By the reason of contradiction to the 2nd Article of the Constitution, the subparagraph (c) of paragraph 1 of article 5 of Attorneys’ Act numbered 1136 had been nullified by the Constitutional Court’s decision numbered 2012/116 that published in the Official Gazette dated 13.08.2013 numbered 28734.
The appealed text of the Act; Article 5: If it has been existed one of the situations which are written hereinafter, the request of acceptance to the Bar is rejected:
c) Attitude and behaviours which are not proper for attorney profession that are known by the community.
With the following decision, the Constitutional Court had been decided to nullify the aforesaid article because of breach of the Article 2 of the Constitution.
As per the Article 2 of the Constitution, the state of law is the state that bases on human rights, protects and strengthens these rights and freedoms, its legal acts and processes comply with the law, establishes a fair legal order in every area and maintains and improves such legal order, provides legal security, avoids the contrary situations and attitudes of the Constitution, makes law ruling all state organs, accepts to bound with the Constitution and all Acts, respects the judicial control.
Prior conditions of the state of the law are the principle of legal security and the principle of clarity. It is essential that the principle of legal security aims to provide legal security and foreseeable legal norms, to bring confidence in the States for all activities and processes of the people and the legal security also requires the State avoidance of methods within their legislative regulations which breach such confidence. The principle of clarity means that all legal legislation should be clear, understandable for both persons and administrations, also such legal legislation should include the preventive measures against to public authorities’ arbitrary treatment. In this regard, the text of the law should proper for people to foresee which concrete actions and facts connect to which legal enforcement or result by means of taking legal advice. Hence, prior to the implementation, the possible impact and sufficiently predictable results of law should be needed.
The objected rules stated that if candidate’s attitudes and behaviours not proper for attorney profession and known by the community, it will be an obstacle for entering the profession. It is obvious that the phrase “attitudes and behaviours’ which are not proper for the profession” and the phrase “know by the community” are confusing and far from objectivity. The rule does not determine which attitude and behaviours’ are not proper for the profession and mean of the phrase “are known by the community”. For this reason, the Bars have an indefinite authority to accept the candidate to the profession. Consequently, the rule providing indefinite authority to the Bars is contrary to legal security and principle of clarity and definiteness. Because, it is not foreseeable for a lawyer candidate and it is not preventing the Bars’ arbitrary interpretation and treatment.
Due to the explained reasons, the rule is contrary to the article 2 of the Constitution and it should be nullified”.
