Passport Cancellation and Travel Ban — Legal Remedies

The right to a passport and freedom of travel are fundamental human rights guaranteed by Article 23 of the Constitution. However, this right may be subject to certain restrictions by law. Passport cancellation and travel bans are severe administrative and judicial measures that directly restrict individuals' freedom of travel. Passport Law No. 5682 contains the fundamental regulations regarding the issuance, extension, and cancellation of passports. In addition, a travel ban may be imposed as a judicial control measure under the Code of Criminal Procedure (CCP), and travel restrictions may be applied against debtors under Article 337/a of the Enforcement and Bankruptcy Law (EBL). This article examines in detail the grounds for passport cancellation, the legal bases of travel bans, remedies for objection, annulment lawsuits in administrative courts, and applications to the European Court of Human Rights (ECtHR).

Constitutional Guarantee of Freedom of Travel

Article 23 of the Constitution regulates the freedom of residence and movement. According to this article, everyone has the freedom of residence and movement. Freedom of residence may be restricted for the purposes of preventing crimes, ensuring social and economic development, achieving healthy and orderly urbanization, and protecting public property; freedom of movement may be restricted by law for the purposes of criminal investigation and prosecution and preventing crime. A citizen's freedom to travel abroad may only be restricted by a court order due to criminal investigation or prosecution.

The constitutional guarantee requires that any restriction on freedom of travel has a legal basis and complies with the principle of proportionality. The proportionality principle requires that the restriction be suitable, necessary, and proportionate to achieving its objective. Therefore, passport cancellation and travel ban decisions must be evaluated within the framework of constitutional review criteria.

Article 2 of Protocol No. 4 to the European Convention on Human Rights (ECHR) also guarantees freedom of travel. According to this article, everyone lawfully within the territory of a state has the right to freedom of movement and residence within that territory. Everyone is free to leave any country, including their own. These rights may only be subject to restrictions prescribed by law and necessary in a democratic society for national security, public safety, maintenance of public order, prevention of crime, protection of health or morals, or protection of the rights and freedoms of others.

Legal Bases and Grounds for Passport Cancellation

Passport Law No. 5682 contains provisions regarding the issuance, extension, and cancellation of passports. Article 22 of the law lists persons to whom passports shall not be issued. The passports in the possession of such persons are also cancelled or not extended.

Passport cancellation on criminal grounds: The passports of persons prohibited from leaving the country by court order are cancelled. The passports of persons under investigation or prosecution for offenses falling within the jurisdiction of assize courts may be cancelled by court order. Passport cancellation may also arise in cases where there is strong suspicion that persons with final conviction orders have fled or will flee abroad to avoid serving their sentences.

Passport cancellation on administrative grounds: Passport cancellation may occur as a result of certain administrative acts. Passport cancellation is possible through decrees and administrative acts issued within the scope of a state of emergency. The passports of persons accused of committing offenses against the security of the state may be cancelled by administrative order.

Travel ban for financial reasons: Under EBL Article 337/a, a travel ban may be imposed against debtors who violate their commitments. Under Law No. 6183 on the Collection Procedure of Public Receivables, the travel of persons with public debts may also be restricted. Such restrictions are applied in the form of travel bans, not direct passport cancellation.

Passport cancellation related to disciplinary investigations: The seizure or cancellation of civil servants' passports may arise within the scope of disciplinary investigations. In particular, the passports of persons whose security investigations yield negative results may be cancelled.

Types of Travel Bans

Travel bans are categorized according to their legal basis. Different objection mechanisms are prescribed for each type.

Travel ban as a judicial control measure (CCP Art. 109): This is a judicial control measure applied against suspects or defendants within the scope of criminal investigation or prosecution. Where grounds for arrest exist, a judicial control measure may be ordered instead of arrest. A travel ban is one of the judicial control measures. This measure is applied by a judge or court order.

Travel ban imposed by administrative decision: This is the prevention of a person from traveling abroad by a decision of administrative authorities. Such bans are generally applied during states of emergency or on security grounds. Bans imposed by administrative decision may be the subject of annulment actions in administrative courts.

Travel ban due to tax and public debt: Pursuant to Article 36/A of Law No. 6183, a travel ban may be applied against debtors who fail to pay public receivables. This ban is applied by tax offices or relevant collection offices. The ban is lifted upon payment of the debt or provision of security.

Travel ban due to enforcement proceedings: Applications for preventing debtors from traveling abroad under the EBL are limited. Since the restriction of freedom due to debt is incompatible with modern legal understanding, applications in this area have been narrowed. However, travel bans may arise in special situations such as violation of commitments.

Remedies Against Passport Cancellation and Travel Bans

The legal remedies available against passport cancellation and travel bans vary depending on the legal nature of the decision. The correct identification of these remedies is critically important for ensuring effective legal protection.

Objection to judicial control measure (CCP Art. 111): An objection may be filed with the authority that rendered the decision against a travel ban order issued under CCP Art. 109. The objection must be made within 7 days of learning of the decision. The objection authority is determined according to the judge or court that rendered the decision. The decision rendered upon objection is final.

Annulment action in administrative courts: An annulment action may be filed before the administrative court within 60 days against passport cancellation or travel bans imposed by administrative decision. A stay of execution should also be requested in the action. The administrative court reviews the lawfulness of the act in terms of authority, form, cause, subject matter, and purpose.

Objection to ban imposed due to tax debt: A lawsuit may be filed before the tax court against a travel ban imposed under Law No. 6183. Additionally, the lifting of the ban may be requested upon payment of the debt, provision of security, or reaching a settlement regarding the debt.

Individual application to the Constitutional Court: Where fundamental rights are violated, an individual application may be made to the Constitutional Court within 30 days after ordinary legal remedies have been exhausted. Violation of freedom of travel is among the rights that may be the subject of an individual application.

Application to the European Court of Human Rights (ECtHR): An application may be made to the ECtHR within 4 months (formerly 6 months) from the exhaustion of domestic remedies. An application may be filed alleging violation of freedom of travel under Article 2 of Protocol No. 4 to the ECHR. The ECtHR evaluates the legal basis of the restriction, its legitimate aim, and the condition of necessity in a democratic society.

Passport Cancellation Lawsuits in Administrative Courts

In annulment actions filed against passport cancellation, the provisions of the APA apply. The lawsuit is filed before the administrative court in the location of the administration that effected the passport cancellation. The litigation period is 60 days from the notification of the cancellation decision.

The statement of claim should detail the grounds for passport cancellation, the unlawfulness of these grounds, the disproportionality of the interference with the plaintiff's freedom of travel in violation of the proportionality principle, and the request for a stay of execution.

A stay of execution request is of great importance in passport cancellation cases. The fact that the plaintiff will be unable to travel abroad if the passport cancellation is implemented constitutes the irreparable harm condition. If the unlawfulness of the act can be identified prima facie, the manifest unlawfulness condition is also met and a stay of execution order may be issued.

The Council of State emphasizes the constitutional guarantee of freedom of travel and the proportionality principle in cases concerning passport cancellation. Annulment decisions are rendered in cases where the cancellation grounds are not concrete and sufficient, where there is a violation of the proportionality principle, or where there is no legal basis.

Passport Cancellations During the State of Emergency Period

During the state of emergency applied in Turkey between 2016 and 2018, the passports of numerous persons were cancelled through emergency decree laws issued within the scope of the state of emergency. The passports of persons dismissed from public service through these decrees were also cancelled.

Persons whose passports were cancelled during the state of emergency initially encountered serious difficulties in accessing legal remedies against these acts. During the period when judicial review of emergency decree laws was not possible, there was no effective legal remedy against cancellation decisions.

The State of Emergency Measures Inquiry Commission, established by Law No. 7075, was set up to examine acts carried out through emergency decree laws. The Commission examines state of emergency measures, including passport cancellations, and renders decisions. Lawsuits may be filed before Ankara Administrative Courts against Commission decisions.

Many persons whose passports were cancelled during the state of emergency filed individual applications with the ECtHR. The ECtHR evaluated the condition of exhaustion of domestic remedies in these applications and accepted the State of Emergency Measures Inquiry Commission as an effective domestic remedy.

ECtHR Case Law on Freedom of Travel

The ECtHR evaluates restrictions on freedom of travel within the framework of Article 2 of Protocol No. 4 to the ECHR. The Court examines the legal basis of the restriction, its legitimate aim, and the condition of necessity in a democratic society.

In cases concerning passport cancellation and travel bans, the ECtHR evaluates the duration, scope, and proportionality of the restriction to its aim. Long-term and indefinite-term travel bans may be characterized as violations of freedom of travel. The Court may find the application of the most severe measure disproportionate when alternative measures are available.

According to ECtHR case law, for a restriction on freedom of travel to be considered legitimate, the following conditions must be present: the restriction must be prescribed by law, serve a legitimate aim (national security, public safety, crime prevention, etc.), and be necessary in a democratic society. The absence of any of these conditions renders the restriction unlawful.

In cases heard at the ECtHR against Turkey, there are numerous applications particularly concerning passport cancellations during the state of emergency period and long-term travel bans. In these applications, the ECtHR also evaluates the right to respect for private and family life (ECHR Art. 8) and the right to an effective remedy (ECHR Art. 13) in addition to freedom of travel.

Lifting of Travel Bans

The lifting of a travel ban is carried out through different procedures depending on the legal basis of the ban.

The lifting of a travel ban imposed as a judicial control measure is requested from the criminal court of peace during the investigation phase and from the court during the prosecution phase. An objection may be filed against the decision to accept or reject the request. The judicial control measure automatically terminates upon conclusion of the investigation or prosecution.

To lift a travel ban imposed by administrative decision, an application may be made to the administrative authority. If the application is rejected, an annulment action is filed before the administrative court. A stay of execution request should be made while the judicial process continues.

To lift a travel ban imposed due to tax debt, the debt must be paid, security must be provided, or deferment and installment arrangements must be made. If the debt is disputed, the lifting of the ban may be requested by filing a lawsuit before the tax court.

For the reversal of passport cancellation, the ground for cancellation must have ceased to exist and an application must be made to the competent authority. For example, if a criminal investigation concludes with a decision of non-prosecution or a conviction is reversed, the reversal of the passport cancellation may be requested.

Matters to Consider in Passport Cancellation and Travel Ban Cases

There are various matters that persons subject to passport cancellation and travel bans should consider.

First, the legal nature of the decision must be correctly identified. Determining whether it is a judicial control measure or an administrative act is critically important for identifying the correct legal remedy. Second, deadlines must be meticulously followed. The 60-day litigation period for administrative acts and the 7-day objection period for judicial control measures are peremptory in nature.

Third, a stay of execution or the lifting of the judicial control measure must always be requested. Considering the length of the litigation process, these measures providing temporary protection are of great importance. Fourth, for acts carried out during the state of emergency, special objection mechanisms (such as the State of Emergency Measures Inquiry Commission) must be pursued.

Fifth, if an ECtHR application is contemplated, domestic remedies must be fully exhausted. All domestic remedies, including individual application to the Constitutional Court, must be used, and the 4-month application period must be observed. Finally, since passport cancellation and travel ban cases are sensitive matters directly affecting fundamental rights and freedoms, it is strongly recommended that the process be conducted with the support of a specialized attorney.

This content is for general informational purposes only and does not constitute legal advice. It is recommended to seek professional legal support from an attorney for specific disputes.