The Objectionable Rule
In the rule subject to appeal, October 18 of Law No. 442. according to the phrase “… disciplinary penalties to be applied …” contained in the article, it is envisaged that disciplinary penalties to be applied against security guards and ranger heads will be regulated by a regulation to be issued by the President.
Application Justification
As a summary of the application, the original of the security guards perform a public service and continuous due to a public servant, public officials should be regulated by the law of disciplinary offenses and penalties in relation to that, however, appeal the determination of who was called the rule of disciplinary offenses and penalties for public officials without any limit regulation to be issued in this regard where it left off, this situation is incompatible with the principles of legality of crime and punishment in accordance with state law by stating that it was suggested that the rule is unconstitutional.
Evaluation of the Court
7 of the Constitution. in its article “The legislative power belongs to the Grand National Assembly of Turkey on behalf of the Turkish Nation. This authority is non-transferable. it is said that “.
As a rule, it is sufficient for the legislator to authorize the executive branch with general statements in terms of derivative regulatory acts, but granting the executive branch the authority to regulate matters that are required to be regulated by law in the Constitution with general statements may constitute a violation of the principle of inalienability of legislative power. For this reason, the basic principles, principles and framework of the law should be determined in the issues that are envisaged to be regulated exclusively by law, such as limiting the basic rights and freedoms contained in the Constitution, imposing tax and similar financial obligations and appointing civil servants, personal rights. The transfer of legislative power by the legislative body to the derivative transactions of the executive after determining the basic rules on issues that the legislator clearly prescribes to be regulated by law, leaving considerations on expertise and management techniques to the derivative transactions of the executive cannot be interpreted as a transfer of legislative power.
Disciplinary penalties are administrative sanctions imposed in case of violation of the rules of conduct that appear in the form of doing or not doing what is provided for in order to ensure the proper performance of public services. The duties, powers and responsibilities of those who carry out public services are limited by the requirements of public service and service, and those who go beyond these limits are punished with disciplinary penalties provided for in the relevant laws.
If disciplinary action is applied due to a person’s statement or actions related to private life, the right to freedom of expression or respect for the privacy of private and family life will be interfered with, and if the penalty of deprivation of pension is applied, the right to property will be interfered with. As a result of this, disciplinary offenses and penalties may result in the limitation of various fundamental rights and freedoms due to or as a result. Article 13 of the Constitution. restriction of fundamental rights and freedoms in accordance with the article is possible only by legal regulations.
It is not enough that there is a legal regulation aimed at limiting fundamental rights and freedoms, but the legal rules should be specific, achievable and predictable regulations that do not allow arbitrariness. In fact, the law limiting fundamental rights and freedoms has these qualities 2 of the Constitution. it is also a requirement of the rule of law principle enshrined in the article. Therefore, Article 13 of the Constitution. the legality specified in Article 2 of the Constitution as a limitation criterion. it should be interpreted in the light of the principle of the rule of law enshrined in the article.
Article 74 of Law No. 442. in the provinces declared a state of emergency to be determined by the president in accordance requiring serious symptoms and causes of violence in the village of peasant life and property, or for whatever reason the rape of movements occur in the environment or in case of an increase of the governor’s proposal and the approval of the minister of the interior can be assigned with enough security guards. In case of the disappearance of the situations requiring the assignment or in cases of administrative necessity, the assignments made as a security guard may be terminated by applying the same procedure related to the assignment.
In accordance with the rule under appeal, disciplinary penalties for security guards and the heads of rangers will be regulated by a regulation to be issued by the President. As of this moment, the rule does not allow within the legal framework to predict with a certain clarity and certainty which legal sanction or result will be applied to which concrete act and fact by not determining the types of sanctions and the actions subject to sanctions.
Disciplinary offenses and penalties in the rules with regard to the general principles are introduced before, the legal framework, without penalties and fines and disciplinary actions that require security guards on the head ranger is a general outline of the whole of the matters of discipline, although determined on the merits of the regulation-regulation by being left to play unlimited, indefinite, has been granted the authority to regulate large. In this respect, the rule is incompatible with the principles of certainty and the inalienability of legislative power.
The Constitutional Court has decided that the rule is contrary to the Constitution on the grounds described and has been annulled.
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