Events
On 21/2/2016, the applicant started the Officer Basic Military Service and Understanding of Officer Training course in order to become an officer. The applicant, who has the status of outsourced personnel, did not hold any position in the Turkish Armed Forces (TAF) prior to this course. On 15 July 2016, following the attempted coup d’état, the applicant was sent on leave – with an order that seems to cover all similarly situated personnel. Decree Law No. 675 on Taking Certain Measures within the Scope of the State of Emergency (Decree Law No. 675) dismissed the applicant from the Turkish Armed Forces.
Upon learning that he would not be commissioned in accordance with the Decree Law No. 675, the applicant filed a lawsuit for the cancellation of the procedure. The administrative court dismissed the case without examination on the grounds that it was not possible to talk about the existence of a transaction that could be subject to an administrative lawsuit. The regional administrative court rejected the applicant’s appeal. The applicant’s appeal was also rejected by the Council of State. On the other hand, the applicant also requested that the file be sent to the State of Emergency Inquiry Commission (OHAL Commission).
Allegations
The applicant claimed that his right of access to court was violated due to the rejection of the lawsuit he filed upon the cancellation of the recruitment activities of officer candidates whose commissioning was not approved by the State of Emergency Decree Law, instead of sending it to the State of Emergency Commission.
Court’s Assessment
In the concrete case, since the action against the applicant was taken directly by the Decree Law No. 675, the applicant did not have the opportunity to have the legality of this action reviewed directly before the administrative judiciary. As a matter of fact, the court dismissed the case without examination on this ground. However, it was observed that no examination was made as to whether the transaction was within the competence of the SoE Commission. However, it is imperative that individuals benefit from procedural safeguards to resist disproportionate or arbitrary interventions even during the State of Emergency.
Pursuant to the second paragraph of Article 2 of Law No. 7075, the procedures directly regulated by the Decree Laws within the scope of the State of Emergency regarding the legal status of natural persons and not falling within the scope of the first paragraph of the same article are within the jurisdiction of the State of Emergency Commission.
The court’s rejection of the application regarding the termination of the applicant’s recruitment activity and the non-reinstatement of his appointment, which is clearly related to his legal status, without examining the case instead of sending the file to the State of Emergency Commission by making a constitutional interpretation after determining that the transaction was directly established by the Decree Law, deprived the applicant of procedural safeguards to protect him against arbitrariness. This interpretation of the Court led to the creation of an area closed to judicial review. In this respect, it is concluded that it is unforeseeable for the judicial authorities to reject the case without examining it without making an assessment. In the light of this information, it has been concluded that the intervention made by rejecting the applicant’s lawsuit filed by the applicant upon the cancellation of his procurement activity by the State of Emergency Decree Law and the non-reinstatement of his appointment was not to the extent required by the situation stipulated in Article 15 of the Constitution, which regulates the suspension and limitation of the use of fundamental rights and freedoms during the State of Emergency period, instead of sending it to the State of Emergency Commission with an interpretation that will provide constitutional guarantees to the applicant against arbitrariness.
For the reasons explained, the Constitutional Court decided that the right of access to court within the scope of the right to a fair trial was violated.
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