Violation Of Freedom Of Association Due To Dismissal From Civil Service On The Grounds Of Political Party Membership
Events
The applicant, while working as a teacher, was deemed to have withdrawn from the civil service due to absenteeism as a result of an investigation opened against him in 2000 pursuant to Article 94 of the Civil Servants Law No. 657 and his civil service was terminated pursuant to Article 98 of the said Law.
The applicant became a member of a political party in 2001 and held various positions in the party. In the meantime, while his party membership continued, the applicant’s dismissal from the civil service due to absenteeism was cancelled by the courts of first instance in 2008 and the applicant returned to his teaching position in 2008. When the applicant returned to his duty, the Ministry of National Education opened an investigation against him in accordance with the provisions of Law No. 657 due to his membership of a political party and suspended him from his duty. As a result of the investigation, the applicant was dismissed from civil service by the decision of the Supreme Disciplinary Board of the Ministry of National Education.
The applicant filed a lawsuit for the cancellation of the relevant procedure; the administrative court dismissed the lawsuit on the grounds that the procedure was in compliance with the law. The decision was upheld by a chamber of the Council of State; the applicant’s request for correction of the decision was rejected by the same chamber and the decision became final.
Allegations
The applicant claimed that the decision to dismiss him from civil service due to his membership of a political party violated his freedom of association.
The Court’s Assessment
Obligation of civil servants to be impartial also means the impartiality of the state because the state can only fulfil its impartiality through the performance of its duties by civil servants. In this context, it is understandable that the state places heavy burdens on civil servants in the provision of its services and prescribes strict measures to prevent disruptions in these services.
The provision in Article 68 of the Constitution stipulating that civil servant status and political party membership cannot coexist is intended to ensure the functionality of an impartial public administration acting on the basis of the rule of law. According to the said rule, even the implication that the independent duties fulfilled by a civil servant are linked to political demands may undermine the objectivity of the state. For this reason, Law No. 657 stipulates that civil servants cannot be a member of a political party within the scope of their responsibilities of impartiality and loyalty to the state. Article 125 of the same Law stipulates that joining a political party is a penalty for dismissal from the civil service.
There is no doubt that the intervention in the form of dismissal of civil servants who are members of a political party is a favourable tool for the protection of the principle of impartiality and loyalty to the state. In addition, it cannot be said that the regulation stipulated in the law is not necessary in the face of the mandatory provision of the Constitution. Therefore, it should be concluded by determining whether the intervention is proportionate or not.
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Considering both the wording of Article 125 of Law No. 657 and the practice of the courts of appeal, it is understood that the coexistence of civil service and political party membership is not accepted. According to the regulation, the relevant authorities and the courts of first instance examining the decisions of these authorities only look at whether the persons are members of a political party and do not make any further evaluation. In this respect, with the fulfilment of the condition of joining a political party under Article 125 of the Law, the civil service is terminated and individuals are faced with a serious material and moral consequence. Considering this point, it can be easily stated that the regulation constitutes a severe interference with the freedom of association.
In the concrete case, the applicant was not a civil servant when he became a political party member. However, he became a civil servant while he was still a member of a political party. The applicant is a member of a legal party and no allegation has been made that the applicant has engaged in non-peaceful actions and discourses, has taken a stance against the constitutional order, or has acted against the democratic social order. Subsequently, it was determined that the applicant was a member of a political party and the applicant was sentenced to dismissal from the civil service, and the applicant was not given any voluntary option to terminate his political party membership.
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In the application examined, it could not be concretised that the applicant’s membership of a political party had unacceptable consequences. In that case, when the aforementioned legislative provisions and Article 68 of the Constitution are evaluated together, it is understood that lighter measures such as giving the applicant, who is a civil servant, a certain period of time to resign from political party membership, providing the applicant with the opportunity to choose between political party membership and civil service or suspension of civil service can be taken. The direct dismissal of the applicant from the civil service solely on the basis of his membership of a political party was the most severe intervention that did not comply with the principle of last resort.
Both Article 68 of the Constitution, which prohibits the coexistence of civil service and political party membership, and Article 33 of the Constitution, which guarantees freedom of association, can only fully fulfil their functions if they are interpreted in the context of the development of pluralist democracy and on the basis of rights. In practice, it has been assessed that it is possible for the administration and the courts to interpret these constitutional provisions in favour of freedoms.
For the reasons explained, the Constitutional Court ruled that the freedom of association was violated.
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