A. 1 of the Presidential Decree. Paragraph (1) in Paragraph (B) specified
The Rule of the Subject of the Case
The rule in question determines that regulating the principles of activity, authority, duties and responsibilities of the inspection boards and the investigator in public institutions and organizations is one of the purposes of the Presidential Decree (CBK).
Justification of the Cancellation Request
The case is summarized in the petition; Article 108 of the Constitution. according to the article, the state audit board (DDK) for the administration of law according to the task to ensure regular and efficient execution and development that is out of this task to install the RMT, cannot, in this context, public institutions and organizations in the activities of the Audit Committee and the investigators, duties and responsibility can be edited by the principles of CBK not subject to the rule of the case is given a task that is not foreseen in the Constitution where RMT Article 128 of the Constitution. according to the article, the duties and responsibilities of investigators and inspection boards in public institutions and organizations should be regulated exclusively by law, and since the general provisions of the rule are clearly regulated in the law, it has been argued that the rule is Unconstitutional.
Evaluation of the Court
1. From the Point of View of Authority in Terms of the Subject
Article 104 of the Constitution. the seventeenth paragraph of the article outlines the general framework of the CBK. In the first sentence of the aforementioned paragraph, “The President may issue a Presidential decree on matters related to executive power.” by saying that the authority to regulate CBK is reserved for issues related to executive power, the issuance of CBK related to legislative and judicial power is not allowed.
Article 8 of the Constitution. according to the article, since the executive power and duty are assigned to the President, the inspection boards in public institutions and organizations and the rule stipulating that the principles of activity, authority, duty and responsibility of the investigator are regulated by the CBK remain within the scope of the issue of executive power.
The article 38 of the Constitution of the subject-matter rule, which establishes the regulation of the principles of activity, powers, duties and responsibilities of the inspection boards in public institutions and organizations and the investigator as one of the objectives of the CBK. it is understood that there is no concrete regulation on disciplinary offenses and penalties within the scope of the article. In this respect, it cannot be said that the rule is within the scope of the fundamental rights, human rights and duties contained in the First and Second Sections of the Second Parts of the Constitution and the political rights and duties contained in the Fourth Section.
Another aspect sought in terms of CbKs according to the Constitution is that the CBK rule should not be related to issues that should be regulated exclusively by law in the Constitution. However, it is possible to regulate CbKs on specially specified issues that will be regulated by CbKs in the Constitution.
Article 123 of the Constitution. in the first paragraph of the article “The administration is a whole with its organization and duties and is regulated by law.” provision has been made, 128. in the second paragraph of the article “Qualifications, appointments, duties and powers, rights and obligations, monthly and allowances and other personal affairs of civil servants and other public officials are regulated by law. it has been said that “. However, Article 108 of the Constitution. in the fourth paragraph of the article, it is stated that the functioning of the DDK, the term of office of its members and other personal affairs will be regulated by the CBK. Therefore, it is possible to regulate the specified issues specifically with CBK.
One of the objectives of CBK has been determined as regulating the activities, powers, duties and responsibilities of the inspection boards and the investigator in public institutions and organizations by the rule subject to litigation. In this regard, the rule under consideration in the case is Article 108 of the Constitution. it is necessary to evaluate whether it is within the scope of the “… functioning …” of the DDK contained in the fourth paragraph of its article.
The phrase processing refers to the processing job, the functional formation or the way in which a process forms and performs its function, while processing refers to all the work or practices performed to complete a job, the path and procedure taken to achieve a goal. As of 108 of the Constitution. it can be said that the phrase “the functioning of the DDK”, which can be regulated by the CBK in the last paragraph of the article, refers to the way the DDK performs the above-mentioned administrative investigation, review, research and supervision work, the procedure prescribed for the purpose of concluding this work with the formation of the process. In this context, it is necessary to evaluate how and through whom the DDK will do the work in question, as well as the duties and powers that these people have when doing the work. Therefore, Article 108 of the Constitution of the DDK. it cannot be said that the regulation of the activities, powers, duties and responsibilities of the inspection boards and the investigator in public institutions and organizations in the process of fulfilling and concluding the administrative investigation, inspection, research and supervision task that he will perform within the scope of the article is not related to the functioning of the DDK. In this context, the rule of the case is in accordance with Article 104 of the Constitution. there is no aspect of its article that violates the third sentence of the seventeenth paragraph.
In the “Seventh Section” of the Civil Servants Law No. 657, the disciplinary provisions of civil servants and other public officials within the scope of the law have been regulated and the procedures and principles regarding disciplinary offenses and penalties have been determined in this section. 124 Of the Aforementioned Law. the articles in order to ensure the proper execution of the public service laws and regulations as dictated by a state officer CBK duties within or outside of the country instead of the people who do not, issues that require compliance with those who do, those who do work according to the nature and severity of the situation bans 125. it has been arranged that one of the disciplinary penalties listed in the article will be given. Similarly, in the “Ninth Chapter” of the Higher Education Law No. 2547, the procedures and principles related to the disciplinary and criminal affairs of the teaching staff were regulated.
As one of the purposes of CBK, a general regulation is made in CBK regarding the regulation of the activities, powers, duties and responsibilities of the inspection boards in public institutions and organizations and the investigator, but no concrete regulation is made on these issues. Therefore, the rule under consideration is Article 104 of the Constitution. there is no aspect contrary to the rule that CBK cannot be issued in matters clearly regulated by the law contained in the fourth sentence of the seventeenth paragraph of its article. However, there is no doubt that the issue of whether the CBK provisions to be regulated in accordance with the rule in question will be explicitly included in the law will be evaluated separately.
The Constitutional Court has decided that for the reasons described, the rule is not contrary to the Constitution in terms of authority in terms of subject matter and has rejected the cancellation request.
2. In Terms of Content
To regulate the principles of activity, powers, duties and responsibilities of the inspection boards and the investigator in public institutions and organizations provided for as one of the objectives of the CBK with the rule of law on ensuring that the DDK, which is envisaged as a superior supervisory body in the new government system, performs this function, 108 of the Constitution. it is a natural consequence of its substance. Your rule is Article 108 of the Constitution. it is understood that within the scope of the article, it is envisaged for the purpose of ensuring uniformity in the inspection regime. There is no aspect of the rule that may lead to the conclusion that it was introduced with the observance of private interests other than the public interest or in favor of certain persons.
One of the basic elements of the rule of law is the principle of certainty. According to this principle, CBK rules, as well as legal regulations, should be clear, clear, understandable, enforceable and objective, so as not to cause any hesitation and doubt both from the point of view of individuals and the administration. The principle of certainty is connected with legal security, and the individual must know from the law with a certain certainty which concrete action and fact is connected with which legal result. Only in this case can the individual foresee the obligations that fall to him and adjust his behavior.
Article 108 of the Constitution. the amendment to the presidency established as the capital and more than half of all public institutions affiliated to RMT that attended these institutions in any organization, which is a public institution in professional organizations at all levels, employers and workers the Occupational institutions, foundations, associations, public benefit in any administrative investigation, inquiries, investigations and inspections are given the task of making and authority. Within the scope of this authority and duty, one of the objectives of CBK has been determined as regulating the activities, powers, duties and responsibilities of the inspection boards and the investigator in public institutions and organizations by the rule subject to litigation. Article 108 of the Constitution. considering that the rule aimed at ensuring the implementation of its article is clearly, clearly and intelligibly regulated, there is no aspect of the rule that contradicts the principle of certainty.
For the reasons described, the Constitutional Court has decided that the rule is not contrary to the Constitution in terms of its content and has rejected the cancellation request.
B. CBK’s 6. The Phrase “… may apply the measure or …” Contained in the Last Sentence of Paragraph (1) of Article
The Rule of the Subject of the Case
CBK’s 6. in paragraph (1) of the article, which contains the rule subject to litigation, a suspension measure has been issued. According to the paragraph, the chairman of the DDK group may apply a suspension measure or recommend the implementation of this measure to the competent authorities about officials at all levels and ranks who commit acts that complicate or impede supervision during inspections, which, if left in office, are understood to increase public harm, darken criminal evidence, are inconvenient to remain in office in terms of the requirements of the civil service. The rule in question in the case is the phrase “… you can apply the measure or …” contained in the paragraph. In accordance with the rule, the head of the DDK group will be able to apply a suspension measure during the inspections.
Justification Of The Cancellation Request
In summary, in the lawsuit petition, the subject of the lawsuit is provided with the authority to suspend the members of the DDK who are the heads of the audit and investigation group with the rule 108 of the Constitution for the DDK. going beyond the definition of the item in the designated task, the process control is not foreseen against dismissal administrative or judicial, civil servants and other public employees in organizations with public benefit associations and foundations working in the investigation of processes in relation to those who are exclusively regulated by the law is unconstitutional by stating that it was suggested that the rule should be.
Evaluation Of The Court
The right to association, which is a form or a special aspect of freedom of association, includes rights from the point of view of a person, such as freedom of association, as well as membership in an association, participation in association activities, and participation in activities to protect the interests of its members. Associations, on the other hand, are communities of people who are organized and equipped with a legal entity, in which people constantly combine their knowledge and work to achieve or pursue a specific goal. Article 33 of the Constitution. its article is mainly aimed at protecting against arbitrary interference by public authorities during the exercise of the right of association.
Article 108 of the Constitution. in accordance with article 33 of the Constitution, the suspension measure that the head of the group may apply to officials in the presence of the conditions set out in the article during the inspections to be carried out by the DDK in associations may be applied. it is clear that it is a limitation on the right to form an association contained in the article. In this regard, the rule contains regulations related to the rights and duties of persons contained in the “Second Part of the Second Part” of the Constitution in its scope.
As of this date, the rule is 104 of the Constitution. in accordance with the second paragraph of the seventeenth paragraph of the article, it remains within the prohibited area that cannot be regulated by CBK.
The Constitutional Court has decided that the rule is contrary to the Constitution in terms of authority in terms of the subject matter for the reasons described and has been canceled.
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