Constitutionality Review

Contested Provision

The contested provision stipulates that the Personal Liability Board (“the Board”) shall be authorised to decide, within one year, whether to recourse to the relevant person for the compensation already paid by the administration due to the medical procedures and practices related to the examination, diagnosis and treatment performed by physicians, dentists and other healthcare professionals serving in public institutions and organisations and state universities, as well as the amount of recourse, taking into account whether the relevant person engaged in malpractice and the nature of the fault.

Ground for the Request for Annulment

It was maintained in brief that the Board cannot be impartial, given the appointment procedure and its composition, which was in breach of the right to a fair trial and right to an effective remedy of physicians and other healthcare professionals as well as aggrieved parties. The contested provision was therefore claimed to be unconstitutional.

The Court’s Assessment

A. As regards the phrase “Public institutions and organisations…”

The Constitution does not designate the authority to decide on recourse in terms of compensation liability on account of the negligent and wrongful acts on the part of public officials in the performance of their duties. However, it is laid down in Article 40 of the Constitution that the authority to decide on recourse shall be conferred upon the State. Thus, there is no constitutional barrier to authorise another authority established by law, in the public interest, to decide on recourse, other than public institutions and organisations, administrative and financial autonomy of which is safeguarded by the Constitution.

In addition, it is obvious that the decisions of the Board are subject to judicial review, and therefore, the Board members will be held liable in monetary and administrative terms, if it is determined by a final court decision that they have acted in breach of their duties. Furthermore, the procedure of recourse is not directly related to the person who has sustained damage as a result of a given act, and the lack of a recourse decision does not bear any negative consequences in terms of the aggrieved party’s right to compensation.

Consequently, the contested provision has been found constitutional, and therefore, the request for its annulment has been dismissed.

B. As regards the phrase “…state universities…”

Scientific, administrative and financial autonomy of universities are sine qua non for their independence, and any interference with either of these elements will affect other aspects as well. Thus, the authority to decide on recourse to the relevant public official in the matters specified in the contested provision should be considered within the scope of the administrative and financial autonomy of universities.

As specified in Article 130 of the Constitution, the administrative autonomy in constitutional terms does not grant unlimited administrative authority to universities. It is explicitly specified therein that the central administration is authorised to supervise and inspect universities. It is also laid down in Article 130 § 8 that the budget of universities shall be prepared by the universities themselves, and thus, the authority to make decisions on financial matters within constitutional boundaries rests with the universities. In the same vein, the state universities themselves are undoubtedly authorised to decide on the recourse of the compensation paid out of their own budget.

However, administrative tutelage is not of a general but an exceptional nature, and it must be exercised within the limits set by the law. The authorities exercising administrative tutelage may cancel, approve, postpone, grant permission for, request reconsideration of, and rectify the acts of decentralised institutions. They may also bring an administrative action against the bodies of the latter. Nevertheless, administrative tutelage does not, in principle, authorise the central administration to make executive decisions, substituting itself for decentralised institutions.

Accordingly, the establishment of a Board, in substitution for the universities, which is authorised to make decisions that may directly have a bearing on the budget preparation authority of the universities with administrative and financial autonomy is incompatible with the limits of the tutelage of the central administration. It has therefore been concluded that the contested provision does not serve the public interest.

Consequently, the contested provision has been found unconstitutional and therefore annulled.