On-Site Inspection vs Violation Of Immunity Of Residence

The Constitutional Court (“TCC”) made a decision that will be remarkable on 23.03.2023. In decision with application number 2019/40991, the Constitutional Court evaluated that the On-Site Inspection carried out in accordance with Article 15 of the Law on the Protection of Competition No. 4054 (“Relevant Law“) violated the applicant enterprise’s right to residence immunity. The decision was accepted by majority of votes and the presence of dissenting votes also taken attention. Other issues considered to be violated in the decision, were the right to property and the right to a fair trial.  However, in this study, we evaluate the “Right to Immunity of Residence” regulated in Article 21 of the Constitution and Article 15 of the Relevant Law titled “On-Site Inspection”, which were particularly emphasized in the decision and reported to the Turkish Grand National Assembly to solve the structural problem on this issue.

Although On-Site Inspection has been a practice that has been around for nearly thirty years and the evidence that forms the basis of many Competition Authority’s (“Institution”) decisions that have been subject to Administrative Jurisdiction to date are the findings of on-site examination, there has never been a decision indicating the necessity of a judge’s decision for this On-Site Inspection. For this reason, the decision of the Constitutional Court opened a new window. However, in the decision given by TCC, it was also considered a remarkable issue that it did not decide to annul Article 15 of the Relevant Law, which gives the Institution the authority to conduct on-site inspections. In this study, we also focused on the possible causes of this issue.

First of all, the issue emphasized in the decision and perhaps the most important issue is the TCC’s findings regarding the violation of right to immunity of residence. In this decision, a workplace was considered as a residence and the decision was made accordingly. In the concrete case, the TCC’s evaluation of the workplace as a residence brought about many discussions, and the decision also pointed out that different interpretations could be made for future examinations. TCC; In this decision, the concept of residence is generally defined as an element where private and family life develops; TCC stated that the office where the person continues his profession, registered headquarters of legal entities, branches and other workplaces can also be considered as “Residence”. It stated that only non-public areas of workplaces that are not accessible to everyone can be considered within the scope of the concept of residence.

In its decision under review, TCC ruled that the On-Site Inspection in question was a violation of home immunity. With this decision, it was pointed out that in accordance with Article 21 of the Constitution, which regulates the immunity of residence, the necessity of a judge’s decision to enter the residence. Article 21 of the Constitution titled “Immunity of Residence” prohibits entering the residence, searching the residence, and seizing the belongings found, if there is a superior interest (National security, public order, prevention of crime, protection of general health and public morals or protection of the rights and freedoms of others). condition and stated that this could only be possible with a “Judge’s Decision”. On the other hand, the absence of the requirement for a judge’s decision in Article 15 of the Relevant Law, titled “On-Site Inspection”, necessitated an evaluation as to whether Article 15 of the Relevant Law is contrary to Article 21 of the Constitution. In Article 21 of the Constitution, the legislator stated that in case of a situation that non-delayable case, search and seizure can be carried out with the written order of the competent authority but stipulated that this order must be submitted for the approval of the judge in charge within twenty-four hours. However, there is no additional assurance in this regard in Article 15 of the Relevant Law.

It should be noted that there were also dissenting votes. The On-Site Inspection subject to the decision was made and concluded on 29.07.2009. TCC’s authority within the scope of individual applications only covers transactions, actions and decisions that become final after September 23, 2012. Therefore, in the dissenting votes, it was concluded that the On-Site Inspection made and concluded in 2009, was not within the scope of TCC’s authority and that the TCC had no jurisdiction in terms of time.

Again, in the dissenting votes, the on-site inspection in the decision; It is stated that it was made with the purposes of the Relevant Law in mind and that it has a legal basis and from this point of view, the on-site inspection cannot be considered as a violation of the immunity of residence.

TCC; In the relevant decision, it evaluated the workplace as a residence and in this way accepted the On-Site Inspection carried out by the Institution on the workplace of the applicant enterprise, as a “Violation of Residential Immunity”. Firstly, it can be submitted that there is only the immunity of the residence regarding the absence of a regulation about workplace are justified. On the other hand, in Article 116 of the Turkish Criminal Code (“TCC”), it is seen that residences and workplaces are handled under different subparagraphs and even crimes of immunity of residences and workplaces are subject to different sanctions. We believe that this indication of evaluation should naturally lead to discussion of the separation of the TCC on the side covered by residences and workplace.

It should be noted that although we agree with the Institution’s evaluation within the scope of its decision regarding the necessity of a judge’s decision, we also find its justification debatable. Because TCC points out that the requirement for a judge’s decision arises from the requirement in search and seizure institutions in the Code of Criminal Procedure (“CCP”). However, these institutions regulated in the CCP are different from the on-site inspection institution, and the on-site inspection institution finds its basis in the Relevant Law, not in the CCP. We believe that TCC should base the requirement for a judge’s decision directly on Article 21 of the Constitution and on a regulation that has a higher sanction than the Relevant Law in terms of the hierarchy of norms.

Although TCC decided that the on-site inspection in question was a violation of the immunity of residence, it did not cancel the “On-Site Inspection” article in the Relevant Law. The apparent reason for this may be that the application is an individual application, and the annulment of the decision is only possible as a result of a court application. However, we believe that at this point, TCC also takes into account the purpose and mission of the Institution and does not want to restrict its operations. As it is known, the purpose of the Institution is to protect the free market economy. The institution is obliged to prevent competition violations and to punish any competition violations it sees. However, we are of the opinion that TCC does not aim to directly annul the article in question in any case, since the Institution’s ability to fulfill these duties requires it to obtain evidence and this may be very difficult and sometimes impossible without the “On-Site Examination” institution. In fact, the reason is more practical than procedural. There was no intention to take this authority away from the institution. However, in order to eliminate the unconstitutionality, TCC ruled to notify the Grand National Assembly of Turkey for the solution of this structural problem.

Despite the mentioned decision of TCC, it should be noted that in the on-site inspections carried out by the Institution, transactions are still carried out without a judge’s decision. Therefore, it can be concluded that the Authority will act persistently and continue its implementation in the same direction until a new regulation is made. On the other hand, although there will be a necessity for a judge’s decision even after the regulation, we believe that the Authority will not have much difficulty in obtaining the decision of the judge; therefore, undertakings should continue to be careful in complying with competition both in the current situation and after the regulation.