Alcohol Ban and Other Bans

Alcohol Ban and Other Prohibitions | Izmir Law Firm | Izmir Lawyer

The measures to be implemented during the full lockdown period, which will last from 7:00 PM on Thursday, April 29, 2021, to 5:00 AM on Monday, May 17, 2021, are still unclear even a week after the lockdown began. As of May 5, 2021, there is ongoing debate about why cola is allowed while iced tea is prohibited (an unfounded argument), or why cigarettes are considered a basic necessity while pens are not.

A circular issued by the Ministry of Interior on April 26, 2021, listed a number of prohibitions and exceptions. However, despite not being explicitly stated in the circular, an embargo was imposed on alcohol sales through verbal instructions. This sparked public outrage, with Özgür Aybaş, the head of the Turkish Tobacco Retailers Platform, tweeting that alcohol sales were not prohibited, and chain supermarkets continuing to sell alcohol. However, this resistance was short-lived, as Interior Minister Süleyman Soylu issued a statement declaring that alcohol sales were indeed prohibited.

These regulations contain serious problems in terms of predictability and legal certainty, and they also do not meet the requirement that the restrictions be prescribed by law.

In this article, we will evaluate the legality of the alcohol sales ban.

Among the fundamental rights and freedoms restricted by the alcohol prohibition are Article 17 of the Constitution concerning the inviolability of the person, their physical and moral integrity; Article 20 concerning the privacy of private life; and Article 24. Freedom of religion and conscience”"This can be considered as contradiction. Furthermore, the fact that this ban was implemented during the month of Ramadan, which is important for Muslims, and that certain regulations were made taking Ramadan into account in the bans, can be said to contradict the principle of secularism, which is enshrined in Article 2 of our Constitution and constitutes the essence of the Republic of Turkey.".

After determining that the alcohol ban constitutes an interference with fundamental rights and freedoms, it is necessary to determine under what conditions fundamental rights and freedoms can be restricted. Accordingly, according to Article 13 of the Constitution, ’Fundamental rights and freedoms may be restricted only by law, without prejudice to their essence, and only for the reasons specified in the relevant articles of the Constitution. These restrictions may not be contrary to the letter and spirit of the Constitution, the requirements of a democratic society and a secular Republic, and the principle of proportionality.“ As Article 13 of the Constitution states, fundamental rights and freedoms can only be restricted by law. Executive organs cannot take measures restricting fundamental rights and freedoms without legal authority. The only exception to this is states of emergency. During states of emergency, certain restrictions on rights and freedoms can be imposed by presidential decrees. However, a state of emergency can only be declared by the president and must be published in the official gazette. In our country, although a series of restrictions have been implemented since March 13, 2020, as part of the fight against Covid-19, a state of emergency has not yet been declared. Even if a state of emergency is declared, fundamental rights and freedoms cannot be restricted in a way that gives rise to arbitrary decisions.

According to Article 13 of the 1982 Constitution, “Fundamental rights and freedoms may be restricted only by law, without prejudice to their essence, and only for the reasons specified in the relevant articles of the Constitution. These restrictions may not be contrary to the letter and spirit of the Constitution, the requirements of a democratic society and a secular republic, and the principle of proportionality.” Article 13 also defines the limits of restricting fundamental rights and freedoms. Accordingly, even when the use of fundamental rights and freedoms is restricted;

• The essence of fundamental rights and freedoms should not be violated.,
• Fundamental rights and freedoms should be restricted only for the reasons stated in the relevant articles of the Constitution.,
• Fundamental rights and freedoms should be limited by law.,
• The restrictions must not be contrary to the letter and spirit of the Constitution.,
• The restrictions must not be contrary to the requirements of a democratic society.,
• The restrictions must not be contrary to the requirements of the secular Republic.,
• The restrictions must not violate the principle of proportionality.

In conclusion, under no circumstances can restrictions on fundamental rights and freedoms be imposed through circulars or verbal declarations by state authorities. This is both contrary to the principle of legality and constitutes a usurpation of function, as the administration is acting in place of the legislature. The administration's usurpation of function is considered null and void. These bans, whose limits and justifications are unclear, have already been challenged in court by bar associations, unions, and citizens. We believe that if these bans are brought before the Constitutional Court through individual applications, the Constitutional Court will issue rulings of violation due to their incompatibility with the principles of legality and secularism.

Attorney Oya KALFA

• [1] Aslan, Volkan: The Compatibility of Curfews Imposed Due to the COVID-19 Pandemic with the 1982 Constitution, Istanbul Law Journal, 2020,
• [2] Çakır, Hüseyin Melih (2010). “"The Theory of Nullity within the Framework of Council of State Decisions"”. Istanbul: Academia. Accessed May 4, 2021.

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