No Violation Of The Right Of Access To Court Due To The Cancellation Of The Transition To Status Of The Non-Commissioned Non-Commissioned Officer Candidate With The State Of Emergency Khk
Events
The applicant, while serving as a specialised private in the Turkish Armed Forces (TAF), started the non-commissioned officer basic military service and non-commissioned officer understanding course on 22/2/2016 in order to become a non-commissioned officer; following the 15 July coup attempt, he was not commissioned and was transferred to his unit with an order.
Subsequently, the applicant applied to the Ministry of National Defence to be commissioned as a non-commissioned officer, but was informed that he could not be commissioned as a non-commissioned officer in accordance with the Decree Law No. 675 on Taking Certain Measures within the Scope of the State of Emergency (Decree Law No. 675).
The administrative court rejected the lawsuit filed by the applicant for the cancellation of the procedure regarding his not being appointed as a non-commissioned officer.
Applicant filed an appeal and the regional administrative court rejected the appeal. The applicant’s appeal application was also rejected by the Council of State.
Allegations
The applicant claimed that his right of access to the court was violated due to the cancellation of the transition to status of non-commissioned officer candidates whose appointment was not approved by the state of emergency decree decree.
Court’s Assessment
In cases where there is a legal and de facto necessity for the purpose of public interest, transactions that change the status of individuals may be subject to legal regulations. Whether the regulations that change the status of individuals arise from legal and de facto necessity can only be determined by taking into account the situation and conditions in the period in which the relevant regulation is applied.
The State has a wide discretionary power in determining the scope and content of the means to be used in order to eliminate situations that pose a threat to the democratic order, even in the normal period. Especially considering the importance of military service in ensuring national security, it is usual to be extremely sensitive in the selection of personnel to be employed in the TAF and to carry out a different employment policy compared to other institutions.
In the concrete case, since it cannot be said that there is a legal and de facto necessity for the cancellation of the transition to status to be made by a Decree Law in a way that prevents the right to file a lawsuit – in the ordinary period when there is no system change – it is concluded that the necessity condition is not met in the intervention. It is clear that there is no ordinary judicial remedy that can be applied for the cancellation of the transaction due to the fact that the transaction in question is based on a Decree Law. Apart from the ordinary judicial remedy, no procedural application procedure is foreseen. Therefore, the applicant has completely lost his right of access to the court as a result of the intervention in question. In this context, it has been assessed that the interference was not proportionate.
The interference to the applicant’s right of access to the court – since it is contrary to the guarantees set out in Articles 13 and 36 of the Constitution in the ordinary period – has also been examined in terms of Article 15 of the Constitution, which regulates the suspension and limitation of the exercise of fundamental rights and freedoms in the extraordinary period.
The right of access to the court is not among the core rights prohibited to be touched under Article 15 of the Constitution during periods when administrative procedures such as war, mobilisation and state of emergency are adopted. Therefore, it is possible to take measures contrary to the guarantees in the Constitution in terms of this right during the State of Emergency.
In this context, first of all, it has been taken into consideration that the main purpose of applying the State of Emergency administrative procedures is to eliminate the threats or dangers that led to the implementation of this administrative regime.
During the State of Emergency declared after the military coup attempt on 15 July 2016, it has been observed that one of the convenient measures that can be applied in order to stop military mobility within the Turkish Armed Forces, to prevent a new military attempt and to restore the order that has been disrupted to a certain extent within the army is the suspension of the transition to status. For this reason, it is understood that some regulations in the State of Emergency Decree Laws have been used to suspend status changes within the TAF.
In the context of taking such measures, the gravity of the situation that led to the declaration of the State of Emergency should not be forgotten under any circumstances. This is because the attempted coup demonstrates that the potential threat arising from the organisation of the Fetullah Terrorist Organisation and/or Parallel State Structure (FETÖ/PDY) within state institutions, particularly the Turkish Armed Forces, has turned into a clear and present danger. Therefore, it is clear that measures must be taken and implemented urgently to the extent of the gravity of the danger in question.
In addition, the legal and de facto obligations caused by the danger arising during the state of emergency may not make it possible to take individual actions for the persons who will be subject to extraordinary measures. For this reason, it should be considered reasonable to subject the procedures subject to changes in the legal status of individuals under the conditions constituting the State of Emergency to general regulations. In the face of the gravity of the conditions that make the declaration of the State of Emergency necessary or even compulsory, it may be considered possible to accept the application of such general preventive measures as a legal and de facto necessity.
Considering that the persons covered by the Decree Law No. 675 will be directly involved in the fight against FETÖ/PDY and other terrorist organisations within the Turkish Armed Forces upon their commissioning, it has been evaluated that the regulation for the cancellation of their transition to status without discrimination – for those in the same situation – is a result of the necessity to take effective and urgent measures in the fight against the danger arising from the coup attempt.
In this context, it has been concluded that in the face of this characteristic of FETÖ/PDY, which is known to be trying to infiltrate all state institutions, especially the Turkish Armed Forces, it is necessary for the public authorities to cancel the transition to status with the provisions of the State of Emergency Decree Laws as an extraordinary measure instead of taking individual actions in order to quickly implement the necessary measures to eliminate the danger that caused the declaration of the State of Emergency, in order to achieve the democratic constitutional order and to ensure national security and public order.
It should also be noted that the status of non-commissioned officer and non-commissioned officer candidate status are not the same. The applicant’s legal situation is different from those who have been commissioned as non-commissioned officers, since the process of being transferred to the status has not been completed. Therefore, it has been taken into consideration in the proportionality examination that the intervention is related to the cancellation of the transition to a status that has not yet been obtained for the applicant. On the other hand, no distinction was made in terms of persons in the cancellation of the transition to status, and the transition procedures of all candidates whose appointment was not completed were cancelled.
Finally, it was noted that the cancellation of the applicant’s transition to non-commissioned officer status -unlike dismissals from public institutions- did not have the effect of depriving the applicant of this status permanently. As a matter of fact, the applicant obtained his non-commissioned officer status after a short period of approximately one year, albeit by being subjected to the relevant procedure again – by taking the course again.
When the actual threat faced by a democratic society and the urgent need to eliminate it on the one hand and the applicant’s interest on the other hand are compared, it has been evaluated that the cancellation of the appointment procedures by decree decree, which does not provide the right to file a lawsuit, is proportionate.
In the light of all these explanations, it has been concluded that the interference with the applicant’s right of access to the court is proportionate under the circumstances of the concrete case where the most serious threat that a democratic society may face is the coup attempt.
For the reasons explained, the Constitutional Court decided that the right of access to court was not violated.
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