Individual Application

The Facts

The applicants, university professors, applied for a licence to practise in order to be able to freely exercise their profession after their work shifts. The Directorate of Health dismissed the impugned application on the grounds that the applicants were faculty members and were subject to the Higher Education Law no. 2547. The actions brought by the applicants were dismissed by the inferior courts. The applicants’ appeal on points of law and fact and subsequent appeal on points of law were also dismissed.

The Applicants’ Allegations

The applicants claimed that their right to a fair trial had been violated due to the dismissal of the action they had brought for the annulment of their request to carry out their profession freely after their work shifts.

The Court’s Assessment

The article entitled “Working principles” of Law no. 2547, which is the ground for dismissal of the applicants request for issuance of a licence, establishes the working procedures and principles of faculty members. The impugned provision provides in detail the circumstances and conditions under which faculty members may carry out their professional activities outside the teaching institution while retaining their academic title. The same provision also stipulates that Article 28 of the Civil Servants Law no. 657, which prohibits civil servants from engaging in commercial and other gainful occupations, shall prevail in cases where there is no applicable provision laid down in Law no. 2547, while the second sentence of the first paragraph thereof envisages that civil servants may not establish clinics, offices, agencies, etc. for the purpose of self-employment.

With reference to Law no. 2547 and the annulment decision of the Constitutional Court dated 7 November 2014 (no. E.2014/61, K.2014/166), the inferior courts found it in compliance with the law to dismiss the requests of the applicants who held the title of associate professor or professor on 18 January 2014, when Law no. 6514 entered into force, but who were not included among those who had been practising privately prior to that date.

In accordance with the Law on Practice of Medicine and Medical Sciences no. 1219 and the Law on Healthcare Services no. 3359, it is primarily incumbent on the Health Directorates to examine whether the physical conditions of the clinic and the required spaces, where the physician would admit patients complied with the regulation, as well as whether the person seeking to practise as a self-employed professional holds a valid degree and certificate of expertise in this field. It has been understood that the administration complied with both Laws and other relevant legal regulations when determining the procedure to be followed.

On the basis of the provisions of Law no. 2547 and the grounds stated in the Constitutional Court's judgment, it has been found that there was no manifest arbitrariness or manifest error of judgment in the view of the inferior courts that the applicants, who were not included among the persons who had been actively practising privately prior to 18 January 2014, could not enjoy the right to self-employment. Accordingly, in the present case, the fact that the request of the applicants, who are faculty members seeking to carry out their professional activities as private practitioners after working shifts, was dismissed pursuant to Law no. 2547, and Article 28 of Law No. 657 referred to therein, did not prejudice the fairness of the proceedings.

Consequently, the Court has found no violation of the right to a fair hearing.