Events
The applicant started the basic course of petty officer as a candidate for contract female gendarmerie non-commissioned officer. The applicant was dismissed from the candidacy on the grounds that the security investigation resulted in a negative result. Candidates who started the course together with the applicant were awarded the rank of petty officer sergeant.
In the case filed by the applicant with a request to cancel the transaction, the Military Supreme Administrative Court (AYIM) decided to cancel the dismissal. After this decision, the applicant, who was associated with the candidacy, completed the course and was appointed to the non-commissioned officer staff. The administrative court rejected the full judicial case filed by the applicant with a request to pay for his monetary rights, which he had been deprived of for the period between the date of his appointment as a non-commissioned officer sergeant and the date of his appointment as a non-commissioned officer – about fourteen months. In the justification of the decision; it was stated that the claim that the applicant would have been appointed as a non-commissioned officer earlier if he had not been dismissed from the school was an assumption; therefore, it was stated that the request for financial compensation should be rejected.
Count
The applicant claimed that his property right was violated due to the fact that the damages he suffered due to his late appointment as a non-commissioned officer were not covered because it was determined by a court decision that he was unlawfully dismissed from his contract gendarmerie non-commissioned officer nomination.
Evaluation of the Court
First of all, it should be examined whether the monetary rights attached to the non-commissioned officer’s staff constitute legitimate expectations. article 82 of the Personnel Code of the Turkish Armed Forces No. 926. in the event that the third paragraph of the article is in force on the date of the incident, it has been arranged that those who graduated from a faculty, college or vocational school and completed basic military service training to be promoted to midshipman will be awarded to a midshipman sergeant on August 30 of that year. Accordingly, faculty, school or vocational school graduates is determined by the competent authorities and from those petty officer selected as a candidate on successful completion of military training at the date of the relevant year, on 30 August, the NCO Sergeant nasbedile will be. Hence, the nomination of a candidate elected as petty officer Petty Officer will be appointed as prescribed for successful completion of the training of, and the rights begin to acquire monetary astsubaylik staff that connects a legitimate expectation that requires acceptance the way that they should.
There is no determination and assessment by the administration in the incident that the applicant did not meet the conditions for appointment to the post of non-commissioned officer, except for the negative outcome of the security investigation. The only reason why the applicant was not appointed as a non-commissioned officer together with his peers is that the security investigation was considered to have ended negatively and he was dismissed from the nomination based on this reason. Since AYIM has determined that the administration’s assessment that the applicant’s security investigation did not meet the requirement that it be positive is unlawful, there is no apparent obstacle to the applicant’s appointment as a non-commissioned officer at the final stage of the training period. In this case, it has been evaluated that the applicant, who is at the last stage of the training period and is not alleged to have fulfilled any of the conditions of being a non-commissioned officer, has a legitimate expectation to be appointed as a non-commissioned officer together with his peers and to obtain his related personal rights.
It has been determined by AYIM’s decision that the transaction related to the termination of the applicant’s relationship with the candidacy, which also interferes with his property right, is unlawful. The fact that the dismissal was unlawful also showed that the interference with the right to property was devoid of legal basis by delaying the applicant’s appointment as a non-commissioned officer.
Petty Officer rate is an obstacle to the appointment of the applicant, or where the administration does not have one of the conditions of being a petty officer since it’s not in violation of the law claimed by the discharge process which is determined by the establishment of a judicial decision in the applicant’s case with an assumption that peers will not petty officer Sergeant naspedile that can be understood is not a comment to be considered. As a matter of fact, the applicant, who was re-nominated on 3/2/2016 upon the decision to cancel, was appointed to the non-commissioned officer staff sixteen days after taking office. Therefore, if there were no unlawful actions, the expectation that the applicant would be appointed to the non-commissioned officer staff on 25/12/2014 together with his peers is not an assumption, but a foreseeable consequence of the law.
Undoubtedly, it is unlikely that the administration may not carry out the appointment process if it detects the existence of another condition that prevents the applicant from being appointed a non-commissioned officer. However, given the circumstances of the concrete incident, there is no apparent reason to think that the applicant, who is at the final stage of his education, may not be appointed. The main thing that can be considered an assumption in these conditions will be that the applicant will be told that there is a possibility that he will not be appointed.
In the rule of law, the administration is under the obligation to remedy violations caused by transactions that it has established in violation of the law. According to the principle of reinstatement (restitutio in integrum), the administration is obliged to place the person as close as possible to the situation in which the person would be if the illegal transaction had not been established. From this point of view, it cannot be said that the administration has fully fulfilled its obligations to remedy the violation by associating the applicant with a re-nomination. In order to ensure that the violation has been fully resolved, if the unlawful transaction had not been established, the differences in monetary rights arising from that date should also be covered on the date on which the applicant will be appointed a non-commissioned officer in the usual course of the administrative process.
On the other hand, the fact that the administration is obliged to compensate the financial losses suffered by the applicant, whose rights and freedoms were violated by the transaction it established, may also have a deterrent effect on public officials in terms of establishing illegal transactions. Article 5 of the Constitution. its article also imposes on the state the duty to take deterrent measures to prevent violations of rights and freedoms. The interpretation of the Administrative Court prevented the compensation of losses caused by the interference with the applicant’s right to property, as well as neutralized the ability to provide deterrence in terms of establishing unlawful proceedings in the compensation case.
As a result, the full elimination of the violation identified by the cancellation of the dismissal was prevented by the Administrative Court rejecting the full judicial case, recognizing that the applicant’s damage was based on the assumption. In this case, it should be recognized that the violation of the right to property continues.
The Constitutional Court has decided that the right to property has been violated on the grounds described.
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