Individual Application

The Facts

The applicant, a specialist doctor working at a university hospital, applied to the Rectorate of the University (“the administration”), requesting the payment of the on-duty fees he had been entitled to for his on-duty services in emergency and intensive care units as well as for his on-call duties. The administration failed to respond to the application in due time. Therefore, the applicant filed an action for annulment before the administrative court, challenging the relevant administrative action. The administrative court ordered the payment of unpaid on-duty fees, along with the legal interest, to the applicant. However, as a result of the subsequent appellate review, the regional administrative court dismissed the case and held that the said fees were not payable to the applicant. 

The Applicant’s Allegations

The applicant maintained that although some personnel among those, who had been entitled to the payment of on-duty fees for their on-duty services in emergency and intensive care units as well as their on-call duties, were paid on-duty fees for those services, some others were made no payment in that regard. The applicant, therefore, claimed that the prohibition of discrimination in conjunction with the right to property had been violated.

The Court’s Assessment

In the examination of the prohibition of discrimination in conjunction with the right to property, first it has been established whether there had been similar reasons and different treatments within the scope of Article 10 of the Constitution, and in this context, it has also been established whether there had been any difference in terms of the interference with the right to property of the individuals in the same or similar situation. Afterwards, it has been examined whether the difference in treatments had been based on objective and reasonable grounds as well as whether the interference had been proportionate.

In the present case, the applicant, who serves as a specialist and is bound by Law no. 2547, was denied the payment of the on-duty fees he had been entitled to for his on-duty services in emergency and intensive care units as well as for his on-call duties, on the basis of Additional Article 33 of Law no. 2547.

At this point, it appears that all civil servants and contracting personnel, including the specialists, performing on-duty services in the centres affiliated to the Ministry of Health are entitled to the payment of on-duty fees. The medical specialization students as well as the other officials and health personnel, who are bound by Law no. 2547, shall be paid on-duty fees for their on-duty services in the inpatient treatment units of universities. In addition, there is a regulation regarding the payment of on-duty fees to the faculty members who perform on-duty services at healthcare facilities affiliated to the Ministry of Health and used by the universities.

Accordingly, it is clear that the people performing on-duty services in the same health institutions and are paid on-duty fees are in comparable situation with those who are not paid on-duty fees despite performing such on-duty services. In addition, the fact that the other health personnel are paid on-duty fees in accordance with the relevant regulations mentioned above, while the specialists who are bound by Law no. 2547 are not paid such a fee, amounts to a different treatment. There are no objective or reasonable grounds justifying this situation.

As a result, in the circumstances of the present case, regard being had to the fact that there was a different treatment with regard to the specialists bound by Law no. 657 and the ones bound by Law no. 2547 in terms of the payment of on-duty fees, such a situation amounted to a discriminatory treatment regarding the right to property. Thus, the impugned discriminatory interference with the right to property, in the absence of objective and reasonable grounds, placed an excessive burden on the applicant. Accordingly, it has been concluded that the prohibition of discrimination in conjunction with the right to property has been violated.

Consequently, the Court has found a violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution, in conjunction with the right to property.