Determination Of The Right To Borrow For Working Periods Abroad Without Being A Turkish Citizen
T.C. JUDICIARY
21st Civil Chamber
Main: 2016/4562
Decision: 2016/7793
Decision Date: 03.05.2016
REQUEST FOR ANNULMENT OF THE INSTITUTION’S ACTION – DETERMINATION OF THE RIGHT TO BORROW FOR PERIODS OF WORK ABROAD WITHOUT THE REQUIREMENT OF BEING A TURKISH CITIZEN – REVERSAL OF THE JUDGMENT
SUMMARY: The claimant requested a decision to determine that he has the right to borrow his working periods abroad without the requirement of being a Turkish Citizen and to cancel the Institution’s action to the contrary. In the concrete case; it is understood that the plaintiff’s insurance in Turkey was subject to the Turkish Pension Fund between the dates of … – …, he was allowed to renounce his Turkish citizenship with the Decree of the Council of Ministers dated … in order to become a German Citizen, the plaintiff renounced his citizenship on the date of … when he received the certificate of renunciation of citizenship, and it was understood that he actually worked in Germany since …. As it is understood that the dispute arises from the request of the plaintiff, who was a participant of the Pension Fund due to his work in Turkey before 01.10.2008, when the Law entered into force, to borrow his work abroad in accordance with the Law, considering that the resolution of the dispute falls within the jurisdiction of the administrative jurisdiction, it is against the procedure and the law to decide by going into the merits of the case, while it should be decided to dismiss the case procedurally due to the “inadmissibility of the judicial remedy”, which is a condition of the lawsuit according to the article of the CCP. In that case, the appellate objections of the defendant organization in this respect should be accepted and the judgment should be reversed.
(6100 S. Code Art. 114) (5510 S. Code Art. 101, Late Art. 4) (2577 S. Code Art. 2)
Case: The claimant requested a decision to determine that he has the right to borrow for his working periods abroad without the requirement of being a Turkish citizen and to cancel the Institution’s action to the contrary.
The court decided to accept the request as stated in the judgment.
Upon the appeal of the judgment by the defendant’s attorney, after it was understood that the request for appeal was in due time and after the report prepared by the Examining Judge and the papers in the file were read, the matter was considered and the following decision was determined.
The lawsuit is related to the claimant’s request for the determination of the borrowing of his services abroad while he was a Turkish citizen within the scope of the Law No. 3201 according to the provisions of the Pension Fund, taking into account his military service subject to the Pension Fund, and the cancellation of the institutional action in the contrary direction.
Court decided to accept the lawsuit as written.
The dispute is centered on the determination of the competent judicial remedy.
According to Article 114/1-b of the CCP No. 6100, “the availability of a judicial remedy” is a condition of the lawsuit and the court investigates the existence of the conditions of the lawsuit at every stage of the lawsuit. The parties may also assert the lack of a cause of action at any time. If the court determines that there is a lack of a cause of action, it shall dismiss the lawsuit procedurally.
Law No. 5510 on Social Security and General Health Insurance entered into force on 01.10.2008 and according to Article 101 of the Law, in cases where there is no contrary provision in this Law, disputes arising from the implementation of the provisions of this Law shall be heard by the labor courts.
According to the 4th paragraph of the Provisional Article 4 of the Law No. 5510 titled “Transitional Provisions Regarding the Law No. 5434” According to paragraph 4 of the Provisional Article 4 of the Law No. 5510 titled “Transitional Provisions Regarding the Law No. 5434”, “Unless otherwise stipulated in this Law, those who, while being a participant, are included in the scope of subparagraph (c) of the first paragraph of Article 4 of this Law as of the effective date of this Law, those who worked subject to the provisions of the Law No. 5434 before the effective date of this Law and who started to work again subject to the subparagraph (c) of the first paragraph of Article 4 of this Law, and their widows and orphans shall be treated according to the provisions of the Law No. 5434, including the provisions repealed by this Law.”
In the objection application for the annulment of the section “…disputes arising from the implementation of the provisions of this Law shall be heard by the Labor Courts.” in Article 101 of Law No. 5510, the Constitutional Court, on 22.12.2011, E: 2010/65, K: 2011/169 dated 22.12.2011 and in the justification part of the decision, it was stated that since the transactions and actions to be taken by the Social Security Institution in respect of civil servants and other public officials who were working as associates before the entry into force of the Law No. 5754 and those who were receiving pension, widow and orphan pension in accordance with the Law No. 5434 as retired and also those who will be entitled to retirement from civil servants and other public officials in the future will continue to be administrative transactions, the administrative jurisdiction will continue to be in charge in disputes related to them. According to Article 153/last of the Constitution, the decisions of the Constitutional Court are published in the Official Gazette and bind the legislative, executive and judicial organs, administrative authorities, real and legal persons. The predominant view in the Constitutional Court decisions and the doctrine is that the reasoning of the Constitutional Court decisions is also binding.
On the other hand, in the decision of the Court of Dispute dated 4.9. 2012 dated 4.9.2012 and numbered 2012/64-83 Esas and Karar, civil servants and other public officials who were working as associates before the Law No. 5510 entered into force and retired as retired according to the Law No. 5434, The transactions and actions to be taken by the Social Security Institution in respect of those who are receiving widow and orphan pensions and also those who will be entitled to retirement in the future from civil servants and other public servants will continue to maintain the nature of “administrative transactions” and “administrative actions”, therefore, the authority, form, cause and reason of the administrative actions specified in Article 2/1-a of the Administrative Procedure Law No. 2577, The case filed by the plaintiff, who is a retired public employee, which is within the scope of annulment lawsuits filed by those whose interests are violated for their annulment due to their violation of the law in one of the aspects of subject and purpose, will be heard and resolved in the administrative jurisdiction, No. 5510, it has been concluded that those who started to work as civil servants and other public officials after the entry into force of this Law No. 5510 will be considered as insured subject to the provisions of this Law in accordance with Article 4/c of the Law No. 5510, and the rules and principles stipulated by the Law No. 5510, not the Law No. 5434, will be applied to them, and therefore the disputes will be resolved in the judicial jurisdiction.
In the concrete case; it is understood that the plaintiff’s insurance in Turkey was subject to the Turkish Pension Fund between 31.03.1987 and 31.03.1988, he was allowed to renounce his Turkish citizenship to take German citizenship with the Decree of the Council of Ministers dated 26.04.2000, the plaintiff renounced his citizenship on 23.10.2000, when he received the certificate of renunciation of citizenship, and he has been working in Germany since 01.04.1996.
As it is understood that the dispute arises from the request of the plaintiff, who was a participant of the Retirement Fund due to his work in Turkey before 01.10.2008, when the Law No. 5510 entered into force, to borrow his work abroad in accordance with the Law No. 3201, considering that the resolution of the dispute falls within the jurisdiction of the administrative jurisdiction, it is against the procedure and the law to make a decision in writing by going into the merits of the case, while it should be decided to dismiss the case procedurally due to the “inadmissibility of the judicial remedy”, which is a condition of the case according to Article 114/1-b of the CCP No. 6100.
In that case, the appellate objections of the defendant organization in this respect should be accepted and the judgment should be reversed.
Conclusion It was unanimously decided on 03.05.2016 that the judgment be reversed for the reasons explained above.
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