Press Release No: Constitutionality Review 1/23
Press Release concerning the Decision on Law no. 7145 and Law no. 7333
The Constitutional Court, at its session dated 30 June 2022, found constitutional and dismissed the request for annulment of the relevant provisions while found unconstitutional and thus annulled the relevant provisions (file no. E.2018/137).
A. Provision regarding the authority granted to governors for measures to be implemented within provincial borders
As regards the contested provision, the Court has evaluated that the judicial authorities can supervise whether the facts underlying the impugned measure fall within the discretionary power granted to the governor or whether they actually fall within the scope of the provision in accordance with objective criteria, and that the possibility on the part of the judicial authorities not to adjudicate the applications challenging the said measure in a short time does not result in the ineffectiveness of the supervision in this regard. Accordingly, considering the nature and duration of the measure, the Court has dismissed the request for annulment of the contested provision on the grounds that the administrative judicial review ensures an effective and immediate control mechanism against arbitrary practices, thus not imposing an unreasonable restriction on the right to hold meetings and demonstration marches as well as the freedom of movement.
B. Provisions regulating preventive searches in military places and the procedures for entering and exiting these places
The Court has annulled the contested provisions on the grounds; that they provide no guarantee ensuring the submission of the search warrant issued by military authorities for the approval of the judge in charge within twenty-four hours; that allowing for the search of the people, their vehicles, private papers and belongings in military areas without providing the aforementioned guarantee is incompatible with Article 20 of the Constitution; that the scope and limits of the manual control to be carried out in the vehicles of persons are not determined in a way preventing it from the characteristics of a search measure; and that therefore, the restriction imposed as regards the phrase “...vehicle...” does not have a foreseeable legal basis.
C. Provision on the criteria for determining the location and route of meetings and demonstration marches in provinces and districts
The Court has dismissed the request for annulment of the contested provision on the grounds that a reasonable balance is struck between the conflicting rights through the restriction on the right to hold meetings and demonstration marches for the purpose of maintaining the public order as well as protecting the rights and freedoms of others, with the criterion of not making the daily life of citizens extremely and unbearably difficult, as stipulated in the contested provision, regarding the extent to which the daily lives of others is affected, while determining the place and route of the meeting and demonstration march.
D. Provision excluding the National Intelligence Organisation (MİT) from the mediation procedure in civil disputes to which it is a party, and provision excluding MİT from the scope of the right to information
- The Court has dismissed the request for annulment of the contested provision stipulating that the civil disputes shall be resolved through court proceedings and that mediation provisions shall not be applied in disputes to which MİT is a party so as to ensure the principle of confidentiality, on the ground that it is proportionate in terms of achieving the objectives of ensuring the proper conduct of intelligence services by keeping the identity of MİT personnel secret thereby ensuring their security.
- The Court has annulled the contested provision on the grounds that the prohibition of access to information secured by MİT as a result of the exclusion of MİT from the scope of Law no. 4982, which provides access to information and documents that are not of an intelligence nature, or even if they are of that nature, related to certain issues such as the working life and professional honour of individuals, and which can only be requested from the institution taking an action, precludes the right to obtain information safeguarded by the Constitution.
E. Provision enabling the transfer of weapons of those dismissed from public office to the public
The Court has annulled the contested provision for imposing a disproportionate restriction on the right to property on the ground that the transfer of weapons in the possession of individuals directly to the state, hindering the possibility to transfer them to third parties and not providing any compensation, upon their dismissal from public office, even if it has not been established that they were used in a crime (or misdemeanour) or that they have been obtained within the scope of crime-related activities or that they themselves constitute the subject matter of the crime, was not necessary to ensure the protection of national security and public order.
F. Provision authorizing the public prosecutor to order pre-trial detention and the judge to extend the detention period up to two times, and provision regulating appeals against detention, requests for release, and duration and procedure regarding the review of detention
- The Court has dismissed the request for annulment of the contested provision on the grounds; that the periods of forty-eight hours and four days specified in the provision comply with the safeguards enshrined in Article § 3 and 5 of the Constitution, therefore the provision complies with the wording of the relevant article; that while the pre-trial detention is still pending, the assessment of its conditions by an independent and impartial court and, if necessary, the termination or extension of the measure fulfils the obligation set forth in Article § 5 of the Constitution, which entails the individual to be brought before a judge within the prescribed time period; and that the extension of detention period up to two times by the judge does not impose a disproportionate limitation on the right to personal liberty and security in terms of conducting criminal investigations in an effective and sound manner, regard being had to the period covered by the contested provision as well as to the conditions at the material time.
- The Court has annulled the contested provision for imposing a disproportionate limitation on the right to personal liberty and security in contravention of the safeguards enshrined in Article 19 of the Constitution, on the grounds; that it enables to make a decision regarding the challenge against detention over the file without prescribing a maximum and reasonable period of time for an assessment to be made by hearing the suspect or accused; that it may cause the prescription of a period of thirty days beyond reasonable limits for the consideration of the request for release; and that it may also enable the examination of the suspect’s or accused’s request for release as well as the challenges against detention for ninety days without a holding hearing.
G. Provision preventing the faculty members who have been reinstated to public office from being employed at their previous workplace, and provisions stipulating the loss of financial rights of those who do not take office despite the reinstatement decision and precluding the opportunity to bring an action against the damages incurred due to unjustified measure
The Court has annulled the contested provisions on the following grounds:
- They do not authorize the administration to evaluate whether each academic staff reinstated to public office can work in the higher education institution where they previously worked, taking into account the requirements of public office, and they also do not lay down the legal and factual requirements pertaining to the categorical prohibition of the reinstatement of these persons to the places where they held office before their dismissal from public office;
- Although it is envisaged, for the purpose of meeting the shortage of academic staff, that their appointments shall be made primarily to higher education institutions established after 2006, except Ankara, İstanbul and İzmir; meeting the said need by confining it to the reinstated lecturers without establishing a system covering all lecturers by determining general, objective and acceptable criteria does not correspond to a pressing social need in terms of achieving the purpose of holding public office in an effective and sound manner;
- Requirement of taking office for receiving the payment of financial rights covering the period in which individuals were unlawfully and unwillingly suspended from office results in the continuation of the unjustified interference with the right to property thus restricting the said right; and
- Failure to provide individuals with the opportunity to bring an action seeking the redress of pecuniary and non-pecuniary damages likely to be sustained due to the unjustified imposition of the measure does not comply with the state’s obligation to provide an effective mechanism for redress.
H. Provision on the employment of officers, non-commissioned officers, specialized gendarmes holding office at the Turkish Armed Forces (TAF), those holding office in the security services unit of the General Directorate of Security and diplomatic officers holding office at the Ministry of Foreign Affairs in the research centres to be established within the Ministry of National Defence, Ministry of Foreign Affairs and Ministry of Interior
The Court has annulled the contested provisions on the following grounds:
- Despite the reinstatement decision issued by the courts or the Inquiry Commission on the State of Emergency Measures, the appointment of these persons considering their former position, rank or title is prevented, which creates the impression that the grounds underlying the impugned measure has not been eliminated; and although the measure entailing dismissal from public office should be eliminated with all its consequences following the reinstatement decision, the acquired rights of the persons are ignored and they are appointed under different status;
- The criteria according to which the relevant minister shall evaluate the reappointment of the persons reinstated to public office are indefinite; and granting the administration a very wide authority in this regard does not meet a pressing social need in terms of maintaining the public order and achieving the objective of public interest;
- No acceptable de jure and de facto conditions requiring the reinstated personnel to be employed under a different status are put forth; therefore, assignment of the reinstated persons to research centres is not proven necessary for maintaining the public order and achieving the objective of public interest;
I. Provision allowing for dismissal from office other than the method stipulated in the disciplinary law in the ordinary period
The Court has dismissed the request for annulment of the contested provision, specifying that in its previous decisions, it considered the conduct of an investigation process whereby individuals were provided with the opportunity to respond to and adduce evidence to rebut the allegations against them in terms of their dismissal from profession (public office) as well as the indication of material and legal grounds underlying the conclusion reached by discussing the claims, defence submissions and evidence sufficient for individualisation, and that in consideration of the fact that the individualisation requirement is also met within the scope of the contested provisions, the procedure followed in terms of dismissals is proportionate for achieving the objectives of protecting national security and public order as well as ensuring the proper conduct of public service.
J. Provision enabling the revocation of passports of persons subjected to the measure of dismissal from office, persons undergoing criminal investigation or prosecution, and their spouses
The Court has annulled the contested provision on the grounds; that it allows the revocation of passports of the same persons once again by granting discretionary power to the administration in contradiction with Paragraph (A) of Decree Law no. 375, that in this respect; the provision may be interpreted and applied in different ways thus leading to uncertainty; that the scope and limits of the discretionary power granted to the administration in terms of revocation of passports of the persons covered by the provision are also unclear; and that therefore, the requirement of legality is not fulfilled as regards the restriction imposed on the freedom to travel abroad by the impugned provision.
K. Provision on the revocation of the ranks of those who quitted the Turkish Armed Forces, Gendarmerie General Command, Coast Guard Command and Law Enforcement Agency for different reasons
The Court has annulled the contested provision on the grounds that it allowed the competent authorities to revoke the ranks of those who are considered to be affiliated or connected with terrorist organizations or structures, formations or groups found to carry out activities against the national security of the state, without conducting an investigation whereby they are provided with the opportunity to respond to and adduce evidence against the allegations regarding them, and without explaining the material and legal grounds underlying the conclusion reached through the discussion of claims, defence submissions and evidence within the framework of the facts. From this point of view, the impugned provision does not comply with and is not proportionate to the requirements of a democratic social order in terms of maintaining national security and public order.
L. Provisions on the periods determined for the launch of investigation, suspension from office, evaluation and right to defence concerning those suspended from office within the scope of the measure of dismissal from profession and public office, and on the procedure to be applied in case of expiration of the relevant periods
- The Court has annulled the contested provision on the grounds that the failure to launch an investigation within a reasonable time against those suspended from office before the conduct of an administrative investigation may cause people to be under suspicion for long periods of time due to the allegations they are not informed of and to be deprived of some of their financial rights, which may place an excessive burden on people;
- The Court has dismissed the request for annulment of the contested provision on the grounds; that the measure cannot be continued at the end of the maximum period of two years prescribed for suspension from office by departing from the ordinary investigation procedures applied temporarily within the scope of the provision in order to identify the persons having links with terrorist organisations in the public sector properly to combat terrorist organisations; that within these periods, the competent authorities can always lift the decision of suspension from office and the persons under investigation can also challenge the interim measure without any limitation; that the decisions of the competent authorities in this regard are subject to administrative review; and that accordingly, the conditions of the measure can be reviewed by the judicial authorities at every stage;
- The Court has annulled request for annulment of the contested provision on the grounds; that regarding the evaluation periods, the said provision does not eliminate the possibility for the competent authorities to examine the conditions of suspension at every stage of the investigation and to terminate the measures when necessary; that there is no situation that prevents the persons concerned from claiming that the conditions for suspension or dismissal have disappeared due to new evidence obtained during the criminal investigation and prosecution or for other reasons, and thus nothing can prevent any claim to be raised seeking the termination of the measure; and that an administrative case can be brought to challenge the decisions of the competent authorities;
- The Court has dismissed the request for annulment of the contested provision on the grounds; that allowing the competent authorities to review the conditions of the measures for up to three months in respect of those who are not subject to an interim measure will result in the suspension or dismissal of individuals during this period in the absence of a decision against them; that the continuation of the previous interim measures until a new decision, relying on the assumption that the interim measures applied during the state of emergency period are still in force, would mean that the legislator would directly allow for suspension or dismissal without individual evaluation by the competent authorities; and
- The Court has dismissed the request for annulment of the contested provision on the grounds that the seven-day period set for the persons to be dismissed from public office and profession to make statements and adduce evidence to rebut the allegations from the time they are notified is reasonable and sufficient.
M. Provision extending the enforcement of the provision authorising the Savings Deposit Insurance Fund as trustee
- The Court has dismissed the request for annulment of the contested provision on the grounds; that the appointment of a trustee is conditional upon the fact that the said acts constitute offence and that there is an ongoing investigation and prosecution against the suspects; that the aforementioned acts which do not constitute an offence within the scope of the contested provision do not entail the appointment of a trustee; and that at the investigation stage, the decision the appointment of a trustee may be appealed pursuant to Article 267 et al. of Law no. 5271.
N. Provision extending the enforcement of the provisions regulating the rights, powers, responsibilities and exemptions regarding the cases where the Savings Deposit Insurance Fund has been appointed as trustee
- The Court has annulled the contested provision on the grounds that it is not unclear whether there is any other statutory provision regulating all exemptions, including bail and follow-up, regarding the duties, rights, powers and responsibilities of those appointed or assigned within the scope of the Savings Deposit Insurance Fund’s authority as a trustee which has expired before the specified dates with respect to the applicability of the rule.
O. Provision invalidating transfers and assignments of shares and rights in companies to which trustees have been appointed
- The Court has dismissed the request for annulment of the contested provision on the grounds; that given the said provision, it cannot be said that bona fide third parties who take over shares and rights in companies where trustees are appointed are not provided with the opportunity to claim and refute that the transaction is contrary to the real will that constitutes the factual basis of the collusion; and that in this sense, the contested provision contains the legal safeguards ensuring its proper application and preventing arbitrariness.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.