Events
An announcement has been made by the rector’s office for an open assistant professor staff in the geological engineering department of the faculty of architecture and engineering. Two more people october together with the applicant – who work at the same university – for the assistant professor staff specified in the announcement, which does not include any additional conditions. The application of a candidate other than the applicant was rejected by the Sub-Criteria Commission on the grounds that it did not meet the necessary requirements.
The applications of the applicant and other candidates have been referred to the jury for evaluation. As a result of the evaluation conducted by the jury at the first stage, it was proposed to appoint another candidate other than the applicant, but his appointment was not made after it was understood that the candidate in question did not meet the legal requirements. Upon the applicant’s repeated application, his file was sent to the jury for evaluation. It was reported to the applicant that two of the three-person jury expressed an opinion against the applicant and one in his favor, and the Rectorate took action against the fact that the appointment of the applicant was not appropriate based on the jury’s report. The jury reports have not been communicated to the applicant. The applicant filed a lawsuit requesting the cancellation of the non-appointment process; the administrative court decided to cancel the process. However, the district administrative court definitively dismissed the case, removing the decision of the administrative court. In the justification of the decision, it was emphasized that the administration has discretion in appointing a staff that is open and that the administration cannot be forced to appoint it by a judicial decision. In the decision, it was explained that there was no violation of the law in not appointing the applicant to the assistant professor’s staff in accordance with the evaluation of the jury members.
Count
The applicant claimed that the principles of equality of arms and contradictory proceedings had been violated due to the establishment of a verdict based on the assessments in the jury reports directly without examining the academic work by an expert witness.
Evaluation of the Court
In terms of equality of arms and conflicting trial principles, the examination should first examine whether the failure to notify the applicant of the jury reports is based on a justifiable reason. It has not been established that the administration has provided any justification for why the jury reports were not communicated to the applicant during the establishment of the administrative procedure. In addition, there is no explanation in the decision of the administrative court as to why the jury reports were not communicated to the applicant. On the other hand, it has not been determined that there is a justified reason for not notifying the relevant person of the jury reports arising from the nature of the work. Therefore, it was not assessed that the failure to provide the jury reports to the applicant was based on a justifiable reason.
However, the fact that these reports were not provided to the applicant were not based on a justifiable reason alone does not mean that the applicant’s right to a fair trial has been violated. It is also important whether the applicant has been provided with opportunities to compensate for the restriction on the applicant’s defense due to the fact that the aforementioned reports have not been communicated to the applicant. During the establishment process of the administrative procedure, only the information that two of the jury members expressed a negative opinion about the applicant was given to the applicant. During the trial, the jury of two members of the rectorate of the defense of the applicant’s master’s and doctoral theses and other works not declared to the Department of geochemistry of ore deposits, mineralogy and petrography Department of the applicant with the idea of having a relationship with their negative opinion has stated, it was stated that about.
It can be said that summarizing the contents of the jury reports in the defense of the defendant administration compensates to a certain extent for the restriction on the defense by not notifying the applicant of the reports. However, in order for it to be mentioned that the restriction has been fully compensated for, the summary in the administration’s defense must have made it possible to defend the applicant in all aspects of the established administrative procedure. It is understood that the main reason for the administrative procedure established against the applicant was the absence of his master’s and doctoral theses and other studies related to mineral deposits and the department of geochemistry. The fact that the applicant can put forward his claims and objections in the real sense in relation to this evaluation of the jury depends on the fact that the jury is aware of the basis of this opinion. However, the administration’s defense letter does not contain an explanation of how the jury came to the conclusion that the applicant’s work was unrelated to the mineral deposits and the department of geochemistry. This situation has severely limited the applicant’s defense possibilities.
On the other hand, it is necessary to take into account that the applicant’s studies are related to the department of mineral deposits and geochemistry, it is a technical issue and the district administrative court has no expertise in this regard. Although it is not a necessity for the court to apply for expert review in cases where the transaction established by the administration is based on technical reports prepared by experts within the administration, this report should be suitable for being based on the judgment and should be subjected to an objective evaluation by the court. In the concrete case, the jury report was not sent to the regional administrative court, nor was any statement made by the administration to the regional administrative court regarding the basis of the report. Since the district administrative court also does not have a specialization in the field of geological engineering, it can only obtain certainty by conducting an expert examination whether the applicant’s work is related to mineral deposits and the department of geochemistry. Although conducting an expert examination on this issue could serve to close the gap created by the applicant’s defense, no attempt was made in this direction by the district administrative court.
The court’s approach to evidence is also an element that will be taken into account when compensating the applicant for the restriction on the defense. In cases where the evidence that has not been communicated to the applicant is the only or decisive evidence in the trial, the court must act taking into account the fact that the applicant’s right to defend is severely restricted. In this regard, the principle of equality of arms the court of the public authorities arising from the administration that did not perform its obligation in favor of the rights to the legality of the administrative action and the grounds for the administration to put in the description that will save you from making a paper the principle of equality of arms may lead to impairment reviews and comments.
It is understood that the opinion of the jury was decisive in not appointing the applicant and in dismissing his case against this procedure. The interpretation of the district administrative court on the scope of the administration’s discretion also weakened the effect of the judicial review and prevented the applicant from compensating for the wear caused by the defense. In this context, staff announcements of the regional administrative court in any work with the Department of geochemistry of ore deposits and the conditions it was found that it is not part of the jury in the state to be found in sufficient mindset in the direction of the evaluation is not understandable. 23 of the Higher Education Law No. 2547. according to the article, while the rector’s office was given the authority to impose additional conditions with the approval of the Octoberuniversity Board and to show this in the announcement of the staff, it is necessary to note that the approach that transferred this authority to the jury in its entirety was problematic.
It is also important to note that the applicant’s claim that the submission of his work to the jury after the completion of the evaluation process and the realization that the other candidate did not meet the application requirements showed that no previous evaluation had been made regarding the applicant, and that the jury had evaluated only the other candidate at the first stage. Because it is clear that the applicant and the other candidate have passed the examination of the Sub-Criteria Commission and their work has been sent to the jury, the jury should prepare reports on both candidates. However, it is not understood that the jury made an assessment of the applicant’s work at the initial stage. This fact should be considered as an element that encourages the regional administrative court to act more carefully in terms of overseeing whether the administration conducts the appointment process in accordance with the principle of impartiality.
As a result, it was assessed that the applicant’s failure to compensate for the damage caused to the defense during the trial process by not notifying the applicant of the jury report, which is decisive evidence, put the applicant in a disadvantageous position in front of the administration.
The Constitutional Court has decided that the principles of equality of arms and contradictory proceedings have been violated on the grounds described.
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