Constitutionality Review

Contested Provision

The contested provision sets forth that the persons to hold office at the private educational institutions must not have been subject to a prosecution due to fraud or forgery.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional as it in breach of the presumption of innocence and prevented the persons having no final court decision against them from working at the private educational institutions.

The Court’s Assessment

Given the condition that the persons failing to satisfy the requirements laid down in Article 4 § 1 of Law no. 5580 cannot be employed as a private educational institution, it appears that the contested provision has constituted a restriction on the right to work.

Pursuant to Article 13 of the Constitution, fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution, and such a restriction must be proportionate. In this sense, the formal existence of a statutory arrangement restricting the right to work is not per se sufficient, and the statutory provisions must be precise, accessible and foreseeable to the extent that would avoid any risk of arbitrariness.

On the other hand, Articles 48 and 49 of the Constitution do not prescribe any ground for restriction with respect to the right to work. However, it is acknowledged that the rights in respect of which no specific ground for restriction is prescribed are also subject to certain limitations by the very nature of these rights. Besides, the rights and freedoms enshrined in other provisions of the Constitution and the duties incumbent on the State may constitute a limitation on the rights and freedoms having no specific ground to justify their restrictions.

Pursuant to Articles 6, 9 and 11 of Law no. 5580, education and training to be provided at the private educational institutions must be conducted in accordance with the general aims and basic principles of the Turkish national education as defined in the Basic Law of National Education no. 1739. In case of any offence committed by the principals and teachers working at these institutions while exercising their duties or any offence of which they are a victim on account of their duties, the Turkish Criminal Code no. 5237 shall apply, and they shall be qualified as a public officer in the course of the criminal prosecution. They shall be subject to the supervision and control of the Ministry of National Education. Given these considerations, it has been observed that the provision stipulating the non-existence of any prosecution against the officers to hold office at the private educational institutions serves the legitimate purpose of maintaining public order.

Regard being had to the fact that the condition laid down through the contested provision to the effect that the officers to work at the private educational institutions must not have been subject to any prosecution on account of fraud and forgery would contribute to the promotion of public and individual confidence in them, the contested provision cannot be considered convenient to attain the aim of maintaining public order. However, for a provision to be found to comply with the principle of proportionality, it is not merely sufficient to impose a convenient restriction, but the restriction must be also in keeping with the principle of necessity.

The aim sought to be attained by the contested provision may be indeed achieved through more lenient measures: in case of initial employment by the private educational institutions, the relevant authorities may be allowed to exercise discretionary power or they may be authorised to await the outcome of the prosecution; and as for the officers already working at these institutions, their employment contracts until the conclusion of the prosecution may be suspended. As a matter of fact, such kind of measures are already embodied in the legislation with respect to other various professions. In this regard, the impugned restriction, which necessitates the absence of any prosecution against these officers due to fraud and forgery, can be considered neither necessary nor proportionate as it is possible to attain the desired aim in the public interest through a more lenient restriction.

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