Decision On The Right To Participate In The Public Service Is Also Within The Scope Of The Right To Enter The Public Service
Subject Rule
The rule subject to the lawsuit stipulates that the status of those who are appointed as research assistants in accordance with Article 33 of Law No. 2547 within the scope of the Faculty Member Training Programme (ÖYP) shall be converted to the research assistant status specified in Article 50 of the Law without the need for any further action.
Grounds for Cancellation Request
In the petition for the lawsuit, in summary, it was stated that the rule in question transformed the status of those who were appointed as research assistants in accordance with Article 33 (a) of Article 33 of the Law No. 2547 within the scope of ÖYP into the research assistant status specified in subparagraph (d) of the first paragraph of Article 50 of the Law, which is less secure, without any justification, and that this situation caused the elimination of the vested rights of the persons with legal regulations with retroactive effect, and it was argued that the rule was unconstitutional.
Evaluation of the Court
Determination of the Scope of the Right
In this decision, the Constitutional Court has reinterpreted the right to access to public services regulated in Article 70 of the Constitution and has put forward an understanding that expands the scope of the right. The Court’s assessment on the subject is as follows
“Every Turk has the right to enter the public service” is stated in Article 70 under the subtitle “IV. The right to enter the public service” in the Fourth Section of the Second Part of the Constitution. Considering the wording of the rule, it can be said that the right regulated in the article is limited only to the stage of entry into public service.
However, in order to determine the scope of the right, the paragraph must be interpreted not only by its wording but also by considering the whole text in which it is included, its relationship with the sections and chapters in which it is included in the law and other rules must be taken into consideration, its purpose must be investigated and interpreted in accordance with its purpose. In addition, the way the right has been regulated in previous constitutions in the historical process should also be taken into consideration in the interpretation of the paragraph.
In the constitutions before the 1961 Constitution, the concept of “employment” was used instead of the concept of “entering” the public service, and the fact that the declaration of assets regulated in Article 71 of the 1982 Constitution is also mandatory during public service in addition to entry into public service indicates that being/staying in public service is also within the scope of the right to enter public service.
As a matter of fact, in some international conventions, it is clearly stated that the right to enter public service also includes the right to be/stay in public service. In this context, in the United Nations conventions, the right to enter public service is listed among the political rights (rights of participation), which express the right of citizens to participate in the conduct of the public affairs of their country, together with the right to elect and be elected. It is inconceivable that the right to enter public service, which is recognised as a political right within the scope of the right of citizens to participate in the public affairs of their country, does not include participation in the execution of public services. This is the nature of this right.
The interpretation of the right to enter the public service as covering only entry and not staying in the public service would render the right in question a political right, which is a right to participation. This is because it is not possible for a right that only guarantees entry but not stay to ensure participation in the execution of public services. Participation, on the other hand, requires continuity -at least for a certain period of time- and, as such, requires being in that status.
Therefore, it is concluded that the right to enter the public service guaranteed by Article 70 of the Constitution includes the right to be in the public service when it is evaluated by taking into consideration the way it was regulated in the 1924 and 1961 Constitutions in the historical process and the systematic and purposive interpretation methods.
Analysis of Article 70 in the Context of the Concrete Rule
In this case, it is understood that the transfer of the research assistants within the scope of ÖYP from the status in Article 33 to the status in Article 50 and the termination of the duty by dismissal after serving for a year or a few years in the transferred status limits the justified expectation of the research assistants due to the appointment to the status in Article 33 at the beginning, thus limiting the right to enter public service.
The restriction was made by the State of Emergency Decree Law No. 674, and the rule was adopted by Law No. 6758. It is clear that the rule is a State of Emergency regulation since it is aimed at eliminating the threats or dangers that led to the declaration of the State of Emergency, it has been implemented during the State of Emergency and has produced its provisions and results in the same period, and it is related to the right to enter public services.
Rules of this nature must first be evaluated within the scope of Article 13 of the Constitution, which regulates the regime of limitation and guarantee of rights and freedoms in the ordinary period. In this context, it is understood that the rule has been enacted in order to ensure national security and public order by eliminating the continuation of the actions that caused the state of emergency and the dangers they will cause.
In order to ensure national security and public order by eliminating the threats and dangers arising from the coup attempt and the events that occurred afterwards, it cannot be said that the restriction in the form of changing the status of research assistants within the scope of ÖYP is not favourable in terms of achieving the purpose. However, since it cannot be said that the change of status is based on legal and de facto necessity in a collective manner without individualisation in a way to prevent the right to file a lawsuit – in the ordinary period when there is no system change – it is concluded that the requirement of necessity is not met in the limitation.
In this respect, the rule, which restricts the right of individuals to enter public service beyond the guarantees stipulated in the Constitution for the ordinary period, has been examined within the scope of Article 15 of the Constitution, which regulates the suspension and restriction of the exercise of fundamental rights and freedoms in extraordinary periods.
The right to enter public service is not among the prohibited core rights and the proportionality examination under Article 15 must be conducted in terms of necessity and proportionality criteria.
In the face of this characteristic of the Fetullahist Terrorist Organisation and/or Parallel State Structure, which is known to be trying to infiltrate universities as well as all state institutions, it is difficult to say that the collective action of the public authorities without individualisation in order to quickly implement the necessary measures to eliminate the danger that caused the declaration of the State of Emergency is not a necessary measure in terms of achieving the objectives of protecting the democratic constitutional order, national security and public order. In other words, it cannot be said that resorting to the said instrument under the State of Emergency conditions is beyond the extent required by the situation in terms of the criterion of necessity.
Although the rule restricts the right of research assistants within the scope of ÖYP to enter public services by transferring them to a less secure status, with the fifth paragraph of the provisional Article 78 added to the Law No. 2547 with Article 15 of the Law No. 7143, a legal arrangement has been made to compensate for the consequences of the rule subject to the lawsuit by providing research assistants with the opportunity to return to their previous status, with some exceptions.
Thus, it has been concluded that the rule does not impose a disproportionate and therefore disproportionate limitation in terms of these persons under the State of Emergency conditions, since it is ensured that the persons who have been subjected to a staff change without individualisation are reinstated to their former positions and rights, and in cases where the measure process should be considered as a whole, the compelling and unexpected conditions that may cause such exceptional methods to be resorted to in extraordinary periods should also be considered.
However, it is understood that the aforementioned regulation does not allow those who have been dismissed from their research assistant positions due to failure, failure to complete their postgraduate education or their affiliation or contact with terrorist organisations to return to their former positions and status. There is no obstacle for the aforementioned persons to apply for administrative and judicial remedies against the procedures regarding the rejection of their applications for appointment to their former positions.
Accordingly, even though the rule subject to the lawsuit has resulted in the change of the positions of the persons without providing individualisation, it has been concluded that a disproportionate and therefore disproportionate restriction has not been imposed in terms of these persons under the State of Emergency conditions, considering that with the subsequent legal regulation, the persons were given the opportunity to apply for effective administrative and judicial remedies against their non-reappointment to the staff in question.
As in the case of the rule subject to the lawsuit, it can be accepted that the requirement of individualisation will be fulfilled by establishing effective administrative and judicial control mechanisms against the subsequent measures, taking into account the compelling and unexpected circumstances that may lead to the use of such exceptional methods in extraordinary periods, in cases where the measure process should be considered as a whole.
For the reasons explained above, the Constitutional Court decided that the rule is not contrary to the Constitution and the request for cancellation is rejected.
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