Events
17296 accepted by the decision of the Council of Ministers published in Official Gazette numbered 8/2569 occupational accidents and diseases and at the tariff of insurance premiums (Old Recipe) “Air Transportation” jobs “for the flight preparation and air fields of the maintenance work, ground service and maintenance” code “with all the things that are done on airplanes (Aviation clubs, including” the code has been identified. According to the workplace declaration dated 1/10/2005, the applicant’s workplace’s hazard class and degree are registered as “All work performed on airplanes (including Aviation clubs)”.
Adopted by resolution of the Council of Ministers No. 2008/14173 and dated 29/9/2008 and No. 27012 2. in the Short-Term Insurance and Premium Tariff (New Tariff) published in the Official Gazette numbered twice, the “Air passenger transportation” business was coded separately from the “All work performed on airplanes (including Aviation clubs)” business, a 2% premium rate was determined for the former, while the premium rate of the latter was determined to be 6.5%. article 83 of the Social Insurance and General Health Insurance Law No. 5510 and this Law. issued on the basis of the first paragraph of the article, after the new tariff goes into effect in relation to the degree of the applicant’s workplace hazard class and all the things that are done in designated aircraft (Aviation clubs, including” in business, has been kept unchanged. Accordingly, the short-term insurance premium that the applicant must pay has also continued to be charged at the tariff for this line of business – at 6.5%.
In the article sent to the relevant departments by the Social Security Institution (SSI), it was stated that the registration record conversion operations of employers whose line of work has changed according to the new premium tariff were made incorrectly by the computer system, and the incorrect registration records should be corrected by 17/5/2010. The applicant applied to the Istanbul Provincial Directorate and requested that the registration record regarding the workplace hazard class and degree be corrected in the form of “Passenger transportation by air”. The applicant’s request has been accepted and the rate of the short-term insurance premium that he must pay has been determined as 2% as of 1/1/2013.
The applicant has requested the refund of the extra paid premiums since 1/10/2008 with his application to the administration. The applicant’s request was rejected by the Line of Business Code Commission with the decision dated 12/3/2014. The applicant filed a lawsuit in the employment court requesting that the cancellation of the said transaction and the refund of the extra paid premiums be decided. The employment tribunal dismissed the case, stressing that the administration had no fault in paying an excess premium when it was observed that the applicant had not fulfilled his obligation to make a declaration according to the new Tariff.
Count
The applicant claimed that the right of ownership was violated due to the fact that the short-term insurance premium was charged by calculating it at the wrong tariff; the right of effective recourse was violated in connection with the right of ownership due to the fact that the premiums charged incorrectly were not refunded.
Evaluation of the Court
1. In Terms of Violation of the Right of Ownership
The primary criterion to be taken into account in interventions on the right to property is that the intervention is based on the law. If it is determined that this criterion has not been met, it will be concluded that the right to property has been violated without examination in terms of other criteria.
In the concrete case, there is no hesitation that the applicant is under the obligation to pay a short-term insurance premium. The discussion concerns the ratio of the premium that the applicant will pay. According to the New Tariff, the applicant continued to pay a premium at the rate of 6.5% set for the line of business “All work performed on airplanes (including Aviation clubs)” instead of the 2% rate set for the line of business “Air passenger transportation” according to the New Tariff.
1/10/2008 new tariff which entered into force during the period from the date of the applicant’s workplace and degree of the hazard class “with the airline passenger transport business remain within the scope of a pause while the code received from the applicant by the absence of short-term insurance premium determined for the arms of the aforementioned business code of 2% of the portion that exceeds the legal basis is that it is clear.
In this case, it is concluded that the interference with the applicant’s right to property through the accrual of premiums -in terms of the part exceeding the legal rate – has no legal basis. According to the conclusion reached, there was no need to evaluate whether there was a legitimate purpose for the intervention or whether it was measured.
The Constitutional Court has ruled that the right to property has been violated on the grounds described.
2. For Violation of the Right to Effective Recourse
It has been determined that an extra short-term insurance premium has been charged to the applicant without legal basis. In this case, the first issue to be examined by the Constitutional Court in terms of the effective right of application is whether there is an effective remedy that the applicant can provide compensation for his damage.
In the concrete case, the employment court examined the merits of the dispute in the case filed by the applicant, but rejected the case. Considering that the employment court has examined the merits of the applicant’s refund request, it has been assessed that there is no reason to question that there is a mechanism at the legal level for the refund of incorrectly collected premiums in the current application.
The second issue to be examined by the Constitutional Court is whether this method, which has been found to be effective at the theoretical level, actually works in the applicant’s case. It seems that the employment tribunal dismissed the case, concluding that there was no fault of the administration in the overpayment. Provisional article 1 of the decision of the Council of Ministers of the labour court dated 22/9/2008. referring to paragraph (2) of the article, he stressed that employers are required to make statements about line of business codes in electronic form or on paper, and the applicant has not fulfilled this obligation. The employment tribunal also pointed out that according to the specified provision of the New Tariff, SSI has no obligation to make a notification; it concluded that the extra premium collection was caused by the applicant who did not fulfill his obligation to make a statement, so the administration did not have any responsibility.
The fact that the applicant did not submit an application for the alignment of the line of business code with the New Tariff upon the entry into force of the New Tariff may be determined as a deficiency and defect on the part of the applicant. However, it is not clear how the connection was established between the fact that the applicant did not fulfill his responsibility to submit an application to make the line of business code in accordance with the New Tariff and the fact that the extra premiums charged were not refunded dec The applicant’s failure to fulfill his/her responsibilities for the harmonization of the line of business code with the New Tariff does not eliminate the fact that an extra premium has been charged. Although the applicant’s failure to fulfill his responsibilities can be taken into account in terms of his interest-related claims, it does not eliminate the fact of the receivable, in other words, it does not eliminate the administration’s obligation to refund.
On the other hand, the administration has an obligation to act in accordance with the principle of good governance. The principle of good governance requires public authorities to act at the appropriate time, using the appropriate method and, above all, consistently when it comes to a situation in the public interest.
It is clear that in the concrete case -no matter from whom it originated- erroneous premium accruals were made. The administration is obliged to correct this as soon as it becomes aware of the error. It is not a behavior that can be expected from the law-abiding administration that the premium, which is clearly charged extra for the error, will not be refunded on the grounds that the error was caused by the applicant. In a legal state, it is inconceivable that the administration will not refund a receivable that is clearly unjustly charged. As stated earlier, the applicant’s defect does not exclude his right to request a refund. The constitutional guarantees of the right of ownership require the administration to return this amount. However, it is clear that if the applicant claims interest, whether he is defective or not will be taken into account.
In this case, it has been assessed that the employment tribunal’s interpretation that the applicant’s defect eliminates the administration’s obligation to return is not reasonable and makes it meaningless to apply for a refund. Due to this interpretation of the employment tribunal, the application path, which was found to be effective at the theoretical level, has lost its capacity to offer a chance of success in a concrete event.
The Constitutional Court has ruled that the right of effective recourse has been violated in connection with the right to property on the grounds described.
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