Examination Of The Rules Of The Presidential Decree Regulating The Powers Of The State Supervisory Board
A. Subparagraph (b) of Paragraph (1) of Article 1 of the Presidential Decree
Subject Rule
The rule subject to the lawsuit sets the regulation of the principles of activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations as one of the purposes of the Presidential Decree (CBK).
Grounds for the Request for Cancellation
In the petition for the lawsuit, in summary; pursuant to Article 108 of the Constitution, the duty of the State Supervisory Board (DDK) is to ensure that the administration complies with the law, is carried out regularly and efficiently, and is developed; no other duties can be assigned to the DDK; in this context, it is not possible to regulate the activities of the inspection boards and investigators in public institutions and organisations and the principles of their duties and responsibilities by the CBK; with the rule subject to the lawsuit, the DDK is assigned a duty that is not stipulated in the Constitution;
pursuant to Article 128 of the Constitution, the duties and responsibilities of the investigators and inspection boards in public institutions and organisations should be regulated exclusively by law; since the general provisions regarding the rule are clearly regulated in the law, the rule is unconstitutional. Pursuant to Article 128 of the Constitution, the duties and responsibilities of investigators and inspection boards in public institutions and organisations should be regulated exclusively by law, and since the general provisions of the rule are clearly regulated in the law, it has been argued that the rule is unconstitutional.
Evaluation of the Court
1. In terms of Subject Matter Jurisdiction
The seventeenth paragraph of Article 104 of the Constitution outlines the general framework of the CBK. In the first sentence of the aforementioned paragraph, it is stated that “The President of the Republic may issue a Presidential Decree on matters related to executive power.” Thus, the authority to regulate by CBK is restricted to matters related to executive power, and the issuance of CBK on legislative and judicial power is not permitted.
Since the executive power and duty are vested in the President of the Republic pursuant to Article 8 of the Constitution, the rule stipulating that the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations shall be regulated by the CBK falls within the scope of the subject related to executive power.
It is understood that the rule in the case, which sets the regulation of the principles of activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations as one of the purposes of the CBK, does not contain a concrete regulation on disciplinary offences and penalties within the scope of Article 38 of the Constitution. In this respect, it cannot be said that the rule is within the scope of fundamental rights, personal rights and duties under the First and Second Sections of the Second Part of the Constitution, and political rights and duties under the Fourth Section.
According to the Constitution, another requirement for CBKs is that the CBK rule should not be related to matters that are exclusively regulated by law in the Constitution. Nevertheless, it is possible to regulate by CBKs on the issues specifically stated in the Constitution to be regulated by CBKs.
The first paragraph of Article 123 of the Constitution stipulates that “The administration is a unity with its institutions and duties and shall be regulated by law.” and the second paragraph of Article 128 stipulates that “The qualifications, appointment, duties and powers, rights and obligations, salaries and allowances and other personal affairs of civil servants and other public officials shall be regulated by law.” However, the fourth paragraph of Article 108 of the Constitution states that the functioning of the DDK, the term of office of its members and other personal affairs shall be regulated by the CBK. Therefore, it is possible to regulate the aforementioned matters specifically by the CBK.
With the rule subject to the lawsuit, one of the purposes of the CBK is determined as regulating the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations. In this context, it is necessary to evaluate whether the subject rule is within the scope of the “…functioning…” of the DDK in the fourth paragraph of Article 108 of the Constitution.
The term “functioning” refers to the processing work, the way a functional formation or a process is shaped and fulfils its function, and the term “processing” refers to all of the works or practices carried out to finalise a work, the way and procedure to achieve a goal. In this respect, it can be said that the phrase “the functioning of the DDK”, which is stated in the last paragraph of Article 108 of the Constitution to be regulated by the CBK, refers to the manner in which the DDK fulfils the above-mentioned administrative investigation, examination, research and supervision work, the formation of the process and the procedure envisaged to finalise this work. How and through whom the DDK will carry out the said work and the duties and powers of these persons while performing this work should also be evaluated within this scope.
Therefore, it cannot be said that the regulation of the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations in the process of performing and finalising the administrative investigation, examination, research and supervision duties to be performed by the DDK within the scope of Article 108 of the Constitution is not related to the functioning of the DDK. In this context, the rule subject to the lawsuit does not violate the third sentence of the seventeenth paragraph of Article 104 of the Constitution.
Chapter 7 of the Law No. 657 on Civil Servants regulates the disciplinary provisions for civil servants and other public officials within the scope of the law, and this chapter sets out the procedures and principles regarding disciplinary offences and penalties. Article 124 of the aforementioned Law stipulates that in order to ensure the proper execution of public services, one of the disciplinary penalties listed in Article 125 shall be imposed on those who, as civil servants, do not fulfil the duties ordered by the laws, the CBK and the regulations at home or abroad, do not do the matters that they are obliged to comply with, and do the prohibited acts, depending on the nature and severity of the situation. Similarly, the “Ninth Chapter” of the Law No. 2547 on Higher Education regulates the procedures and principles regarding the disciplinary and penal affairs of academic staff.
With the rule subject to the lawsuit, as one of the purposes of the CBK, a general regulation is made that the CBK will regulate the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations, but no concrete regulation on the aforementioned issues is included. Therefore, the rule subject to the lawsuit does not contradict the rule in the fourth sentence of the seventeenth paragraph of Article 104 of the Constitution, which states that a CBK cannot be issued on matters clearly regulated in the law. However, there is no doubt that the issue of whether the provisions of the CBK to be issued pursuant to the subject rule are explicitly included in the law will be evaluated separately.
For the reasons explained above, the Constitutional Court has decided that the rule is not contrary to the Constitution in terms of subject matter jurisdiction and the request for cancellation is rejected.
2. In terms of Content
It is a natural consequence of Article 108 of the Constitution to regulate the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations, which are envisaged as one of the purposes of the CBK, with the rule in question to ensure that the DDK, which is envisaged as a supreme inspection body in the new government system, fulfils this function. It is understood that the rule is envisaged to ensure uniformity in the inspection regime within the scope of Article 108 of the Constitution. There is no aspect of the rule that may lead to the conclusion that the rule has been introduced in favour of special interests or certain persons other than the public interest.
One of the basic elements of the rule of law is the principle of certainty. According to this principle, as in legal regulations, the CBK rules must be clear, unambiguous, comprehensible, applicable and objective in a way that does not leave any hesitation and doubt for both individuals and the administration. The principle of certainty is linked to legal security, and the individual should know from the law which legal consequence is attached to which concrete action and fact with a certain degree of certainty. Only in this case can the individual foresee his/her obligations and adjust his/her behaviour.
Article 108 of the Constitution grants the DDK, which was established under the Presidency of the Republic, the duty and authority to conduct all kinds of administrative investigations, examinations, researches and audits in all public institutions and organisations and in all kinds of organisations in which more than half of the capital is participated by these institutions and organisations, in professional organisations with the qualifications of public institutions, in professional organisations of workers and employers at all levels, in publicly beneficial associations and foundations.
Within the scope of this authority and duty, one of the purposes of the CBK has been determined as regulating the principles of the activities, powers, duties and responsibilities of the inspection boards and investigators in public institutions and organisations. Considering that the rule to ensure the implementation of Article 108 of the Constitution is regulated in a clear, clear and understandable manner, there is nothing contrary to the principle of certainty.
For the reasons explained above, the Constitutional Court has decided that the rule is not contrary to the Constitution in terms of its content and the request for cancellation is rejected.
B. “…may apply the measure or…” in the last sentence of Paragraph (1) of Article 6 of the CBK Expression
Subject Rule
Paragraph (1) of Article 6 of the CBK, which includes the rule subject to the lawsuit, regulates the measure of suspension from office. According to the subparagraph, the head of the DDK group may impose a measure of suspension from office, or may recommend to the competent authorities the imposition of such a measure, on officials at all levels and ranks who behave in a manner that complicates or hinders the audit during the audits, who are understood to increase public damage or obscure the evidence of crime if they remain in office, or who are deemed inconvenient to remain in office in terms of the requirements of public service. The rule subject to the lawsuit is the phrase “…may apply the measure or…” in the paragraph. Pursuant to the rule, the head of the DDK group will be able to apply suspension measures during inspections.
Grounds for the Request for Cancellation
In the petition for the lawsuit, in summary, it has been argued that the rule in question is unconstitutional by stating that the rule in question goes beyond the definition of duties set out in Article 108 of the Constitution for the DDK by equipping the members of the DDK, who serve as the head of the audit and investigation group, with the power of suspension, that no administrative or judicial review is foreseen against the suspension process, and that the investigation processes regarding civil servants and other public officials and those who serve in professional organisations, public benefit associations and foundations should be regulated exclusively by law.
Evaluation of the Court
The right to association, which is a form or a special aspect of the freedom of association, includes the freedom to form an association, as well as the right to become a member of an association, to participate in its activities and to carry out activities to protect the interests of its members. Associations, on the other hand, are communities of persons organised and equipped with legal personality, in which people combine their knowledge and efforts on a permanent basis for the realisation or pursuit of a specific objective. Article 33 of the Constitution basically aims to protect against arbitrary interference by public authorities in the exercise of the right to association.
It is clear that during the inspections to be carried out in associations by the DDK pursuant to Article 108 of the Constitution, the suspension measure that the head of the group may impose on the officials in the presence of the conditions specified in the article is a restriction on the right to form associations under Article 33 of the Constitution. In this context, the rule, in terms of its scope, contains regulations regarding the rights and duties of individuals under the “Second Part, Section Two” of the Constitution.
In this respect, the rule falls within the prohibited area that cannot be regulated by the CBK in accordance with the second paragraph of the seventeenth paragraph of Article 104 of the Constitution.
For the reasons explained above, the Constitutional Court has decided that the rule is unconstitutional in terms of jurisdiction in terms of subject matter and its cancellation.
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