Press Release No: Plenary Assembly 24/21

Press Release concerning the Decision Annulling the Provision Prescribing a Certain Period of Time to Elapse for the Physicians Dismissed from Public Service to Perform Their Profession

The Constitutional Court, at its session dated 29 April 2021, found unconstitutional and annulled the first and second sentences of Additional Article 15 of Law no. 1219 on the Practice of Medicine and Related Arts/Medicine Sciences (file no. E.2019/13).

Contested Provision

The contested provision envisages that the physicians who are liable to perform compulsory public service but who are dismissed from, or are not appointed to, public office for being considered to be a member of, or have a link or relation with, structures or groups proven to perform acts and actions against national security may be entitled to perform their profession upon the expiry of a certain period of time following the decision ordering their dismissal or non-appointment. 

Ground for the Request for Annulment

It was maintained in brief that the contested provision was in breach of the general principles of law, science and principles of specialisation, as well as it was not foreseeable, accessible and comprehensible. Nor did it comply with the equality and objectivity principles. It also deprived certain occupational groups of their constitutional rights. In addition, declaring persons guilty of certain offences through a decree-law issued under state of emergency or through a subjective security clearance investigation in the absence of any court decision was contrary to the presumption of innocence. The provision also fell foul of the rights to work and to hold public office.

The Court’s Assessment

It is enshrined in Article 13 of the Constitution that any restriction on fundamental rights and freedoms must be based on the reasons set forth in the Constitution as well as it must be proportionate.

Although no reason for restriction is specified regarding the right to work in Articles 48 and 49 of the Constitution, it is acknowledged that the rights for which no specific reason for restriction is defined are also subject to certain restrictions arising from the nature of the relevant right.

Considering the fact that health services can be utilised in every region of the country and that deficiencies and delays likely to arise in terms of providing health services will lead to irreparable results by their very nature, it is envisaged in Law no. 3359 that physicians and specialist physicians shall be obliged to perform public service at the end of their education as part of their civic responsibility , and it is stipulated therein that those who do not fulfil this obligation cannot perform their profession.

The contested provision, envisaging that the physicians subject to the contested provision may perform their professions only upon the expiry of the prescribed duration of compulsory public service, is intended to ensure labour peace between those fulfilling their compulsory public service and those who could not due to the above-mentioned security reasons, through the prevention of unfairness in terms of the start of the period when they will be able to perform their profession in private sector.

As specified in Article 49 of the Constitution, ensuring labour peace, along with other measures, for the purpose of protecting working life is incumbent on the State. Thus, the contested provision pursues a legitimate aim of ensuring labour peace.

The contested provision envisages a measure with a view to eliminating the results favourable to physicians who are not found suitable to engage in public service. It thereby imposes a restriction in compliance with the principle of suitability in pursuit of ensuring labour peace.

However, it is clear that the intended aim may be achieved by imposing an obligation on the relevant physicians to perform their profession in the private sector only in the regions designated for compulsory service during the prescribed period, or other similar measures may be taken. Thus, the contested provision infringes the criterion of necessity.

Even assuming that the impugned provision meets the criterion of necessity, no fair balance is struck between the public interest sought to be achieved through the contested provision and the right to work. Preventing the physicians, who are banned from public service for security reasons, from performing their profession also in private sector for a long period of 450 days places an excessive burden on them.

In this context, contrary to the aim sought to be achieved through the practice of compulsory public service, the impugned provision may result in the problem that fewer physicians provide health services. Such a long period may also deprive the relevant physicians of professional practice, skills and improvement, which may have undesirable effects also on public health. It has been concluded that the balance of interests has been upset in general terms, and therefore the principle of proportionality has been violated.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

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