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Author: Aktay
Date: 19 September 2023

As a result of the decision of the Constitutional Court (the “CC“) on the individual application,
published in the Official Gazette on 20 June 2023 under application number 2019/40991 (the
Decision“), the Competition Authority (the “Authority“) examined whether the Applicant’s right
to inviolibility of home had been violated. The decision concluded that the applicant’s right to
inviolability of home had been violated in the case in question, since the decision to carry out an
on-site inspection was not authorized by a judge. The Decision may serve as a precedent for
existing disputes as well as future on-site inspections by the Authority.
In this instance, the competition experts authorised to carry out a on-site inspection went to the
applicant’s address and carried out an on-site inspection, as a result of which they received 78
sheets of documents consisting of electronic mails obtained from the computer of the company’s
employees. Thereupon, the applicant submitted that, in accordance with Article 21 of the
Constitution, the right to inviolability of the home could be infringed only by a judicial decision
and that the on-site inspection carried out by the authorities at the applicant’s workplace did not
contain sufficient legal guarantees and that his right to inviolability of the home had been infringed.
In the relevant decision, the Constitutional Court firstly stated that the concept of home is generally
defined as the place where private and family life develops in line with the decisions of the
European Court of Human Rights (”ECHR”) and the Court of Cassation; however, the
Constitutional Court underlined that the concept of home may also include workplaces. Within
this framework, the Decision states that the office where a person carries out his/her profession or
the headquarters for companies, branches and other workplaces of legal entities can also be
considered within this scope.
As defined by the Constitutional Court, a search is a protection measure that restricts certain
fundamental rights of individuals as a means to obtain evidence and/or apprehend the accused or
suspect before or after the crime is committed to prevent decriminalization. The decision must be
made by a judge, as it restricts fundamental rights of individuals.
The on-site inspection regulated under Article 15 of the Law No. 4054 on Protection of
Competition (“Law No. 4054“) refers to the Competition Authority officials conducting an
examination at the premises of undertakings or associations of undertakings. The decision clearly
states that areas where the company’s management activities are carried out, as well as areas that
are not freely accessible to everyone, such as workrooms, are considered to be the home.
The second sentence of the first paragraph of Article 21 of the Constitution explicitly states that
no one’s home can be entered, no search can be conducted in their home, and no possessions therein
can be seized without a judicial decision given in accordance with the procedure. In the same
paragraph, it is stated that the written order of the authorities authorized by law may be deemed
sufficient, provided that it is submitted to the approval of the judge in charge within 24 hours,
limited to cases of delay. Furthermore, with respect to seizure, the obligation to announce the
decision of seizure to the judge within 48 hours is imposed, otherwise the seizure will
automatically cease.
Article 15 of Law No. 4054 states that on-site inspections may be carried out upon the Authority’s
decision, and it has been observed that this is not limited to cases where the delay is inconvenient.
Although Article 21 of the Constitution states that, in cases of delay, the written order of the
authority empowered by law may be considered sufficient instead of a direct decision by a judge,
it cannot be said that this power granted to the Authority conforms with Article 21 of the
Constitution. Even if the contrary is accepted, the fact that the Authority is not obliged to submit
its on-site inspection decision to the approval of a judge within 24 hours would also constitute a
violation of the Constitution.
Due to all these issues, it has been concluded that the interference with the applicant’s right to
inviolability of the home is contrary to the second sentence of the first paragraph of Article 21 of
the Constitution and that the right to inviolability of the home has been violated. It is unclear how
this judgement, in which the Constitutional Court decided that conducting on-site inspections
without the required judge warrant constitutes a violation of rights, will play out in reality. With
this Decision, which for now only has consequences for the applicant, the relevant matter has been
notified to the Grand National Assembly of Turkey.

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