Disciplinary responsibility and disciplinary punishments of officers

According to our legislation, public officials have been classified in various aspects, some rights have been granted to public officials and responsibilities have been imposed on them. Disciplinary responsibility and disciplinary penalties of the officer who is the subject of our review come to the fore in cases where the officer does not comply with his obligations. It is not possible to make a definition about civil servants based solely on the term public servant. Because this concept will vary depending on which law it falls under. For example, in terms of criminal law, public servant is interpreted quite broadly. Here, the evaluation is made by looking at whether the person who is considered a public official is in public service. However, when it comes to public servants from an administrative perspective, it is necessary to understand a narrower professional group.

In summary, although civil service is also included in the concept of public servant, it refers to a narrower occupational group in terms of its qualifications. In terms of administrative law, the concept of civil servant should be understood as persons subject to the Civil Servants Law No. 657. Therefore, it is necessary to use the legal definition here. Accordingly:

"Regardless of the current form of establishment, those who are assigned to perform essential and permanent public services carried out by the State and other public legal entities in accordance with general administrative principles are considered civil servants in the implementation of this Law."

Before going into the details of our review subject, we feel the need to make some explanations about the concept of "discipline". The word discipline, which is of French origin, is defined in various ways in TDK's Turkish dictionary. According to the legal definition, discipline; It means "the state of a community complying meticulously and carefully with its laws and written or unwritten rules regarding order; strict order, regularity, bond of order, discipline, restraint".

The disciplinary institution aims to ensure that public services are carried out properly. Because disciplinary punishments aim to preserve administrative order by punishing the actions of civil servants who do not perform their duties properly and act contrary to the legislation. The following expressions were used in a Council of State decision, part of which we include below:

"Disciplinary penalties are sanctions imposed in case public officials fail to fulfill their duties and responsibilities in accordance with the legislation in order to carry out the public service properly or engage in acts prohibited by the legislation, and they have subjective and individual effects as they have direct and important consequences on the personal rights of civil servants, as well as they have objective and public importance in terms of the proper execution of public duty and the maintenance of public order." Council of State 12th Chamber 2017/2060 K.

The main point we want to bring to the subject with the definitions we have made so far is disciplinary law. Disciplinary law consists of disciplinary offenses and disciplinary punishments. Although the concepts of crime and punishment mentioned are similar to criminal law, in reality, crime and punishment cannot always be mentioned in the sense of criminal law. Although disciplinary law has common aspects with criminal law, it is necessary to distinguish on many points. Namely; When it comes to disciplinary crime, it is not always possible to talk about a crime definition in the sense of criminal law. The fact that some criminal behavior also requires disciplinary punishment does not necessarily make disciplinary actions a crime. Because not every disciplinary act is a crime in the criminal sense. Again, not every act that constitutes a crime necessarily requires disciplinary punishment. Disciplinary penalties are lighter than penalties restricting freedom in the sense of criminal law. Again, while criminal law can be applied to all citizens, disciplinary law can be applied to people belonging to certain professional groups. It will be useful to point out that the two branches of law are different with the distinctions made in many aspects like this, in terms of our future explanations.

The following statements were used in the decision of the 8th Chamber of the Council of State dated 12.03.2004 regarding disciplinary law:

"Professional organizations, which are public institutions, have the authority to determine the rules regarding professional ethics and discipline that will ensure solidarity among colleagues, develop the sense of trust, prevent unfair competition, protect the honor and dignity of the profession, and create public trust in the profession and members of the profession, and impose sanctions to comply with them, in order to achieve their objectives specified in the Constitution and laws.

This authority, which is exercised based on public power, is a fundamental State authority. The use of this authority must be in accordance with the rules specified in the law and the principles of disciplinary law established by judicial precedents and the purposes of the establishment.

Disciplinary law is a set of rules that determine under what procedures and conditions the State will punish those who do not fulfill the duties ordered by the legislation to public officials, those who do not do the things that it requires to be complied with, those who do the things it prohibits, and who will use this State authority, in order to carry out the public service properly.

PRINCIPLES OF DISCIPLINARY LAW

Principle of Legality in Disciplinary Punishments

It is possible to say that many principles of criminal law are also reflected in disciplinary law. But there are also some important differences between them. The most important of these manifests itself in the principle of legality. In the sense of criminal law, only the acts specified in the law constitute a crime and only the penalties specified in the law can be applied. In disciplinary law, this situation is somewhat softened. Disciplinary penalties are listed as limited in the law, but it is accepted that disciplinary actions can be regulated by regulation. It is also allowed for disciplinary actions to be determined by the administration. Although there are different opinions on this issue, in practice there is no harm in expanding disciplinary acts through analogy. In short, the principle of legality applied in criminal law has been softened by analogy in disciplinary law. We do not agree with this acceptance. According to the decision of the Constitutional Court in 2011, no distinction was made between administrative and judicial penalties and it was decided that all of them were subject to the principle of legality. In line with this view, the principle of legality should be strictly applied in terms of administrative crimes and penalties, without discrimination.

2- The Accused Benefit of Doubt Principle

If it cannot be proven with conclusive evidence cleared of all doubt that the action was committed by the officer, the officer cannot be subject to disciplinary punishment.

3- A Sanction Principle for an Act

In accordance with this principle, known as "non bis idem" in criminal law, the officer cannot be given more than one disciplinary penalty for the same act.

A- Conducting Disciplinary Investigation and Criminal Prosecution Together

It should be emphasized here that an act can constitute a crime both in the criminal sense and in the sense of disciplinary law. In such cases, the officer may be punished both judicially and administratively. It is also possible for the defendant who is acquitted in the criminal court to be punished with disciplinary punishment. For example, it would be wrong to think that a defendant who was acquitted due to a reason such as lack of evidence cannot be punished at all.

According to Article 131 of Law No. 657, which regulates the subject:

"The fact that a prosecution has been initiated against the officer in the criminal court due to the same incident cannot delay the disciplinary prosecution.

The fact that the officer is or is not convicted according to the criminal law cannot also prevent the implementation of disciplinary punishment.

" Since the acts attributed to the plaintiff and subject to disciplinary investigation also constitute a crime within the scope of the Turkish Penal Code, the plaintiff was convicted by the decision of the High Criminal Court, where he was tried for the crime of "embezzlement", and after the penalty increases and reductions were applied in accordance with the CMK No. 5271, the plaintiff was sentenced to 9 years, 4 months and 15 days in prison; However, as a result of the appeal filed against the said decision, it was decided to overturn the Court decision by the decision of the Criminal Chamber of the Regional Court of Justice, and upon this decision of reversal, it was stated in the file recorded on the merits of the High Criminal Court; Although a public lawsuit was filed for the crime of embezzlement, as a result of the trial, it was stated that the plaintiff's action constituted the crime of abuse of trust due to service, and the plaintiff was convicted and sentenced to 6 years and 3 months in prison and a judicial fine of 100,000.00 TL, but it is understood that the decision has not been finalized yet.

In this case, while the outcome of the criminal case in question should be investigated and a decision should be made by re-evaluating whether the acts subject to disciplinary punishment have been committed after the criminal trial against the plaintiff has been concluded, without taking this issue into consideration, there was no legal accuracy in the decision subject to the appeal regarding the rejection of the request for appeal against the decision of the Administrative Court to reject the case, regardless of the lawfulness of the action subject to the case, which was established by accepting that the actions charged against the plaintiff were proven. 12th Chamber 2023/928 K.

4- Principle of Non-Retroactivity

A law concerning disciplinary crimes and penalties cannot be applied only retroactively. Such a law is only applicable to crimes after its effective date. The only exception to this issue is the favorable provisions. If the law that came into force later contains favorable provisions for the officer subject to disciplinary punishment, this law can be applied retroactively.

5- Principle of Proportionality

The principle of proportionality is a very important principle as it forms the basis of the principle of punishment. In accordance with this principle accepted in Article 13 of the Constitution, there must be a proportionality between the disciplinary punishment to be given to the civil servant and the act. The following explanations were made in a Constitutional Court decision where the principle was included:

"One of the elements of the realization of the principle of the rule of law is the principle of "proportionality between crimes and punishments". Accordingly, first of all, the legislator is bound by the principle of proportionality as the limit of the limitation imposed on human rights and freedoms when setting norms. The principle can be defined as the punishment foreseen for a crime in terms of legal regulations regarding criminal law, being suitable, necessary and proportionate to the purpose of re-establishing the public order that has been disrupted as a result of the commission of this crime. In other words, "the lawmaker's punishment The principle of the rule of law constitutes the limit of its authority in making determinations. ... It is one of the basic principles of criminal law that penalties should be imposed in a fair manner, taking into account the aims of prevention and rehabilitation according to the severity of the crimes." The existence of this bond of proportionality is a requirement of the principle of the rule of law and the understanding of justice. "The legislator must follow the absolute standards of justice when choosing the type of punishments and determining their limits." Again, as a rule, it is also a requirement of the principle of proportionality that the judge be given the opportunity to individualize the punishment according to the severity of the crime and the resulting social and personal damage, the personality of the perpetrator and the characteristics of the act. It would be unconstitutional for the legislator to enact laws that clearly violate these rules." Constitutional Court Decision Number: 2011/139

A Council of State decision on the subject is as follows:

"There must be a fair balance between the disciplinary punishment imposed by the administrations against the officer and the action of the person concerned, and while establishing this balance, issues such as the way the incident occurred, whether the person concerned has criminal intent, and the effect of involuntary factors on the occurrence of the action must be taken into consideration.

In the case subject to dispute, from the evaluation of the information and documents in the case file and the investigation file, in the decision of the Disciplinary Board in question; Considering the fact that the act of accepting bribes attributed to the plaintiff has not been proven, it is established that the plaintiff acted contrary to the Circular of the General Directorate of Security dated 15.08.2001 by not recording the cars and persons they interrogated and the interrogation hours of the vehicles they interrogated in practice, and by causing the person whose vehicle they stopped to put his head into the squad car and enter into a dialogue with them, and although it is undisputed that these actions require disciplinary punishment, these actions and acts, It is not possible to be considered within the scope of engaging in actions and behaviors that would undermine the dignity and sense of trust required by one's official title within the service, as defined in the statute.

In this case, since it has been concluded that there is no appropriateness and fair balance between the plaintiff's actions and the punishment imposed, there is no legality in the action in question regarding the plaintiff's punishment with a sixteen-month long suspension penalty in accordance with Article 7/B-l of the Police Organization Disciplinary Regulation, and there is no legal accuracy in the decision of the Administrative Court to reject the case." 12th Chamber of the Council of State 2012/1684 K.

6- The Principle of Immunity of the Right to Defense

Recognition of the right to defense is a requirement of the right to a fair trial. According to Article 36 of the Constitution; "Everyone has the right to claim and defend before the judicial authorities, as plaintiff or defendant, and to a fair trial, by using legitimate means and means."

Again 129/2. The article specifies a similar regulation as follows:

"Civil servants and other public officials and members of professional organizations that are public institutions and their superior organizations cannot be subject to disciplinary punishment unless the right to defense is granted."

Article 130 of Law No. 657 also regulates the right to defense. According to the article; Disciplinary punishment cannot be given to a civil servant without taking his defense. The officer who does not make his defense within the period given by the investigator or the authorized disciplinary board, which is not less than 7 days, or on a specified date, is deemed to have given up his right to defend.

A Council of State decision on the subject is as follows:

"Article 129 of the Constitution of the Republic of Turkey states that civil servants and other public officials and members of professional organizations that are public institutions and their superior organizations cannot be subject to disciplinary punishment unless the right to defense is granted.

In the justification of the said Constitutional provision, it is stated that "in the disciplinary proceedings and disciplinary penalty application, the right to defense regarding the disciplinary penalties is guaranteed by this article.

In its decision dated 14/07/1998, numbered 1997/41, 1998/47, in which the Constitutional Court emphasized the nature of the right to defense, taking into account the 6th article of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which emphasizes the importance and necessity of the right to defense, it is stated that everyone understands as soon as possible the reason and nature of the accusation against them. has the right to be informed clearly and in detail; It has been stated that it is clear that a person who does not know the incident, the reason for the accusation and its legal nature cannot adequately defend himself, and that this constitutes the basis of the right to defence.

In the face of the Constitutional provision, its justification and the decision of the Constitutional Court, it is not legally possible to impose disciplinary penalties without exercising the right to defense; It is concluded that in order for the right of defense to be exercised in accordance with the law, the relevant public official must know the allegations against him, the evidence on which these allegations are based, and the legal characterization of the actions taken against him. It is clear that a person who is not informed of all these issues cannot adequately defend himself.

In disciplinary law, it is a requirement of the "principle of legality", which is one of the basic principles of disciplinary law, to open an investigation regarding the alleged action before the punishment is given, to carry out the investigation by the persons authorized to carry out the investigation in accordance with the relevant legislation or by persons authorized by them, and to prepare a report as a result and include concrete findings regarding the incident and corresponding legal sanctions. Therefore, it is mandatory that the report contains findings that will leave no room for doubt." D 8th Chamber 2018/545 K.

7- Privacy Policy

The rule in terms of disciplinary procedures is confidentiality. This confidentiality applies to third parties. Methods restricting the right of defense against the parties to the transaction cannot be applied. However, Article 129 of Law No. 657 states: "The civil servant against whom a penalty of dismissal from civil service is sought has the right to examine the investigation documents, to have witnesses heard, and to defend himself orally or in writing before the disciplinary board, himself or through his representative." provision is included. According to the conclusion of this provision, investigation documents can only be examined in cases that require the penalty of dismissal from civil service. However, it should not be forgotten that the right to defense must be clearly recognized for every criminal act. In Article 130 of Law No. 657, the civil servant is granted the right to defend himself for a period of not less than seven days, in terms of penalties other than dismissal from civil service.

A Council of State decision on the subject is as follows:

"Although it is legally obligatory for the plaintiff to be given the opportunity to defend himself by ensuring that he learns the allegations against him, the evidence on which these allegations are based, the legal characterization of the acts charged against him and the proposed disciplinary penalty, by the authority authorized to impose the penalty of dismissal from civil service, he has the right to examine the investigation documents in Article 129 of the 657 SK, to have witnesses heard, to defend himself orally or in writing before the disciplinary board, or through his attorney, in violation of the obligation specified in the case. Since it was determined that the plaintiff's right to defense was not reminded and that the disciplinary penalty was imposed without taking the final defense in accordance with Article 129/2 of the Civil Servants Law No. 657, it was concluded that the action taken was unlawful in the case of the plaintiff, for whom the penalty of dismissal from civil service was proposed, in accordance with Article 129 of the Civil Servant Law no. 657. "There was no legality in the Court's decision given on the merits of the case without considering the case." Council of State 12th Chamber 2023/885 K.

8- Principle of Justification

Disciplinary punishment decisions must be justified.

Thanks to the principle of justification, administrative or judicial authorities that review an administrative action upon objection or lawsuit can audit the relevant action more effectively, thus ensuring the administration's compliance with the law. In this way, the administration is prevented from acting arbitrarily. The principle of justification serves as a tool that pushes the administration to make correct and lawful decisions. Seçkin and Üstün, "Discretion in Administrative Procedures and the Principle of Justification", p. 527

9- Principle of Displaying Application Methods

"In the 11th article of the Constitution, it is stated that the provisions of the Constitution are the basic legal rules that bind the legislative, executive and judicial bodies, administrative authorities and other organizations and individuals, and in the 2nd paragraph of the 40th article, it is stated that "The State must specify which legal remedies and authorities the relevant persons will apply to in its transactions and the time limits."

It is a requirement of the principle of legal security that the administrations specify in the transaction which administrative unit and within what period of time the application will be made against the transactions, as the remedies against administrative actions are included in detailed regulations, the application period is short or exceptions can be made to the ordinary remedies. The said Constitutional provision aims to provide convenience and opportunity for individuals to assert their rights before judicial or administrative authorities; The administration is obliged to inform the relevant authorities in how many days and to which authorities they can apply." D8D. K. 2013/7777 K.

10- Presence of the Union Representative in the Disciplinary Board

"The representative of the union of which the civil servant, against whom a disciplinary investigation is carried out, is a member, also takes part in the disciplinary and high disciplinary boards specified in this article. The representative assigned to each disciplinary and high disciplinary board is notified in advance by the relevant union. In this way, in cases of equality of votes in committees with an even number of members, the decision of the party whose chairman is present will be respected." Regulation on Disciplinary Rules and Disciplinary Chiefs Art. 4

WHAT ARE THE CIVIL DISCIPLINARY PUNISHMENTS?

As we stated above, the disciplinary penalties that can be applied to civil servants are limited in the law. The disciplinary penalties listed in Article 125 of Law No. 657 are as follows:

• Warning
• Condemnation
• Pension Deduction
• Stopping step progression
• Dismissal from Civil Servant

WHAT IS A WARNING PENALTY?

Warning is a written notification to the officer that he should be more careful in his duty and behavior.

Actions and situations that require a warning are as follows:

1. Showing indifference or acting irregularly in the full and timely execution of orders and strikes, in fulfilling the procedures and principles determined by the institutions at the place of duty, in the protection, use and maintenance of official documents, tools and equipment related to the duty,
2. Coming late to duty, leaving early, leaving the duty area without excuse or permission,
3. Failing to comply with the savings measures determined by the Institution,
4. Making an irregular application or complaint,
5. Behaving in an attitude and manner that does not befit the dignity of a civil servant,
6. Showing indifference or indifference towards one's duty or job holders,
7. Behaving contrary to the specified dress code,
8. Behaving contrary to the principle of performing the task in cooperation.

WHAT IS THE PENALTY OF CONDEMNATION?

Reprimand: It is a written notification to the officer that he is flawed in his duty and behavior.

Acts and situations that require condemnation are as follows:

1. Being negligent in the full and timely execution of orders and strikes, in fulfilling the procedures and principles determined by the institutions at the place of duty, and in the protection, use and maintenance of official documents, tools and equipment related to the duty,
2. Failure to notify the institution of the continuous profitable activities of their spouses, minors or stranded children within the specified period,
3. Behaving disrespectfully to your superior while on duty,
4. Behaving in a way that would undermine the reputation and trust of a civil servant outside of service,
5. Using official state vehicles, equipment and similar items in private affairs,
6. Losing official documents, tools, equipment and similar belongings belonging to the state,
7. Mistreating colleagues, staff and business owners,
8. Teasing colleagues and business owners with words or actions,
9. Behaving against general morality and decency at the place of duty and writing, drawing and making signs, pictures and similar figures,
10. Objecting to orders given,
11. Causing legal action to be taken against you by deliberately not paying your debts,
12. Disturbing the peace, tranquility and working order of institutions,
13. Giving information or statements to the press, news agencies or radio and television institutions even though they are not authorized.

WHAT IS PAYMENT CUT PENALTY?

Deduction from salary: It is a deduction between 1/30 - 1/8 from the gross salary of the civil servant.

Acts and situations that require the penalty of deduction from salary are as follows:

a) Intentionally; Not carrying out the given orders and duties completely and on time, not fulfilling the procedures and principles determined by the institutions at the place of duty, not protecting, not maintaining, or misusing official documents, tools and equipment related to the duty,

b) Absence from duty for a day or two without excuse,

c) Using official state documents, tools, equipment and the like to obtain private benefit,

d) Making false and false statements to the persons to whom he is responsible regarding matters related to his duty,

e) Verbally disrespecting your superior while on duty,

f) To assist in the unauthorized use of any place within the boundaries of the duty area for meetings, ceremonies and similar purposes,

ı) Acting in a manner that would undermine the reputation and trust of the civil servant within the service.

WHAT IS THE PENALTY FOR SUSPENSION OF STAGE PROGRESS?

Stopping step progress:

It means stopping the advancement of the civil servant at his current level for 1 - 3 years, depending on the severity of the act.

Acts and situations that require the penalty of suspension of stage progression are as follows:

a) Coming to duty drunk, drinking alcoholic beverages on duty,

b) Absence from duty for 3 - 9 days without excuse and uninterrupted,

c) To gain benefit in any way related to his/her duty,

d) Performing humiliating or humiliating acts and actions towards his superior or his entourage,

e) Using or causing to be used any place within the boundaries of the place of duty without permission for meetings, ceremonies and similar purposes,

f) Preparing false reports and documents,

g) (...) (The sub-clause (g) of clause (D) of Article 125 has been abolished in accordance with the provision of clause (f) of Article 33 of the Law No. 5234 dated 17.9.2004, published in O.G. No. 25590 dated 21.9.2004.)

h) Doing business or engaging in other profitable activities prohibited for civil servants,

ı) To discriminate on the basis of language, race, gender, political thought, philosophical belief, religion and sect in the performance of the duty, to engage in behavior that aims at the benefit or harm of people,

j) Failure to declare goods in the specified situations and periods,

k) To disclose information that is prohibited from disclosure,

l) Insulting or threatening his superior, his entourage, colleagues or business owners,

m) Taking advantage of his diplomatic status, borrowing money abroad beyond his ability to pay without giving a justified reason, and damaging the reputation of the State with his attitude and behavior in paying his debts, or returning home without paying his debt without a compelling reason,

n) Intentionally not performing the given duties and orders,

o) Acting actively for the benefit or detriment of any political party.

PUNISHMENT OF DISMISSAL

Dismissal from civil service:

It means to be dismissed from the civil service in order not to be appointed to the civil service again. Acts and situations that require the penalty of dismissal from civil service are as follows:

1. Disturbing the peace, tranquility and working order of institutions for ideological or political purposes, participating in actions such as boycott, occupation, "obstructing the execution of public services", slowing down work and strikes, or collectively not coming to duty for these purposes, provoking and encouraging them or providing assistance,
2. Printing, reproducing, distributing all kinds of prohibited publications or declarations, posters, banners, tapes and the like for political or ideological purposes, or hanging or displaying them anywhere in the institutions,
3. Joining a political party,
4. Absent from duty for a total of 20 days in a year without excuse,
5. Not fulfilling the duties or orders given by superiors in matters related to war, state of emergency or general disasters,
6. Actually raping his superiors, his entourage and business owners, Previous situation
7. To engage in disgraceful and shameful acts that are incompatible with the title of civil servant,
8. Disclosing confidential information without authorization,
9. Hiding those wanted for political and ideological activities at the duty station,
10. To engage in attitudes and behaviors abroad that would lower the reputation of the State or damage the dignity of duty,
11. To commit acts contrary to the Law No. 5816 on Crimes Committed Against Atatürk.
12. To be in unity with terrorist organizations, to help these organizations, to use public facilities and resources to support these organizations, or to make propaganda for these organizations.

WHO IS DISCIPLINARY PUNISHMENTS ISSUE?

Warning, reprimand and salary deduction penalties are given by disciplinary superiors; The penalty of suspension of grade advancement is given by the Governors in cases based on the decision of the provincial disciplinary boards of the superiors authorized to appoint, after the decision of the disciplinary board of the institution to which the officer is affiliated.

The penalty of dismissal from civil service is given upon the request of the superiors, by the decision of the high disciplinary board of the institution to which the civil servant is affiliated.

The disciplinary board and the high disciplinary board do not have the authority to assign a separate penalty, they accept or reject the penalty. In case of rejection, the superiors authorized to appoint are free to impose another disciplinary penalty within 15 days.

Provisions of special laws regarding chiefs and boards authorized to impose disciplinary punishment are reserved.

STATEMENT OF DISCIPLINARY PENALTY

According to Article 127 of Law No. 657:

For those who commit the acts and situations listed in Article 125 of this Law, from the date on which it is learned that these acts and situations have been committed;

a) Disciplinary investigation within one month for the penalties of warning, reprimand, deduction from salary and suspension of grade advancement,

b) Disciplinary prosecution within six months in case of dismissal from civil service,

If not initiated, the authority to impose disciplinary punishment expires.

If disciplinary punishment is not finally imposed within two years from the date of committing the acts and situations that require disciplinary punishment, the authority to impose punishment becomes statute of limitations.

REPEDITION IN DISCIPLINARY PENALTY

If the officer, who has previously received a disciplinary penalty and whose sentence has been finalized, commits a disciplinary offense of the same nature before the expiry of the period for deletion from the record, recidivism provisions will be applied.

According to Article 125 of the Law:

If an act or situation that has given rise to a disciplinary penalty is repeated within the period of deletion of the penalties from the "personal file", a severe penalty will be imposed. In the third application of disciplinary punishments that require the same degree of punishment but are given due to separate acts or situations, a degree of severe punishment is given.

APPLICATION OF A LOWER LEVEL PENALTY

A somewhat lighter penalty may be applied to civil servants whose work during their past service has been positive and who have "received an award or certificate of achievement".

"In the 3rd paragraph of the amended article 125 of the Civil Servants Law No. 657, there is a rule that a milder penalty can be applied to civil servants whose work during their past service has been positive and who have a good or very good record.

Although there is no unlawfulness in punishing the plaintiff with disciplinary punishment due to his faulty action, it is a requirement of disciplinary law to find a fair balance between the action and the punishment given.

There is no lawfulness in the decision of the administrative court regarding the rejection of the case, without taking into account the nature of the action that caused the disciplinary penalty given to the plaintiff, his sincere confessions and statements, whether his work during his past services was positive or not, and whether a lower penalty could be given by evaluating his records." 8th Chamber of the Council of State 1996/3386 K.

DISCIPLINARY PENALTY DECISION PERIOD

Disciplinary superiors are obliged to give warning, reprimand and salary cut penalties within 15 days from the day the investigation is completed. In cases that require the suspension of grade advancement, the investigation file is submitted to the authorized disciplinary board within 15 days to notify its decision. The disciplinary board submits its decision based on the investigation documents within 30 days from the date of receipt of the file.

The file regarding the investigation carried out by the disciplinary superiors for the penalty of dismissal from civil service shall be decided by this board within a maximum of six months from the date of submission to the high disciplinary authority of the institution to which the officer is affiliated.

APPLICATION OF DISCIPLINARY PENALTY

Disciplinary penalties take effect from the date they are given and are implemented immediately.

The monthly deduction penalty is applied at the beginning of the month following the date of the penalty.

Disciplinary penalties given are reported to the "higher disciplinary superior", and the penalty of dismissal from civil service is also reported to the State Personnel Presidency.

DELETION OF DISCIPLINARY PENALTY FROM THE PERSONNEL FILE AFTER A PERIOD

Disciplinary penalties are recorded in the officer's "personal file". A civil servant who has been sentenced to a disciplinary penalty other than dismissal from public service may apply to the officer authorized to appoint him 5 years after the imposition of warning and reprimand penalties, and 10 years after the imposition of other penalties, and request that the penalties imposed be deleted from his "personal file".

If the officer's behavior within the periods written above is deemed to justify this request, it is decided to fulfill his request and this decision (Amended phrase: 6111 - 13.2.2011 / art.117/f) is recorded in his "personnel file".

The provision of the above paragraph shall be applied after the opinion of the disciplinary board is obtained in the "removal from the personnel file" penalty of suspension of grade advancement (Amended phrase: 6111 - 13.2.2011 / art.117/f).

DISCIPLINARY BOARDS AND DISCIPLINARY COMMUNITIES

There is a High Disciplinary Board at the Institution Headquarters to carry out the duties assigned by law in disciplinary and investigation matters, and there is a Disciplinary Board in each province, in the regional center and in the institution center in organizations operating on a regional basis, and in the National Education Directorates.

Aspects such as the establishment of these boards, the term of office of their members, the negotiation and decision procedure, which civil servants they can decide on, the principles to be applied in the appointment and determination of disciplinary chiefs, and their powers and responsibilities are regulated by the regulation to be issued by the President.

OBJECTION TO DISCIPLINARY PUNISHMENTS

Disciplinary penalties can be objected to through administrative application. The objection here is not an application to judicial authorities. Article 134 of Law No. 657, titled objection, is as follows:

An appeal can be made to the disciplinary board against the warning, reprimand and salary deduction penalties given by disciplinary superiors, and to the high disciplinary board against the punishment of suspension of grade advancement.

The deadline for objection is seven days from the date of notification of the decision to the relevant person. Disciplinary punishments that are not appealed within the prescribed period become final.

The objection authorities must make their decisions within thirty days from the receipt of the objection petition and the decision and its annexes.

In case the objection is accepted, the disciplinary superiors may review the decision and mitigate or completely remove the imposed penalty.

According to the above-mentioned law, it has been stated that the right to appeal against warning, reprimand and salary deduction penalties is open, but no provision has been made regarding the penalty of dismissal from profession. The decisions of the Council of State also state that the penalty of dismissal from profession cannot be objected to.

CASE FOR CANCELLATION OF DISCIPLINARY PENALTY

The last paragraph of Article 135 of the Law indicates that administrative appeal against disciplinary penalties is open. Therefore, an annulment lawsuit can be filed in administrative jurisdiction against any disciplinary penalty. You can find our detailed explanations regarding the cancellation case in our article titled Cancellation of Administrative Procedure.

The period for filing a lawsuit is 60 days from the notification of the decision. In case of objection, the period starts from the notification of the rejection of the objection.

"It has been understood that the disciplinary penalty in question was notified to the plaintiff on 25/06/2015, the penalty was objected to on 02/07/2015, the objection was rejected with the decision dated … and numbered …, this rejection decision was notified to the plaintiff on 09/02/2016, and the case was opened on 01/04/2016.

With Article 135 of Law No. 657, a special regulation has been introduced regarding the period within which objections against disciplinary punishments will be subject, and the plaintiff has objected to the punishment given to him within the 7-day period stipulated by this special regulation, and it must be accepted that the punishment will become final with the conclusion of the objection application.

In the dispute under consideration, the disciplinary penalty has become final with the defendant administration finalizing the objection at the end of a period of four months from the date of objection, and since the period for filing a lawsuit will start from the date of notification of the decision to reject the objection, which will lead to the penalty becoming final, there is no statute of limitations in this case filed within sixty days from this date." Council of State 12th Chamber 2023/1196 K.