16/6/2021

Press Release No: Plenary Assembly 18/21

Press Release concerning the Decision Annulling the Provision in the Presidential Decree Making Arrangement on an Issue Already Regulated by a Decree Law

The Constitutional Court, at its session dated 3 March 2021, found unconstitutional and annulled the third sentence of Article 21 § 3 of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications, for being unconstitutional in so far as concerned the competence ratione materiae (file no. E.2018/134).

Contested Provision

The contested provision stipulates that the principles and procedures as to the contracts of the personnel to be employed under Article 21 § 3 of Presidential Decree no. 14, as well as the amounts of wages and any kinds of payments they will receive shall be determined by the President.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional since the principles and procedures as to the contracts of the personnel to be employed by the Directorate of Communications, as well as their wages and all kinds of payments should have been regulated by law, that the matters covered by the contested provision had been already regulated in Additional Article 26 of Decree Law no. 375, and that no presidential decree shall be issued with respect to the matters that had been explicitly regulated by law. 

The Court’s Assessment

Pursuant to Article 104 § 17 of the Constitution, no presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law. In consideration of the Court’s case-law concerning decree laws and the practice thereof, the decree laws revealed to have the force of law should be considered to fall into the same scope. Therefore, no presidential decree can be issued, pursuant to Article 104 § 17 of the Constitution, with respect to the matters that have been explicitly regulated by a decree law.

Additional Article 26 of Decree Law no. 375 lays down certain principles as to the employment of personnel on contract basis. It appears that the contested provision pertains to the principles and procedures of the contracts of the personnel concerned as well as the amounts of wages and any kinds of payments that will be received by the personnel to be employed under Article 21 § 3 of the Presidential Decree, and that it is thus related to the matters that have been already and explicitly regulated in Decree Law no. 375.

As a matter of fact, it has been concluded that in the absence of the contested provision, the provision in Decree Law no. 375 shall apply to the matters regulated by the contested provision. In this sense, the contested provision embodied in the Presidential Decree, which introduces an arrangement regarding the matters explicitly regulated by a Decree Law, is contrary to Article 104 § 17 of the Constitution.

Consequently, the contested provision has been found unconstitutional in so far as concerned the competence ratione materiae and therefore annulled.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.