Whether A Return Receipt Requested Service Of Process Is Valid And Can Be Performed
Republic of Turkey
Council of State
8th Chamber Presidency
Case No.: 2011/6339
Decision No.: 2013/8799
Decision Date: 11/26/2013
Summary of the Request: The request is for the decision of the Istanbul 1st Administrative Court dated 13/05/2011 and numbered E:2010/2218, K:2011/763 to be reviewed on appeal and overturned pursuant to Article 49 of Law No. 2577, on the grounds that it is contrary to law.
Summary of Defense: No defense was submitted.
Opinion of the Council of State Investigating Judge: It is considered that the request should be accepted and the Court’s decision should be overturned.
IN THE NAME OF THE TURKISH NATION
The Eighth Chamber of the Council of State, having deliberated on the matter, ruled as follows:
The case concerns the plaintiff, a fourth-year student in the Department of Geography at Istanbul University’s Faculty of Literature, who was punished with “one week’s suspension from the Higher Education Institution” pursuant to Article 8(a) of the Higher Education Institutions Student Discipline Regulations , which stipulates that “a one-week suspension from the Higher Education Institution” shall be imposed as a penalty.
The Administrative Court ruled that decided to cancel the decision on the grounds that the decision in question, made by the dean’s assistant, was not in accordance with the law, given that the legal provision stipulates that a penalty of suspension from the higher education institution for a period of one week to one month shall be imposed directly by the dean of the relevant faculty, and that the delegation of authority is only possible if expressly permitted by law.
Article 16(a) of the Higher Education Institutions Student Discipline Regulations, published in the Official Gazette dated 13/1/1985 and numbered 18634, under the heading “Right of Defense,” states that the student subject to disciplinary investigation shall be notified in writing at least seven days before the date on which he/she is to present his/her defense, specifying the nature of the offense attributed to him/her, At least seven days before the date on which the student is to present their defense, they shall be notified in writing. This notification shall request the student to be present at the specified date, time, and place to present their defense. In cases where notification is not possible, the student shall be required to apply to the investigator to present their defense. This shall be announced in designated locations within the institution to which the student belongs.
Article 35 of the same Regulation, titled “Notification and Address Notification,” states that “For the purposes of disciplinary proceedings, all notifications shall be deemed to have been completed by being made in writing to the address provided by the student during registration at the higher education institution or by posting the notification slip at the relevant higher education institution. Students who have changed the address they provided when enrolling in the higher education institution but have not registered this change with their institution, or who have provided an incorrect or incomplete address, cannot claim that they have not been notified if the notification has been made to their current address at the higher education institution.” Article 37, titled “Form of Correspondence,” states: “Correspondence with individuals shall be conducted by registered mail with return receipt requested. If the document is delivered by hand, the signed document shall be kept in the file. Subject to the notification method in Article 35, the provisions of the Notification Law No. 7201 shall apply in other matters.”
From the examination of the file, it is seen that the plaintiff, in the disciplinary investigation opened against him for verbally attacking and insulting security guards and two students on May 27, 2010, was summoned but did not submit a defense by public notice, and that the plaintiff submitted his defense on October 11, 2010. Based on the investigation report and the proposal made in accordance with it, the acts attributed to him were proven, and was punished by the assistant dean with a “one-week suspension from the higher education institution” pursuant to Article 8(a) of the Higher Education Institutions Student Discipline Regulations by decision No. 3230 dated November 3, 2010. It is understood that the case was filed seeking the annulment of the aforementioned decision.
The purpose of disciplinary penalties imposed on students of higher education institutions is to ensure peace, quiet, and discipline within the higher education institution and to prevent acts and behaviors that are incompatible with education and teaching activities and that hinder the healthy conduct of education and teaching activities. However, since disciplinary penalties imposed on students will closely affect their right to education and learning, the procedures and principles regarding disciplinary investigations are subject to strict rules. In this context, Article 16 of the Higher Education Institutions Student Discipline Regulations clearly and comprehensively sets out the obligations that the administration must comply with in order to grant the student subject to disciplinary investigation the right to defend themselves.
Pursuant to the aforementioned legislation, in order for the plaintiff to be able to defend themselves, the nature of the offense attributed to the plaintiff must be notified to the plaintiff by registered mail at least seven days prior to the date of their defense, to the address provided by the plaintiff during their enrollment at the higher education institution. If notification is not possible, it must be published in the official gazette. it appears that during the investigation, the plaintiff was asked to defend themselves by way of public notice without any notification being sent to their address.
Therefore, since the registered letter specified in the Higher Education Institutions Student Discipline Regulations, indicating the alleged act and the defense period, was not sent to the plaintiff, it is understood that the investigation was not conducted in accordance with the procedural rules specified in the aforementioned Regulations. Therefore, the disciplinary penalty imposed based on the investigation report, which was prepared without obtaining a defense in accordance with the procedure, is not in compliance with the legislation and the law.
In this case, the subject matter of the lawsuit is unlawful because it was established by an unauthorized assistant dean, as stated in the Court’s decision, and it is also unlawful because the plaintiff’s defense was not duly heard during the disciplinary investigation phase.
For the reasons explained above, it was unanimously decided on 11/26/2013 that the decision of the Istanbul 1st Administrative Court, which is the subject of the appeal, should be upheld for the reasons stated above, that the file should be sent to the aforementioned court, and that the decision may be corrected within 15 (fifteen) days following the date of notification of this decision.