Events
While serving as an investigating judge at the Council of State, the applicant was dismissed from the profession by the Council of Judges and Prosecutors on the grounds that he had connections or links with the Fetullah Terrorist Organization, based on Decree Law No. 667 on Measures Taken Under the State of Emergency. and subsequently applied to be registered as a lawyer with the bar association. The applicant’s request was accepted by a decision of the Bar Association Management Board. This decision, submitted to the Union of Turkish Bar Associations (TBB) for review, was deemed appropriate by the TBB Management Board. The decision in question was sent back to the TBB by the Ministry of Justice (Ministry) for further consideration.
The TBB Management Board insisted on its previous decision and decided to register the applicant on the bar association register. Upon the finalization of the TBB’s decision to re-register the applicant on the bar association register, the Ministry filed a lawsuit for annulment with the administrative court. The administrative court accepted the applicant’s request to intervene in the case and also decided to suspend the execution of the procedure established by the TBB. The appeal against this decision was rejected by the regional administrative court, and the court ruled to annul the contested action. The appeals filed by the TBB and the applicant were definitively rejected by the regional administrative court.
Allegations
The applicant claimed that his right to respect for private life had been violated because the court had annulled the decision to register him on the bar association’s roll following his removal from public office.
The Court’s Assessment
In the present case, the court decided to annul the administrative act concerning the applicant’s registration on the bar association’s roll based on two grounds. The first was that, considering the nature and importance of the legal profession, the outcome of the criminal investigation should be awaited; the second was that, as of the date of the decision, the prosecution against the applicant was ongoing. Firstly, in its decision in Mehmet Çetinkaya and D.K. (B. No: 2018/27392, 15/4/2021) that there is no provision in the legislation stating that a criminal investigation against a person constitutes an obstacle to registration in the bar association register, emphasizing that the courts have subjected the provisions in the relevant legislation to an unreasonably broad and unpredictable interpretation, and ruled that there is no legal basis for the intervention in the form of cancellation of registration in the bar association register on the grounds that there is a criminal investigation against them. In the present case, there are no circumstances that would require departing from this conclusion based on the court’s first reasoning.
The court’s second argument regarding the cancellation of registration in the bar association register was examined separately. In this context, when Articles 5 and 8 of the Bar Association Law No. 1136 are considered together, it is seen that there is a detailed regulation on which authorities shall decide on the requests for registration in the bar association register of those subject to criminal prosecution and on the appeal process. It is understood that the legislator has left the authority to evaluate applications for registration with the bar association to the bar association’s administrative board, and that the TBB and then the Ministry are envisaged as the approving authorities. If the Ministry returns the application for reconsideration, the TBB may take a decision to insist by a qualified majority. The final decision of acceptance or rejection reached by applying the aforementioned procedure may be reviewed by administrative courts through the appeal process.
Based on this, considering Article 5 of Law No. 1136, it is clear that the legislator does not directly prohibit persons who are under prosecution for certain crimes and grants discretion to the bar association and ultimately to the TBB as the approving authority in this regard. The aforementioned institutions must exercise their discretion by investigating whether the person applying for registration on the bar association’s roll has any circumstances that would prevent them from practicing law and by evaluating the results of the investigation—including the nature of the prosecution, if any—within the scope of the legislation.
Within the scope of these explanations, the aforementioned discretionary authority is necessary for bar associations and the TBB to act as professional organizations with the status of public institutions responsible for and authorized to develop the legal profession, ensure the order and respectability of the profession, and determine professional rules, and ultimately for the legal profession to be a free profession. Considering this situation, it has been assessed that granting discretionary power to the aforementioned professional organizations aims to establish a fair balance between the public interest and the interest of the individual in being able to practice the legal profession until the outcome of the proceedings concerning them, taking into account the nature of the prosecution.
On the other hand, administrative courts have limited authority to review the final decision of the TBB upon appeal. In annulment cases, the judicial review of the legality of administrative actions is generally conducted based on the circumstances prevailing at the time the action was taken. In this case, it is understood that the courts may examine whether the TBB exercised its discretionary power in accordance with the law, taking into account the specific circumstances of the case at the time the administrative act subject to the annulment action was established, that the TBB’s assessment at the decision-making stage cannot be considered, and that it is not possible to take into account a situation that arose subsequently in the review of the appeal. Furthermore, it can be argued that any interpretation to the contrary would render the discretionary power granted to the aforementioned professional organization ineffective.
When the specific case is evaluated within the framework of these explanations, it is clear that the Bar Association and the TBB cannot reject the applicant’s request for registration on the grounds that a criminal investigation is pending against him, and that any decision to the contrary would lack legal basis.
However, it has been observed that the court issued a cancellation decision, taking into account that the prosecution against the applicant had commenced on October 2, 2018, even though there was no prosecution against the applicant at the time the administrative action was taken. Therefore, it is seen that the court did not conduct a judicial review of the administrative action by considering the situation at the time it was established, but rather made a direct decision regarding a situation that arose later, thereby preventing the exercise of the discretionary power granted to the professional organization. In this case, there is no legal basis for the court to make a direct decision based on a situation that did not exist at the time of the administrative action subject to the annulment case and that arose subsequently, and on a matter falling within the scope of the discretionary power granted to professional organizations.
Consequently, it was understood that the court’s decision to annul the administrative action based on the criminal investigation and the existence of the investigation as of the date of the decision, despite the fact that there was no final conviction for crimes preventing the applicant from practicing law as of the date of the TBB’s insistence decision at the latest, lacked legal basis.
The Constitutional Court ruled that the right to respect for private life had been violated based on the reasons explained.