Despite the Fact That There Is No Act That Would Constitute an Obstacle to the Civil Service, Is It Lawful to Make an Appointment by Negatively Evaluating the Result of the Archive Research, the Decision of the Court of Cassation

T.C. COUNCIL
12.Apartment

Basis: 2015/1008
Verdict: 2015/4473
Decision Date: 2.07.2015

REQUEST FOR CANCELLATION OF THE TRANSACTION – THE PLAINTIFF DOES NOT HAVE AN ACT THAT WOULD CONSTITUTE AN OBSTACLE TO THE OFFICIAL AND THERE IS NO OTHER DETERMINATION – THERE IS NO COMPLIANCE WITH THE LAW IN THE TRANSACTIONS SUBJECT TO THE LAWSUIT

SUMMARY: the plaintiff’s tenure, which create barriers to the absence of a verb, the result of archival research that could justify the absence of detectable no other negative being regarded as legally acceptable in the face of plaintiff’s archival research is not positive its not a bet that the outcome of the proceedings in the process of being made the subject of assignment of uyarlik because we conclude that the law has not, in the way of Appeal decision in the case is dismissed given a legal hit has seen.

(2709 P. K. m. 128) (657 Pp. K. m. 48)

Summary of the Request: Istanbul 2. Issued by the Administrative Court dated 31/10/2014 and E:2013/1899 ; K:2014/2068 49 of the Administrative Trial Procedure Law No. 2577 for the reasons written in the petition. in accordance with the article, it is requested to be reviewed and overturned on appeal.

Summary of the Defense of the Ministry of Justice: It is argued that the request should be rejected.

Summary of the Defense of the Presidency of the Justice Commission of the Istanbul Anatolian Court of First Instance: The defense was not given.

Examination Judge of the Council of State: Mustafa Kuş

Opinion: It is thought that the decision subject to appeal should be overturned with the acceptance of the appeal request.

ON BEHALF OF THE TURKISH NATION

Since the case file was completed by the Twelfth Chamber of the Council of State, which made the decision, it was not considered necessary to make a decision on the request to stop the execution, and the necessity of the work was considered:

The case, the court of First Instance in Istanbul on the Anatolian Justice Commission made by the head of the court clerk to the plaintiff contracted successful in the exam archival research made about the ongoing criminal case regarding the appointment of the bet being made not because it exists and the basis of the decision of the commission and the date and date 29.07.2013 1389201331 bila 32992892 numbered prompt the cancellation of the process with the Ministry of justice was opened.

6 of the Ministry of Justice Civil Servant Examination Appointment Transfer Regulation by the Administrative Court. in paragraph 5 / d of the article, the condition of “security investigation to be concluded positively” is stipulated in order to be appointed to the execution and protection officer cadres, the plaintiff is “Preventing students from entering or staying in the Buildings where they are en masse, Preventing Education and Training using algebra or threat” due to the fact of Istanbul 14. Criminal Court of First Instance E:2012/856 considering that the defendant administration has the discretion at the point of personnel employment, and the plaintiff’s position in the unit and unit in which he served, it was concluded that the discretion used for the employment of personnel who are not subject to criminal prosecution was used in accordance with the public interest services and requirements, and it was decided to dismiss the case on the grounds that there was no violation of the law in the case.

It is claimed by the plaintiff that the court decision is unlawful and it is requested that the decision be overturned by examining the appeal.

128 Of the Constitution. in the article “Qualifications, appointments, duties and powers, rights and obligations, monthly and allowances and other personal affairs of civil servants and other public officials are regulated by law.” the verdict has taken place in 70. 2 of the article. in its paragraph, “No distinction shall be observed in service other than the qualifications required by the duty.” the rule is given.

48 of the Civil Servants Law No. 657. in the article; The general and special conditions to be sought in those who will be recruited to the civil service are listed, the special conditions are regulated by section (B) 2. in the subparagraph; It is stipulated that the institutions should carry the conditions required in the special law or other legislation.

6 of the Ministry of Justice Civil Servant Examination, Appointment and Transfer Regulation issued on the basis of the aforementioned Law provision. in the article; In addition to the general conditions to be sought for appointment, the following conditions are sought according to the nature of the staff to be appointed, after the provision of Article 19 is included. bendinde; “Archive research to be conducted on all personnel who will be appointed to serve in the judicial and administrative judiciary should be positive.” it is subject to the necessary provision of the condition.

4 of the Regulation on Security Investigation and Archival Research entitled “Definitions”.in the article “Archival research”, “the person that sought and still searched by law enforcement officers of law enforcement and intelligence units given in the criminal records determined from the available records are defined as any limitation, whether it is about; “the personnel security investigation and archival research to be done About entitled,” 8. in the article, the security investigation and archive research; a provision has been made that it will be made about units and sections with a degree of secrecy, as well as personnel who will be employed in military, security, intelligence agencies, as well as penitentiary institutions and detention centers.

11 Of the said Regulation entitled “Issues to be investigated in the security investigation and archive research”. in the article, taking into account the environment in which the person is located in the security investigation and archive research; a) check the accuracy of records of the identity of identity, nor the nationality of a foreign state has entered into in the past, b) where it is not sought and still searched by law enforcement officers, law enforcement and whether or not the information exists in the archives of the intelligence unit, criminal records, and about whether or not there is a restriction, c) and No. 5816 on crimes against Atatürk and Atatürk’s presence in destructive activities contrary to the principles of the law where it acts, d) in a way to reflect on the mission and violate the honor and dignity of gambling, drugs, whether he is fond of drink, money and excessive self-interest, whether he behaves contrary to morality and decency, e) The inner side and reason for the degree of interest in foreigners, especially hostile and likely to be hostile State members and representatives, f) The rule that the ability to keep secrets will be investigated.

Case study Istanbul Anadolu justice commission from the court of first instance made by the head of the court clerk to the plaintiff contracted successful in the exam archival research on the campus of Istanbul University 01.06.2012 made about the result of events during the “students to be entered for the bulk of the buildings in which they are located, or becoming an obstacle to development, education and training by using force or threat of obstruction” due is made about the actual process, and not to bet on the ongoing criminal case by the MoJ that exists to appoint the assignment is not done on the basis of the decision of the commission and the date 29.07.2013 1389201331 and date and the Ministry of Justice numbered bila 32992892 the suit that has been filed with the cancellation of the process, it is understood that looked prompt.

In the case under consideration, as a result of the trial referred to the plaintiff’s archive research, Istanbul 14. Criminal Court dated 10.11.2014 E:2012/856, K:2014/284 the statements of witnesses and complainants by the state with event-related images and expert reports in relation to the evaluation of the plaintiff that the defendants “students to be entered for the bulk of the buildings in which they are located or there being an obstacle to development, education and training, committed the crime of using force or threat, by being an obstacle because there is enough evidence that separately been ordered to acquittal, the aforementioned decision was finalized on 26.11.2014 without appeal.

The position of the administration and the public will have the discretion to make appointments to positions where, while completed after use discretion in the direction of the process of the assignment of personnel with the conditions prescribed in the relevant legislation about to be made now would not be competent to appreciate, and in this case is within the authority of the decrees of the Council of State in the administration that settled, it is clearly stated.

In addition, there is no discussion that the concrete reasons that make the transactions subject to litigation mandatory in accordance with the provisions of the relevant legislation should be put forward by the defendant administrations and that judicial supervision should be carried out within the framework of these reasons in the context of the cause element.

In the concrete case, the fact that the plaintiff’s ongoing trial is considered as an obstacle to the appointment of the subject of the case alone, according to some authors in the doctrine, an element of the right to a fair trial, according to some authors, this right will undoubtedly mean ignoring the presumption of innocence / innocence, which is a special form of application.

The presumption of innocence mentioned by the European Court of Human Rights in the decision of John-Murray v. Great Britain, Enamel v. Switzerland and emphasized by the Constitutional Court in its decisions numbered Application No: 2012/584, 2012/998 and 2014/682 is the presumption of innocence under Article 38 of the Constitution. it is regulated in the article and is bound to the rule as follows: “No one can be considered guilty until his guilt is fixed by a verdict”. In the same way, ECHR 6. 2 of the article. in the paragraph“ “Everyone who is accused of a crime is presumed innocent until his guilt is legally fixed.” the principle has been introduced.

The presumption of innocence guarantees that a person will not be considered guilty without a finalized judicial decision that he has committed a crime. As a view of this assurance, no one can be qualified as a criminal and subjected to criminal treatment by judicial authorities and public authorities until his guilt is fixed by a verdict.

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