Press Release Nr: Plenary Assembly 1/16
08/01/2016

JUDGEMENT ON APPLICATION RELATED TO LAW ON FULL-DAY EMPLOYMENT
(Click for full text of judgment)

The Constitutional Court held in its judgement on 7.11.2014;

1. To reject the application for annulment of the provisions of law which prescribe that doctors, dentists or the instructors at medical schools(who are specialist in accordance with the regulation on specialty in medicine), except for the conditions defined under laws, shall not establish their own office, workplace and clinic in order to practice their profession or work self-employed; and that they shall not work, even after their regular office hours, at a workplace that is owned by real persons, private law legal entities or professional organizations with public office status, or higher education institutions of foundations.

2. To annul the provisions of law which prescribe that doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) shall terminate their employment at such organizations within three months after the publishing of the Law in Official Gazette and those who fail to do so will be deemed to have resigned and they will be discharged from the university.

Provisions of Law subject to Constitutionality Review

The provisions of law subject to constitutionality review prohibits, with a general regulation, the civil servant and the members of the Turkish Armed Forces from establishing their own office, workplace and clinic in order to practice their profession or work self-employed and they are also banned from working at a workplace that is owned by real persons, private law legal entities or professional organizations with public office status, or foundation higher education institutions.

In this regard, through the amendment in Law No. 2547 and Law No. 2955, doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) and military and civil instructors at Gülhane Military Medical Academy are subjected to the said general regulations except for the conditions defined under laws. Accordingly, instructors at medical schools who are employed under Law No. 2547 and Law No. 2955 are banned from establishing their own clinics or working at a workplace including private hospitals and polyclinics even after their regular office hours. The said provisions of law also prescribe that doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) shall terminate their employment at such organizations within three months and those who fail to do so will be deemed to have resigned and they will be discharged from the university.

Grounds

The petition, which requests constitutionality review, states that provisions of law subject to constitutionality review contradict the right to life and State’s obligation to ensure that everyone leads a healthy life physically and mentally as secured under constitution; that they prevent the universities from fulfilling their duties such as to spread the scientific information, to contribute to national improvement and development and to serve the country and the mankind; that they lead to an inequality between doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) and the other instructors and that these provisions violate the legal security of instructors who work self-employed after their regular office hours. Accordingly, the said provisions of law are alleged to be contradictory to Article 2, 10, 17, 56, 130 and 153 of the Constitution.

The Court’s Assessment

1. The provisions of law which prescribe that doctors and the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) shall not establish their own office, workplace and clinic in order to practice their profession or work self-employed even after their regular office hours.

The Constitutional Court’s noted that, under Article 17 and 56 of the Constitution, the State may regulate the “patient- doctor relationship” to protect the right to life and the right to protect and improve corporeal and spiritual existence of all and to ensure that everyone leads a healthy life physically and mentally. The Court also noted that the State may re-determine the working conditions by stipulating certain limitations with a view to take necessary measures to ensure effective monitoring of patients by their doctors.

The Court stated that, by introducing the provisions of law subject to constitutionality review, the legislative stipulates different working systems for doctors working at public institutions and those working at private institutions on the basis of separate organization of the public and private health services and, thereby, brings certain limitations to working conditions of public-employed doctors. Such limitations aim to ensure more effective, efficient and better procurement of health services provided by public-employed doctors and doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine). These objectives aim to protect the right to life and the right to improve his/her corporeal and spiritual existence of the patients receiving health services. Accordingly, provisions of law subject to constitutionality review were enacted to ensure better procurement of public health services by increasing the quality and efficiency and they are not contradictory to the State’s obligation to ensure that everyone leads a healthy life physically and mentally.

The Constitutional Court stated that, under Article 130 of the Constitution, for the purpose of training manpower to meet the needs of the nation and the country under a system of contemporary education principles, universities have scientific autonomy and public legal personality and members of the teaching staff and their assistants may freely engage in all kinds of scientific research and publication. However, the said academic and administrative autonomy shall not preclude the State from making regulations on the working conditions of teaching staff as the primary duty of the teaching staff is to educate and carry out applied studies at undergraduate, graduate and postgraduate levels based on secondary education, to conduct scientific research, to issue publications, to train and act as consultants to students.

The Court noted that teaching staff must primarily carry out the aforementioned duties without any delay as they are public servants and that the provisions of law subject to constitutionality review were enacted by the legislative organ to regulate and introduce certain limitations on the working conditions of the teaching staff by taking their titles and status into consideration and with a view to provide better education and health services at the universities. The said provisions of law do not prevent the teaching staff from conducting scientific/academic activities as a requirement of their academic autonomy and, therefore, the rules relating to the working conditions of the aforementioned teaching staff as introduced by the legislative organ within its discretionary power do not contradict the principle of scientific autonomy.

Although the petition alleges that there arises an inequality between doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) and the other teaching staff, the Court emphasized that health services are different from other services in terms of their nature and importance and they are incomparable to one another.

Consequently, the Constitutional Court concluded that the provisions of law introducing working restrictions on the teaching staff are not contradictory to Articles 10, 17, 56 and 130 of the Constitution.

2. The provisions of law which prescribe that doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine) practicing their profession or working self-employed under the scope of working restrictions shall terminate their such employment within three months after the publishing of the Law in Official Gazette and those who fail to do so will be deemed to have resigned and they will be discharged from the university.

The Constitutional Court’s noted that, the principle of legal security, which is a sine qua non of the rule of law, requires that the legal norms are foreseeable and the individuals have trust in the state in all their acts and actions and that the state avoids in its legal regulations the methods which may harm such trust of the citizens. The Court also noted that the principle of legal security requires to protect as much as possible the legitimate expectations of an individual as to the effect that the laws shall remain in force, relying on which he leads his life and takes legal acts and actions. The principle of legal certainty requires that legal regulations shall be clear, neat, intelligible and applicable with regards to both the persons and the administration and that they shall contain a protective measures against the arbitrary practices of the public authorities.

The Constitutional Court recalled that the Court had previously annulled certain provisions of Law No. 5947 which prohibited the doctors, dentists or the instructors at medical schools (who are specialist in accordance with the regulation on specialty in medicine), from practicing their profession after their regular office hours and, thereby, it became possible for the said full-time employed teaching staff to practice their profession or work self-employed after their regular office hours. The Court also recalls that the legislative, by enacting the Law no. 6514 including the provisions subject to constitutionality review, changed the working conditions of the aforementioned teaching staff and prohibited them yet again from practicing their profession or working at private institutions after their regular office hours with a few exceptions and the Court ruled for the stay of execution of the said temporary regulations.

The Court stated that full-time employed teaching staff, due to their conviction and expectations on their self-occupation after such judicial decisions, have planned to work freely outside the universities and they have planned their economic and social life relying on these circumstances. The Court stated that it contradicts the equity and justice to force the aforementioned teaching staff to terminate their activities and engagements that they had planned relying on the expectation and conviction on the continuation of legal status and to impose on them such heavy sanctions as being deemed resigned and discharged from the university.

The Court noted that, although the aforementioned teaching staff’s practicing their profession or working self-employed after their regular office hours by relying on the judicial decisions does not constitute a “vested right status”, it creates a legitimate expectation as to continuation of their such status for a certain period of time and the principle of legal security requires to protect such expectation. The Court also noted that the variety of laws enacted by the legislative on the same issue lead to an ambiguity about the legal status of the said teaching staff. Therefore, the provision of law subject to constitutionality review are contradictory to principles of legal security and certainty which are the requirements of the rule of law.

Consequently, the Court annulled the said provision of law as it was found contrary to Article 2 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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