Press Release No: Individual Application 37/22
Press Release concerning the Judgment Finding a Violation of the Right to Respect for Private Life due to the Cancellation of the Work Permit
On 6 January 2022, the Plenary of the Constitutional Court found a violation of the right to respect for private life safeguarded by Article 20 of the Constitution in the individual application lodged by Ayşe Ortak (no. 2018/25011).
The private school, where the applicant was serving as a teacher, was closed down for posing a threat to national security and its membership, affiliation or connection with the Fetullahist Terrorist Organisation and/or Parallel State Structure, pursuant to the Decree-Law no. 667 on the Measures to be taken under State of Emergency (“Decree-Law no. 667”).
The applicant was notified by the Governor’s Office that her permit to work at a private school was cancelled due to the closing-down of the school under the Circular no. 7783529, which was issued by the Ministry of National Education, (“Circular”), and that a new permit to work at a different institution could not be issued for her. Upon the partial rejection by the Governor’s Office of the applicant’s request for the revocation of the administrative act, she brought an action for annulment before the incumbent administrative court, which ultimately dismissed the action. The applicant’s appeal against the dismissal decision was rejected, with final effect, by the regional administrative court.
The Applicant’s Allegations
The applicant maintained that her right to respect for private life had been violated due to the cancellation of her work permit as a teacher and the restrain of the issuance of a new work permit in respect of her.
The Court’s Assessment
In consideration of the inferior courts’ decisions, it has been observed that the administrative act giving rise to the present application was predicated on the Decree Law no. 667, the Private Schools Act no. 5580, as well as on the Circular.
Taking the provisions of Law no. 5580 and the Regulation on the Private Schools, issued by the Ministry of National Education, as a whole, the Court has observed that working at the private teaching institutions is contingent upon the work permit to be issued by the governor’s offices, that the governor’s offices grant work permit only in respect of those who satisfy the conditions specified in the legislation, and that such permit enables the person concerned to work merely at the school with which the person concerned has signed a contract.
It has been also observed that the relevant legislation does not contain any clear provision to the effect that in case of closing-down of a private education institution, the work permits shall be necessarily cancelled, but embodies general arrangements stating that work permits may be issued and cancelled by the governor’s offices. Besides, there is no provision envisaging that in cases where the work permit of a person performing his profession on the basis of a work permit is cancelled, a direct ban shall be imposed on his working at private institutions, as a consequence of the cancellation. Nor is there any provision as to the conditions under which such a ban will be implemented.
In this sense, it should be stressed that the Decree-Law no. 667 regulates merely the closing-down of the private education institutions and contains no provision stating that the teachers and staff working at such institutions could no longer work at any other private education institutions, that the impugned ban has been introduced merely through the Circular, and that the fundamental rights and freedoms cannot be restricted by way of any regulatory administrative act.
The first and the main condition for considering an interference with the right to respect for private life as being compatible with the safeguards afforded in the Constitution is the existence of a legal basis of the impugned interference. In the present case, it has been established that the legal basis for the interference with the applicant’s private life is the Circular. It has been thus concluded that the applicant was precluded from performing her profession through an administrative act, in the absence of a clear provision in the relevant laws.
Consequently, the Court has found a violation of the right to respect for private life.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.