Constitutionality Review

A. Examination of the Phrase “… and resources” in Subparagraph (d) of Article 4 § 1 of Law no. 7183

Although Law no. 7183 does not specify the criteria for the preparation of the budget within the framework of the resources to be allocated by the Türkiye Tourism Promotion and Development Agency (the Agency) and the basic principles regarding the procedure of the expenditure within this framework, Article 5 § 4 of the said Law stipulates that the procedures and principles regarding the drawing up, implementation, expenditure, and accounting of the Agency’s budget shall be laid down by a regulation to be issued by the Ministry of Culture and Tourism upon obtaining the opinion of the relevant institutions.

The contested provision allows for the Agency to allocate resources to increase the share of tourism in the country’s economy and to achieve the objectives set out in Law no. 7183. However, the Law does not establish a general framework concerning the qualifications of persons, facilities, enterprises, or investments eligible for resource allocation, nor does it define the principles according to which the Agency would allocate resources. The provision has therefore been deemed to lack measures against arbitrary practices and fails to clearly define the conditions under which resources would be provided, nor does it provide for the accountability of the Agency.

Therefore, granting the Agency the authority to allocate resources, without adopting protective measures against arbitrary practices and without establishing the principles to be followed in a clear, precise, comprehensible, applicable, and objective manner, is in breach of the principles of legal certainty and of a democratic state.

Consequently, the Court has declared the provision unconstitutional and therefore annulled it.

B. Examination of the Phrase “… exclusively on the basis of independent audit reports submitted to it…” in the Second Sentence of Article 7 § 2 of Law no. 7183

The contested provision stipulates that the Court of Accounts could not carry out a separate audit of the Agency and that it would draw up its reports exclusively on the basis of independent audit reports submitted to it without requesting any information or documents from the Agency.

Independent auditing primarily examines the financial statements and financial information of commercial companies. However, unlike commercial companies, the Agency, established primarily to serve the public interest and not for profit-making, is expected to conduct its activities in accordance with public law principles and rules. Furthermore, the principle of a democratic state requires the imposition of legal sanctions for irregularities detected in the Agency’s transactions. The Law does not contain provisions on actions to be taken or legal sanctions that may be imposed on Agency officials in the event the Agency’s audit is not conducted in accordance with the law, or if irregularities are detected in its financial transactions. Therefore, it has been concluded that independent auditing does not provide sufficient safeguards to ensure that the Agency’s public resources are used in line with the public interest. As a result, the preparation of the Court of Accounts’ report for the Grand National Assembly of Türkiye (GNAT) based solely on independent audit reports submitted to it is in breach of the principle of a democratic state.

Consequently, the Court has declared the provision unconstitutional and therefore annulled it.

C. Examination of the Second Sentence of Article 8 § 4 of Law no. 7183

The contested provision establishes that the legislative provisions concerning the recruitment of staff for public institutions and organisations shall not apply to the staff employed by the Agency.

This recruitment process, involving the use of public resources, is mandated to comply with certain principles, specifically as required by the principles of a democratic state and legal certainty. By stating that the legislative provisions concerning the recruitment of staff for public institutions and organisations shall not apply to Agency staff, the provision fails to ensure the Agency’s accountability in relation to the objective use of public resources and does not enable individuals aspiring to work for the Agency to envisage the principles governing staff recruitment. This provision, therefore, is in breach of the principles of a democratic state and legal certainty.

Consequently, the Court has declared the provision unconstitutional and therefore annulled it.