TC
COUNCIL
DEPARTMENT HEAD
DATE NO: 2011/6339
DECISION NO: 2013/8799
DECISION DATE: 11/26/2013
Summary of Request: The appeal filed with the Istanbul 1st Administrative Court on 13/05/2011, case no. E:2010/2218, K:2011/763 49, is claimed to be contrary to the law pursuant to Article 49 of Law No. 2577, and it is requested that the appeal be re-examined and overturned.
Summary of the Defense: No defense was presented.
Opinion of the Council of State Investigating Judge: It is considered that the request should be accepted and the Court’s decision should be overturned.
IN THE NAME OF THE TURKISH NATION
The need for work in the Eighth Chamber of the Council of State in power was discussed:
The case concerns the plaintiff, a fourth-year student in the Department of Geography at Istanbul University’s Faculty of Literature, who requested the annulment of the decision numbered 3230, imposing a “one-week suspension from the Higher Education Institution” penalty pursuant to Article 8(a)(a) of the Higher Education Institutions Student Discipline Regulations published in the Official Gazette dated 13.01.1985 and numbered 18634. (a) subparagraph of Article 8 of the Higher Education Institutions Student Discipline Regulations published in the Official Gazette dated 13.01.1985 and numbered 18634, requesting the annulment of the decision numbered 3230 regarding the penalty of “one week’s suspension from the Higher Education Institution.”
The Administrative Court ruled that if a higher education institution grants leave for a period of one week to one month, the relevant faculty dean may delegate authority in accordance with the legislation, but only if there is an explicit provision in the law, and in cases where it is possible even in the event of absence, the relevant dean’s assistant may issue a warning and the decision may be revoked.
Article 16, titled “Right to Defense,” of the Higher Education Institutions Student Discipline Regulations published in the Official Gazette dated January 13, 1985, and numbered 18634. This article states that a student against whom a disciplinary investigation has been initiated under paragraph (a) shall be notified in writing at least seven days prior to the defense date of the reason for the offense alleged in paragraph (a); The student is requested to be present at the specified date, time, and place to make their defense. If notification cannot be made, the student is required to apply to the investigator to make their defense, and the matter must be announced at specific locations of the institution to which the case is assigned.
Article 35 of the same Regulation, titled “Notification and Address Notification,” states that “Any notification made due to disciplinary proceedings shall be deemed complete when made in writing to the address provided by the student to the higher education institution during registration or when notification is given that the notification has been delivered to the relevant higher education institution.
Students who fail to report this to their affiliated institutions or who provide incorrect or incomplete addresses cannot claim that the notification was not made if the notification was made to their current address at the higher education institution, even if they have changed the address they provided to the higher education institution during registration.” Article 37 states: “Correspondence with individuals shall be conducted by registered mail with return receipt requested.”
If delivered by hand, the signed document shall be kept in the file. The provisions of the Notification Law No. 7201 shall apply to matters other than the method of notification specified in Article 35.
Upon examination of the file, it was found that a disciplinary investigation was initiated against two students who were summoned by the plaintiff on May 27, 2010, to defend themselves against verbal abuse and insults directed at security guards. In response to the plaintiff’s defense submitted on October 11, 2010, the investigation report prepared in accordance with the alleged acts and the indictment were based on TCL’ , the penalty of “one week’s suspension from the higher education institution” as stipulated in Article 8(a) of the Student Disciplinary Regulations dated November 3, 2010, and numbered 3230 was imposed in the form of a fine. A lawsuit was filed seeking the annulment of this decision.
Disciplinary penalties are imposed to ensure peace, tranquility, and discipline in educational activities at higher education institutions and to prevent acts and behaviors incompatible with educational activities. However, considering that disciplinary penalties imposed on students will closely affect their right to education, the procedures and principles of disciplinary investigations are subject to strict rules.
In this context, Article 16 of the Higher Education Institutions Student Discipline Regulations clearly and comprehensively sets out the obligations that the administration must comply with in order for a student subject to disciplinary investigation to be able to exercise their right to defense.
According to the aforementioned legislation, in order for the plaintiff to be able to defend themselves, the grounds for the offense attributed to the plaintiff must be notified to the plaintiff at the address they have provided to the higher education institution at least seven days before the defense date. If notification is not possible, the notification route must be followed. During the investigation, the plaintiff is required to defend themselves via notification without going through the notification route.
Therefore, as stipulated in the student disciplinary regulations of higher education institutions, since it cannot be understood that the investigation was not conducted in accordance with the procedures and principles stipulated in the aforementioned regulations, the plaintiff was notified in writing, and since the defense was not made within the specified period, it was ruled that a disciplinary penalty should be imposed in accordance with the legislation and the law during the disciplinary investigation process, regardless of the defense presented.
In this case, as stated in the Court’s decision, the subject matter of the case is unlawful because the proceedings were initiated by an unauthorized assistant dean and the plaintiff’s defense was not duly heard during the disciplinary investigation phase.
For the reasons stated above, the Istanbul 1st Administrative Court unanimously decided on November 26, 2013, to refer the case file to the relevant court for the reasons stated above and to allow for an appeal within 15 (fifteen) days from the date of notification of this decision.