Violation Of The Right To Property Due To Non-Repayment Of Damages Caused By Late Appointment As Non-Commissioned Officer
Events
The applicant started the non-commissioned officer basic course as a contracted female gendarmerie petty officer candidate. The applicant was dismissed as a candidate on the grounds that her security investigation was unfavourable. Candidates who started the course with the applicant were appointed as non-commissioned sergeants.
In the lawsuit filed by the applicant for the cancellation of the procedure, the Military High Administrative Court (AYİM) ruled for the cancellation of the dismissal. After this decision, the applicant, who was associated with the candidacy, completed the course and was appointed as a non-commissioned officer. The administrative court rejected the full judgement lawsuit filed by the applicant for the payment of the monetary rights that he had been deprived of for the period between the date of his peers’ commissioning as non-commissioned sergeant and the date of his appointment as a non-commissioned officer -approximately fourteen months-. In the reasoning of the decision, it was stated that the applicant’s claim that he would have been appointed as a non-commissioned officer if he had not been discharged from the school was an assumption; therefore, the claim for financial compensation should be rejected.
Allegations
The applicant claimed that his right to property was violated due to the non-compensation of the damages he suffered due to his late appointment as a non-commissioned officer, as it was determined by the court decision that he was unlawfully discharged from the contracted gendarmerie non-commissioned officer candidacy.
Assessment of the Court
Firstly, it should be examined whether the monetary rights attached to the non-commissioned officer cadre constitute a legitimate expectation. In the third paragraph of Article 82 of the Turkish Armed Forces Personnel Law No. 926 in force on the date of the incident, it is regulated that those who are graduates of faculties, colleges or vocational schools and who are subjected to basic military training in order to be appointed as non-commissioned officers will be appointed as non-commissioned sergeants on 30 August of that year.
Accordingly, those who are selected as non-commissioned officer candidates among the graduates of faculties, colleges or vocational schools and who successfully complete the military training determined by the competent authorities will be appointed as non-commissioned sergeant as of 30 August of the relevant year. Therefore, it must be accepted that those who are selected as non-commissioned officer candidates and successfully complete the training prescribed for candidacy have a legitimate expectation that they will be appointed as non-commissioned officers and will start to receive the monetary rights attached to the non-commissioned officer cadre.
In the case, the administration has no determination and assessment that the applicant does not meet the conditions for appointment as a non-commissioned officer other than the negative result of the security investigation. The only reason why the applicant was not appointed as a non-commissioned officer together with his peers is that the security investigation was deemed to have resulted in a negative result and he was dismissed from candidacy based on this reason.
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Since it has been determined by the Constitutional Court that the administration’s assessment that the applicant does not meet the requirement of a positive security investigation is unlawful, there is no apparent obstacle to the appointment of the applicant, who is at the last stage of the training period, as a non-commissioned officer. In this case, it has been assessed that the applicant, who is in the last stage of the training period and who is not claimed to meet any of the conditions for being a non-commissioned officer, has a legitimate expectation to be appointed as a non-commissioned officer with his peers and to obtain the related personal rights.
It has been determined by the decision of the Constitutional Court that the procedure regarding the dismissal of the applicant from candidature, which also constitutes an interference with the applicant’s right to property, is unlawful. The unlawfulness of the dismissal also showed that the interference with the applicant’s right to property by delaying his appointment as a non-commissioned officer lacked a legal basis.
Since it is not claimed by the administration that the applicant has an obstacle to be appointed as a non-commissioned officer or that he does not meet one of the conditions for being a non-commissioned officer, it is not an understandable interpretation that it is an assumption that the applicant will be appointed as a non-commissioned sergeant with his peers if the dismissal process, the illegality of which has been determined by a judicial decision, is not established. As a matter of fact, the applicant, who was re-assigned to candidacy on 3/2/2016 upon the cancellation decision, was appointed as a non-commissioned officer sixteen days after he started his duty.
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Therefore, the expectation that the applicant would have been appointed to the non-commissioned officer cadre on 25/12/2014 together with his peers had it not been for the unlawful procedure is not an assumption but a foreseeable result of the law.
Undoubtedly, it is not excluded that the administration may not carry out the appointment process if it determines that there is another obstacle to the applicant’s appointment as a non-commissioned officer. However, considering the circumstances of the concrete case, there is no apparent reason to think that the applicant, who is at the last stage of his training, may not be appointed. In these circumstances, the only thing that can be characterised as an assumption would be to say that there is a possibility that the applicant may not be appointed.
In a state of law, the administration is under the obligation to remedy the violations caused by its unlawful acts. Pursuant to the principle of restitutio in integrum (restitutio in integrum), the administration is obliged to restore the person to the position as close as possible to the position he/she would have been in had the unlawful act not been taken.
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In this respect, it cannot be said that the administration has fully fulfilled its obligations to remedy the violation by re-associating the applicant with candidacy. In order to be able to say that the violation has been fully remedied, the differences in monetary rights arising from the date on which the applicant would have been appointed as a non-commissioned officer in the ordinary course of the administrative process if the unlawful action had not been taken must also be compensated.
On the other hand, the obligation of the administration to compensate the financial losses incurred by the applicant whose rights and freedoms have been violated by the action it has taken may also have a deterrent effect on public officials in terms of establishing unlawful actions. Article 5 of the Constitution also imposes a duty on the State to take deterrent measures to prevent violations of rights and freedoms. The Administrative Court’s interpretation prevented the compensation of the losses incurred due to the interference with the applicant’s right to property, and also rendered ineffective the deterrent effect of the compensation lawsuit in terms of deterring the establishment of unlawful acts.
As a result, the full remedy of the violation detected through the cancellation of the dismissal was prevented by the Administrative Court’s dismissal of the full remedy action by accepting that the applicant’s damage was based on assumption. In this case, it should be accepted that the violation of the right to property continues.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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