Annulment Of The Rule Providing That Physicians Discharged From State Service May Practice Their Profession After A Certain Period Of Time
Subject Rule
The rule subject to the lawsuit stipulates that those who have been dismissed from public office within the framework of the relevant legislation by being evaluated to have membership, affiliation or association with or contact with the structures, formations or groups that are decided to be active against the national security of the state, or those who are obliged to state service among the physicians who are not taken to public office according to the result of the security investigation, can practice their profession after the expiration of a certain period of time from the date of the decision to dismiss or not to take office.
Grounds for the Request for Annulment
In summary in the petition for the lawsuit; the rule is contrary to the general principles of law, science and the principles of expertise, does not meet the principles of equality, objectivity and abstractness, and does not have the characteristics of being foreseeable, accessible and understandable, and deprives certain professional members of their constitutional rights, It has been argued that the rule is unconstitutional by stating that declaring people guilty by a State of Emergency Decree Law without any judicial decision or as a result of a subjective security investigation leads to deprivation of rights, that this situation is against the presumption of innocence, and that it violates the right to work and the right to enter public service.
Evaluation of the Court
Article 13 of the Constitution stipulates that regulations imposing restrictions on fundamental rights and freedoms must be proportionate and in accordance with the grounds for restriction set forth in the Constitution.
Although Articles 48 and 49 of the Constitution do not foresee any reason for limitation for the right to work, it is accepted that rights for which no special reason for limitation is foreseen also have some limits arising from the nature of that right.
Taking into account the fact that health services can be utilized in every region of the country and that deficiencies and delays in the fulfillment of health services due to their nature will lead to irreparable consequences, Law No. 3359 stipulates a state service obligation for physicians and specialist physicians within the scope of citizenship duty for each of their trainings, and it is stipulated that those who do not fulfill this obligation cannot practice their profession.
It is understood that the legislator aims to ensure labor peace by preventing the injustice that will occur between the physicians who fulfill their state service obligation and those who cannot fulfill this obligation for the specified reasons in terms of the beginning of the period in which they can practice their profession outside the public sector by regulating that the physicians within the scope of the rule can only practice their profession at the end of the state service obligation period specified in the article.
In Article 49 of the Constitution, it is among the duties of the state to ensure labor peace along with other measures in the context of protecting working life. In this framework, the rule envisaged to ensure labor peace has a legitimate constitutional purpose.
The rule envisages a measure to eliminate the favorable consequences that will arise in terms of physicians who are not deemed appropriate to be employed in the public service. The rule has introduced a limitation in accordance with the principle of convenience in terms of the objective of ensuring labor peace.
However, it is clear that other similar measures can be taken to achieve the aforementioned objective or other similar measures can be taken by imposing an obligation on the physicians who remain within the scope of the rule to perform their work in the private sector only in the regions subject to compulsory service during the compulsory service period. In this respect, the rule violates the necessity criterion.
Even if it is accepted for a moment that the rule meets the necessity criterion, there is no reasonable balance between the public interest to be achieved by the restriction and the right to work. Preventing physicians who are not allowed to work in the public sector on the grounds of national security from practicing their profession in the private sector for a long period of 450 days imposes an excessive burden on individuals.
In this framework, contrary to the purpose of the state service obligation, the rule may lead to the problem of fewer physicians being able to provide health services. On the other hand, it is obvious that the persons covered by the rule will be deprived of professional practice and development due to their inability to practice their profession, considering the nature of the medical profession, and this may lead to undesirable consequences in terms of public health. It has been concluded that these issues disrupt the balance of interests in general and that the rule violates the principle of proportionality in this respect.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and canceled.
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