Violation Of The Principles Of Equality Of Arms And Adversarial Proceedings Due To Failure To Provide The Opportunity To Contradict The Jury Report
Events
An advertisement was made by the rectorate for one assistant professor position in the geological engineering department of the faculty of architecture and engineering. The advertisement did not include any additional requirements and two other applicants applied for the assistant professor position together with the applicant, who works at the same university. Application of a candidate other than the applicant was rejected by the Sub-Criteria Commission on the grounds that he did not fulfil the necessary requirements.
The applications of the applicant and the other candidate were referred to the jury for evaluation. As a result of the evaluation made by the jury at the first stage, the other candidate other than the applicant was proposed to be appointed, but the appointment was not made as it was understood that the candidate in question did not meet the legal requirements. Upon the applicant’s re-application, his file was sent to the jury for evaluation. The applicant was informed that two of the jury, consisting of three people, gave an opinion against the applicant and one in favour of the applicant, and that the Rectorate took action to reject the applicant’s appointment based on the jury report. The jury reports were not notified to the applicant.
Applicant filed a lawsuit for the cancellation of the non-appointment and the administrative court ruled for the cancellation of the procedure. However, the regional administrative court cancelled the administrative court’s decision and dismissed the case definitively. In the reasoning of the decision, it was emphasised that the administration has discretionary power to make an appointment to a vacant position and that the administration cannot be forced to make an appointment by judicial decision. In the decision, it was explained that there was no violation of the law in not appointing the applicant as an assistant professor in line with the evaluation of the jury members.
Allegations
The applicant claimed that the principles of equality of arms and contradictory trial were violated due to the fact that the judgement was based directly on the evaluations in the jury reports without examining the academic studies by an expert.
The Court’s Assessment
In the examination to be made in terms of the principles of equality of arms and conflicting trial, firstly, it should be examined whether there is a justifiable reason for not notifying the jury reports to the applicant. It has not been determined that the administration provided any justification as to why the jury reports were not notified to the applicant during the establishment of the administrative procedure. Moreover, there is no explanation in the decision of the administrative court as to why the jury reports were not notified to the applicant. On the other hand, it could not be determined that there was a justifiable reason arising from the nature of the work for not notifying the jury reports to the applicant. Therefore, it could not be assessed that there was a justifiable reason for not serving the jury reports to the applicant.
However, the fact that the non-delivery of the said reports to the applicant was not based on a justifiable reason does not by itself mean that the applicant’s right to a fair trial was violated. It is also important whether the applicant was provided with the means to compensate for the restriction of the applicant’s right to defence due to the failure to serve the said reports to the applicant.
During the establishment of the administrative procedure, the applicant was only informed that two of the jury members had expressed a negative opinion about the applicant. In the defence of the rectorate during the proceedings, it was stated that two members of the jury expressed a negative opinion about the applicant on the grounds that the applicant’s master’s and doctoral theses and other studies were related to the department of mineralogy and petrography, not to the declared department of mineral deposits and geochemistry.
It can be said that the summarisation of the contents of the jury reports in the respondent administration’s defence compensates to a certain extent the restriction on the defence caused by the non-notification of the reports to the applicant. However, in order to be able to say that the restriction was fully compensated, the summary in the administration’s defence must have made it possible to make a defence on all aspects of the administrative action taken against the applicant.
It is understood that the main reason for the administrative action taken against the applicant was that his master’s and doctoral theses and other studies were not related to the main discipline of mineral deposits and geochemistry. The applicant’s ability to assert his claims and objections regarding this assessment of the jury depends on his knowledge of the grounds for the jury’s judgement. However, the administration’s defence letter does not include an explanation as to how the jury reached the conclusion that the applicant’s work was not related to the main discipline of mineral deposits and geochemistry. This situation severely restricted the applicant’s defence possibilities.
On the other hand, whether the applicant’s studies are related to mineral deposits and geochemistry is a technical issue and it should be taken into account that the regional administrative court has no expertise in this field. In cases where the action taken by the administration is based on technical reports prepared by experts within the administration, although it is not an obligation for the court to apply for expert examination, this report must be suitable to be taken as a basis for the judgement and must be subjected to an objective evaluation by the court.
In the concrete case, the jury report was not sent to the regional administrative court and the administration did not make any explanation to the regional administrative court regarding the basis of the report. Since the regional administrative court does not have any expertise in the field of geological engineering, it can only determine whether the applicant’s studies are related to mineral deposits and geochemistry by conducting an expert examination. While having an expert examination on this issue could serve to close the gap in the applicant’s defence, the Regional Administrative Court did not take any initiative in this direction.
The court’s approach to the evidence is also a factor to be taken into account in determining whether the restriction on the applicant’s defence has been compensated. Where evidence that has not been served on the applicant is the sole or decisive evidence in the proceedings, the court must act with due regard to the fact that the applicant’s right to defence has been severely restricted. In this context, the court’s evaluations and interpretations that would derive rights in favour of the administration from the fact that the public authorities have not fulfilled their obligation arising from the principle of equality of arms, and that would relieve the administration from the duty to explain the justification of the administrative act and to demonstrate its compliance with the law, may lead to the principle of equality of arms to be damaged.
It is understood that the opinion of the jury was decisive in the non-appointment of the applicant and the rejection of the lawsuit filed against this process. The regional administrative court’s interpretation of the scope of the administration’s discretion also weakened the effect of judicial review and prevented the compensation of the erosion of the applicant’s defence.
In this context, the approach of the regional administrative court, which considers it sufficient for the jury to have made an evaluation in this direction, even though it has determined that there is no requirement for the applicant to have any studies related to mineral deposits and geochemistry in the vacancy announcement, is not understandable. According to Article 23 of the Higher Education Law No. 2547, while the authority to set additional conditions with the approval of the Interuniversity Council and to indicate this in the staff announcement is given to the rectorate, it should be noted that the approach that completely delegates this authority to the jury is problematic.
In this regard, the applicant’s claim that the fact that his work was sent to the jury after the evaluation process was completed and it was understood that the other candidate did not meet the application requirements shows that there was no previous evaluation of the applicant and that the jury only evaluated the other candidate in the first stage.
Since the work of the applicant and the other candidate was examined by the Sub-Criteria Commission and sent to the jury, it is clear that the jury should prepare a report on both candidates. However, it is not understood that the jury made an evaluation of the applicant’s work at the first stage. This fact should be considered as a factor that prompts the regional administrative court to act more carefully in terms of checking whether the administration has carried out the appointment process in accordance with the principle of impartiality.
In conclusion, it has been evaluated that the failure to compensate the damage caused to the applicant’s defence by not informing the applicant of the jury report, which is decisive evidence, puts the applicant in a disadvantageous position vis-à-vis the administration.
For the reasons explained above, the Constitutional Court decided that the principles of equality of arms and contradictory trial were violated.
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