Constitutionality Review

A. Provision Stipulating the Continued Payment of the Tuition Fees by the Students Despite being Transferred from the Closed Higher Education Institutions to State/Foundation Universities

Contested Provision

The contested provision stipulates that the students transferred by the Council of Higher Education from the closed higher education institutions to the state universities or universities run by foundations continue to pay the tuition fees, which were indeed incurred before the closed higher education institutions run by foundations, to the relevant universities until graduation.

Ground for the Request for Annulment

It was maintained in brief that the contested provision constituted an inequality of treatment, which was in breach of Articles 10, 13 and 42 of the Constitution.

The Court’s Assessment

One of the measures taken under the state of emergency is to close the higher education institutions run by foundations that have been found to be in connection, relation or have link with the FETÖ/PDY, a terrorist organization proven to pose a threat to national security. The subsequent transfers of the students studying at such institutions are intended for eliminating the threats and dangers, as required by the state of emergency. However, as the application of the contested provision has not been limited only to the duration of the state of emergency, the examination as to the contested provision would be made according to the review regime of the ordinary period.

By virtue of the Decree-law no. 667, certain higher education institutions run by foundations were closed, and the students having enrolled in these institutions were transferred, by the Council of Higher Education, to state universities or the higher education institutions run by foundations. 

It is stipulated in the contested provision that the transferred students would continue to pay until graduation the tuition fees, which were incurred before the closed higher education institutions, to the universities they have been transferred to. Accordingly, the students having enrolled in the closed higher education institutions would continue to pay tuition fees irrespective of whether the higher education institution they have been transferred to is a state university or foundation university. In this respect, it has been observed that the provision imposed a restriction on the right to education.

Pursuant to Article 13 of the Constitution, the right to education may be restricted to the extent that is necessary in a democratic society. Besides, such restrictions must not impair the very essence of the right and must not be also contrary to the wording and sprit of the Constitution, the requirements of the democratic order of the society and to the principle of proportionality.

The provision might also allow the students studying at the closed higher education institutions to be transferred to the higher education institutions with students who obtained higher degrees than the transferred students in the same university admission exam.   Therefore, the continued payment, by the transferred students, of the previously incurred tuition fees to the higher education institutions to which they have been transferred cannot be said to be incompatible with the principle of proportionality. However, the provision also covers the transfer to state universities where students -having obtained degrees equal to or lower than those of the transferred students in the same university admission exam- are studying. The students in this situation would continue to pay the tuition fees, which they paid to the closed higher education institutions, to the state universities where they have been transferred.

It cannot be understood on which compelling ground the impugned restriction with the right to education was based in respect of a democratic society. The stipulation, by virtue of the contested provision, that those who did not prefer state universities despite being entitled at the outset but enrolled in a higher education institution run by foundation -which was subsequently closed- and who were then transferred, due to the closure, to a state university not previously preferred would continue to pay the relevant tuition fee to the university to which they have been transferred constituted a disproportionate restriction with the right to education. Therefore, the contested provision is not compatible with the safeguards enshrined in Article 13 of the Constitution, which are to be observed in restricting the fundamental rights and freedoms.

As these students were already entitled to enrol in a state university given their degrees of success they obtained at the time when they enrolled in the higher education institutions, nor can it be said that the students transferred from the closed institutions and the ones already studying at the state universities are in a different legal situation. The provision has caused a difference in treatment as it requires some of the students, who have been all entitled to enrol in a state university according to the degree of their success, to pay tuition fee. This different treatment cannot be said to have a reasonable and objective basis. 

In this respect, it also constitutes a contradiction with the principle of equality, within the meaning of the right to education, to stipulate that the students transferred to state universities admitting students who obtained equal or lower degrees in the university admission exam held in the year when the transferred students enrolled in the closed higher education institutions would continue to pay the previously incurred tuition fees.

Consequently, the contested provision has been found unconstitutional and therefore annulled in so far as it relates to the transfers to state universities where students with equal or lower degrees of success study.

B. Provision Stipulating “Individuals Who Make Decisions and Perform Duties under the Law Shall not Incur Any Legal, Administrative, Financial and Criminal Liability due to These Duties”

Contested Provision

The contested provision stipulates that individuals who make decisions and perform duties under the Law shall not incur any legal, administrative, financial and criminal liability due to these duties.

Ground for the Request for Annulment

It was maintained in brief that the contested provision amounted to lack of liability in respect of individuals covered by this provision, which was therefore contrary to Articles 2 and 10 of the Constitution.

The Court’s Assessment

The objective of Law no. 6749, as also indicated in the relevant article thereof, is to eliminate threats and dangers giving rise to the declaration of the state of emergency. It is therefore clear that the contested provision also serves for this purpose. However, while several provisions embodied in the Law are applicable only during the period of state of emergency, some of them are also applicable during the ordinary period. Therefore, as the application of the contested           provision is not limited only to the duration of the state of emergency, it must be dealt with according to the review regime prescribed by the Constitution for the provisions of ordinary period.

According to the provision, individuals who make decisions and perform duties under the Law shall not incur any legal, administrative, financial and criminal liability due to these duties. In consideration of the decisions and duties specified in the Law, it has been observed that they are in the form of performance of the statutory powers granted with respect to the measures which have been intended for the elimination of the conditions giving rise to the declaration of the state of emergency.

In the legal system of the country, exercise of powers or performance of duties prescribed by laws or making decisions in this respect is considered to fulfil the lawfulness requirement. Accordingly, an individual performing a lawful act does not incur any liability due to this act. In other words, no legal, administrative, financial and criminal liability can be imposed on those who have performed a lawful act.

If performance of a duty or taking of a decision, which is a task entrusted to an individual by law, constitutes unlawfulness, it leads to a contradiction. Therefore, individuals who perform duties, or take such decisions, entrusted by laws in accordance with the statutory procedures and principles will not naturally incur any legal, administrative, financial and criminal liability.   

As stressed by the Court in its several decisions, in democratic countries the administrative procedures of the state of emergency do not mean extrajudicial and arbitrary administration. The administrations during state of emergency are regimes which originate from the Constitution, are brought into force pursuant to the constitutional provisions and continue to exist under the supervision of legislative and judicial bodies.    

In this regard, the provision does not lead to an avoidance of proceedings. In examinations as to the acts allegedly resulting in an unfairness, it would be undoubtedly assessed, under the contested provision, whether the impugned act has been performed by virtue of or in relation to a duty entrusted by law. As it is clear that the individuals specified in the Law are not, and cannot be, vested with the task or power to perform an unlawful, wrongful or criminal act, the contested provision does not undoubtedly cover any wrongful or criminal act.

Besides, the reason why the contested provision does not hold individuals responsible for performing duties and making decisions falling under the scope of the Law, is not to provide legal and criminal immunity for the wrongful or criminal acts performed by them as well as not to grant special privilege and immunity to these individuals compared to those who are in the same status. The underlying reason is to ensure the performance of duties, which are intended for taking measures required to be limited to the duration of the state of emergency and to be taken under the state of emergency and which are accordingly quite different from the statutory arrangements of the ordinary period, without any concern and hesitation. Therefore, the contested provision does in no way infringe the principle of equality.

Consequently, the Court has found the contested provision unconstitutional and accordingly dismissed the request for its annulment.

C. Provision Stipulating “In Cases Filed due to Decisions Taken and Acts Performed under the Law, a Stay of Execution cannot be Ordered”

Contested Provision

The contested provision stipulates that in cases filed due to decisions taken and acts performed under the Law, a stay of execution cannot be ordered.

Ground for the Request for Annulment

It was maintained in brief that the impugned provision completely removed the possibility to order a stay of execution, which was contrary to Article 125 of the Constitution.

The Court’s Assessment

By its very nature, the contested provision is intended for the elimination of threats and dangers giving rise to the declaration of the state of emergency. However, it may be applied in a way that would exceed the duration of the state of emergency. In this sense, the examination as to the provision must be made according to the review regime prescribed by the Constitution for the ordinary period.

In Article 125 of the Constitution, it is set forth that should the implementation of an administrative act result in damages which are difficult or impossible to compensate for and should the act be clearly unlawful, stay of its execution may be ordered with justification; and that the law may restrict the issuance of an order for a stay of execution of an administrative act in cases of state of emergency, mobilization and state of war, or on the grounds of national security, public order and public health.

The contested provision nevertheless hinders, without making any distinction, the issuance of an order for a stay of execution, in cases filed with respect to the decisions taken and acts performed within the scope of the Law, in a way that would also be extended to the period following the end of the state of emergency. Therefore, the contested provision, which completely hinders the possibility to issue an order for a stay of execution, is manifestly inconsistent with Article 125 § 5 of the Constitution.

Consequently, the Court has found the contested provision in breach of Article 125 of the Constitution and therefore annulled it.