Constitutionality Review

A. The Definition “Water canal is a waterway created artificially by the development plan decision and through which transportation is provided by marine vehicles” added following the definition of “Building” to Article (5) of the Development Law numbered 3194

The Grounds for the Request for Annulment

It is stated in the petition in brief that the rule is contrary to the provisions of the Preamble and Articles 2, 5, 13, 44, 45, 56, 166 and 169 of the Constitution, alleging that the water canal defined by the contested rule in fact defines the project called “Canal Istanbul” and sets up a legal framework for the project, that the project shall have a serious  effect on the ecosystem of Trakya (the Thrace Region), on the land of Istanbul, and the legal regime of the straits, that the project will lead to environmental and urban disasters and irremediable legal problems on international level, as revealed in the scientific studies conducted by scientists on the issue.

The Contested Rule

The rule defines the water canal as the waterway created artificially by the development plan decision and through which transportation is provided by marine vehicles.

The Court’s Assessment

The assessments of the Constitutional Court regarding these allegations are briefly as follows:

It is within the legislator’s power to enact rules on issues not regulated by the Constitution, provided that it is not contrary to the fundamental principles enshrined in the Constitution and that it meets the criteria of foreseeability. In this context, the power to define the water canal and to determine its elements also belongs to the legislator. With this definition, the issue as to what could be deemed as the water canal within the scope of construction law has been specified through the rule. The rule involves no aspect incompatible with the public interest when it is considered that it has been issued with a view to providing a legal status to the water canals to be constructed within the frame of development plans.

Even if it is alleged in the petition that the rule was essentially issued for the purpose of setting up a legal framework for the project it defined, which was called “Canal İstanbul", within the limits of the definition in the rule, it could be decided that a water canal would be constructed anywhere in the country in the scope of the development plan. There is no impediment in bringing an action before the administrative judicial authorities with the claim for annulment of the development plan, alleging that the water canal is incompatible with the principles of planning and urbanization.

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to the Constitution and decided to dismiss the request for annulment.

B. Changing the status of of the public properties such as meadow, summer pasture and winter quarters included in the project field of the European Side of Istanbul by the Ministry of Transport, Maritime Affairs and Communication without complying with the provisions of this Law, and registration of these real properties in the name of the Treasury

The Grounds for the Request for Annulment

It is maintained in the petition in brief that the rule is contrary to Articles 7 and 45 of the Constitution, stating that registration of the public properties such as meadow, summer pasture and winter quarters included in the project field of the European Side of Istanbul directly in the name of the Treasury without complying with the procedure specified in the Law numbered 4342 is not compatible with the obligation of the state to protect these lands and to prevent them from being destroyed; that no principles are set forth on modification procedures and obligations of these lands, the absence of such regulation gives a wide discretion to the the Ministry of Transport, Maritime Affairs and Communication, which amounts to the delegation of legislative power.  

The Contested Rule

It is prescribed in the contested rule that the characteristics of the public properties such as meadow, summer pasture and winter quarters included in the project field of the European Side of Istanbul shall be removed by the Ministry of Transport, Maritime Affairs and Communication without complying with the provisions of this Law, and be registered in the name of the Treasury.

The Court’s Assessment

The assessments of the Constitutional Court regarding these allegations are briefly as follows:

Considering that Istanbul is under earthquake risk and that in order to prevent a possible disaster the Project Field of the European Side of Istanbul has been declared as a new settlement area, in order to clear off the unauthorized buildings without an appropriate occupancy permit which are under disaster risk,  there is no element contrary to the public interest in altering the characteristics of the meadow, summer pasture and winter quarters within the specified area limits and registering such fields in the name of the Treasury, without complying with the provisions of the Law numbered 4342.

It is obvious that the rule leads to improper use of the meadow, summer pasture and winter quarters safeguarded by Article 45 of the Constitution. On the other hand, it is a duty imposed on the State by Article 56 of the Constitution to take preventive measures against disaster risks and to ensure that individuals live in a healthy environment by attaching particular importance to the safety of their lives and properties. When considered from this perspective, there is no unconstitutionality regarding the rule based on the superior public interest in order for the individuals to live in a healthy environment.

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to the Constitution and decided to dismiss the request for annulment.

C. Some buildings within the limits of the risky areas but apart from the risky structures required to be subject to the Law numbered 6306 in terms of implementation integrity

Grounds for the Request for Annulment

It is maintained that despite the Constitutional Court’s decision (Reg.No. 2012/87 and Dec.No. 2014/41, 27.2.2014) finding the application of the rules (the Law numbered 6306) prescribed for risky buildings to non-risky buildings unconstitutional, the contested rule in essence has the same effect with the annulled rule because the minor amendment requiring the consideration of the non-risky feature of a building in value appraisal does not indeed make any substantial difference, and, therefore, the rule is contrary to Article 153 of the Constitution.

The Contested Rule

The rule prescribes that some buildings located among the buildings which are within the limits of the areas determined for the implementation of the Law numbered 6306 but which are apart from the risky buildings shall also be subject to the provisions of the Law numbered 6306, as required by the Ministry in terms of implementation integrity, provided that it is regarded that the structure is not under risk in appraisal studies.

The Court’s Assessment

The assessments of the Constitutional Court regarding these allegations are briefly as follows:

The purpose of the Law numbered 6306 is betterment, clearance and restoration so as to constitute healthy and secure living environments in accordance with the science and art norms and standards in the areas under the disaster risk and the lands and fields in which the risky structures are located. The rule has been drafted to ensure the implementation integrity with regard to the applications to be performed in accordance with this general purpose. There is no doubt that there is public interest in this respect.

However, in addition to public interest objective, such limitation imposed by the Law should also strike a fair balance between the public interest and the fundamental rights of individuals and be proportionate. The rule does not set out a special procedure concerning non-risky buildings, it merely refers to risky building procedures in that regard. Those procedures, however, have been regulated with consideration of risky feature of buildings and a balance between public interest and the rights of individuals has been aimed in this scope. The application of the rules, through which the balance of interests has been thus created, with regard to the non-risky buildings constitutes an inconsistency with the principle of “proportionality”,enlisted among the criteria for limitation of the fundamental rights in Article 13 of the Constitution, and it contravenes the balance to be struck between the public interest and the property rights of the owners of the non-risky structures.

Indeed, the rule attempts to make a balance of the interests concerning non-risky buildings by requiring that non-risky features of these buildings shall be taken into account in value appraisal. However, in case that the provisions of the Law no 6306 are considered to apply to sound buildings by the Ministry, the principles of liability law would require full compensation of the damages suffered by the owners of sound buildings. It is within this scope that the Law requires the soundness of buildings in project areas be considered in value appraisals. Therefore, the restriction of property rights due to extension of the Law to sound buildings cannot be considered proportionate.

For the reasons explained above, the Constitutional Court has found that the rule unconstitutional and annulled it.

D. Equalization the pecuniary rights of the professional staff titled as experts appointed for the first time or reappointed to the regulatory and supervisory bodies after 15.1.2012

Grounds for the Request for Annulment

It is maintained in brief that the rules are contrary to Articles 2, 10, 49 and 55 of the Constitution, stating that the distinction between the ones appointed before and after 15.1.2012 in respect of the salary of the staff functioning under the same titles at same institutions is contrary to the principle of equality, that it disturbs the internal labor peace, and that the vested rights of the Chairperson, Vice Chairperson, Board Members, and the staff titled as Supervisors and Experts having started to hold office at the Savings Deposit Insurance Fund (SDIF) and the supreme boards between 15.1.2012 and 26.4.2016 are taken away in breach of the principle of non-retroactivity of laws.

The Contested Rule

The rule prescribes that the total monthly net amount of all kinds of salaries, allowances, wages, extra charges, premiums, wage increases, pecuniary damages, bonuses, overtime allowances, dividends, the other payments under whatever name they are, and of all the payments in cash and in kind within the scope of the social rights and benefits made to the professional staff titled as experts appointed for the first time or reappointed to the posts and positions at SDIF and regulatory and supervisory bodies after 15.1.2012, cannot exceed the total monthly net amount of the payments considered to be rendered to the Prime Ministry experts within the scope of the financial rights and social rights and benefits based on their positions in the respective legislation, and that such employees shall be regarded as equal to the staff determined as their peers in terms of pension rights as well.

The Court’s Assessment

The assessments of the Constitutional Court regarding these allegations are briefly as follows:

One of the basic requirements of the principle of the state of law laid down in Article 2 of the Constitution is respect for the vested rights. The vested rights of public officials are the rights born depending on the type of employment, finalized in respect of the person and become personal claim. The transformation of the objective and general legal status into special legal status by means of acte-condition is not sufficient in terms of the vested right. The rules can always be altered or can be deemed unconstitutional or contrary to the law and thus can be annulled by the judicial organs. The alteration or repealing of the rules affects the related acte-condition regarding the individuals. For this reason, the prospective (expected) rights depending on the status may not be considered as falling within the scope of vested rights. 

As for the principle of legal certainty which is another requirement of the principle of the state of law, it necessitates that the legal norms be foreseeable, that the individuals be able to have confidence in the state with regard to all their acts and actions, and that the state abstain from the methods damaging this sense of confidence in its legislative regulations. It is a requirement established by the principle of legal certainty that confidence of an individual engaging in legal transactions based on the existing regulations must be preserved. However, preserving confidence should not be considered as an immunity to the existing legal status. Perceiving the legal certainty as immunity for the present legal status results in making the dynamic social structure static and inert through the rules, which might lead the society to be behind the times. Therefore, for the purpose of public interest, the legislator can make amendments on the requirements for entrance into public office as well as the other areas within the frame of the rules laid down in the Constitution.

It was prescribed that the payments to be rendered to the Chairperson, Vice Chairperson, Board Members, Supervisors and Experts appointed for the first time or reappointed to the regulatory and supervisory bodies and SDIF within the scope of financial and social rights, as laid down in subparagraph (b) of the additional article 11 of the Decree Law numbered 375, would be equalized with the payments rendered to the peer staff listed in subparagraph (b) of the additional article 11 of the Decree Law numbered 375. While the regulation went into effect on 26.4.2016, 15.1.2012 was determined as the beginning date of the enforcement through the contested rule.

The first regulation on this matter was made by the Decree Law dated 11.10.2011 and numbered 666. It was prescribed by the mentioned Decree Law that all kinds of payments to be rendered to the Chairperson, Vice Chairperson, Board Members, Supervisors and Experts appointed for the first time or reappointed to the regulatory and supervisory bodies and SDIF within the scope of financial and social rights, as laid down in subparagraph (b) of the first paragraph of the additional article 11 added to the Decree Law numbered 375, shall be equalized with the payments rendered to the peer staff listed in the subparagraph, and it was ruled that the regulation would go into effect on 15.1.2012. The Constitutional Court found the relevant provision of the Decree Law unconstitutional on the grounds that in the authorization act, the Cabinet of Ministers was not vested with the power to issue a regulation directly with regard to the financial rights of public officials, and annulled the phrase “supervisors and” by its decision dated 22.10.2015 (Reg.No.2015/1 and Dec.No.2015/91); the phrase “experts” by its decision dated 3.12.2015 (Reg.No.2015/101 and Dec.No.2015/111); the phrase “Board Members” laid down in the subparagraph by its decision dated 16.3.2016 (Reg.No.2016/15 and Dec.No.2016/14). The decisions on annulment were rendered by the Court by virtue of the fact that the mentioned regulations did not fall into the scope of the authorization act, not in consequence of the review of constitutionality of the content of the rules constituting the subject matter of objection.

This time, the legislator made the regulation through the law in accordance with the above-mentioned judgments and provided that the rule would be applied to the ones appointed for the first time or reappointed to the posts and positions provided in the Law after 15.1.2012 by taking as basis the mentioned date which is known by everybody and on which the relevant provision of the annulled Decree Law goes into effect.

The date 15.1.2012 cannot be considered as unforeseeable for the concerned persons. Besides, it cannot be mentioned that the law is retroactive in real terms by virtue of the fact that the date on which the relevant rule went into effect in the past has been taken as basis.

The persons appointed to office for the first time or again at the regulatory and supervisory bodies and SDIF after 15.1.2012, knew and accepted that they would be entitled to the same financial and social rights as those of the peer staff listed in subparagraph (b) of the additional article 11 of the Decree Law numbered 375. Thus, it cannot be concluded that the vested rights of such persons, in terms of their financial and social rights, are violated, and at the same time, it cannot be mentioned that they have a rightful expectation that their pecuniary rights would be remunerated according to the previous system.

On the other hand, the payment to the listed staff according to previous system upon the judgments of the Constitutional Court neither hinders new regulations on the matter nor requires to continue to pay on the previous system forever. In addition, considering the content of the judgment of the Turkish Constitutional Court, the argument that the concerned persons had rightful expectations with respect to the payments lacks legal ground.

It is intended with the rule that the pecuniary rights of the staff holding office under similar titles at public bodies and institutions be equalized, that integrity be established by among institutions in terms of wages of staff, and that  uniformity be ensured in the public personnel regime in terms of the financial and social rights. Therefore, the rule cannot be considered to be contrary to the public interest.

The staff titled as Chairperson, Vice Chairperson, Board Members, Supervisors and Experts appointed for the first time or reappointed to positions at the regulatory and supervisory bodies and SDIF before and after 15.1.2012 are not in the same legal position. The date of 15.1.2012 was taken as basis with a view to protecting the rightful expectations of the staff taking  office before the regulations enacted by the legislator on the matter. As the staff who took office before and after 15.1.2012 are not in the same legal position, there is no inconsistency with the principle of equality regarding their subjection to different rules.

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to the Constitution and decided to dismiss the request for annulment.