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of fact, the freedom to work and operate a business in security is also
guaranteed by the Constitution.”
After stating in this judgment, “As expressed in article 13 of the
Constitution, fundamental rights and freedoms may be restricted only by
law without infringing upon their essence by respecting the principle of
proportionality. Being a requirement of the principle of proportionality, the
instrument for the limitation must be convenient for realizing the aim of
limitation, and the aim and the instrument shall not be in an unmeasured
proportion. With the principle of proportionality, the fundamental rights
and freedoms are guaranteed; it aims to ensure a balance between the
limited rights and freedoms and to cause the minimum infringement to
the rights and freedoms. In other words, the measure must be convenient
and necessary and proportional to realize the aim..,” the Court mentioned
that article 3/1-d of Act no. 5727 interdicts completely the consumption
of tobacco products in coffee houses and that this prohibition restricts the
survival of the enterprises (economic freedom) contrary to the principle of
proportionality.
In the same judgment, as the consumption of tobacco products is
not completely banned, it is emphasized that consumption also concerns
personal freedom and while preparing legal regulations to reduce the
consumption of tobacco products and the struggle against addiction to
protect the public health, it is necessary not to restrict disproportionally
personal freedom.
The 10
th
Chamber stated in its judgment that, “It is necessary to
determine the restrictions and the prohibitions on the consumption of
tobacco products to protect the public health, respecting the principal of
proportionality and considering both the freedom to work of the owners
of coffee houses and the personal freedoms of the consumers of tobacco
products. As the state is tasked with taking measures to secure the operation
of the businesses of enterprises in security and stability according to article
48 of the Constitution,, it is possible to introduce some restrictions, while
respecting the principle of proportionality and without infringing the
freedom to work and personal freedom, by separating sections of coffee
houses into smoking/non smoking areas or by applying the prohibition
according to the size of the coffee house or introducing other restrictions.
As a result, the phrase ‘coffee house’ found in article 3/1-d of Law no.
5727, ‘In the undertakings which provide the entertainment service as the