Events
The applicant started the Officer Basic Military Service and Officer Understanding Training course on 21/2/2016 in order to become an officer. The applicant who has the status of outsourced personnel does not have any duties in the Turkish Armed Forces (TSK) prior to this course. After the coup attempt on 15 July 2016, the applicant was sent on leave with an order that was understood to cover everyone in a similar situation. The Decree Law No. 675 on the Adoption of Certain Measures Within the Scope of the State of Emergency (Decree Law No. 675) expelled the applicant from the Turkish Armed Forces.
Having learned that the applicant could not be assigned in accordance with the Decree Law No. 675, the applicant filed a lawsuit for the cancellation of the transaction. The administrative court dismissed the case without examining it on the grounds that it was not possible to mention the existence of a transaction that could be the subject of an administrative case. Regional administrative court rejected the applicant’s appeal. The applicant’s objection was also rejected by the Council of State. On the other hand, the applicant also requested that the file be sent to the State of Emergency Examination Commission (State of Emergency Commission).
The Allegations
Applicant claimed that the right of access to the court was violated because the lawsuit filed by the State of Emergency Decree on the cancellation of recruitment activities of candidates for civil servants whose assignment was not approved was rejected instead of being sent to the court. The State of Emergency Commission.
The Court’s Assessment
In the concrete case, since the lawsuit filed against the applicant was filed directly by Decree Law No. 675, the applicant does not have the opportunity to examine the legality of this transaction directly before the administrative judiciary. As a matter of fact, the court dismissed the case on this grounds without examining it. However, it was seen that no examination was made as to whether the transaction fell within the mandate of the State of Emergency Commission. However, it is obligatory for individuals to benefit from procedural guarantees in order to resist disproportionate or arbitrary interventions even during the state of Emergency.
Pursuant to the second paragraph of Article 2 of Law No. 7075, the operations regarding the legal status of natural persons, which are directly regulated by Decrees having the Force of Law within the scope of the State of Emergency and which are not covered by the first paragraph, fall within the scope of the duties of the State of Emergency Commission.
Instead of sending the application for termination of the applicant’s purchasing activity to the State of Emergency Commission by constitutional regulation, the failure of the applicant’s name, which is clearly related to the applicant’s legal situation, to reject the case without examination, the comment made after determining that the transaction was established directly by Decree Law deprived the applicant of procedural guarantees that would protect against arbitrariness. This interpretation of the court has led to the formation of an area closed to judicial supervision.
In this regard, it has been concluded that it is unpredictable for the judicial authorities to dismiss the case without examining and evaluating it. In the light of this information, it has been concluded that the intervention made by dismissing the case filed by the applicant upon the cancellation of the recruitment activity and the reinstatement of his appointment by a State of Emergency Decree-Law does not fall within this scope. 15, which regulates the suspension and restriction of the exercise of fundamental rights and freedoms during the state of Emergency period of the Constitution. Instead of sending it to the State of Emergency Commission with an interpretation that would constitute an unconstitutionality, as required by the situation provided for in the article, it guarantees the applicant against arbitrariness.
For the reasons explained, the Constitutional Court decided that the right of access to the court within the scope of the right to a fair trial had been violated.
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