Information Note On The Decision Of The Constitutional Court No 2019/40991 On The Violation Of The Right To Immunity Of Residence By Competition Board’s On-Site Inspection

The decision of the Constitutional Court, application numbered 2019/40991 and dated 23.03.2023 stating that the on-site inspection carried out by the Competition Board at the applicant’s workplace without a judge’s decision violates his right to immunity of residence which is protected by Article 21 of the Constitution, published in the Official Gazette dated 20 June 2023 and numbered 32227.

The Constitutional Court stated that, pursuant to the right to immunity of residence that is protected by Article 21 of the Constitution, it is not possible to enter a residence without a duly issued judge’s decision, and that in cases where a delay may cause any damages, a written decision of the authority authorized by law must be presented to a judge within 24 hours. Accordingly, it has been considered that the on-site inspection carried out at the applicant’s workplace which is considered to be “residence” without permission constitutes an interference with the right to immunity of residence.

As to whether this interference constitutes a violation with regards to Article 21 of the Constitution, the Constitutional Court stated that a judge’s decision is not required by the Competition Board to conduct an on-site inspection except in cases where the on-site inspection is prevented. However, as per Article 21 of the Constitution, it is required to present a duly issued judge’s decision in order to be able to enter a person’s residence.

Accordingly, the Constitutional Court ruled that the on-site inspection carried out by the Competition Board without the consent of the persons concerned and without a judge’s decision, violates the right to immunity of residence and that Article 15 of the Law on the Protection of Competition that doesn’t limit the Board’s authority to carry out on-site inspections to cases in which a delay may cause damages is not in accordance with the right to immunity of residence.