19 February 2020 Wednesday

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY

Docket Number        : 2018/122

Decision Number      : 2020/14

Date of Decision        : 19/2/2020

Official Gazette Date & Issue: 11/5/2020 – 31124

 

Exception of Constitutionality Filed by: 12th Chamber of the Council of State

Subject-Matter: Request for the annulment of the phrase “… longer than 6 months …” stipulated in Article 7 § 1 (c) of the Decree-Law no. 399, dated 22 January 1990, on Regulation of Personnel Regime of State Economic Enterprises and Annulment of Certain Articles of the Decree-Law no. 233, for being in breach of Article 10 of the Constitution.

Ground: In the action which was filed seeking the annulment of the act concerning the termination of the employment contract for no longer meeting the employment conditions, the relevant Chamber, having concluded that the impugned provision was unconstitutional, applied for its annulment.

I. CONTESTED PROVISION

Article 7 of Decree-Law no. 399, in so far as relevant, provides as follows:

“Requirements for Employment           

Article 7- Any personnel to be employed on a contractual basis must:

(…)  

c) not have been sentenced to heavy imprisonment or imprisonment longer than six months, except for negligent offences, or even if they were pardoned, they must not have been convicted of the crimes against the State or of disgraceful offences such as embezzlement, extortion, corruption, bribery, theft, fraud, forgery, breach of trust and fraudulent bankruptcy or of offences such as smuggling other than smuggling for use and consumption, fraudulence in official tenders and buying and selling transactions and disclosing State secrets.”

(…)”

II. PRELIMINARY REVIEW

The Constitutional Court, at its meeting as to the preliminary review, dated 25 September 2018, with the participation of Mr. Zühtü ARSLAN, Mr. Burhan ÜSTÜN, Mr. Engin YILDIRIM, Mr. Serdar ÖZGÜLDÜR, Mr. Serruh KALELİ, Mr. Osman Alifeyyaz PAKSÜT, Mr. Recep KÖMÜRCÜ, Mr. Hicabi DURSUN, Mr. Celal Mümtaz AKINCI, Mr. Muammer TOPAL, Mr. M. Emin KUZ, Mr. Hasan Tahsin GÖKCAN, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ, Mr. Recai AKYEL and Mr. Yusuf Şevki HAKYEMEZ pursuant to the provisions of the Internal Regulations of the Constitutional Court, UNANIMOUSLY decided to proceed with the examination on the merits for having found no deficiency in the file.

III. EXAMINATION ON THE MERITS

Having deliberated on the petition and annexes thereto, the report on the merits of the case, which was issued by the rapporteur-judge Mrs. Gülbin AYNUR, the contested decree-law provision, the relevant constitutional provisions and their legislative intentions as well as the other legislative instruments, the Court decided as follows:

A. Ground for the Exception of Constitutionality

3. It is maintained in brief that while it is required pursuant to the Civil Servants Law no. 657 of 14 July 1965 that for an individual to be able to be employed as a civil servant, he/she must not have been sentenced to imprisonment for one year or more for an offence committed intentionally, the impugned imprisonment period is prescribed as being longer than six months with regard to the personnel to be employed in public service on a contractual basis under the Decree Law. It is therefore argued that while a civil servant employed under Law no. 657 is allowed to continue his office, even if he has been sentenced to ten months’ imprisonment, another civil servant working in the same institution but employed on a contractual basis under the Decree Law is not allowed to continue his office and his employment contract is terminated, if he has been sentenced to the same punishment. In this regard, it is claimed that the impugned situation does not comply with the principle of equality and is in breach of Article 10 of the Constitution.

B. Constitutional Review

2. Article 7 § 1 (c) of the impugned Decree-Law provides that any personnel to be employed on a contractual basis must not have been sentenced to heavy imprisonment or imprisonment longer than six months, except for negligent offences, or even if they were pardoned, they must not have been convicted of the crimes against the State or of disgraceful offences such as embezzlement, extortion, corruption, bribery, theft, fraud, forgery, breach of trust and fraudulent bankruptcy or of offences such as smuggling other than smuggling for use and consumption, fraudulence in official tenders and buying and selling transactions and disclosing State secrets. The phrase “… longer than six months…” in the aforementioned clause constitutes the contested provision.

1. Preliminary Issue

5. In the constitutionality review of the contested provision, it is discussed at the outset whether the repealed Article 91 of the Constitution, which regulated the legal regime of Decree-Laws, can be relied on as the binding rule; whether, upon  the rejection decision rendered by the Constitutional Court as a result of the review made in accordance with Article 91, the same provision can be reviewed again in accordance with the same article; and whether the ten-year period prescribed in Article 152 § 4 of the Constitution to elapse for filing a further claim of unconstitutionality is also applicable to the reviews to be made under the repealed Article 91 of the Constitution.   

6. Article 91 of the Constitution, which provided that the Turkish Grand National Assembly might empower the Council of Ministers in the previous government system to issue decree laws and which regulated the legal regime of decree laws, was repealed by Article 16, which entered into force on 9 July 2018, of the Act no. 6771 on the Amendment to the Constitution of the Republic of Turkey, dated 211 January 2017, whereby the chance of issuing decree-laws has been removed constitutionally.

7. On the other hand, pursuant to the first sentence of provisional Article 21 (F) of the Constitution, which is added by Act no. 6771 and which provides that “The decrees having the force of law, regulations, by-laws issued by the Prime Ministry and the Council of Ministers and other administrative regulations that are in force as of the effective date of this Act shall remain in force unless they are repealed”, it is prescribed that the decree-laws issued until the repeal date of Article 91 of the Constitution and are still in force shall continue to be in force.

8. The second sentence thereof reads “Articles 152 and 153 shall continue to be applied to the decrees having the force of law that are in force”. Although Articles 150 and 151 of the Constitution, which are related to the actions for annulment that might be brought for the alleged unconstitutionality of decree laws, are not referred to in the said sentence, the Constitutional Court, through its interpretation of the relevant provision, has acknowledged that it still has the power to make judicial review of ordinary decree laws also in terms of the actions for annulment (see the Court’s decision no. E.2018/114, K.2018/91, 25 September 2018, §§ 8 and 9).

9. The former Article 148 § 1 of the Constitution, prior to its amendment by Law no. 6771, stipulated that the Constitutional Court could examine the constitutionality of decree laws both in form and substance. Prior to the termination of the decree law regime through the said constitutional amendment of 2017, the Constitutional Court also relied on the repealed Article 91 of the Constitution as the binding rule, and it reviewed, in accordance with this article, whether the decree laws were based on an empowering act; whether they fell into the scope of the empowering act; and whether they concerned an area prohibited to be regulated by decree-laws.

10. While the second sentence of provisional Article 21 (F) of the Constitution envisages the continuation of the power vested to review the decree laws, it contains no provision as to whether the repealed articles can be relied on as the binding rule during the said review. This issue should be resolved through interpretation by the Constitutional Court, and to this end, the nature of the repealed rules should be taken into consideration.

11. In the Constitutional jurisdiction, in terms of the constitutionality review of a rule, the rules applicable on the date of review are relied on in accordance with the supremacy and binding nature of the Constitution (for an assessment of the Court in the same vein, see the Court’s decision no. E.1981/13, K.1983/8, 28 April 1983). However, since any rule that is subject to the constitutionality review has emerged on the basis of the empowering provisions applicable at the material time, a review of such a rule should be made on the basis of the provisions applicable at the material time even if they are currently repealed. As a matter of fact, even if repealed, Article 91 of the Constitution underlies the constitutional competence relating to the issuance of the decree laws that are still in force and subject to the constitutionality review in terms of competence. In this respect, a review of whether the power to issue decree laws has been exercised in accordance with the Constitution may only be possible though a review based on the rule whereby the relevant constitutional power has been defined and its scope and limits have been determined. Such a review is required by the principle of rule of law which necessitates the establishment of any act and action in accordance with the law, as well as Article 6 of the Constitution, whereby it is set forth that no person or organ shall exercise any state authority that does not emanate from the Constitution.

12. Accordingly, it should be examined whether the relevant decree laws, and hence the contested provision, comply with the repealed Article 91 of the Constitution.

13. As a result of the review made by the Constitutional Court upon the alleged no-compliance with the repealed Article 91 of the Constitution of the contested provision through an action for annulment brought previously, it was concluded that the contested provision was not contrary to the relevant Article, on the grounds that it relied on an empowering act, that it fell within the scope of the empowering act and that it included no regulation relating to a prohibited issue. The Constitutional Court’s decision dismissing the previous application was published in the Official Gazette dated 13 August 1991 and numbered 20959. In the same decision, the content of the provision was also examined and was not found unconstitutional (see the Court’s decision no. E.1990/12, K.1991/7, 4 April 1991).

14. It is obvious that the review of whether the decree-laws comply with the repealed Article 91 of the Constitution cannot be limited to once. Otherwise, such a limitation would mean that subsequent to its first review, the decree law shall be untouchable in the face of the said article of the Constitution. This, above all, does not comply with the intended purpose of the constitutional justice, the main purpose of which is to make the constitutionality review of the rules as well as to remove the unconstitutional ones from the legal system.

15. In addition, in consideration of the possible differences between the conclusions reached as a result of the abstract review of the decree laws –prior to their effective date– through actions for annulment whereby they are reviewed in general terms under the repealed Article 91 of the Constitution and the concrete review of them –subsequent to their effective date– upon reference by an ordinary court that encounters the constitutional question in the course of a hearing before it, there is a necessity to allow such a repetitive review. As a matter of fact, it is possible that some provisions may take on new meanings and scope different than the ones elaborated in the action for annulment in accordance with the changes and developments in dynamic social life; that especially, the relevant provisions of the Constitution, which are regarded as prohibited areas for decree-laws, and the concepts set forth therein may be interpreted in another way in time; and that therefore the assessments under the repealed Article 91 of the Constitution may change. Accordingly, the acknowledgement of the fact that a review can be made only once in accordance with the said article may result in the operation of a decree law provision that is manifestly unconstitutional (for example, it may include a regulation concerning a prohibited issue or it may not be based on the empowering act).

16. Besides, as is known, there is no constitutional barrier for the courts to reapply to the Constitutional Court, challenging the constitutionality of the same provision under the same article, and as such, there is no barrier for the Constitutional Court to review it again, except for the application condition that ten years must elapse since the publication in the Official Gazette of the decision dismissing the application on the merits. As a matter of fact, the necessity to make such a review again comes from the possibility that the laws may not meet the needs over time or the situation and conditions may change. In this regard, there is no legal or justified reason for holding the repealed Article 91 of the Constitution separate from other articles of the Constitution in terms of raising repetitive unconstitutionality allegations under the same article and to exercise constitutional review in such cases.

17. Therefore, the fact that the contested provision was previously reviewed under the repealed Article 91 of the Constitution does not prevent its review under the same article anew.

18. Article 152 § 4 of the Constitution provides that no claim of unconstitutionality shall be made with regard to the same legal provision until ten years have elapsed after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits. The said provision prescribes a ten-year ban for the constitutionality review of a previously challenged provision. It is understood that the aim of the relevant ban is to ensure stability in court decisions. As a matter of fact, it is stated in the reasoning of the Constitutional Committee of the Consultative Assembly regarding the said provision that the principle of stability, which is one of the main principles of the law, is also taken into consideration in the recommendation of the relevant review ban.

19. In this context, with a view to ensuring the legal stability, it is necessary that the ten-year ban be applicable also to the reviews under the repealed Article 91 of the Constitution. The question of under which article of the Constitution a review is made does not matter in terms of the application of the ban intended to ensure legal stability. On the other hand, there is no reason for separating the repealed Article 91 of the Constitution from the other articles thereof in terms of the said review ban. Accordingly, no claim of unconstitutionality under the repealed Article 91 of the Constitution shall be made with regard to the same legal provision until ten years have elapsed after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application concerning a decree-law provision on its merits.

20. At this point, the scope of the decisions on the merits in the constitutionality review of the decree-laws should also be put forth. The reasoning for adding the phrase “… proceeding with the merits …” to Article 152 § 4 of the Constitution is based on the fact that some of the rejection decisions of the Constitutional Court are procedural. As a matter of fact, the reasoning submitted by the National Security Council Constitutional Committee for the amendment of the relevant article, in so far as relevant, provides that “Considering that the rejection decisions of the Constitutional Court are procedural in some cases, the phrase “proceeding with the merits” has been added to exclude them”.

21. In terms of the constitutional jurisdiction, an examination on the merits amounts to the examination of whether the regulation stipulated in the provision under review is constitutional. In classical terms, the constitutionality review refers to the examination of a provision to find out if it is contrary to the Constitution in its content, in other words, in terms of its effects on the material law. In this context, during the constitutionality review, it is determined, through the examination of all relevant and necessary legal principles as well, whether the contested regulation is contrary to any provision of the Constitution.

22. The Constitutional Court, in its decision dated 11 September 2014 and numbered E.2013/116, K.2014/135, concluded that, as the review of the decree-laws in terms of the prohibited issues as well as the empowering act was a type of review made without an examination on the merits, the decisions rendered in this scope did not fall into the category of the decisions on the merits of the applications as specified in Article 152 § 4 of the Constitution. However, as previously stated, the repealed Article 91 of the Constitution limited the areas that could be regulated by decree-laws. Accordingly, determining that decree-laws do not include any regulation in the prohibited areas, that they are based on the empowering act, and that they fall into the scope of the empowering act are constitutional is constitutional examination and therefore these are criteria for constitutionality. In other words, in order to ensure the constitutionality of decree-laws, they must be constitutional not only in their content but also in terms of the specified qualifications. This necessitates that the constitutionality review of decree-laws should be made in two stages, namely the criteria and content as set forth in the repealed Article 91 of the Constitution.

23. As such, the review of decree-laws in terms of both the empowering act and the prohibited area is also part of the constitutionality review. In this regard, during this review, it is determined whether the contested provision is unconstitutional in terms of both the empowering act and the prohibited area, prior to making an assessment as to whether its content is unconstitutional. Thus, the decisions rendered upon the review of the contents of decree-laws as well as the decisions rendered upon their review in terms of both the empowering act and the prohibited area are also within the scope of the decisions rendered on the merits under Article 152 § 4 of the Constitution.

24. In the Constitutional Court’s aforementioned decision of 4 April 1991 regarding the contested provision, the said provision was subject to review in terms of both the criteria and the content stipulated in the repealed Article 91 of the Constitution and that the claims of unconstitutionality regarding these issues were rejected. In view of the explanations above, the decision of the Constitutional Court regarding the contested provision was a decision dismissing the application on the merits.

25. In the present case, as more than ten years have elapsed since the publication of the Constitutional Court’s decision dismissing the application concerning the contested provision in the Official Gazette on 13 August 1991, the previous decision does not hinder the review of the provision under the repealed Article 91 of the Constitution.

2. Judicial Review of Decree-Laws

26. Since the decree-laws regulated in the repealed Article 91 of the Constitution have the characteristic of legislative acts in operational terms, the Constitutional Court is vested with the duty and power to make the judicial reviews of these rules. The relevant article refers to the constitutionality review of decree-laws both in form and substance. The said constitutionality review also includes the review of whether the impugned decree-law is within the scope of the empowering act. As a matter of fact, the repealed Article 91 of the Constitution stipulates that the Council of Ministers shall be authorized to issue decree-laws within the limits defined in the empowering act. Exceeding the granted authority shall render the decree-law unconstitutional. Accordingly, the matter of whether the decree-law is within the scope of the empowering act should also be resolved during the judicial review.

27. Unlike the state of emergency decree-laws that are directly based on the Constitution, ordinary decree-laws are required to be based on an empowering act. Therefore, there is a very strict connection between decree-laws and the empowering acts on which they are based. This connection ceases only when decree-law (or its amended version) is enacted as law by the legislation. As a prerequisite for the validity of a decree-law, it must be based on a constitutional empowering act. Decree-law, if issued without relying on an empowering act or if the empowering act on which it is based is annulled, cannot be regarded as constitutional even if its content is not unconstitutional.

28. The constitutionality review of decree-laws is different from that of the laws. Article 11 of the Constitution provides that “Laws shall not be contrary to the Constitution”. Therefore, in the review of the laws, it is only determined whether they comply with the constitutional provisions. On the other hand, the decree-laws must comply with both the empowering act on which they are based and the Constitution in terms of their subject, purpose, scope and principles.

29. The repealed Article 91 of the Constitution prohibited the regulation of certain issues by decree-laws. The first paragraph thereof provided that “…the fundamental rights, individual rights, and duties included in the First and Second Chapter of the Second Part of the Constitution and the political rights and duties listed in the Fourth Chapter cannot be regulated by decrees having force of law, except during periods of martial law and states of emergency”. According to this provision, the Turkish Grand National Assembly may empower the Council of Ministers to issue decree-laws on the matters that are not within the area prohibited to be regulated by decree-laws.

30. Unless being related to the matters explicitly prohibited by Article 91 § 1 of the Constitution or unless expressly specified, as in the repealed Article 163 of the Constitution, that a decree-law cannot be issued, the regulation of an issue, which is envisaged to be regulated by law in any provision of the Constitution, through a decree-law will not be contrary to the Constitution.

3. Examination of the Contested Provision under Repealed Article 91 of the Constitution

31. Decree-Law no. 399 is among the decree laws issued on the basis of the Empowering Act no. 3268, dated 12 March 1986, on Making Amendments to Certain Laws concerning Civil Servants and Other Public Officials; the Empowering Act no. 3347, dated 9 April 1987, on Making Amendments to the Organization of Public Institutions by Law no. 3268, dated 12 March 1986; the Law no. 3479, dated 12 October 1988, on Making Amendment to Law no. 3347 as well as to an Article of Law no. 2954 by Law no. 3268; and the Law no. 3569, dated 1 June 1989, on Making Amendments to the Empowering Act on Making Amendments to Certain Laws concerning Civil Servants and Other Public Officials.

32. Pursuant to Article 1 of Act. no. 3268, the Council of Ministers is authorized to issue decree laws within the framework specified in the relevant article to improve the administrative, financial and social rights of the civil servants and other public officials with a view to increasing their effectiveness and ensuring the regular, rapid, efficient and economic operation of public services. With the amendment made to Article 2 of Law no. 3268 by Article 2 of Act no. 3347, as regards the administrative, financial and social rights of the civil servants and other public officials working in public institutions and organizations, it is provided that besides the laws and decree-laws listed in thirteen sub-paragraphs of Paragraph (A) thereof, regulations can be made on the principles concerning the duties, powers and responsibilities of the units in the public institutions, as well as the organization and positions in these institutions. In addition, in accordance with Article 4 of Act no. 3347, the validity period of Law no. 3268, which would expire on 19 March 1988, was extended until 31 December 1988. Subsequently, with the amendment made to Article 2 of Law no. 3268 by Article 1 of Law no. 3479, the scope of the regulations that may be amended by decree-laws was extended and it was made possible to establish a new ministry with a decree-law. Besides, in accordance with Article 2 of Law no. 3479, the validity period of Law no. 3268 was extended until 31 December 1990. Furthermore, with Law no. 3569 adopted on 1 June 1989, the scope of Law no. 3268 was extended by making amendments to the articles thereof which were related to the purpose and scope.

33. Considering that the adoption date of Decree-Law no. 399 is 22 January 1990, it appears that the relevant decree-law was issued within the extended validity period of Law no. 3268 in accordance with Law No. 3479.

34. Law no. 3479 was annulled by the Constitutional Court's decision dated 1 February 1990 and numbered E.1988/64, K.1990/2, and the relevant decision was published in the Official Gazette dated 21 April 1990 and numbered 20499.

35. The Constitutional Court examined, within the scope of the action brought for the annulment of all articles of Decree-Law no. 399 for unconstitutionality, the issue of whether the relevant Decree-Law still had a basis after the annulment of Law no. 3479, and concluded that the relevant Decree-Law was not in breach of the repealed Article 91 of the Constitution due to the annulment of the said Law. It was pointed out in the Constitutional Court’s decision no. E.1990/12, K.1991/7, dated 4 April 1991; that it had been previously reiterated by the Constitutional Court that the decree-laws should not be issued frequently but should be issued only in important, compulsory and urgent cases, as well as that they should not be updated in a fashion giving the impression of the transfer of legislative power; and that despite not being explicitly embodied in the Constitution, the criteria of being important, compulsory and urgent were first put forth as the reasons for unconstitutionality in the decisions annulling Law no. 3479 and Empowering Act no. 3481, dated 20 October 1988, on the Rearrangement of Administrative Procedures and Acts. In the decision it was underlined that these criteria would have a binding effect only after the aforementioned decisions are published in the Official Gazette and therefore they cannot affect the decree-laws that entered into force earlier, and that the annulment of the empowering act for being contrary to one of the criteria enshrined in the Constitution will undoubtedly result in the annulment of the decree-laws based on the relevant empowering act. However, the Court further stated in the same decision that the application of the impugned criteria, which have been expressed for the first time by the Constitutional Court during the review of an empowering act, to the decree-laws issued prior to the publication of the relevant decision in the Official Gazette, as well as the annulment of these decree-laws for unconstitutionality according to the impugned criteria, will harm legal stability, certainty and security, and that it will also be in breach of the principle of non-retroactivity of the Constitutional Court’s decisions.

36. In its decision, the Constitutional Court concluded that although Act no. 3447 forming a basis for Decree-Law no. 399 as of the date it was issued has been annulled, the latter has not become devoid of basis for the reason explained above. However, as a matter of course, it is clear that it will take a certain period of time to examine the alleged unconstitutionality of the empowering acts. Accordingly, the acknowledgement of the fact that even if an empowering act is subsequently annulled by the Constitutional Court, decree-laws issued until the publication of the annulment decision will not be affected by the situation, in other words, it will still be legally applicable despite being no longer based on an empowering act is not compatible with the provision set forth in the repealed Article 91 § 1 of the Constitution, where it is stipulated that decree-laws shall be issued by the Council of Ministers empowered by the Turkish Grand National Assembly. Therefore, the decree-laws –the empowering acts on which they are based have been annulled and thus there is no longer an empowering act they are based on– cannot be regarded as constitutional, even if their contents are so. Accordingly, the Decree-Law embodying the contested provision does not meet the requirement of relying on an empowering act which is a precondition for its applicability, since Act no. 3479 on which it is based has been annulled.

37. In addition, it is specified in the repealed Article 91 § 1 of the Constitution that the fundamental rights, individual rights and duties included in the First and Second Chapter of the Second Part of the Constitution and the political rights and duties listed in the Fourth Chapter cannot be regulated by decree-laws except during periods of martial law and states of emergency.

38. Article 70 § 1 of the Constitution, entitled “Entry into public service”, in the Fourth Chapter entitled “Political Rights and Duties” provides that every citizen has the right to enter public service. Besides, the second paragraph thereof provides that no criteria other than the qualifications required for the position concerned shall be taken into consideration for recruitment into public service. Accordingly, the right to enter public service safeguarded by Article 70 of the Constitution -in the Fourth Chamber titled “Political Rights and Duties” in the Second Part thereof- cannot be regulated by decree-laws.

39. Considering that the phrase “civil servants and other public officials to be recruited into public service” is included in the reasoning of Article 70 of the Constitution, which was accepted by the Consultative Assembly, it is understood that the relevant article regulates the right to enter public service of not only the civil servants but also the public officials which is a wider concept. As a matter of fact, while the right to enter public service is regulated in Article 70 of the Constitution; Article 128 of the Constitution, which regulates the general principles regarding the public service officials who will be engaged in such services, includes the phrase “civil servants and other public officials” in order to refer to these officials. Accordingly, Article 70 of the Constitution regulates not only the right to be a civil servant, but also the other public officials’ right to enter public service.

40. The Constitutional Court specified in its decision of 4 April 1991 concerning the contested decree-law that the personnel employed on a contractual basis under Decree-Law no. 399 were not subject to the same classification as the other public officials referred to in Article 128 of the Constitution. However, the case-law of the Constitutional Court has changed in time and hence the said personnel have also been accepted as public officials (see the Court’s decisions no. E.2008/19, K.2010/17, 28 January 2010; and no. E.2008/24, K.2010/115, 16 December 2010). Thus, the personnel employed on a contractual basis under Decree-Law no. 399 are considered to have the same status with the other public officials referred to in Articles 70 and 128 of the Constitution.

41. The contested provision stipulates that any personnel to be employed on a contractual basis must not have been sentenced to imprisonment longer than six months, except for negligent offences.

42. The qualifications and requirements for entering public service shall be regulated by Article 70 of the Constitution. The contested provision concerns the qualifications required for employment on a contractual basis under Decree-Law no. 399, which is one of the ways of employment as a public official in the performance of public services; therefore, it is a regulation concerning the exercise of the right to enter public service and remains within the prohibited area which cannot be regulated by decree-laws pursuant to the repealed Article 91 of the Constitution.

43. Consequently, the contested provision, which no longer has a basis due to the annulment of the empowering act as well as contains a regulation on the prohibited area, is in breach of the repealed Article 91 of the Constitution. Thus, it should be annulled.

Justice M. Emin KUZ holds a concurring opinion.

The contested provision, being annulled as being in breach of the repealed Article 91 of the Constitution, has not been examined separately by its content.

V. JUDGMENT

It was UNANIMOUSLY decided on 19 February 2020 that;

A. the phrase “… longer than 6 months …” stipulated in Article 7 § 1 (c) of the Decree-Law no. 399, dated 22 January 1990, on Regulation of Personnel Regime of State Economic Enterprises and Annulment of Certain Articles of the Decree-Law no. 233, be ANNULLED for being in breach of the repealed Article 91 of the Constitution; and

B. the phrases “… or …” and “… imprisonment …” therein given before the aforementioned phrase be ANNULLED in accordance with Article 43 § 4 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011.