The Objectionable Rule
In the rules subject to objection, it is stipulated that no cancellation case can be filed against the warning given about the officers, midshipmen, specialist officers and contracted officers and partial continuation of service penalties given in the rules subject to objection.
Application Justification
In summary of the application decision; legislation the contracting officer and field a certain number of disciplinary action by the employer of termination of the contract before the end of the contract period stipulated, the contract is able to be opened a case against the process of the dissolution of this part of the processing underlying the case of disciplinary action against the lawsuit filed in a legal termination of the contract because it could not benefit the process could not be achieved, hence it is concerned by the consequences of disciplinary action that can go until the termination of the agreement, to be left outside the scope of judicial review of state law for the principle of, it has been stated that the freedom to seek rights is incompatible with the principles that the administration’s actions cannot be excluded from judicial review and that the judicial Decourse against disciplinary actions cannot be closed, and the rules are contrary to the Constitution.
Evaluation of the Court
Article 36 of the Constitution. although no reason for limitation is provided for in the article for the freedom to seek rights, it is accepted that rights that are not provided for as a special reason for limitation also have some limits arising from the nature of that right. Dec. On the other hand, the rights and freedoms contained in other articles of the Constitution, as well as the duties imposed on the state, may constitute a limit to rights and freedoms that have not been given a special reason for limitation.
Article 129 of the Constitution. in the third and fourth paragraphs of the article “Disciplinary decisions cannot be excluded from judicial supervision.
The provisions on members of the Armed Forces, as well as judges and prosecutors, are reserved.” its provisions are contained in.
In accordance with Article 129 of the Constitution, it is possible to exclude disciplinary penalties against members of the Armed Forces from judicial supervision. In this regard, disciplinary actions against members of the Armed Forces have been excluded from judicial supervision to date. In part, the law provides for the opening of severe disciplinary penalties to judicial supervision. Considering such issues as the presence of the Turkish Armed Forces, the importance of a disciplinary facility, the nature of indisciplines and disciplinary penalties, the system of having a judicial path open to all disciplinary penalties was not preferred. Because it is considered that such a system can cause serious damage to discipline,”he said, citing the rules of Article 129 of the Constitution. according to the discretion granted to the legislator in the article, it is understood that it is provided for the purpose of establishing discipline from the point of view of the Turkish Armed Forces (TAF) and has a legitimate purpose in the constitutional sense.
In this context, it is necessary to examine the rules in terms of compliance with the principle of proportionality. Considering that the effectiveness of such disciplinary actions will be increased by closing the judicial path against penalties for partial warning and partial service attendance, it cannot be said that the rules are not favorable and necessary for achieving the purpose of ensuring discipline in the TAS.
In turn, making it a habit to engage in undisciplined attitudes and behaviors or not being reformed despite the disciplinary penalties it receives is considered to be one of the indisciplines that require a separation penalty from the TSK. In terms of officers and non-commissioned officers, except for contract officers and non-commissioned officers, this is considered the reason for separation from the TAF when disciplinary penalties received within certain periods reach a certain score. As for the contracted men and women, a total of eight times or more disciplinary actions from at least two disciplinary supervisors in the last year, backwards from the last disciplinary action taken, may be the reason for the termination of the contract before the expiration of the contract.
In this case, warnings that are closed to the judicial path and partial-term continuation of service penalties may lead to the departure of these military personnel from the TAF or the termination of their contracts. The process of separation or termination of the contract from the Turkish Armed Forces, although there is a lawsuit against this process, which forms the basis of the excitation, and service-part of the judiciary on a term basis without appeal against the penalty and appeal process because the path need to be closed after the final question in disciplinary action subject to judicial review because it was not the mainstay of these operations-based control of the process from the Turkish Armed Forces becomes the shape of judicial separation or termination of the contract. In other words, due to the fact that the acts subject to warning and partial service continuation penalties are not subject to judicial review, whether they require disciplinary action, the judicial audit conducted in cases against separation from the TAF or termination of the contract loses its effectiveness. In this aspect, the rules impose an excessive burden on military personnel and disrupt the fair balance that must be observed between the public Dec Dec the freedom to seek rights in the form of discipline.
The Constitutional Court has ruled that the rules are contrary to the Constitution and their cancellation on the grounds described.
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