PRACTICAL INFORMATION ON FOREIGN LAW -3
(Short Evaluation of the Constitutional Court’s Decision dated 15.2.2024 and numbered 2019/40761 – Expulsion with Intelligence Report)
In this letter, which will be the third of the series I plan to write on foreigners’ law, I will make a brief evaluation of the decision of the Constitutional Court dated 15.2.2024 and numbered 2019/40761. The fourth article I started to write in the series will be on foreign trade and INCOTERMS.
At the beginning of the article, I would like to remind you again that I write these articles within the framework of academic ethical rules but without academic concern. I strive for the series to contain practical rather than theoretical knowledge.At this point, I would like to thank all the justice community employees, especially my colleagues, who commented on the previous articles, contacted me and thanked me, and asked their questions. I hope that this series will be useful to colleagues like me who are still in the early years of their profession and to colleagues who are new to the field of foreigners’ law.
In the above-mentioned decision of the Constitutional Court, an application was made with the allegation of various violations of rights regarding the rejection of the lawsuit filed by the deported foreigners in line with the intelligence report. The Constitutional Court, on the other hand, did not find the applications justified based on various reasons in its decision. This decision is not actually a surprise. However, the opposing views in the resolution are noteworthy. In this article, what I want to evaluate is the reasons for the dissenting vote.
Similar cases and decisions have increased, especially with the effect of increasing migration to our country in recent years. I have already conducted, still conducting several similar cases. In fact, a client who applied to us was an Evangelist and was deported after a meeting similar to the one in the decision. During my consultancy service to the client, I said many times that the chance of winning the case was quite low, and even when I insisted on opening the case, I received written consent. Because the discretion of the administration is wide, especially in entry ban decisions and deportation decisions, and this is the how it is all over the world. As a matter of fact, traces of this situation are seen in international treaties.
In addition to these issues, evaluations based on freedom of expression, religion and conscience were made in the dissenting opinions in the decision. For example, in the counter-vote opinion written by the President of the Constitutional Court;
“missionary activities are within the scope of freedom of expression“and also describes the intelligence report as abstract.
In our opinion, I have to state that I cannot agree with the opinion stated in the dissenting opinions that missionary activities should be considered within the scope of freedom of expression and freedom of religion and conscience, if these activities are carried out in a systematic and organized manner. As a matter of fact, the fact that these activities are°indistinguishably intertwined with the activities of the 5th branch and the conjuncture of Turkey is one of the grounds in my opinion. On the other hand, although I will be content to mention that it is a long subject of discussion, the”modern state” is not a completely rational structure and the ground that creates it°should not be forgotten.
Another issue in the opposing opinion is°intelligence reports. I think there are two different aspects of this issue. The first is the broad discretion of the administration regarding border security. As a matter of fact, there are borders in the modern state and passport-visa applications are available. If these practices (deportation, visa, residence permit)°are on a completely objective and rational basis, it is clear that the borders and these practices will have no function. Therefore, it should be accepted that the administration has a wide discretion in these practices in Turkey as in the whole world.
On the other hand, auditing the reports/minutes kept, especially intelligence reports, in certain dimensions and criteria will prevent arbitrariness. In this respect, I agree with the opposing vote views. As a matter of fact, a positive decision I received last year showed that the report was based on a material mistake (name similarity). Recently, in a case similar to the case subject to the Constitutional Court decision, the court committee examined the intelligence report and stated that it met with the intelligence officer. However, the report was not included in the file or disclosed to us, so I could not make a defense. In its decision, the court stated the reasoning as follows:
“In theconcrete case, with the interim decision of our Court dated…, the document submitted to our intelligence Court by stating the reason for not including the explanatory information and documents regarding the acts and facts based on the restriction code with the letter dated 07/02/2023 and numbered…, which was taken as a basis for the restriction code subject to the lawsuit, was delivered to the intelligence officer after the committee of our Court examined the said document and it was concluded that the said intelligence information confirmed the reason for the imposition of the restriction code subject to the lawsuit.” ANKARA 26th ADMINISTRATIVE COURT DECISION NO : 2024/* * *
In our opinion, in such cases, if there is an attorney in the file, the attorney should be able to examine the document and be given the opportunity to make a defense, taking into account the degree of confidentiality. If there is no attorney in the file, the judge may request the defense by giving a certain amount of information to the principal or the situation may be examined by following a different way, but the right of defense should not be restricted.
At this point, the degree of confidentiality of the reports in question will also be important. In this regard, a method can be developed by taking into account the distinction in Article 4 of the Regulation on the Procedures and Principles to be Applied in Confidentiality Degree Documents:
“ARTICLE 4- (1) There are three degrees of national confidentiality: Top Secret, Confidential and Service Specific Restricted:
- Top Secret: It is used for documents that may significantly harm the external relations, national defense, national security and activities with allies of the State if disclosed or learned by unauthorized persons.
- Confidential: It is used for documents that may harm the interests of the State, security, intelligence and technology activities if they are disclosed without permission or learned by unauthorized persons.
- Service Specific Restricted: Used for documents that may harm any administrative activity, real or legal person, administrative investigation, judicial investigation and prosecution if disclosed without authorization or learned by unauthorized persons.”
In addition, the opinion of the Council of State on a similar issue (criteria for the examination of documents by lawyers) is as follows:
“Institutions and organizations listed in the third paragraph of Article 2 of the Attorneyship Law No. 1136, as amended by Law No. 4667, are obliged to assist lawyers in the fulfillment of their duties. The above explanations regarding the duties of lawyers should be taken into account in determining the scope and limits of the obligation to assist.
These institutions are obliged to submit the information and documents required by the lawyers within the framework of the following scope, without prejudice to the special provisions in their laws.
a ) Submission for examination is a function that should be carried out in an appropriate place within the institution and organization where the information and document are located, accompanied by an officer when necessary.
b ) The request to fulfill the obligation to submit the information for examination by sending it to a place or city other than the institution and organization where the information and document is located cannot be considered as a request suitable for the purpose of the law.
c ) The scope of the information and documents required by the lawyer should be understood and evaluated within the limits specified in the explanations regarding the duties of the lawyers and the statement of need.
d ) The legislator has kept the collection of samples from the documents that the institutions and organizations have the opportunity to examine subject to the submission of a power of attorney. After the examination of these documents by the lawyers, it is required by the provision of the law that the subject, date and number of these documents can be taken as an example.
2- The limits and content of the special provisions in the laws, which are the exception to the obligation to submit for examination, should be evaluated within the legal framework specified in the above explanations on this subject with the relevant article texts.
CONCLUSION: It was unanimously decided on 10.4.2002 to submit the file to the Presidency of the Council of State with the above-mentioned opinion on the subject of hesitation. ” COUNCIL OF STATE 1st DEPARTMENT DECISION NO: 2002/52 DATE:10.4.2002
Ultimately, the “right to defense” should not be violated by saying that there is a “confidential document” or “intelligence report”. The Constitutional Court emphasized this situation in 2020:
“The Supreme Court held that the applicant was not given the opportunity to defend against the confidential documents submitted by the defendant Administrations and taken as a basis for the verdict in the court decisions. This led him to conclude that the principles of equality of arms and contradictory jurisdiction guaranteed in Article 36 of the Constitution were violated. The Supreme Court unanimously decided to send the decision to Ankara 13th Administrative Court for retrial in order to eliminate the consequences of the violation.( Constitutional Court Decision No. 31174 on Friday, July 3, 2020).
AV.HALDUN BARIŞ
