A passport restriction imposed by the administration has the effect of narrowing and limiting a person’s ability to use their passport. A ban on leaving the country and a passport restriction are measures that narrow the sphere of an individual’s fundamental rights and freedoms, above all the right to travel. The administration bases this act on Article 22 of Passport Act No. 5682. Since it constitutes an administrative act, it is possible to bring an action for annulment before the administrative court in order to have the restriction set aside. If the act has been performed contrary to any one of the elements of competence, form, cause, subject matter or purpose of an administrative act, it will be annulled as a result of the action brought.
Subject-matter jurisdiction in these actions lies with the administrative court; territorial jurisdiction lies with the court of the place where the administration that performed the act is situated. As there is no time limit specific to passport restrictions, recourse to the courts may be had within the general period for bringing an action.
Below we address in turn the types of restriction, the points at which they intersect with constitutional rights, how they are to be reviewed in terms of the elements of an administrative act, and the claim for damages that may arise following an annulment decision.
Nature and Types of Passport Restriction
A restriction imposed in order to prevent a person from leaving the country or to prevent them from obtaining a passport is, in its legal nature, an administrative act. As a natural consequence of that nature, a restriction alleged to be unlawful may be opened to judicial review by an action for annulment brought before the administrative court. If unlawfulness in the act is indeed established at the end of the proceedings, the lifting of the restriction will be ordered.
An important distinction must be underlined here. The restriction addressed throughout this note is one applied directly by administrative authorities without any court decision. It is also possible for criminal courts to place a restriction on a passport, by way of judicial control, in order to prevent a person from leaving the country; acts of that nature cannot, however, form the subject matter of an action for annulment. In such a case the route to be followed is the procedure for objecting to the judicial control decision.
The Position of the Restriction in Relation to Constitutional Rights
Since it is in essence an administrative act, a passport restriction must be compatible with the legislation as a whole, and above all with the Constitution. Because certain constitutionally guaranteed rights are impaired when a restriction is applied, persons whose rights are infringed may have recourse to the courts seeking the annulment of the act. Indeed, since the restriction imposes a ban on leaving the country, it constitutes a direct interference with the sphere of freedom, above all with freedom of residence and travel.
Freedom of Travel
Freedom of travel is a right afforded to everyone and is secured both by the provisions of the Constitution and by those of the European Convention on Human Rights. That protection is not absolute; where certain conditions are present, the right may lawfully be restricted. Under Article 23 of the Constitution, freedom of travel may be restricted only by statute, on account of a criminal investigation or prosecution and for the purpose of preventing the commission of offences. As regards a citizen’s freedom to leave the country, the Constitution is narrower still: that freedom may be restricted only on account of a criminal investigation or prosecution and on the basis of a judicial decision.
In practice, however, cases are encountered in which the administration places a restriction on a passport although there is no decision by a judge banning the person from leaving the country on account of a criminal investigation or prosecution. Such an act, being irreconcilable with the express provision of the Constitution, also amounts to an unjustified interference with freedom of travel, and the annulment of a restriction applied unlawfully may arise.
The Right to a Fair Trial
The right to a fair trial is likewise among the fundamental rights secured by the Constitution and the European Convention on Human Rights. That right determines the nature of the body which is to decide on the merits of a criminal charge: everyone has the right to be tried before a tribunal established by law whose independence and impartiality are secured. The conduct of the proceedings in a fair manner, their being held in public and their conclusion within a reasonable time are also among the elements of that right.
By contrast, a restriction applied by the administration without any criminal investigation or prosecution being conducted, and without any trial before a lawful, independent and impartial tribunal or any final judgment, amounts to making a criminal accusation against the person indirectly. Yet one of the components of the right to a fair trial is the presumption of innocence. Under that presumption, no one charged with an offence may be regarded as guilty until their guilt has been established by a judgment. Making a person’s passport subject to a restriction by administrative act where there is no final judicial decision plainly impairs both that presumption and the right to a fair trial to which it is attached.
Assessment in Terms of the Elements of an Administrative Act
A passport restriction, performed as an administrative act, must be lawful in respect of all of the elements of competence, form, cause, subject matter and purpose. A defect in any one of those elements spreads to the act as a whole, renders it unlawful and may lead to its annulment.
The Element of Competence
Competence denotes the administration’s capacity to perform an act, and the competence afforded to the administration is exceptional rather than general in nature. As explained in detail above, restricting a person’s freedom of travel by imposing a ban on leaving the country is a power left to the judicial organs under Article 23 of the Constitution. A restriction applied by the administration without a court decision therefore results in a usurpation of function.
The Element of Cause
In performing an act, the administration must have, and must set out, the legal and factual factors that led it to do so. Where the cause relied on as the basis of the act is unlawful, the act is defective in its element of cause. A restriction performed without a court decision and based on the unconstitutional provision in the Passport Act is unlawful in that respect too.
The Element of Subject Matter
As set out in detail, the power to impose a ban on leaving the country is afforded to the judicial organs by Article 23 of the Constitution. Since the administration has no power to perform an act in this field without a judicial decision, it may be argued that a measure taken to the contrary is defective in its element of subject matter.
The Element of Purpose
The realisation of the public interest and of public order is the counterpart of the element of purpose in administrative law. For an administrative act to be regarded as lawful in its element of purpose, it must pursue the public interest, be necessary in terms of public order and be capable of securing it. Taking the grounds referred to above together, it may be argued that an act performed by the administration through a usurpation of function in a field left by the Constitution to the judicial organs, and in breach of fundamental human rights guaranteed by both the Constitution and the Convention, does not coincide with the public interest and is irreconcilable with public order.
Action for Annulment Against the Restriction
To summarise, passport restrictions performed in the form of an administrative act must possess in full the elements required of administrative acts and must be performed lawfully, above all in conformity with the Constitution. The placing of a restriction on a passport by the administration without a court decision may be unlawful on the grounds listed above and for other reasons specific to the particular case.
A restriction alleged to be unlawful may be set aside by an action for annulment brought before the administrative court. The right and power to bring the action belong to the person whose fundamental rights and freedoms have been unlawfully restricted by a restriction applied to their passport. The general framework governing objections to administrative acts and actions for annulment is addressed in detail in a separate note devoted to that subject.
Time Limit for the Action for Annulment
Before bringing an action, it is possible to apply to the administration to ask whether a restriction has been placed on the passport and, if it has, to request that the reasons for the act be explained in terms of its elements. If no reply is received from the administration within 30 days, the 60-day period for bringing an action begins to run from the date on which the period for reply expires; if a reply is received within that period, it runs from the date on which the reply is served.
Court with Subject-Matter and Territorial Jurisdiction
In an action seeking the annulment of the restriction, the administrative courts of the place where the administration that applied the act is situated have both subject-matter and territorial jurisdiction.
Full Remedy Action Following Annulment
If the restriction is annulled at the end of the proceedings, the person may seek redress for the loss suffered on account of that act by way of a full remedy action. Persons whose sphere of freedom has been narrowed by an act whose unlawfulness has been established by a judicial decision are, after all, likely to suffer pecuniary and non-pecuniary loss. The most frequently encountered example of this is the disruption to the business of persons who are required to travel abroad in the course of their professional activity as a result of an unlawful restriction.
The details of full remedy actions brought following an annulment decision are considered in a separate note examining the action for damages brought after the annulment of an administrative act.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Turkish law allows parties to defend and represent themselves in person before the courts; save for certain exceptions, representation by a lawyer is not mandatory. Nor is there any obligation, before the administrative courts, to retain a lawyer practising in administrative law. However, the complex structure of administrative law legislation and the strict and short nature of the periods laid down in the Administrative Procedure Act may lead to errors, both procedural and substantive, that are difficult to remedy if the process is conducted by persons who are not lawyers. In order to avoid any loss of rights in administrative proceedings governed by detailed rules, it is appropriate to obtain assistance from lawyers practising in administrative law before taking any step.
May an action for annulment be brought against a restriction imposed under judicial control?
If the restriction rests on a decision given by a criminal court as a protective measure of judicial control, the annulment of that act may not be sought before the administrative courts. In that event the procedure for objecting to the judicial control decision must be pursued.
What can be done against a restriction imposed by the administration without a court decision?
Since a restriction is an act that narrows freedom of travel and residence, it may be applied under Article 23 of the Constitution only on the basis of a court decision. In order to have a restriction unlawfully performed by the administration set aside, an action for the annulment of the act must be brought before the administrative courts.
May loss be compensated if the restriction is annulled?
If the restriction is set aside as a result of the action for annulment, the person may claim compensation for the loss suffered on account of that act by way of a full remedy action.
What remedies are available to a person banned from leaving the country without a court decision?
Persons who are prevented from leaving the country by a restriction placed on their passport without any court decision against them may apply to the administration to have the act lifted and may bring an action for the annulment of the administrative act before the administrative courts.
Independent Legal Assessment
The first thing to be done in passport restriction disputes is to identify the source of the restriction correctly. A restriction applied directly by administrative authorities and a restriction attached to a criminal court’s judicial control decision are subject to entirely different routes; misidentifying the source may lead to the dismissal of the action without the merits being examined. A record search should therefore be carried out at the outset of the file and the basis of the restriction established by documentary evidence.
The second decisive point is that the act must be argued in terms of its elements, not merely its outcome. The exercise by the administration of a power belonging to the judicial organs opens both the element of competence and the element of subject matter to argument, while reliance on an unconstitutional basis opens the element of cause. The picture is not complete once an annulment decision has been obtained; for persons whose employment or commercial activity has been disrupted, a full remedy action must be considered separately.
In a given file the following points should be addressed as a priority:
- Determining conclusively whether the restriction is administrative in origin or derives from judicial control
- Recording when the act came to the person’s knowledge and planning the 60-day period accordingly
- Timing any preliminary application to the administration with the 30-day period for reply also taken into account
- Arguing the elements of competence, cause, subject matter and purpose separately in the statement of claim
- Documenting from the outset the pecuniary losses caused by the travel bar, with a view to a full remedy action to be brought later
Independent Legal advises on, and conducts litigation concerning, the review of passport restrictions and bans on leaving the country before the administrative courts and the pursuit of claims for damages following annulment.