Cancellation of Some Provisions of the Turkish Tourism Promotion and Development Agency Law No. 7183
A. Examination of the phrase “… and its source …” contained in paragraph (d) of paragraph (1) of Article 4 of Law No. 7183
Law No. 7183 does not specify the criteria for preparing the budget within the scope of the resources to be provided by the Turkish Tourism Promotion and Development Agency (Agency) and the basic principles of procedure for expenditures to be made in this context, but in paragraph (4) of Article 5 of this Law, it is arranged that the procedures and principles for preparing, implementing, spending and accounting of the Agency budget will be regulated by a regulation to be issued by the Ministry of Culture and Tourism within the framework of Law No. 2013. The opinions of the relevant institutions.
In the rule subject to the lawsuit, it is stipulated that the Institution can provide resources for the purpose of increasing the share of tourism in the country’s economy and realizing the goals set out in Law No. 7183. However, a general framework regarding the qualities of tourism has not been regulated in the Law. The financing is related to the person, facility, enterprise or investments to be provided and does not contain any provisions regarding the principles on which the Institution will provide resources. For this reason, the rule does not contain measures against arbitrary practices, does not allow the people responsible for paying the tourism share to predict under what conditions the resources will be provided, and the Agency should be held responsible.
In this regard, regulating the principles to which the Institution will be subject in a clear, clear, understandable, applicable and objective manner and granting the authority to provide resources without taking protective measures against arbitrary practices is incompatible with the principles of certainty and a democratic state.
For the reasons explained above, the Constitutional Court ruled that the rule was unconstitutional and annulled it.
B. The second sentence of paragraph (2) of Article 7 of Law No. 7183: examination of the phrase “… based on the independent audit reports submitted exclusively to him …”
The rule on the case states that the Court of Accounts cannot conduct an audit separate from the independent audit of the Institution, and in this context, it will examine the independent audit report submitted to it without requesting any information or documents from the Institution.
An independent audit is a type of audit that mainly examines the financial statements and financial information of commercial companies. However, unlike commercial companies, the Agency established primarily for the purpose of realizing the public interest, not for profit, will generally carry out the activities listed in the Law in accordance with the principles and rules of public law. On the other hand, the democratic state principle requires that certain legal consequences arise if irregularities are detected in the activities of the financially audited Institution.
There are no regulations in the Law regarding the actions to be taken if the audit of the Institution is not carried out in accordance with the law or certain irregularities are detected in the financial transactions of the Institution and the legal consequences that this may lead to. Problems that may arise for Agency officials in this context.
Accordingly, it has been concluded that independent audit is not a method that will enable the Institution, which will carry out the activities stipulated in the Law in accordance with the principles and rules of public law in general, to use public resources in accordance with the public interest. In this regard, it is incompatible with the principle of a democratic state for the Court of Accounts to prepare the report on the Institution to be sent to the Grand National Assembly of Turkey exclusively by examining the independent audit report submitted to it.
For the reasons explained above, the Constitutional Court ruled that the rule was unconstitutional and annulled it.
C. Examination of the second sentence of paragraph (4) of Article 8 of Law No. 7183
In the rule subject to the lawsuit, it is stipulated that the provisions of the legislation regarding the recruitment of personnel in public institutions and organizations should not be applied to the personnel to be employed in the Institution.
It is a requirement of democratic state principles and certainty that the Institution is subject to certain principles in the context of personnel employment, which will result in the use of public resources. The provision that the provisions of the legislation on recruitment of personnel in public institutions and organizations will not be applied to personnel to be employed by the Institution without any regulations being made in the Law on personnel to be employed by the Institution does not allow recruitment of personnel to the Institution. To foresee the principles that will be held responsible within the scope of the use of public resources according to objective criteria and that will be applied in the employment of personnel of people who want to work in the Institution. In this respect, the rule is contrary to the principles of democratic state and certainty.
For the reasons explained above, the Constitutional Court annulled the rule, ruling that it was unconstitutional.
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