What is suspension?

In cases where civil servants do not perform their duties properly, a disciplinary investigation may be initiated against them. Our detailed explanations on this issue are included in our review titled Disciplinary Responsibility of Civil Servants. In cases where a disciplinary investigation is initiated or a criminal prosecution is initiated against the officer, remaining on duty may cause some drawbacks. For example, the officer may obscure or destroy evidence or influence witnesses by using his or her powers. For such reasons, dismissal may be considered. However, the measure of suspension from duty is not only a measure that prevents the elimination of criminal evidence due to the investigation or prosecution carried out, but is a temporary measure aimed at the regular and healthy execution of public service in cases where it is undesirable for the officer to remain on duty due to the nature of the crime he is alleged to have committed.

As we have stated, suspension from duty is not a measure that prevents the elimination of criminal evidence solely due to the investigation or prosecution carried out. It is a temporary measure that aims to ensure that the public service is carried out in an orderly and healthy manner and to prevent the sense of trust of those who benefit from the service from being shaken, in cases where it is deemed undesirable for the civil servant to remain on duty, depending on the nature of the crime he is alleged to have committed and the importance of the duty he carries out. The administration is granted discretionary power in terms of implementing the measure. Due to this discretion, there is no need to determine whether the alleged act has been committed or not. In other words, it is necessary and sufficient to have serious allegations regarding the acts allegedly committed while on duty. Accordingly, it is possible for people against whom there are accusations of a nature and gravity that will negatively affect the execution of public service to be suspended from duty until the allegations against them are clarified, in order to ensure that the service is carried out without disruption. As a result of the suspension from duty, some restrictions are imposed on the legal rights of public officials and they cannot benefit from their work. In order to minimize the material and moral negative effects of the measure on public officials and the damage to the State, the measure should be used carefully and the investigation should be completed in a sound but rapid manner; Extensions during criminal prosecution should also be evaluated with this meticulousness.

Regulations regarding dismissal are in Article 137 et seq. of the Civil Servants Law No. 657. It is included in the articles. It should be emphasized again that administrative measures cannot be a means of punishment. These measures can be applied temporarily for a purpose. However, since dismissal requires urgency, this measure is used when necessary.

Detailed explanations on the subject are included in the following decisions of the Council of State:

"In Article 137 of the Civil Servants Law No. 657, suspension from duty is defined as "It is a precautionary measure taken against civil servants who would be deemed undesirable to remain on duty in cases required by state public services.", and the following articles include the principles and procedures regarding suspension from duty.

When the mentioned articles are examined together, it is concluded that suspension from duty is not only a measure that prevents the elimination of crime evidence due to the investigation or prosecution carried out, but is a temporary measure aiming to ensure that the public service is carried out in an orderly and healthy manner and to prevent the sense of trust of those who benefit from the service from being shaken, in cases where it is deemed undesirable for the officer to remain on duty, depending on the nature of the crime that the officer is alleged to have committed and the importance of the duty he carries out. The fact that the same articles allow the implementation of suspension measures during the prosecution after the investigation process, which is the collection of evidence, supports the conclusion reached. Undoubtedly, the implementation of this measure does not mean that the person suspended from duty is guilty." DİDGK 2013/2890 K.

"Implementation of the measure of suspension from duty is possible if the action that is the subject of investigation or prosecution creates a disadvantage in terms of public service for the public personnel to remain on duty. In this context, the nature of the actions subject to investigation and prosecution is important in the implementation of the institution of dismissal. There is no doubt that the administration, which has discretionary power in the implementation of the measure of dismissal in accordance with Article 140 of Law No. 657, will take into account the nature of the actions subject to investigation and prosecution when exercising this authority. Because, the measure of suspension from duty is not only a measure that prevents the elimination of criminal evidence due to the investigation or prosecution carried out, but also a temporary measure aimed at ensuring the regular and healthy execution of public service in cases where it is undesirable for the officer to remain on duty due to the nature of the crime he is alleged to have committed.

The fact that the legislator allows the implementation of the measure of suspension from duty during the prosecution after the investigation process, which is the collection of evidence, shows that this measure is a measure to ensure the safe and healthy execution of public service." D5D. 2009/6021 K.

THOSE AUTHORIZED TO DISMISS

According to Article 138 of Law No. 657, the authorities for dismissal are as follows:

1. Supervisors authorized to appoint;
2. Ministry and general directorate inspectors;
3. Governors in the provinces;
4. District governors in districts (The consent of the governor is a must for the heads of district administration branches.) The measure of suspension taken by governors and district governors is immediately notified to the official's institution.

RESPONSIBILITY OF THE SUPERVISOR WHO REMOVES FROM DUTY

The measure of dismissal is a harsh measure due to its nature. Therefore, its arbitrary implementation has consequences that affect fundamental rights and freedoms. Since such an arbitrariness cannot be granted in a state of law, regulations have been made regarding the responsibility of the superiors who will implement the measure. According to Article 139 of the Law:

An investigation must be initiated against suspended civil servants within 10 business days following the suspension. Chiefs who do not immediately initiate an investigation against the officer after suspending him from duty, and who are found to have taken this action arbitrarily or out of spite or spite, are subject to legal, financial and criminal liability.

Will a salary be paid to a SUSPENDED OFFICER?

Suspension from duty is an administrative measure and not a penalty of dismissal from profession. Therefore, the civil servant status of the civil servant subject to the measure continues. Continuing to serve as a civil servant ensures that survivors' rights are protected and salary payments continue to be made. According to Article 141 of the Law:

"Civil servants who are suspended from duty and arrested or detained for any crime, whether related to their duty or not, will be paid two-thirds of their salaries during this period. Such people continue to benefit from the social rights and benefits provided for by this Law. In case of the situations listed in Article 143, one-third of their salaries will be paid to them, and the time they spend away from duty will not exceed the minimum waiting period required for the step advancement in their grades and for this period to increase in grade. If they are promoted to a higher level, they are evaluated by making progress in that level."

REMOVING SUSPENSION FROM DUTY

According to Article 142 of the Civil Servants Law No. 657:

"The suspension measure taken for civil servants who do not need to be dismissed or penalized due to discipline at the end of the investigation is immediately lifted by the authorities in Article 138 (by the superiors authorized to appoint those who are suspended from duty by the Inspectors).

The provision of Article 139 shall apply to the officer who does not lift the measure of suspension from duty."

CASES IN WHICH THE DISMISSED OFFICER MUST BE STARTED AGAIN

According to Article 143 of Law No. 657:

At the end of the investigation or trial, the competent authorities:

a) Those who were given a disciplinary penalty other than dismissal from civil service;

b) Those who were decided to be disqualified from the trial or acquitted;

c) Those whose prosecutions were lifted by general amnesty before the verdict;

ç) Those who have been convicted of a penalty that will not prevent them from becoming a civil servant, regardless of whether it is related to their duties and civil service, and whose sentence has been postponed;

Upon the finalization of these decisions, the suspension measure against them will be lifted.

In these cases, the underpaid salaries to the civil servant are paid. However, the decision must be final. A Council of State decision on the subject is as follows:

"In the second paragraph of the above-mentioned article 141 of the Civil Servants Law No. 657, it is stated that in the event of the situations listed in article 143, one-third of the suspended salaries will be paid to the suspended civil servants, and the time they spend away from duty will be evaluated in the step advancement in their grades, and the part of this period that exceeds the minimum waiting period required for the grade promotion will be evaluated by making a grade advancement in this grade if they are promoted to a higher grade; In Article 143, these situations are listed as limited and the removal of the measure is conditioned on the condition that these situations/decisions become final. In this case, it is possible to pay one-third of the deducted salaries of the civil servants who were reinstated after the suspension measure was terminated, after the decisions specified in Article 143 become final." D2D. 2019/2428 K.

According to the Council of State, interest cannot be charged on the unpaid salaries of the reinstated civil servant:

"The case is about the rejection of his application for the payment of the underpaid elements of the deduction amount of 1/3 from his salary between the dates he was suspended from duty while working as a trustee in the hospital and the date he started working. In the legal rules, it is envisaged that the salaries of the relevant person will be paid at the rate of 1/3 if certain conditions are met, and there is no rule requiring the payment of interest on this amount. In this case, if the suspension measure is lifted and he is reinstated, Considering that interest cannot be charged on payments, the decision of the Administrative Court to apply interest on the amount paid for this period was not found to be legal.

It has been stated above that the officer may return to his duty in case of acquittal after the criminal prosecution. In the last paragraph, it is stated that those who received a sentence that does not prevent them from serving as a civil servant and whose sentence was postponed will be returned to duty. It is also possible for civil servants against whom an HAGB decision has been issued to be reinstated."

As a rule, the suspended officer is returned to his former place of duty. Explanations were made on the subject in the following decision of the Council of State:

"It is possible to perform the service provided by the civil servant whose service cannot be utilized due to his dismissal, in cases where the service requirements do not make it compulsory, by appointing a deputy in accordance with the provision in the 1st paragraph of Article 86 of the said law, "In case civil servants leave their jobs temporarily due to legal leave, temporary duty, disciplinary penalty or dismissal, a deputy can be appointed from within the institution, from other institutions or openly." In this way, the legislator It provides an opportunity for the administration to prevent the service provided from being suspended due to the dismissal of the relevant person.

According to this situation and the stated legal regulation, it is possible to meet the need for the service provided by the dismissed plaintiff by using the authority granted by the 1st paragraph of the 86th article of the Law No. 657 mentioned above, and if there is no obstacle to the plaintiff's return to duty if the suspension measure against him is lifted, as a rule, it is necessary for the plaintiff to be reinstated to his former position and place of duty, without showing sufficient legal reason by the defendant administration. "There was no lawfulness in the transfer appointment and no unlawfulness in the decision to cancel the transfer appointment." D5D. 1993/609 K.

PERIMENT OF SUSPENSION

Dismissal; If it is a disciplinary proceeding, it may continue for a maximum of 3 months. If a decision is not made about him at the end of this period, he will be reinstated as a civil servant.

The chief authorized to suspend him from his duty in case of a criminal prosecution (the superior authorized to appoint the officers suspended by the inspectors) examines the situation of the person concerned every two months and makes a decision as to whether he should return to his duty or not, and notifies the person concerned in writing.

It is not possible to dismiss a civil servant against whom a criminal prosecution has not been initiated.

CANCELLATION CASE AGAINST SUSPENSION FROM OFFICE

A case of annulment can be filed in the administrative courts against the suspension decision, which is an administrative action. The period for filing a lawsuit is 60 days from the notification of the decision.

While a lawsuit is filed, it may be requested to suspend the execution of the dismissal decision. If a stay of execution decision is made, the civil servant continues his duty as if the transaction had never been carried out.