Events
The applicants, who were working as professors at the university, requested to be granted a practice licence in order to practice their profession freely after working hours. The Directorate of Health decided to reject this request on the grounds that the applicants were academics subject to the Higher Education Law No. 2547. The lawsuits filed by the applicants were rejected by the courts of first instance. The request for appeal against this decision was also rejected.
Allegations
The applicants claimed that their right to a fair trial was violated due to the rejection of the lawsuits they filed for the cancellation of their request to engage in self-employment activities after working hours.
The Court’s Assessment
The article titled “Working principles” of Law No. 2547, which is the basis for the rejection of the applicant’s request for the issuance of a licence, regulates the procedures and principles of the work of faculty members. The article regulates in detail in which way and under which conditions faculty members can carry out their professional activities outside the teaching institution while maintaining this title. On the other hand, in the same provision, it is also regulated that in cases where there is no provision in Law No. 2547, Article 28 of the Civil Servants Law No. 657, which prohibits civil servants from engaging in trade and other gainful activities, will be applicable, and in the second sentence of the first paragraph of the article, it is regulated that civil servants cannot open offices, offices, offices, etc. in order to engage in self-employment activities.
Based on the Law No. 2547 and the cancellation decision of the Constitutional Court dated 7/11/2014 (E.2014/61, K.2014/166), the courts of appeal found it lawful to reject the request of the applicants to open a medical practice, who had the title of associate professor or professor on 18/1/2014, when the Law No. 6514 entered into force, but were not among the persons who had a medical practice in operation before this date.
Pursuant to Law No. 1219 on the Practice of Medicine and Medical Sciences and Law No. 3359 on the Basic Law on Health Services, it is within the authority and among the primary duties of the health directorates to examine the physical conditions of the office allocated by the physician for the reception of patients, the compliance of some necessary areas with the regulation and whether the person who wants to practice self-employment has a valid diploma and specialisation certificate in this regard. It is understood that the administration takes into account these two Laws as well as other legal regulations regarding this issue when establishing the procedure.
Based on the provision of Law No. 2547 and the reasoning in the Constitutional Court’s judgement, it has been observed that the opinion of the courts of appeal that the applicants, who were not among the persons who had an active practice before 18/1/2014, did not have the right to self-employment, did not contain a clear arbitrariness or obvious error of appreciation. Therefore, in the concrete case, the fact that the request of the applicants, who are academic staff members who wanted to carry out free professional activities in their private practice after working hours, was rejected in accordance with Law No. 2547 and Article 28 of Law No. 657, which is referred to by this Law, did not damage the fairness of the proceedings.
For the reasons explained, the Constitutional Court decided that the right to a fair trial was not violated.
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