BASIN DUYURUSU

15/02/2019

Individual Application 11/19

Press Release Concerning the Judgment Finding No Violation of the Right to Stand for Election Due to Non-Reinstatement of a Civil Servant Having Resigned to Become a Parliamentary Candidate

On 17 January 2019, the Plenary of the Constitutional Court found no violation of the right to stand for election safeguarded by Article 67 of the Constitution in the individual application lodged by Mustafa Hamarat (no. 2015/19496).

The Facts

The applicant, who had been a lawyer at the legal consultancy department of a metropolitan municipality, applied to the administration for resignation in order to become a candidate in parliamentary elections. The applicant’s request was accepted by the administration. Hence, the applicant resigned.

The applicant could not come to an agreement with any party concerning his candidacy. After the final announcement of the election results by the Supreme Electoral Council, the applicant submitted a request for reinstatement.

The administration dismissed the applicant’s request, stating that he would be appointed if he could submit a document indicating that he had been an independent candidate or a candidate or nominee candidate for a political party.

The action for annulment brought by the applicant before the administrative court against the administration’s decision was rejected. Upon the applicant’s appeal, the decision was upheld by the Council of State. The applicant’s subsequent request for rectification of the judgment was also dismissed.

The Applicant’s Allegations

The applicant maintained that after he had resigned to become a parliamentary candidate, his request for reinstatement was rejected on the ground that he had neither been a candidate nor a nominee candidate. In this regard, the applicant claimed that his right to stand for election was violated.

The Court’s Assessment

The State may prescribe certain measures to prevent civil servants from suspending their duties with no justified excuse, with a view to ensuring the sustainability of public services.

A civil servant, who has taken up this position of his own accord, is deemed to have accepted to enjoy the privileges of this position as well as to bear its burdens. In this context, he is expected to perform his public duty uninterruptedly. A civil servant cannot quit his job except in cases prescribed by law and in cases of force majeure.

In the present case, the applicant did not raise any claim indicating that he had faced obstacles to resign in order to stand as a candidate in the elections or to become a candidate or a nominee candidate. Accordingly, there had been no interference with the applicant’s candidacy process or his electoral activities.

Additional Article 7 of the Law no. 298 on Basic Provision on Elections and Voter Registers provides that in order for the civil servants, who resigned to stand for parliamentary or local elections, to return to their position, they must be candidates or nominee candidates. In this way, it is aimed to prevent civil servants from misusing their opportunity of resignation to stand for elections, thereby ensuring the sustainability of public services.

It is clear that the applicant must fulfil the conditions prescribed by law while exercising his right to stand for election. In this regard, it was taken into consideration that the applicant had been in a position to know that after his resignation, he would not be able to return to his position if he were not a candidate or a nominee candidate in the said elections.

Given the margin of appreciation enjoyed by the public authorities, it was concluded that the interference with the applicant’s right to stand for election for the purpose of ensuring the sustainability of public services was not of a nature that would prevent his participation in the political life or would make it difficult for him to exercise his right to stand for election. As a result, the interference with the applicant’s right to stand for election served a pressing social need.

In addition, it was also observed that there were mechanisms to balance the burden imposed on the applicant. It was considered that the reason for denial of the applicant’s request for reinstatement after his resignation to become a parliamentary candidate had mainly been due to his not being a candidate or a nominee candidate, in other words his failure to meet the conditions of reinstatement, and that mainly the applicant’s own acts led to this conclusion.

As a result, the interference with the applicant’s right to stand for election did not constitute an excessive limitation on his right, nor was it disproportionate to the legitimate aim of ensuring the sustainability of public services.

Consequently, the Constitutional Court found no violation of the applicant’s right to stand for election safeguarded by Article 67 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.