26 December 2018 Wednesday

İbrahim Çiçek (no. 2015/19462, 26 December 2018)

The Facts

The applicant was a secondary school deputy principal in a district, as well as the district representative of an education union at the time of the press statement and demonstration march in question. A disciplinary investigation was opened against the applicant for participating in unauthorized and illegal demonstration, march and press statement. The applicant was appointed by the provincial directorate of national education to a secondary school in another district as a teacher.

The applicant brought an action before the administrative court, requesting the annulment of his appointment. The court dismissed the applicant’s case. The applicant’s appeal was examined and rejected by the regional administrative court that upheld the administrative court’s decision. The applicant’s subsequent request for rectification of the decision was also dismissed. Therefore, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant maintained that he was discharged from his position as an administrator and was appointed to another school on account of the activities in which he had participated in accordance with the instruction of the union of which he was a member. He accordingly claimed that his right to union membership was violated.

The Court’s Assessment

It must be acknowledged that the applicant’s having been appointed to another school as well as his having been discharged from his position as an administrator constituted an interference with his right to union membership.

In the present case, a disciplinary investigation had been opened against the applicant who had been deputy principal in a secondary school, on the ground that he had participated in certain activities of a union which, according to him, ordered him to do so, by taking medical examination forms, taking leaves or not going to work without an excuse. As a result, he was discharged from his position as an administrator and was appointed to another school as a teacher. The issue to be examined by the Court is whether the said interference complied with the requirements of a democratic society.

School administrators are responsible for ensuring that education is conducted properly without any interruption and that the teachers start the class on time and perform their duties in accordance with the legislation. It primarily falls to the administrators to prevent the misuse of the opportunities provided by law.

According to the investigation report issued in respect of the applicant, he displayed behaviours contradicting his position as a public official and he caused disturbance in the school where he worked, which especially disturbed the teachers and students. It was therefore recommended that the applicant would be discharged from his position as an administrator.

The report further stated that the applicant’s acts were contrary to the provisions of the Law no. 657 on Civil Servants, which were related to political ban and to carrying out activities on behalf of a political party.

Right to union membership also guarantees that members of a union are not imposed sanctions for being a member of the union or for participating in its activities. However, union membership must not necessarily lead the public officials to act contrary to the duties and responsibilities expected of them while enjoying their constitutional rights.

It must be acknowledged that the administration enjoys a wider margin of appreciation in terms of administrative positions than it does in the other types of appointments. In the present case, the activities participated in by the applicant and their characteristics, the requirements of his duty and their reflections in the school where he worked were considered as a whole by the inferior courts which concluded that the change of his place of duty was lawful. In addition, considering the possibility that there was no teacher shortage in the school where the applicant was working, the applicant might naturally be assigned in another school. Besides, if the applicant worked as a teacher in the same school after being discharged from his position as an administrator, it would probably have negative effects.

As a result, the applicant’s having been discharged from his administrative duty and appointed to another position in another place in accordance with the findings of the administration as well the inferior courts’ justifications and in conformity with the legislation did not constitute a disproportionate interference with his right to union membership. Hence, the balance between the measures deemed necessary for the proper conduct of education services and the applicant’s right to union membership was not disturbed to the detriment of the applicant.

Consequently, the Constitutional Court found no violation of the applicant’s right to union membership safeguarded by Article 51 of the Constitution.