Constitutionality Review

Contested Provision

The contested provision allows for the termination of the contracts of contracted non-commissioned officers (NCOs) and privates who have been declared unfit for service in the Turkish Armed Forces (TAF) on grounds of indiscipline or moral turpitude. This decision is based on a qualification report drawn up by their hierarchical superiors, taking into account of all available information and supporting documents.

Ground for the Request for Annulment

It was maintained in brief that Law no. 6413 lists the acts and behaviours that entail disciplinary sanctions for contracted NCOs and privates, establishing principles relating to investigatory procedure, defence submissions, and imposing sanctions. Nevertheless, Law no. 6191 grants the administration the power to terminate contracts without the necessity to adhere to the procedural safeguards established by Law no. 6413, thus rendering the provision unconstitutional.

The Court’s Assessment

Contracted NCOs and privates, engaged in primary and permanent duties under public law but not classified as civil servants or workers, are classified as other public officials. In this respect, the contested provision is considered to fall within the scope of the right to hold a public service, as safeguarded by Article 70 of the Constitution.

According to Article 13 of the Constitution, the right to remain in public service may be restricted only by law. Such restrictions must not contravene the letter of the Constitution, must be based on the grounds for restriction set out in Article 70, and must be proportionate. To prevent arbitrariness, any legal provision restricting this right must not only exist formally but must also be precise, accessible, and foreseeable, as stipulated in Articles 13 and 70 of the Constitution.

The provision envisages that the contracts of contracted NCOs and privates may be terminated only for acts of indiscipline or moral turpitude resulting in the loss of qualifications required for their duties in the TAF. This assessment must be made by their hierarchical superiors, using a qualification report based on all available information and supporting documents.

The term “indiscipline” in the contested provision is ambiguous. It is unclear which circumstances qualify as indiscipline, whether the imposition of a disciplinary sanction is a prerequisite for such a determination, and if so, what type or number of disciplinary sanctions would suffice. Consequently, the criteria for contract termination due to lack of discipline are subjectively and vaguely defined, leading to unclear boundaries and frameworks.

The concept of moral status refers to the moral qualities required for the duties performed by contracted NCOs and privates. While the law does not prescribe the morally reprehensible acts (acts of moral turpitude) that could lead to termination of the contract, it is acknowledged that predetermining all such acts might be challenging for the legislature. Nevertheless, it is essential that the framework for morally reprehensible acts be clearly defined. According to the provision, such acts must be of a nature and severity that precludes the performance of any duties in the TAF. In this respect, it is understood that morally reprehensible acts are not entirely vague or subjective, and the established framework provides adequate protection against arbitrary interpretation and practices by the administration. Therefore, except for the term “indiscipline”, the provision meets the criteria of being precise, accessible, and foreseeable, thus satisfying the lawfulness requirement.

Article 129 § 2 of the Constitution guarantees the right to defence, stipulating that disciplinary sanctions cannot be imposed on civil servants, other public officials, members of professional organisations with public institution status, and their umbrella organisations without granting them the right to defence. Accordingly, the right to defence provided for in the aforementioned/relevant article of the Constitution serves as an additional safeguard against disciplinary sanctions that restrict the right to public service employment.

Despite the requirement in the second paragraph of the said article for an effective disciplinary investigation prior to imposing a disciplinary sanction on a public official, the contested provision lacks any clause mandating the taking of defence submissions, and thereby neglecting the necessity of an investigation, for contract termination. In the light of the foregoing, the provision has been found in breach of the additional safeguard of the right to defence prior to disciplinary sanction, as provided for in the second paragraph of the aforementioned constitutional article.

In the light of these considerations, the Court has declared the contested provision unconstitutional and therefore annulled it.