Constitutionality Review

2/2/2023
Press Release No: Constitutionality Review 4/23
Press Release concerning the Decision Annulling Certain Provisions of the Higher Education Law pertaining to Disciplinary Investigation
The Constitutional Court, at its session dated 13 October 2022, declared unconstitutional and annulled the second sentence of subparagraph (a) and subparagraphs (b) and (c) of Article 53/A § 2 of Law no. 2547 on Higher Education (file no. E.2022/87). |
Contested Provisions
The contested provisions provide for the regulation of the principles relating to the right to defence in disciplinary proceedings.
Ground for the Request for Annulment
It was maintained in brief that the contested provisions were unconstitutional on the grounds that they imposed a restriction on the right to defence in breach of the constitutional safeguards.
The Court’s Assessment
Article 129 § 2 of the Constitution safeguards the right to defence by stipulating that public servants, other public officials and members of professional organisations with public institution status or their umbrella organisations shall not be subjected to disciplinary sanctions without being granted the right to defence.
It is not possible for a person who has not been informed of the allegations against them to mount a defence. The allegation is communicated to the person concerned so that a defence can be submitted. The notice must therefore indicate the act of which the person is accused and the disciplinary offence committed. If the legal nature of the act is modified during the course of the disciplinary proceedings, the person concerned must be duly advised of any such change.
The second sentence of subparagraph (a), which contains the contested provisions, provides that the investigator shall allow the person under investigation a period of not less than seven days to exercise his right to defence. Considering the wording of subparagraph (a) as a whole, it is evident that a disciplinary sanction cannot be imposed on a person without the defence being heard, that the investigator has no discretionary power to grant a period of defence and, accordingly, the Law explicitly provides that the minimum period of defence, the lower limit of which is determined in the same subparagraph, shall be granted by the investigator.
To determine if the wording in question aligns with the constitutional safeguards of the right to defence, it is essential to evaluate it in conjunction with the details that should be present in the writ for defence submissions. In addition to the time-limit for the defence submissions referred to in subparagraph (a) of Article 53/A § 2 of the Law, it has been understood that the time-limit for the defence submissions to be determined by the investigator in accordance with the wording of the relevant subparagraph shall be given by means of a writ for defence submissions with the content specified in subparagraph (b). In addition, having regard to the stage of the disciplinary process at which the investigator is involved, an assessment should be made as to whether that stage allows the person concerned to properly benefit from the right to be informed of the allegation, which constitutes a prerequisite for a defence.
In subparagraph (b) of Article 53/A § 2 of the Law, it is envisaged that the content of the writ for defence submissions shall only specify the nature of the act under investigation. It is inferred from the wording of the Law that there is no legal obligation to include in the writ for defence submissions information that may be necessary for the person under investigation to prepare an effective defence.
Additionally, while the Law does not explicitly specify if the writ inviting a defence should be sent to the person under investigation at the very onset of the investigation -before the investigation file has reached even a minimum level of development- it is understood that the investigator is not constrained by any specific guidelines in this respect and that the defence may be requested at a stage when the file is not yet fully developed, taking into account the information that must be included in the content of the writ for defence submissions.
Pursuant to subparagraph (a) of Article 53/A § 1 of the Law, the disciplinary supervisor, upon learning of an act warranting a disciplinary sanction, shall initiate a disciplinary investigation in writing. In the light of this provision and the different concepts favoured in subparagraphs (b) and (c) of the second paragraph, it is apparent that the notification in the investigator’s writ for defence submissions, limited to the scope of the allegations that led to the initiation of the investigation and made prior to the findings of the investigation, is considered sufficient. It is therefore possible that insufficient information may be provided even within the scope of the ground for the allegation (event/fact/act).
The subparagraph (I) of Article 53/A § 1 of the Law no. 2547 provides that the investigation shall be completed within two months from the date of notification of the letter of assignment. Article 53/Ç § 1 of the Law regulates the authorities vested with the power to impose disciplinary sanctions, and the second paragraph stipulates that if these authorities find that there are deficiencies in the investigation, they may return the file for the correction of the deficiencies. Taking the impugned provisions as a whole, it is understood that the authorities responsible for imposing disciplinary sanctions are empowered to request a new defence, if deemed necessary, once the investigation file has been completed and submitted.
It is evident that a re-hearing of the person under investigation at any stage before imposing a disciplinary sanction, which facilitates the effective exercise of the right to defence, could rectify the deficiency in question. At this point, the nature of the authorisation granted to the administration by subparagraph (c) of Article 53/A becomes a matter of importance. It should be noted that the relevant subparagraph gives the competent authorities entitled to impose disciplinary sanctions the power to request a new defence submission by specifying the act alleged and the disciplinary sanction recommended in the investigation report, but that this power is at their discretion.
The investigation revealed that, from the start of the investigation to the imposition of disciplinary sanctions, the right to defence for the person under investigation was not fully upheld in cases involving disciplinary sanctions such as warning, reprimand, deduction of salary or wages, suspension of advancement, or multiple deductions of salary. In this case, it is evident that it is not reasonable to guarantee the right to defence of the person under investigation by giving the competent authorities the discretionary power to request a new defence submission after the investigation file has been presented but before the disciplinary sanction has been imposed.
Consequently, in view of Article 129 § 2 of the Constitution, which does not render the recognition of the right to defence discretionary, the contested provisions do not ensure that the person under investigation enjoys the right to defence with all its requirements before one of the various disciplinary sanctions is imposed on the person under investigation in the context of the disciplinary investigation to be carried out under Law no. 2547.
In the light of these considerations, contested provisions have been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |