Events

As a result of an investigation opened against the applicant in 2000 while he was working as a teacher, he was convicted under Article 94 of the Civil Servants Law No. 657. in accordance with Article 98 of the said Law, he was deemed to have been removed from his official position due to absenteeism. in accordance with the article, the applicant’s civil service was terminated.

The applicant became a member of a political party in 2001 and has held various positions in the party. Meanwhile, the applicant’s decommissioning due to absenteeism while continuing his party membership was canceled by the courts of cassation in 2008, and the applicant returned to his teaching position in 2008. As the applicant was a member of a political party at the time of his return to his post, an investigation was opened against him by the Ministry of National Education in accordance with the provisions of Law No. 657 and he was suspended from his post. As a result of the investigation, the applicant was removed from public office by the decision of the Higher Disciplinary Committee of the Ministry of National Education.

The applicant filed a lawsuit demanding the cancellation of the relevant transaction; the administrative court decided to dismiss the case on the grounds that the transaction was in accordance with the law. The decision was approved by the Council of State; the applicant’s request to correct the decision was rejected by the same department and the decision was finalized.

Count

The applicant claimed that the decision to remove him from public office because he was a member of a political party violated his freedom of association.

Evaluation of the Court

The obligation of civil servants to be impartial also implies the neutrality of the state, since the state can exercise its neutrality only on the occasion of the performance of the duties of civil servants. In this context, it is understandable that the state places heavy burdens on government officials in the provision of their services and provides for strict measures to prevent disruptions that may occur in these services.

Article 68 of the Constitution. the provision in the article that civil service and political party membership cannot be found at the same time is aimed at ensuring the functionality of an impartial public administration acting on the basis of the rule of law. According to this rule, even the implication that the independent duties performed by a civil servant are connected with political demands may undermine the objectivity of the state. For this reason, in Law No. 657, it is regulated that civil servants cannot become members of a political party within the scope of their responsibilities for impartiality and loyalty to the state. 125 of the Same Law. in the article, it is stipulated that entering a political party is a punishment for dismissal from official service.

There is no doubt that the intervention in the form of ending the official duties of civil servants who are members of a political party is a favorable tool for preserving the principle of impartiality and loyalty to the state. In addition, it cannot be said that the regulation provided for in the law is not necessary in the face of the mandatory provision of the Constitution. Therefore, it should be concluded by determining whether the intervention is proportional or not.

Need 657 sayılı kanunun 125. it is understood that the coexistence of civil service and political party membership is not accepted when considering the application of the courts of decency and the application of the article. According to the regulation, the relevant authorities and the courts of cassation examining the decisions of these authorities only look at whether people have membership in a political party and do not make a further assessment. 125 of the Law on this aspect. with the realization of the requirement to join the political party contained in the article, the civil service ceases and individuals face a serious material and moral consequence. Considering this issue, it can be easily stated that the regulation is a rather serious interference with the freedom of association.

In the concrete case, the applicant is not a civil servant while he is a member of a political party. However, he gained the title of civil servant while continuing to be a member of a political party. The applicant is a member of a legal party and no allegations have been made that the applicant engaged in non-peaceful actions and discourses, took a stance against the constitutional order, and acted contrary to the democratic order of society. After that, it was determined that the applicant was a member of a political party and a sentence of dismissal was imposed against him from the civil service, and the applicant was not given any option to voluntarily terminate his membership in a political party.

In the examined application, it was not concretized that the applicant’s membership in a political party had unacceptable consequences. In that case, the provisions of the aforementioned legislation and Article 68 of the Constitution. the item are evaluated together when a state officer to resign from the membership of the applicant, the applicant’s political party, the recognition of a certain period of time, political party membership and the suspension of civil service the civil service or to enable you to choose from such as lighter, it is understood that measures can be taken. Since the applicant is a member of only one political party, his expulsion directly from the civil service was the most severe intervention that did not comply with the principle of last resort. Article 68 of the Constitution prohibits the coexistence of both public dec and membership of a political party. article 33 of the Constitution, which guarantees both freedom of association and its article can fully perform its functions only in the context of the development of pluralistic democracy and if they are interpreted in a right-based way. Considering the application, it has been evaluated that it is possible for the administration and the courts to interpret these constitutional provisions in favor of freedoms.

The Constitutional Court has decided that the freedom of association has been violated on the grounds described.

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