Individual Application

The Facts

Following their appointments as associate professors of medicine at Hacettepe University (“the University”), the applicants set up private medical clinics to pursue their professional activities outside university hours. Law no. 2547 on Higher Education was amended to include a provisional article requiring medical academics engaged in private practice to cease such activities within three months from the introduction of this article. The Constitutional Court (“the Court”) found this provision to be inconsistent with Article 2 of the Constitution and subsequently annulled it (see the Court’s decision no. E.2014/61, K.2014/166, 7 November 2014). Following the annulment, the applicants continued their functions as associate professors at the University and maintained their private practices. However, their applications for promotion to professor were not processed due to their failure to fulfil an additional requirement. They individually sought the annulment of this requirement before the administrative courts, which found the additional requirement to be unlawful and annulled it. Following these decisions, both applicants were appointed as professors by the University. Nevertheless, the University’s appeal against the annulment decisions was successful, resulting in the quashing of these decisions and the dismissal of the actions with final effect.

The Applicants’ Allegations

The applicants maintained that their right to respect for private life had been violated by the requirement to refrain from any income-generating professional activities for five years as a condition for their promotion and appointment as professors.

The Court’s Assessment

Article 26 of Law no. 2547 stipulates that to be promoted to professor, after having obtained the title of associate professor, a person must have worked for at least five years in the academic field related to the vacant professorial position and must have produced original publications or studies in that field. In addition, it allows universities, with the approval of the Council of Higher Education, to introduce objective and verifiable additional requirements aimed solely at enhancing academic quality, taking into account the differences between academic disciplines.

In the present case, the University issued a call for applications for the position of lecturer and imposed an additional requirement on the basis of the aforementioned Article 26. This additional condition requires that candidates are not currently engaged in any income-generating professional activity and that they undertake to refrain from such activities for a period of five years.

Article 26(a) of Law no. 2547 grants universities very limited discretion, stating that any additional requirements for professorial appointments must be “exclusively aimed at enhancing academic quality, taking into account the differences between academic disciplines, and must be objective and verifiable.” In this regard, the additional conditions for professorial appointments should focus on enhancing academic quality through scientific and scholarly publications, research, or other academic endeavours. Given the limited discretion allowed by the law, the requirement to refrain from income-generating professional activities has not been found to sufficiently and appropriately enhance academic quality. Consequently, the interpretation that this additional requirement is consistent with the limited scope and purpose defined by the law is considered to be overly broad and unpredictable.

As a result, it has been concluded that there is no legal basis for the additional condition requiring the cessation of independent professional activities and abstention from such activities for five years as a prerequisite for a professorial appointment. Moreover, following the Court’s annulment of Provisional Article 64 of Law no. 2547, which mandated medical academics to cease their private professional activities, no subsequent legal provision has been enacted to regulate the cessation of such activities.

In order for any interference with the right to respect for private life to be considered valid under the constitutional guarantees, the first and essential criterion is that the interference must have a legal basis. In the present case, the administrative act included as an additional requirement in the vacancy notice imposes a restriction on the private professional activities of the applicants. In the absence of a specific legislative provision on the matter, it has been concluded that an administrative act constitutes an interference with the applicants’ private lives.

Consequently, the Court has found a violation of the right to respect for private life.