Cancellation Of The Rule Regulating The Disciplinary Penalties To Be Applied To Security Guards And Chief Guards
Rule Subject to Objection
In the rule subject to objection, the phrase “…disciplinary penalties to be applied…” in the additional Article 18 of the Law No. 442 stipulates that the disciplinary penalties to be applied to security guards and head guards shall be regulated by a regulation to be issued by the President.
Grounds for Application
In summary in the application; it is stated that security guards are public officials due to the fact that they perform a primary and continuous public service, disciplinary offences and penalties regarding public officials should be regulated by law, whereas the rule subject to objection leaves the determination of disciplinary offences and penalties of the aforementioned public officials to the regulation to be issued on this subject without drawing any limits, and this situation is incompatible with the rule of law and the principles of legality in crime and punishment, and it has been argued that the rule is contrary to the Constitution.
Evaluation of the Court
Article 7 of the Constitution states that “The legislative power belongs to the Grand National Assembly of Turkey on behalf of the Turkish Nation. This authority cannot be delegated.”
As a rule, it is sufficient for the legislator to authorise the executive branch with general expressions in terms of derivative regulatory acts; however, authorising the executive branch to make regulations with general expressions in matters that are foreseen to be regulated by law in the Constitution may contradict the principle of inalienability of legislative power.
For this reason, the law must determine the basic principles, principles and framework in matters that are exclusively regulated by law, such as the limitation of fundamental rights and freedoms in the Constitution, the imposition of taxes and similar financial obligations, and the appointment and personal rights of civil servants. The legislative body’s leaving the matters related to expertise and administrative technique to the derivative acts of the executive branch after the legislature has determined the basic rules in matters which the Constitutional legislator has expressly stipulated to be regulated by law cannot be interpreted as a delegation of legislative power.
Disciplinary penalties are administrative sanctions imposed in case of violation of the rules of behaviour in the form of doing or not doing, which are stipulated in order to ensure the proper execution of public services. The duties, powers and responsibilities of those who perform public services are limited by the public service and the requirements of the service, and those who go beyond these limits are penalised with disciplinary penalties in the relevant laws.
.
In the event that disciplinary penalties are imposed due to a person’s statement or actions related to private life, the right to freedom of expression or the right to respect for the privacy of private and family life will be interfered with, and in the case of a penalty of salary deduction, the right to property will be interfered with. In this respect, disciplinary offences and penalties may result in the restriction of various fundamental rights and freedoms by reason or consequence. Pursuant to Article 13 of the Constitution, fundamental rights and freedoms can only be restricted by legal regulations.
It is not enough for a legal regulation to exist in form to restrict fundamental rights and freedoms; legal rules must be specific, accessible and foreseeable regulations that do not allow arbitrariness. In fact, the fact that the law limiting fundamental rights and freedoms has these qualities is also a requirement of the rule of law principle guaranteed in Article 2 of the Constitution. Therefore, legality, which is stated as the criterion of limitation in Article 13 of the Constitution, should be interpreted in the light of the rule of law principle guaranteed in Article 2 of the Constitution.
According to Article 74 of Law No. 442, in the provinces to be determined by the President of the Republic, a sufficient number of security guards may be assigned with the proposal of the governor and the approval of the Minister of Interior in the event that serious indications of the reasons requiring the declaration of a state of emergency and acts of violence appear in the village or in the neighbourhood, or in the event of an increase in acts of encroachment on the life and property of the villagers for whatever reason.
.
In the event that the circumstances requiring the assignment disappear or in cases of administrative necessity, the assignment of security guards may be terminated by applying the same procedure regarding the assignment.
Pursuant to the rule subject to objection, disciplinary penalties of security guards and chief guards will be regulated by a regulation to be issued by the President. In this respect, the rule does not determine the types of sanctions and the actions subject to sanctions, and thus does not allow the relevant parties to foresee with clarity and certainty which legal sanction or consequence will be applied to which concrete act or fact within the legal framework.
In the rule, without setting forth the general principles regarding disciplinary offences and penalties, without drawing a legal framework, without determining the disciplinary penalties for security guards and chief guards and the actions requiring these penalties, even in general terms, the executive has been granted an unlimited, uncertain and broad regulatory authority by leaving the regulation of all matters related to disciplinary principles to the regulation. İn this respect, the rule is incompatible with the principles of certainty and inalienability of legislative power.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
You can access our other article examples and petition examples by clicking here.