Violation Of The Right To Respect For Private Life Due To Cancellation Of Work Permit
Events
The private school where the applicant worked was closed down in accordance with the provisions of the Decree Law No. 667 on the Measures Taken within the Scope of the State of Emergency (State of Emergency Decree Law No. 667) on the grounds that it posed a threat to national security and that it had affiliation, association or contact with the Fetullahist Terrorist Organisation and/or Parallel State Structure.
Within the scope of the Circular No. 7783529 of the Ministry of National Education (Circular), the applicant was informed by the Governorate that his permission to work in a private school was cancelled due to the closure of the school where he worked and that a new permission could not be issued for another institution. The applicant filed an action for annulment before the Administrative Court (the Court) upon the implicit rejection of his request for the cancellation of the administrative act by the Governorate. The Court dismissed the case. Applicant’s appeal against the aforementioned decision was definitively rejected by the Regional Administrative Court.
Allegations
The applicant claimed that his right to respect for private life was violated due to the cancellation of his work permit as a teacher and the prohibition to reissue a work permit.
The Court’s Assessment
Considering the decisions of the courts of appeal, it is understood that the administrative action subject to the concrete case is based on the State of Emergency Decree Law No. 667, the Law No. 5580 on Private Education Institutions and the Circular.
When the provisions of Law No. 5580 and the Regulation on Private Education Institutions of the Ministry of National Education are evaluated together, it is understood that working in private education institutions depends on the work permit to be issued by the governorships, and in this context, as a result of the examination to be carried out by the governorships, permission can be granted to the person who meets the conditions specified in the legislation, but this permission only allows the person to work in the school where the person has a contract.
In addition, it has been observed that there is no explicit provision in the relevant legislation that the work permit must be cancelled in case of the closure of the private education institution, and general regulations are included that the work permit can be issued and cancelled by the governorships. In addition, it is understood that there is no provision regarding the prohibition of working directly in private institutions as a result of the cancellation of the work permit of a person who performs his/her profession subject to a work permit and the conditions for the implementation of such a prohibition.
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It should be emphasised that the State of Emergency Decree Law No. 667 only contains a provision on the closure of private education institutions, there is no provision stating that teachers and staff working in these institutions cannot work in private education institutions again, this prohibition is determined only by the Circular, and it is not possible to limit fundamental rights and freedoms with a regulatory administrative act.
The first and fundamental condition for an interference with the right to respect for private life to be considered in compliance with the guarantees stipulated by the Constitution is the existence of a legal basis for the interference. In the concrete case, it is established that the interference to the applicant’s private life is based on the Circular. From this point of view, it is understood that the applicant was prevented from practising his profession by an administrative act without a clear regulation in the relevant laws.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained.
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