Subject Rule
According to the rule in question, among the doctors who were dismissed from public service within the framework of the relevant legislation or were not taken to public office according to the result of the security investigation, due to their membership, affiliation or affiliation with or connection with the structures, formations or groups that were determined to be active against the national security of the state, those who are obliged to serve the state, It is stipulated that they can practice their profession after the expiry of a certain period from the date of the decision not to be taken.
Reason for Cancellation Request
In summary, in the petition; the rule is contrary to the general principles of law, the principles of science and expertise, does not have the characteristics of being predictable, accessible and comprehensible with the principles of equality, objectivity and abstraction, deprives certain members of the profession from their constitutional rights, and that persons are subject to a state of emergency decree without any judicial decision, or It has been argued that the rule is unconstitutional, stating that being declared guilty as a result of a subjective security investigation leads to deprivation of rights, that this situation is against the presumption of innocence, and that it violates the right to work and the right to enter public service.
Court’s Evaluation
In Article 13 of the Constitution, it is stated that the regulations that limit fundamental rights and freedoms must be in accordance with the reason for the restriction stipulated in the Constitution and must be proportionate.
Although no limitation reason is foreseen for the right to work in Articles 48 and 49 of the Constitution, it is accepted that the rights for which no specific reason for limitation is foreseen also have some limitations arising from the nature of that right.
Considering the fact that health services can be benefited from in every region of the country and that deficiencies and delays in the fulfillment of health services due to their nature will lead to irreparable results, the Law no. It is ruled that they cannot perform their profession.
It is understood that the legislator aims to ensure work peace by preventing the injustice that will occur between the doctors who fulfill their state service obligation and the doctors who cannot fulfill this obligation due to the stated reasons, in terms of the beginning of the period in which they can practice their profession outside the public, by regulating that the doctors within the scope of the rule can only perform their profession at the end of the state service obligation period specified in the article.
In the 49th article of the Constitution, it is among the duties of the state to ensure labor peace along with other measures in the context of protecting working life. In this context, the rule envisaged to ensure labor peace has a legitimate aim in the constitutional context.
The rule foresees a measure that will ensure the elimination of the favorable results that may arise in terms of physicians who are not found suitable to be employed in the public service. The rule has brought a limitation in accordance with the principle of expediency in terms of the aim of achieving the desired working peace.
However, it is clear that the aforementioned purpose can be achieved or other similar measures can be taken by imposing the obligation on the physicians within the scope of the rule to perform their jobs in the private sector only in the regions subject to compulsory service during their compulsory service period. In this respect, the rule violates the criterion of necessity.
Even if it is accepted for a moment that the rule meets the criterion of necessity, there is no reasonable balance that should be found between the public interest sought to be achieved by the limitation in the rule and the right of individuals to work. Preventing physicians, who are not allowed to work in the public sector on the grounds of national security, from practicing their profession in the private sector for a long period of time, such as 450 days, imposes an excessive burden on individuals.
In this context, contrary to the purpose of the state service obligation implementation, the rule may lead to the problem that fewer physicians can provide health services. On the other hand, considering the nature of the medical profession due to the inability of the persons within the scope of the rule to perform their profession, it is obvious that they will be deprived of professional practice and development, and this may lead to undesirable results in terms of public health. It has been concluded that these issues generally upset the balance of interests, and in this respect, the rule violates the principle of proportionality.
For the reasons explained, the Constitutional Court decided that the rule was unconstitutional and annulled it.
