Cancellation Of The Rules Preventing the Filing Of Lawsuits Against Warning And Part-Time Attendance Penalties Against Military Personnel
Rule Subject to Objection
The rules subject to objection stipulate that an action for cancellation cannot be filed against the warnings and part-time attendance penalties given to officers, non-commissioned officers, specialised sergeants and contracted sergeants and privates.
Grounds for Application
In summary in the application decision; The legislation stipulates that the contracts of contracted privates and privates who receive a certain number of disciplinary penalties must be terminated before the end of the contract period, and although it is possible to file a lawsuit against the termination of the contract, no legal benefit can be obtained in the lawsuit to be filed against the termination of the contract, since some of the disciplinary penalties that form the basis of this transaction cannot be sued,
Therefore, it was argued that the exclusion of disciplinary penalties, which may lead to the termination of the contract of those concerned in terms of their consequences, from judicial review is incompatible with the principles of the rule of law, the freedom to seek rights, the principle that the acts of the administration cannot be excluded from judicial review and that the judicial remedy against disciplinary penalties cannot be closed, and that the rules are contrary to the Constitution.
Evaluation of the Court
Although Article 36 of the Constitution does not stipulate any limitation grounds for the freedom to seek justice, it is accepted that rights for which no special limitation grounds are stipulated also have certain limits arising from the nature of that right. On the other hand, the rights and freedoms and the duties imposed on the state in other articles of the Constitution may constitute a limit to rights and freedoms for which no special reason for limitation has been provided.
The third and fourth paragraphs of Article 129 of the Constitution state that “Disciplinary decisions cannot be excluded from judicial review.
Provisions concerning members of the Armed Forces and judges and prosecutors are reserved.”
The first version of the article containing the rules reads as follows: “Pursuant to Article 129 of the Constitution, it is possible to exclude disciplinary penalties for members of the Armed Forces from judicial review. In this respect, disciplinary penalties against members of the Armed Forces have been excluded from judicial review until today. The Law partially allows for the judicial review of severe disciplinary penalties.
Considering the size of the Turkish Armed Forces, the importance of establishing discipline, and the nature of disciplinary offences and disciplinary penalties, the system of open judicial remedy against all disciplinary penalties has not been preferred. Because it is considered that such a system may cause serious damage to discipline”, it is understood that the rules are envisaged for the purpose of establishing discipline for the Turkish Armed Forces (TAF) in accordance with the discretionary power given to the legislator in Article 129 of the Constitution and that they have a legitimate constitutional purpose.
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In this context, it is necessary to examine the rules in terms of compliance with the principle of proportionality. Considering that the effectiveness of such disciplinary penalties will be increased by closing the judicial remedy against warning and partial time attendance penalties, it cannot be said that the rules are not suitable and necessary in terms of achieving the purpose of ensuring discipline in the TAF.
On the other hand, making a habit of behaving in a manner and behaviour that disrupts discipline or failing to reform despite the disciplinary penalties are considered as disciplinary misconduct that requires dismissal from the Turkish Armed Forces. For officers and non-commissioned officers, except for contracted officers and non-commissioned officers, when the disciplinary penalties received within a certain period of time reach a certain number of points, this is accepted as a reason for separation from the TAF. For contracted conscripts and privates, receiving a total of eight or more disciplinary penalties from at least two disciplinary supervisors within the last one year from the most recent disciplinary penalty can be a reason for termination of the contract before the end of its term.
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In this case, the disciplinary penalties of warning and part-time attendance to service, which are not subject to judicial remedy, may lead to the separation of the military personnel in question from the TAF or the termination of their contracts. Although a lawsuit can be filed against the procedures of separation from the Turkish Armed Forces or termination of the contract, since the judicial remedy is closed against the warning and part-time attendance penalties, which are the basis of these procedures, these disciplinary penalties, which are finalised either without objection or after passing through the objection stage, are not subject to judicial review, judicial review in terms of separation from the Turkish Armed Forces or termination of the contract based on these procedures becomes formal.
In other words, since the acts subject to warning and part-time attendance penalties are not subject to judicial review as to whether they require disciplinary punishment or not, the judicial review of the cases filed against the separation from the Turkish Armed Forces or termination of the contract loses its effectiveness. In this respect, the rules impose an excessive burden on military personnel and disrupt the fair balance that must be observed between the public interest in the establishment of discipline and the freedom to seek rights.
For the reasons explained above, the Constitutional Court decided that the rules are unconstitutional and cancelled.
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