A. ‘…and the source…’ in subparagraph (d) of paragraph (1) of Article 4 of Law No. 7183 Analysing the phrase
While Law No. 7183 does not specify the criteria for the preparation of the budget in the context of the resources to be provided by the Turkish Tourism Promotion and Development Agency (Agency) and the basic principles regarding the procedure governing the expenditures within this scope, paragraph (4) of Article 5 of the said Law stipulates that the procedures and principles regarding the preparation, implementation, expenditure and accounting of the Agency’s budget shall be regulated by a regulation to be issued by the Ministry of Culture and Tourism within the framework of the opinion of the relevant institutions.
The rule subject to the lawsuit stipulates that the Agency may provide funds to increase the share of tourism in the national economy and to realise the objectives specified in the Law No. 7183. However, the Law does not provide a general framework on the qualifications of the persons, facilities, enterprises or investments to be funded and does not include any provision on the principles on which the Agency will provide resources. For this reason, it has been evaluated that the rule does not include measures against arbitrary practices, does not allow the persons who are obliged to pay the tourism share to foresee the conditions under which the resources will be provided and does not allow the Agency to be held accountable.
In this respect, authorising the Agency to provide resources without taking protective measures against arbitrary practices by regulating the principles to which it will be subject in a clear, clear, understandable, applicable and objective manner is incompatible with the principles of certainty and democratic state.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
B. ‘…exclusively based on the independent audit reports submitted to it…’ inthe second sentence of Paragraph (2) of Article 7 of Law No. 7183 Analysing the phrase
The rule subject to the lawsuit stipulates that the Court of Accounts cannot carry out an audit separate from the independent audit of the Agency, and in this context, it will review the independent audit report submitted to it without requesting any information or documents from the Agency.
Independent audit is a type of audit in which the financial statements and financial information of commercial companies are analysed. However, unlike commercial companies, the Agency, which was established not to make profit but mainly to realise public benefit, will carry out the activities listed in the Law in accordance with the principles and rules of public law in general. On the other hand, the principle of democratic state requires certain legal consequences in case irregularities are detected in the operations of the Agency audited financially. The Law does not stipulate any provision on the actions to be taken in the event that the audit of the Agency is not ensured to be carried out in accordance with the law or certain irregularities are detected in the financial transactions of the Agency, and in this context, the legal consequences that will arise for the Agency officials. Accordingly, it is concluded that independent audit is not a method to ensure that the Agency, which will carry out the activities envisaged in the Law in accordance with the principles and rules of public law in general, uses public resources in accordance with the public interest. In this respect, it is incompatible with the principle of democratic state for the Court of Accounts to prepare the report to be sent to the Grand National Assembly of Turkey regarding the Agency exclusively by examining the independent audit report submitted to it.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
C. Examination of the Second Sentence of Paragraph (4) of Article 8 of Law No. 7183
The rule subject to the lawsuit stipulates that the provisions of the legislation on the recruitment of personnel to public institutions and organisations shall not apply to the personnel to be employed by the Agency.
It is a requirement of the principles of democratic state and certainty that the Agency is subject to certain principles in the context of personnel employment, which will result in the use of public resources. Stipulating that the provisions of the legislation on the recruitment of personnel to public institutions and organisations shall not apply to the personnel to be employed by the Agency, without any regulation in the Law regarding the personnel to be employed by the Agency, does not allow the Agency to be accountable in the context of the use of public resources according to objective criteria and the persons who want to work at the Agency to foresee the principles to be applied in the employment of personnel. In this respect, the rule violates the principles of democratic state and certainty.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.