T.R. Council of State
12th Chamber
Basis: 2015/1008
Decision: 2015/4473
Decision Date: 2.07.2015
REQUEST FOR CANCELLATION OF THE TRANSACTION – THE PLAINTIFF HAS NOT HAD AN ACT THAT WOULD HAVE AN OBSTACLE FROM OFFICER AND THERE IS NO OTHER DETERMINATION – THERE IS NO LEGALITY IN THE TRANSACTIONS SUBJECT TO THE CASE.
SUMMARY: In the absence of any act of the plaintiff that would constitute an obstacle to civil service, and the absence of any other legally acceptable determination that would justify the negative evaluation of the result of the archive research, it was concluded that there was no legality in the proceedings in the case regarding the plaintiff’s not being appointed on the grounds that the result of the archive research was not positive, and thus, there was no legal accuracy in the decision subject to the appeal, which was given to reject the case.
(2709 S. K. art. 128) (657 S. K. art. 48)
Summary of the Request: Issued by the Istanbul 2nd Administrative Court dated 31/10/2014 and E:2013/1899; It is requested that the decision numbered K:2014/2068 be reviewed and reversed on appeal in accordance with Article 49 of the Administrative Procedure Law No. 2577, for the reasons stated in the petition.
Summary of the Defense of the Ministry of Justice: It is argued that the request should be rejected.
Summary of the Defense of the Presidency of the Justice Commission of the Istanbul Anatolian Judicial Judicial Court of First Instance: No defense was given.
Examining Judge of the Council of State: Mustafa Kuş
Opinion: It is thought that the decision subject to appeal should be overturned by accepting the appeal request.
ON BEHALF OF THE TURKISH NATION
Since the case file was completed by the Twelfth Chamber of the Council of State, which gave the verdict, it was not deemed necessary to make a decision on the request for stay of execution, and the necessity of the matter was considered:
The case was filed with the request for the annulment of the Commission decision dated 29.07.2013 and numbered 1389201331, and the Ministry of Justice action numbered 32992892, without any basis, regarding the appointment of the plaintiff, who was successful in the contracted clerk clerk exam held by the Istanbul Anatolian Court of First Instance Justice Commission, as there was an ongoing criminal case against him as a result of the archive research.
In the E:2012/856 file of the Istanbul 14th Criminal Court of First Instance, the Administrative Court stated that “the security investigation must be concluded positively” in order to be appointed to the positions of execution and protection officers in Article 6, Paragraph 5/d of the Civil Servant Examination Appointment Transfer Regulation of the Ministry of Justice, and that the plaintiff’s act of “preventing students from entering or staying in the buildings where they are gathered together, obstructing education and training by using force or threats”. It was concluded that the defendant administration had discretionary power in terms of personnel employment, and that the discretionary power used for the employment of personnel who were not subject to criminal prosecution was used in accordance with public interest services and requirements, considering the unit in which the plaintiff worked and his position in the unit, and it was decided to reject the case on the grounds that there was no unlawfulness in the transaction in question.
The plaintiff claims that the court decision is unlawful and requests that the decision be reviewed and reversed on appeal.
Article 128 of the Constitution states: “The qualifications, appointments, duties and powers, rights and obligations, salaries and allowances and other personnel matters of civil servants and other public officials are regulated by law.” In the 2nd paragraph of Article 70, it is stated that “No discrimination other than the qualifications required for the duty is taken into account in recruitment to service.” rule is included.
In Article 48 of the Civil Servants Law No. 657; The general and special conditions to be sought for those who will be employed as civil servants are listed, in the 2nd paragraph of section (B) where the special conditions are regulated; It has been stipulated that institutions must meet the conditions required by special laws or other legislation.
In Article 6 of the Civil Servant Examination, Appointment and Transfer Regulation of the Ministry of Justice, which was issued based on the provision of the said Law; In addition to the general conditions to be sought for appointment, the following conditions are required depending on the nature of the positions to be appointed, and in the 19th paragraph of the article; “Archive research to be conducted on all personnel to be appointed to serve in the judicial and administrative judiciary is positive.” It has been ruled that the condition is necessary.
In the 4th article of the Security Investigation and Archive Research Regulation titled “Definitions”, “Archive research” is defined as “determining from the existing records whether the person is still wanted by the law enforcement forces, his affiliation with the law enforcement and intelligence units, his criminal record and whether there are any restrictions on him”; in the 8th article titled “Personnel about whom security investigation and archive research will be carried out”, the security investigation and archive research; classified units and It has been stipulated that this will be done for personnel to be employed in military, police, intelligence organizations, penal institutions and detention centers.
In the 11th article of the said Regulation titled “Aspects to be investigated in security investigation and archive research”, it is stated that, taking into account the environment in which the person is in the security investigation and archive research; a) Identity check, the degree of accuracy of identity records, his nationality, whether he has been a national of a foreign state in the past, b) Whether he is still wanted by law enforcement forces, whether there is information in the archives of law enforcement forces and intelligence units, whether there is a criminal record and a restriction on him, c) Whether he has engaged in subversive activities and whether he is against the Law No. 5816 on Crimes Committed Against Atatürk and Atatürk’s principles and reforms. d) Whether or not he is excessively addicted to gambling, drugs, alcohol, money and self-interest in a way that violates his honor and dignity and reflects on his duty, whether he behaves contrary to morality and good manners, e) The insight and reason for his involvement with foreigners, especially members and representatives of the State who are hostile or likely to be hostile, f) Whether he has the ability to keep secrets or not.
Based on the examination of the case file, as a result of the archive research of the plaintiff, who was successful in the contracted record clerk exam held by the Justice Commission of the Istanbul Anatolian Court of First Instance, action was taken against him for the act of “Preventing students from entering or staying in the buildings where they are gathered together, using force or threats, and obstructing education and training by using force or threats” during the events that took place on the Istanbul University Campus on 01.06.2012, and his appointment was not deemed appropriate by the Ministry of Justice, on the grounds that there was an ongoing criminal case. Thereupon, it is understood that a lawsuit was filed requesting the annulment of the Commission decision dated 29.07.2013 and numbered 1389201331 and the Ministry of Justice action numbered 32992892, regardless of its basis.
In the case in question, as a result of the plaintiff’s archive research, as a result of the said trial, with the decision of the Istanbul 14th Criminal Court of First Instance dated 10.11.2014 and numbered E: 2012/856, K: 2014/284, the statements of witnesses and complainants, the images related to the incident and the evaluation of the expert report regarding the images, the defendants, including the plaintiff, were accused of “preventing students from entering or staying in the buildings where students are collectively located, using force or threats.” Since there was not enough evidence that they committed the crime of “Obstructing Education and Training”, they were acquitted separately, and the said decision became final without appeal on 26.11.2014.
Although it is clear that the administrations have discretionary power to appoint staff and positions, it is clearly stated in the settled decisions of the Council of State that, after the exercise of discretionary power in this direction, there can no longer be any discretionary power to appoint personnel who meet the conditions stipulated in the relevant legislation in the completed process, and in this case, the administrations are within the subordinate authority.
In addition, there is no dispute that the concrete reasons that make the transactions in question mandatory within the framework of the relevant legislation provisions should be put forward by the defendant administrations and the judicial review should be carried out within the framework of these reasons in the context of the reason element.
In the concrete case, accepting the fact that the plaintiff has an ongoing trial alone is an obstacle to the appointment process in question would mean ignoring the presumption of innocence, which, according to some authors, is an element of the right to a fair trial in the doctrine, and according to some authors, a special form of application of this right.
The presumption of innocence, which was mentioned by the European Court of Human Rights in its John-Murray/England, Mineli/Switzerland decision and emphasized by the Constitutional Court in its decisions No. 2012/584, 2012/998 and 2014/682, is regulated in Article 38 of the Constitution and stipulated that “No one can be considered guilty until proven guilty.” Likewise, in the second paragraph of Article 6 of the ECHR, “Everyone accused of a crime is presumed innocent until proven guilty.” principle has been introduced.
The presumption of innocence ensures that a person is not considered guilty without a final judicial decision that he or she has committed a crime. As an aspect of this assurance, no one can be described as guilty or treated as a criminal by the judicial authorities and public authorities until his guilt is proven by verdict.
Although the presumption of innocence is accepted as a principle valid in trials where criminal charges are decided in the 26th paragraph of the Constitutional Court’s decision numbered Application No: 2014/68226, it is clearly stated in the following paragraph that in administrative disputes outside of the criminal case but ongoing due to the actions subject to the criminal case, although a decision of acquittal has been given for the person, relying on the trial process that forms the basis of this decision and questioning the acquittal decision in this way will contradict the presumption of innocence. has been expressed.
Just as an evaluation cannot be made regarding the nature of the plaintiff’s actions, which are not proven due to the criminal case that has been acquitted and finalized, and a distinction cannot be made between a person against whom a criminal case is pending and a person against whom there is no criminal case, in terms of the right to enter the civil service, preferring the latter over the former in terms of public interest and service requirements is not a legally protected approach.
In this case, in the absence of any act of the plaintiff that would constitute an obstacle to civil service, and in the absence of any other legally acceptable determination that would justify the negative evaluation of the result of the archive research, it was concluded that there was no legality in the proceedings regarding the plaintiff’s not being appointed on the grounds that the result of the archive research was not positive, and thus, there was no legal accuracy in the decision subject to the appeal, which was given to reject the case.
For the reasons explained, it was unanimously decided on 02.07.2015 to accept the plaintiff’s appeal request and to reverse the Court decision, to send the file to the Administrative Court for a new decision, to return the unused 45.60 TL fee to the plaintiff upon request, with the possibility of correcting the decision within 15 (fifteen) days following the notification date of this decision.