint that the applicant was forced to pass his bag through the X-Ray device at the entrance of the courthouse or that he was subjected to such a coercion.
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 authorized by law. However, in the concrete case, there is no legal regulation stating that the chief public prosecutor’s office is authorized to issue an administrative sanction decision for the misdemeanor of violating the order. In addition, the decision of the judgeship did not make any assessment on the existence of a previously announced order regulated by law, which is one of the elements required for the misdemeanor of contravening an order pursuant to Article 32 of Law No. 5326, and the determination of people’s behavior contrary to this order.
As a result, it was concluded that the applicant did not meet the legality requirement 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 misdemeanor of violating the order in the concrete case.
For the reasons explained, the Constitutional Court decided that the right to respect for private life was violated.
- Regarding the Allegation of Violation of the Principle of Legality in Crime and Punishment
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 has decided that the principle of legality in crime and punishment has been violated.
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