Individual Application

The Facts

A social allowance contract was signed in 2011 between the municipality, where the applicant was serving as Director of Zoning and Urban Planning Department, and the relevant trade union. In 2016, two provisional articles were added to this contract, setting out the periods and the amounts of the additional allowances to be made to the trade-union employees under the social balance scheme. It is accordingly stipulated that the retired public officers shall receive additional social balance allowances of 5,000 Turkish liras (TRY) and TRY 10,000, respectively. The Court of Accounts held that since these allowances were not prescribed in the law and imposed an additional financial burden on the municipality, the public loss incurred would be reimbursed by the responsible officials, including the applicant. On appeal, the Appellate Board of the Court of Accounts (Appellate Board) upheld the decision of the Court of Accounts, stating that the payment obligations had been introduced through the regulations adopted after 15 March 2012 and therefore did not fall within the scope of Article 14 of Law no. 4688 on Public Employees' Unions and Collective Bargaining.

The applicant’s request for rectification of the decision was also dismissed by the Appellate Board, which found that there was no unlawfulness in holding the applicant liable in his capacity as the expenditure authorising officer, that retirement allowances could not be regarded as falling within the scope of social balance contracts, and that the procedures in question had resulted in public loss.  

The Applicant’s Allegations

The applicant maintained that his right to property had been violated due to being required to reimburse the public loss identified in the audit process.

The Court’s Assessment

In the present case, the legal basis for the municipality’s payment of additional social balance allowances to certain officers is two additional provisional articles added to social balance contract in 2016, concluded between the municipality and the trade union in 2011. The applicant, Director of Zoning and Urban Planning Department, was not a party to the contract but assigned as the official responsible for authorising expenditure for its implementation.

In the reasoning of the decisions of the Court of Accounts and the Appellate Board, it is stated that despite the impossibility to add new financial provisions to the social balance contract, additional financial obligations were unlawfully introduced into the 2011 contract, which enabled the payment of social equilibrium allowances to the officers who voluntarily retired in 2016. This thereby caused a public loss.

In its decision of 11 September 2019 on the applicant’s request for rectification, the Appellate Board assessed the liability of the applicant and other officials, noting that no expenditure could be incurred without the instructions of the official responsible for authorising expenditure.

Having accepted the role of the official responsible for authorising expenditure, the applicant was required to issue expenditure instructions in compliance with the legislation, pursuant to Article 32 of the Law no. 5018 on Public Finance Management and Control. Article 71 of the same Law provides that an official may be held liable for issuing instructions in contravention of the legislation. Whether the official responsible for authorising expenditure is a party to the social balance contract is irrelevant to the assessment of liability, as the official is required to ensure that the expenditure in question complies with the legislation. Following this assessment, the official may either issue the expenditure instruction or, in case of finding any contravention with the legislation, he may decline to act as the official responsible for authorising expenditure. It therefore appears that the applicant, issuing an expenditure instruction in contravention of the law, was held liable for the resulting public loss, as he had failed to perform a duty imposed on him under the applicable law. This liability on the applicant was determined by the Court of Accounts under the relevant provisions of the law, and he was accordingly afforded the opportunity to present his challenges freely during the proceedings before the Court of Accounts. In addition, the decisions of the judicial bodies cannot be said to lack a reasonable assessment or to be arbitrary. 

Given that the applicant was entitled to pursue legal remedies against the relevant parties for the reimbursed amount, and that he was afforded the safeguards provided under Article 35 of the Constitution, the Court has concluded that the impugned interference did not place an excessive personal burden on him. Accordingly, the impugned interference did not upset the fair balance to be struck between the protection of the applicant’s right to property and the public interest pursued, and was therefore proportionate. It has been therefore concluded that there was no violation of the applicant’s right to property.

Consequently, the Court has found no violation of the right to property.