The Rule of the Subject of the Case
In the rule subject to litigation, Article 33 of the Law No. 2547 within the scope of the Faculty Member Training Program (ÖP). in accordance with Article 50 of the Law, the status of those appointed to the research assistant staff without the need for any other process. it is envisaged that it will be transformed into the research assistant status specified in the article.
Justification of the Cancellation Request
In summary in the lawsuit petition; Article 33 of the Law No. 2547 within the scope of the rule subject to litigation ÖP. article 50 of the Law, which provides that the status of those appointed to the research assistant staff in accordance with article (a) of the Law is less secure without any justification. it has been argued that the rule is contrary to the Constitution by stating that it has been converted to the status of a research assistant specified in paragraph (d) of the first paragraph of the article, and this has led to the elimination of the acquired rights of people by effective legal regulations in the past.
Evaluation of the Court
Determination of the Scope of the Right
In this decision, the Constitutional Court adopted Article 70 of the Constitution. it has revealed an understanding that reinterprets the right of entry into public services regulated in its article and expands the scope of the right. The court’s assessment of the issue is as follows:
In the Fourth Section of the Second Part of the Constitution, “IV. 70 Under the heading ”The right to enter public services”. in the article “Every Turk has the right to enter public services.”the right to enter public services has been included by being called. Considering the wording of the rule, it can be said that the right regulated in the article is limited only to the stage of entry into public services. However, in order to determine the scope of the right, the paragraph must be interpreted not only by its words, but also taking into account the entire text in which it is contained, taking into account its relationship with the parts and sections contained in the law, as well as other rules, investigating its purpose and interpreting it in accordance with its purpose. In addition, in the historical process, the form of regulation of the right in earlier constitutions should also be taken into account in the interpretation of the paragraph.
The fact that the concept of “employment” was used instead of the concept of “entering” into public services in the constitutions before the 1961 Constitution is 71 of the 1982 Constitution. the fact that the declaration of goods regulated in the article is also mandatory during public service, in addition to entering the civil service, indicates that being / staying in the civil service is also within the scope of the right to enter public services.
As a matter of fact, it has been clearly stated in some international conventions that the right to enter public services also includes being/staying in public services. In this context, the right to enter public services in the United Nations conventions has been considered among the political rights (participation rights) that express the right of citizens to participate in the dec of their country’s public affairs, along with the right to choose and be elected. It is inconceivable that the right of citizens to enter public services, which is recognized as a political right within the scope of the right to participate in the conduct of public affairs of their country, does not include participation in the conduct of public services. This right is by its nature. The interpretation of the right to enter public services as covering only entry and not stay excludes this right from being a political right that has the right to participate. Because it is impossible for a right that guarantees only entry, not a guarantee of stay, to ensure participation in the conduct of public services. jul. Participation, on the other hand, requires continuity -at least for a certain period of time – and, as such, being in this status. Hence Article 70 of the Constitution. it was concluded that the right to enter the civil service guaranteed by the article also includes being in the civil service when assessed taking into account the way it was regulated in the Constitutions of 1924 and 1961 and the systematic and purposeful methods of interpretation in the historical process.
70. Examination of the Concrete Rule in the Context of the Article
In this case, 33 of the research assistants under the ÖP. from the status in article 50. 33. initially, due to the fact that the position will be terminated by termination of the relationship with the staff after serving one year or several years in the transferred status with their transfer to the status in the article. it is understood that due to the assignment of the status in the article, the right to enter public services is limited due to the restriction placed on the rightful expectation formed in research assistants.
The restriction was made by the State Decree Law No. 674, the rule was adopted in accordance with the Law No. 6758. It is clear that the rule is a State of Emergency regulation for the reason that it is aimed at eliminating the threats or dangers that caused the declaration of a state of emergency, was applied during the state of emergency and had its provisions and consequences during the same period, and relates to the right to enter public services.
The rules of this nature are primarily based on Article 13 of the Constitution, which regulates the regime of limiting and guaranteeing rights and freedoms in the ordinary period of the Constitution. it must be evaluated within the scope of the article. In this context, it is understood that the rule was created in order to ensure national security and public order by eliminating the continuation of the actions that caused the state of emergency and the dangers that they will cause. In order to ensure national security and public order by eliminating the threats and dangers arising from the attempted coup and the events that followed, it cannot be said that the limitation in the form of changes in the status of research assistants under the ÖYP is not conducive to achieving the goal. However, since it cannot be said that the status change is based on legal and actual necessity to be made collectively without individualization in a way that also prevents the right to sue – in the usual period without a system change – it is concluded that the requirement of necessity cannot be met in the limitation.
In this respect, the rule that limits the right of persons to enter public services beyond the guarantees provided for in the Constitution for the ordinary period is the 15th Article of the Constitution regulating the cessation and limitation of the exercise of fundamental rights and freedoms during extraordinary periods. it has been examined within the scope of the article.
The right to enter public services is not among the core rights dec are prohibited, but 15. the measurement examination within the scope of the article should be carried out in terms of necessity and proportionality criteria.
Like all government institutions, universities are also known to be a terrorist organization, in an effort Fetullahci infiltration and/or parallel state structure of public authorities in the face of this feature that caused the danger to the declaration of a state of emergency to be disposed of quickly in order to implement the necessary measures for speedily without individualization of collective action and democratic constitutional order and national security and the preservation of Public Order is not to say that it is a necessary measure for accomplishing the objectives. In other words, it cannot be said that the application to the vehicle in question in the conditions of state of Emergency is beyond the measure required by the situation in terms of the requirement criterion.
Although, by the rule, the right of entry into public services is limited by transferring research assistants under the ÖP to a less secure status, the right of entry into public services is limited by Article 15 of Law No. 7143. provisional Article 78, which was added to Law No. 2547 with its article. with some exceptions, with the fifth paragraph of the article, research assistants were provided with the opportunity to return to their previous status and a legal regulation was made to compensate for the consequences caused by the rule in question in the case. Thus, the individualization of people to attain their former positions and rights without the staff who made the change process is provided and the measure taken as a whole in extraordinary periods in the event of exceptional and unexpected circumstances that may cause such method should also be considered to be resorted to challenging the rule that is evaluated for these people, therefore it is concluded that the limitation did not bring a disproportionate disproportionate and under emergency conditions.
However, it is understood that those who have been dismissed from the research assistant staff due to failure, inability to complete their graduate studies or affiliation with terrorist organizations or contact with them during the period of this regulation are not given the opportunity to return to their former staff and status. There are no obstacles to the application of these persons to administrative and judicial means against the rejection of applications for appointment to their former positions. Accordingly, in the case of the rule in the head, the provision of individualization of persons from changing out of the question, there have been a staff made subsequently reassigned to the staff of persons with the legal regulation of administrative and judicial remedy in question, considering the fact that they are effective against these people also have the opportunity to held disproportionate in emergency conditions, and therefore, a limitation is concluded that it is not unconscionable. Because the subject of the rule, as in the case of the measure process, taken as a whole in extraordinary periods in the event of exceptional and unexpected circumstances that may cause such method to be resorted to after considering challenging the injunction against the individualization through the creation of effective administrative and judicial control mechanisms to fulfill the requirement may be accepted.
The Constitutional Court has decided that the rule is not contrary to the Constitution on the grounds described and has rejected the cancellation request.
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