Individual Application

The Facts

The applicant, who had served as a department head in the Ministry of Health, in both an acting and official capacity for certain periods of time, lost his position following the enactment of Decree-Law no. 663 on the Organisation and Duties of the Ministry of Health and Its Affiliated Institutions (Decree-Law no. 663) in 2011. He was then appointed to a personal adviser position in the Ministry. However, his personal rights as an employee were protected through the payment of differential compensation as stipulated in the aforementioned Decree-Law. The applicant resigned from his position as an adviser to the Ministry in the category of general administrative services to become a parliamentary candidate. After not being nominated in the elections, he applied to the Ministry of Health for reinstatement to his former position, but was instead appointed to an engineering position. With the entry into force of Decree-Law no. 703 a few days after the applicant’s request for reinstatement, all personal advisory positions introduced by Decree-Law no. 663 were abolished but certain benefits were provided to those currently holding these positions. In the action brought by the applicant for annulment of the relevant decision and restoration of the personal rights of which he had been deprived, the administrative court annulled the decision in question and ruled that the applicant’s financial and personal rights as an employee should be compensated. Upon the administration’s appeal, the regional administrative court quashed the decision and dismissed the case with final effect.

The Applicant’s Allegations

The applicant claimed that his right to stand for election had been violated because he had not been reappointed to the position of personal adviser from which he had resigned to become a parliamentary candidate.

The Court’s Assessment

In the present case, the interpretation of the regional administrative court, based on a manifest error of appreciation, that the advisory position was terminated by resignation, thereby legally precluding reappointment to the former position by the administration, amounted to an unnecessary interference with the right to stand for election in a democratic society. In making this interpretation, the regional administrative court failed to take account of the nature of the personal position and the resignation due to candidacy, as well as the significance of the right to stand for election in a democratic society. The applicant’s exercise of his right to stand for election has led to an unexpected deterioration in his current situation. In order for this deterioration to be considered necessary, the administration and the courts must first establish that this situation corresponds to a pressing social need. However, the regional administrative court, which made the final decision, failed to demonstrate what pressing social need the applicant’s having been put to disadvantage corresponded to, nor did it explain the difference between the two positions. While the administrative court did not regard the applicant’s previous positions as department head or ministerial adviser to be equivalent or close to the engineering position and considered the position of engineer to be subordinate, the regional administrative court did not provide a clear assessment in this respect.

In addition, positions of equivalent or closely related career levels and the acquired right to a salary grade may overlap for some positions. However, new positions assigned to public officials, especially in managerial positions, solely to maintain their acquired salary grade cannot be considered equivalent or closely related to their former positions. Considering that the applicant was directly connected to the Minister and benefited from differential compensation in the position of ministerial adviser, the positions of ministerial adviser and engineering are not equivalent or closest in career.

 On the other hand, looking solely at the wording of the law, it might be considered that the legislature has granted the administration a wide discretion as to the position to which a person who wishes to return would be appointed, by stating “… they may return to their former position or to another position at their acquired salary grade”. However, the administration does not enjoy an unlimited discretion in this respect. In exercising this discretion, the administration must acknowledge that a resignation due to candidacy is not an ordinary resignation and that those who resign intend to return to office if they are not nominated or elected. Therefore, it should be recognised that the positions of public officials who resign in order to stand for election should be considered as suspended and they should be able to return to the opportunities offered by their former positions as soon as they express their intention to return, to the extent possible. However, both the administration and the regional administrative court focused on the termination of the former position as a result of the resignation, ignoring the fact that the applicant had enjoyed the personal rights afforded to a department head prior to the resignation and that these rights were suddenly reduced to an engineering position after the resignation. Consequently, if the applicant had not exercised his right to stand for election, he would have been able to benefit from the opportunities offered by Decree-Law no. 703, but his exercise of this constitutional right resulted in his inability to benefit from that regulation. Moreover, by exercising his right to stand for election, the applicant also lost the rights he had acquired under Decree-Law no. 663 for a long period until his resignation on account of his previous position as a department head.

The inability of a public official exercising the right to stand for election to benefit from the opportunities of his former position without sufficient justification would clearly have a deterrent effect on the exercise of the right to stand for election. This deterrent effect, constituting an interference with the right to stand for election, has been considered to be an obstacle to the participation of the applicant and public officials in similar circumstances in the political life of the country. Finally, it has been concluded that the interference in question, which did not satisfy the requirement of legality because of the erroneous interpretation by the regional administrative court, was not established with relevant and sufficient reasons to have corresponded to a pressing social need in a democratic society and that it was disproportionate when comparing the applicant’s status before and after his resignation.

Consequently, the Court has found a violation of the right to stand for election.