Constitutionality Review

Contested Provision

The contested provision stipulates that remuneration is payable only for on-call duties performed up to certain time limits depending on the type of healthcare institution, and that no payment shall be made even in cases where such duties necessarily exceed the said limits.

Ground for the Request for Annulment

It is maintained in brief that the contested provision is unconstitutional, as it limits the remuneration payable to healthcare personnel for on-call duties to a specified period and provides that even if such duties are performed beyond this period, no payment would be made for the additional time. It is accordingly argued that this situation is in breach of the principle of the rule of law, the prohibition of forced labour, and the right to property.

The Court’s Assessment

In its earlier decision of 25 January 2023 (no. E.2022/97, K.2023/13), the Court annulled the second sentence of Additional Article 33 § 3 of Act no. 657, which limited the total duration of remunerable on-call duty to 120 hours per month, on the ground that it was in breach of Article 18 of the Constitution.

In the aforementioned decision, the Court held that requiring individuals with professional expertise to perform certain services related to their field of specialisation cannot, in principle, be regarded as forced labour or compulsory service, provided that such obligations do not impose an excessive burden on them. However, where a disproportionate burden is imposed, it may be concluded that the limits set by Article 18 of the Constitution have been exceeded. In assessing whether such a burden is disproportionate, regard must be had to whether remuneration or similar benefits are provided, as well as whether the mandatory service in question contributes to the individuals’ professional development and career.

Within this framework, the Court noted that on-call duty may be considered reasonable, as it constitutes a requirement inherent in the status law to which public officials are subject. Accordingly, it is foreseeable that they may be called to duty outside working hours, including at night and on weekends, and such duties fall within the scope of the professional activities of both civil servants and contracted personnel.

The Court further emphasised that ensuring the uninterrupted provision of healthcare services falls within the State’s positive obligations under Article 56 of the Constitution, and that the mere imposition of on-call duties on healthcare personnel does not per se violate Article 18. However, such duties must not prejudice the exercise of the right to rest, and mandatory on-call obligations should be appropriately compensated in order to strike a fair balance between the public interest and the interests of healthcare personnel. Accordingly, the Court found that the provision, which neither set an upper limit on on-call duties nor guaranteed remuneration for work exceeding such limits, was in breach of Article 18.

Likewise, the contested provision stipulates that remuneration is payable only up to certain time limits for on-call duties in various healthcare institutions and thus imposes a disproportionate burden on healthcare personnel, thereby failing to meet the requirements of Article 18 of the Constitution. Therefore, the Court has found no reason to depart from its previous decision.

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