Supreme Court of the Republic of Turkey
21.law office
Main: 2016/4562
Decision: 2016/7793
Date of Decision: 03.05.2016
REQUEST FOR CANCELLATION OF THE INSTITUTION TRANSACTION – DETERMINATION THAT THE INSTITUTION HAS THE RIGHT TO BORROW WORKING TIME ABROAD WITHOUT THE REQUIREMENT OF BEING A TURKISH CITIZEN – VIOLATION OF THE PROVISION
ABSTRACT: The plaintiff requested that it be determined that he has the right to borrow the working time abroad without the requirement of being a Turkish Citizen, and that the cancellation of the Institution’s transaction in the opposite direction be decided. In the concrete case; between the dates of the plaintiff’s insurance in Turkey, Dec.Subject to the retirement fund C is working … when we were allowed to get Turkish citizenship by the Council of Ministers dated German nationality, the citizenship of the plaintiff deprived of citizenship deprived of receipt of the document in the history of out … that’s when the actual date is understood as working in Germany. Since 01.10.2008 entry into force of the law to the dispute before the date of the plaintiff’s pension fund participants work in Turkey due to prompt their work in accordance with the law stemmed from borrowing abroad last understood that, although the solution to the dispute falls under the jurisdiction of the Administrative Court, which is considering the case, according to the article HMK condition “due to the lack of permissible judicial review of the case should be made a procedural decision on the basics when entering the denial is against the law and the procedures to be decided by and is the cause of destruction. In this case, the appeals of the respondent Institution aimed at these aspects must be accepted, and the provision must be overturned.
(6100 pp. K. m. 114) (5510 p. K. m. 101, Late. m. 4) (2577 p. K. m. 2)
Case: The plaintiff requested that it be determined that he has the right to borrow the working time abroad without the requirement of being a Turkish Citizen, and that the cancellation of the Institution’s transaction in the opposite direction be decided.
The court has decided on the acceptance of the request, as indicated in the decision.
After the appeal of the decision by the defendant’s deputy, it became clear that the appeal request was in due course, and after the report prepared by the Examining Judge and the papers in the file were read, the need for the job was considered and the following decision was determined.
The case concerns the determination that the plaintiff can be indebted under the Law No. 3201 in accordance with the provisions of the Pension Fund, taking into account the military service that he performed abroad, subject to the Pension Fund, while he was a Turkish citizen, and the request to cancel the transaction of the institution in the opposite direction.
The court has decided to accept the case in writing.
The dispute is collected at the point of determining the judicial path of the official.
According to Article 114/1-b of HMK No. 6100, “the judicial way is permissible” is a condition of the case, and the court spontaneously investigates at every stage of the case whether the conditions of the case exist. The parties can also always assert the lack of a claim requirement. The court decides on the procedural refusal of the case if it finds a deficiency of the case requirement.
Social Insurance and General Health Insurance No. 5510 entered into force on 01.10.2008 and is subject to Article 101 of the Law. in cases where, according to the article, there is no provision to the contrary in this Law, disputes arising from the application of the provisions of this Law are heard in employment courts.
Provisional Article 4 of Law No. 5510 entitled “Transitional Provisions Relating to Law No. 5434″. article 4.according to the paragraph “Unless there is a provision to the contrary in this Law; associate while this law enters into force as of the date of this act, the first paragraph of Article 4 (C) under this clause the provisions of the law before the effective date of this act 5434 those she has worked as the first paragraph of Article 4 of this law and subject to paragraph (C) subject to this law repealed and the widows and orphans of those as I started working again about 5434 including the provision are processed according to the provisions of the law.”
Article 101 of Law No. 5510 states that “…disputes arising in connection with the application of the provisions of this Law shall be heard in Employment Tribunals.” part of the request for cancellation filing an appeal with the constitutional court, date 22.12.2011, and e: 2010/65 K: 2011/169 a denial of the request for revocation by the state the rationale for the decision and decided to Section 5754 before the enactment of the law, civil servants and other public officials who are working in his capacity as an associate with according to law retired retired 5434, widows and orphans pension of civil servants and other public employees from receiving future ones, and also in terms of who will be eligible for retirement the Social Security Institution and Proceedings of the facility that will process the administrative process of this policy will continue to protect the quality of the administrative judiciary in the conflict it has been stated that it will continue to be in charge of. According to the 153/last article of the Constitution, the decisions of the Constitutional Court are published in the Official Gazette and bind the legislative, executive and judicial bodies, administrative authorities, real and legal persons. The decisions of the Constitutional Court and the predominant opinion in the doctrine; The rationale for the decisions of the Constitutional Court is also that they are binding.
On the other hand, the dispute of the court dated 4.9.2012 2012/64-83 before the enactment of the Law No. 5510 and decision based on the decision, in his capacity as an associate with according to law retired civil servants and other public officials who are working 5434 retired, widow’s and orphan’s pension and retirement of civil servants and other public employees are also eligible for receiving future ones who will be established by the Social Security Institution and duration of treatment in terms of “administrative processing” and “administrative action” that will continue to preserve the nature, therefore,, 2/1 No. 2577 of the law on administrative procedure-administrative procedures specified in an item about a figure of authority, reasons, subject, purpose and cancellations with one of the aspects of those who violate the law because they are contrary to the interests of the cases opened by the scope for cancellation retired public employees filed by the plaintiff and the place of jurisdiction can also be seen in the appearance of the solution of administrative, 5510, after the enactment of this law, the civil servants and other public servants I started working as Article 4 of Law No. 5510/c pursuant to, it has been concluded that he will be considered insured subject to the provisions of this Law and that the rules and principles provided for by Law 5510 will be applied to his rights, not by Law 5434, and therefore disputes will also be resolved at the judicial jurisdiction.
In the concrete case; the plaintiff’s insurance in Turkey between 31.03.1987 and 31.03.1988 dec.C It has been understood that there is work subject to the Pension Fund, by the Decision of the Council of Ministers dated 26.04.2000, he was allowed to get out of Turkish citizenship to get German Citizenship, he got out of citizenship on 23.10.2000, when the plaintiff submitted his certificate of naturalization, he was de facto working in Germany from 01.04.1996.
5510 law entered into force before the date when the dispute due to the plaintiff’s work in Turkey since 01.10.2008 pension fund participants, 3201, prompt their work in accordance with the law stemmed from borrowing abroad last understood that, although considering that the solution to the dispute falls under the jurisdiction of the Administrative Court of 6100) HMK of 114/1-b, which is the case in accordance with the condition “due to the lack of permissible judicial review of the case, the decision should be made in writing by a procedural denial and procedures to be decided on the basics when entering is against the law and is the cause of destruction.
In this case, the appeals of the respondent Institution aimed at these aspects must be accepted, and the provision must be overturned.
Conclusion: It was decided unanimously on 03.05.2016 that the provision should be OVERTURNED for the reasons described above.
