Press Release No: Individual Application 28/18
19.07.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING NO VIOLATION OF THE RIGHT TO PROPERTY DUE TO THE REVOCATION OF A LICENCE FOR UNLAWFUL USE

On 11 June 2018, the First Section of the Constitutional Court found no violation of the right to property, safeguarded in Article 35 of the Constitution, in the individual application lodged by Ahmet Bal (no. 2015/19400).

The Facts

The licence of the pharmacy owned by the applicant was revoked by the Provincial Directorate of Health as a result of the inspections conducted. The revocation decision stated that during the inspections the applicant was not present in the pharmacy and that the pharmacy was not operated by him.

The applicant filed an action for annulment before the administrative court against the revocation. The court dismissed the case on the grounds that the pharmacy was operated collusively and was not actually operated by the applicant.

The applicant appealed. The Council of State upheld the decision and rejected the applicant’s rectification request.

The Applicant’s Allegations

The applicant claimed that his right to property was violated due to the fact that his pharmacy was closed down as a result of the revocation of the licence.

The Constitutional Court’s Assessment

Article 35 of the Constitution provides that the right to property may be limited by law and for the purpose of public interest. However, Article 13 of the Constitution must be taken into account while interfering with this right. Accordingly, in order for an interference to be in compliance with the Constitution, it must be based on law, serve the public interest and be proportional.

In the case that a pharmacy is operated not by the licence owner but collusively, the revocation of the licence has a legal basis and pursues a legitimate aim. At this point, it must be assessed whether this interference is proportionate or not.

In the present case, the impugned interference was foreseeable, and it resulted from the applicant’s fault. The applicant did not submit any concrete facts as to the careless acts or behaviours of the public officials in the course of interference.

As it is observed that the applicant had left the city where the pharmacy was located without permission and that he admitted having given a power of attorney to another person to operate the pharmacy, the court decisions cannot be said to have been arbitrary.

Considering the importance of the requirement concerning the public health that the profession of pharmacy must be practiced by competent persons, it cannot be said that it was unnecessary to revoke the applicant’s licence due the fact that he was not actually operating the pharmacy.

Indeed, the revoke of the licence does not permanently deprive the applicant from practicing the profession; it only imposes a restriction of five years not to operate a pharmacy, it is not categorized as a crime, and the applicant has not suffered any other criminal and administrative sanction.

In this case, when compared to the public interest pursued by the interference, it has been concluded that the interference with the applicant’s right to property did not impose an excessive and extra ordinary burden on him and that the fair balance between the public interest and the applicant’s right to property was not impaired.

Consequently, the Constitutional Court found no violation of the right to property safeguarded in Article 35 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019