Disciplinary law has emerged in order to prevent the commitment of acts that have been sanctioned and to ensure internal order in state institutions, and although it has similar aspects with the criminal law, it differs greatly with its unique aspects.
In the Constitution, it is stated that the primary and permanent duties required by the public services that the state's public economic enterprises and other public legal entities are obliged to perform according to the principles of general administration will be carried out by civil servants and other public officials. It is compulsory for the civil servants to work in a certain order while performing their duties, to act in accordance with the provisions of the legislation, in order to prevent the disruption of public services. Disciplinary offense is the attitudes and behaviors that are against the rules brought for the civil servants to fulfill their duties completely and to avoid any disruption in the provision of public service.
In a decision of the Council of State, the purpose of the disciplinary law was stated as follows: "The purpose of disciplinary sanctions is to protect the reputation of the state as well as to ensure the continuous, regular and safe execution of public services."
It is important in terms of human rights that the person who is subject to a disciplinary investigation has some fundamental rights just like in the criminal investigation.
Although in the Turkish legal system there is not a complementary regulation in terms of both substantive law and procedural law, all institutions have their own legal regulations.
The most general regulation is the articles 125 and following of the Civil Servants Law No. 657. Disciplinary penalties that may be imposed are listed in Article 125 of the Law.
The disciplinary penalties to be given to civil servants and the actions and situations that require disciplinary penalty are as follows:
A - Warning: It is a written notification to the official that he / she should be more careful in his / her duties and behaviors.
Actions and situations that require a warning are as follows
a) To show indifference or behave irregularly in the full and timely execution of the orders and duties given, in the fulfillment of 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 task,
b) Coming to work late, leaving early, leaving the place of duty without any excuse or permission,
c) Not to comply with the savings measures determined by the institution,
d) Making an illegal application or complaint,
e) To behave inappropriately with the dignity of a civil servant,
f) Indifference towards job or people who ask for service,
g) To act contrary to the determined dress regulations and provisions,
h) Behaving against the principle of cooperating.
B - Reprimand: It is a written notification to the officer that he / she is defective in his / her duty and behavior.
Actions and situations that require reprimand are as follows:
a) To act at fault in the full and timely execution of the orders and duties, in the fulfillment of 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 task,
b) Not notifying the institution within the specified period of the continuous income-generating activities of their spouses, underage children or their children whose capacity is lack,
c) acting disrespectful against supervisor with his / her behavior and behavior during duty,
d) Behaving in a way that will jeopardize the reputation and trust of the civil servant other than service,
e) Using official tools, equipment and similar goods belonging to the state for private affairs,
f) Losing official documents, tools, equipment and similar items belonging to the state,
g) Maltreatment to colleagues, staff and people who ask for service,,
h) Teasing coworkers and business owners in words or gestures,
ı) To act contrary to general morality and to behave in an immoral manner in the place of duty and to write such texts, to draw and make signs, pictures and similar figures,
j) Objection to the orders given,
k) Causing legal action against him because of deliberate failure to pay his debts,
l) To disturb the peace, tranquility and working order of institutions.
m) (additional clause: 17/9/2004 - 5234/1 art.) To give information or statements to the press, news agencies or radio and television institutions, although they are not authorized.
C - Deduction from monthly salary: It is the deduction of 1/30 - 1/8 of the gross salary of the civil servant.
Actions and situations that require deduction from monthly salary are as follows:
a) On purpose; Failure to fulfill the orders and duties given in full and on time, not to fulfill the procedures and principles determined by the institutions at the place of duty, not to protect and maintain, abuse official documents, tools and equipment related to the task,
b) Absence of duty for a day or two without an excuse,
c) Using official documents, tools, equipment and the like for private benefits,
d) Making lies and false statements to those who are responsible for the matters related to the duty,
e) Disrespecting the supervisor verbally while on duty,
f) Helping any place within the boundaries of the place of duty to be used for meetings, ceremonies and similar purposes without permission,
g) (Repealed :13/2/2011 - 6111/111 art.)
h) (Repealed: 13/2/2011 - 6111/111 art.)
ı) Behaving in a manner that will undermine the reputation and confidence of the civil servant in the service,
j) (Repealed :13/2/2011 - 6111/111 md.)
D - suspension of level advancement of the level: It is the suspension of level advancement of the civil servant in the level she is in for 1-3 years, depending on the severity of the action.
The acts and situations that require the suspension of level advancement are as follows:
a) Getting drunk on duty, drinking alcoholic beverages on duty,
b) Not coming to work for 3 - 9 days without an excuse and uninterruptedly,
c) To gain benefit in any way whatsoever regarding his / her duty,
d) Conducting degrading actions and acts against his superior or his attendants,
e) Using or making use of any place within the boundaries of the place of duty for meeting, ceremony and similar purposes without permission,
f) To prepare false reports and documents,
g) (repealed:17/9/2004 - 5234/33 art.)
h) To trade or to engage in other profitable activities prohibited to state officials,
ı) To discriminate between language, race, gender, political opinion, philosophical belief, religion and sect in the performance of the duty, to act aimed at the benefit or harm of individuals,
j) Not declaring property within the specified conditions and periods,
k) To disclose the prohibited information,
l) Insulting or threatening his supervisor, his attendants, colleagues or business owners,
m) By benefiting from his diplomatic status abroad, to borrow more than his ability to pay without justifiable reason and to damage the reputation of the State with his attitude and behavior in paying his debts or to return to the country without paying his debt without any compulsory reason,
n) Deliberately not doing the given duties and orders,
o) To act de facto effectively for the benefit or disadvantage of any political party.
E - Dismissal from civil service: It is dismissal from civil service and the person who is dismissed can never be a civil servant again.
Acts and situations that require dismissal from civil service are as follows:
a) To disrupt the peace, tranquility and working order of institutions for ideological or political purposes, to participate in actions such as boycott, strikes, occupation, preventing the execution of public services, slowing down work or collectively failing to work for these purposes, provoking and encouraging them or printing isuch things or reproducing tapes and the like, to distribute or to hang or display them in any part of the institutions,
c) Entering a political party,
d) Not coming to work for a total of 20 days in a year without an excuse,
e) Failing to fulfill the duties or orders given by the superiors in matters related to war, state of emergency or general disasters,
f) (amendment 13/2/2011 - 6111/111 art.) Assaulting their superiors, attendants and business owners,
g) To act disgraceful and embarrassing at a quality and degree incompatible with the title of civil servant,
h) To disclose confidential information without permission,
ı) Hiding those who are wanted from political and ideological actions at the place of duty,
j) To behave in attitudes and behaviors that will degrade the reputation of the State or damage the dignity of duty abroad,
k To commit acts contrary to the Law No. 5816 on Crimes Committed Against Atatürk.
l) (addition: 3/10/2016 – KHK-676/75 art.; Accepted in kind:1/2/2018-7070/61 art.) To cooperate with terrorist organizations, to help these organizations, to use or make use of public opportunities and resources to support these organizations, to make propaganda of these organizations.
A severe punishment of one degree is imposed on the repetition of an act or situation that has caused a disciplinary penalty within the period of deletion of the penalties from the personal file. One degree of severe punishment is imposed in the third disciplinary penalties that require the same degree of punishment but are given due to separate acts or situations.
One degree of lighter penalties can be applied to the officers who have positive works during their past service and who have received an award or certificate of success.
The same type of disciplinary penalties are also given to those who commit similar actions to the above-mentioned acts and situations that require disciplinary penalties in terms of nature and weight.
In cases where the penalty is to be imposed for the civil servants who are in the last stages of the level where they can be promoted due to their educational status, 1/4 - 1/2 of their gross salary is deducted and their duties are terminated in case of repetition.
The provisions of special laws regarding disciplinary offenses and penalties are reserved.
The fact that the above written disciplinary prosecution has been made does not prevent an additional criminal prosecution against the defendant if the act falls within the scope of the general provisions.
Principles Governing Disciplinary Law
Proportionality Principle
The first principle that dominates disciplinary law is the principle of proportionality. Proportionality refers to the reasonable and protected ratio between the act committed and the disciplinary sanction. This principle corresponds to the democratic society principle of the European Court of Human Rights. the Disciplinary Regulation of Higher Education Institutions Administrators, Instructors and Officers is regulated "trade" as a disciplinary offence in the Article 9 / h. In the 11th article of the same regulation, it is stipulated that performing a paid-unpaid private job, performing additional duties or performing a self-employment profession is an act that requires dismissal from the profession. In a decision of the Council of State, it was stated and considered the dismissal punishment imposed on the lecturer who opened a business on behalf of his wife as a clear mistake and, referring to proportionality, it stated that he should be convicted of a "trade" offense requiring the suspension of level advancement and it aned the disciplinary penalty.
Right to Defense
The right to defense is one of the fundamental rules of not only the disciplinary law but also the rule of law, and it should be present in the disciplinary law as well as in the judicial sense. The person whose defense is taken and who is confronted with the disciplinary investigation should be informed in writing throughout the process, should have the right to reject the request and appeal, and should be given sufficient time for defense. In addition, all notifications should be made according to the procedures in the legislation.
Principle of confidentiality
In the investigation process, confidentiality is essential in preventing the spoliation of the evidence and the disclosure of administrative secrets, but there is no absolute confidentiality for the subject of the investigation.
Prohibition on Imposing Double Disciplinary Sanctions
This prohibition is applied to prevent twice punishment for the same act. Although different institutions may have a disciplinary investigation regarding an act, a lighter sanction should be applied.
In the report prepared on the disciplinary investigation and the decision taken on the basis of this report, the identity, duty, address of the investigated person, the date the alleged act was committed, the date the incident was learned, the date of the investigation, the event summary and the evidence collected, Discussion of the evidence, Defense of the investigated person whether the right of defense is exercised, the sanction to be applied to the alleged act, aggravating and mitigating reasons, if any, the summary of the record file of the defendant, the conclusion reached must be present.
There are aggravating and mitigating reasons in determining the disciplinary action. While repetition is an aggravating cause, good behavior is an mitigating cause. The registry status will be effective in determining the penalty.
Disciplinary power is one of the powers given by hierarchical power. The authority of the supervisor in giving disciplinary action is dependent authority. Therefore, it is not possible for the supervisor to transfer the disciplinary punishment authority, unless the law provides otherwise.
Civil servants may appeal to a higher disciplinary supervisor, if any, or to disciplinary boards against the warnings and reprimands given by the disciplinary superiors. The remedy of administrative jurisdiction can be applied against the penalties of deduction from salary, suspension of level advancement and dismissal from the civil service. The time limit for appeals against disciplinary penalties issued by disciplinary superiors and disciplinary boards is seven days from the date of notification of the decision to the relevant person.
Against the decision of the disciplinary committee about the lawyer, the prosecutor and the interested parties may appeal to the Disciplinary Board of the Union of Bar Associations Turkey within thirty days from the date of notification.
There is a prescription period for investigation and sanctions in disciplinary offenses. The investigation period of limitations for civil servants starts from the moment the act is learned. “The penalties for warning, reprimand, deduction from monthly salary and suspension of level advancement within a period of one month; Six months in case of dismissal from civil service and two years from the date of committing acts requiring disciplinary punishment. For lawyers, there is a one-year investigation prescription starting from the date of notice, complaint or request, and finally a three-year period of limitations.
The penalty limitation is four and a half years for lawyers. According to the DMK Art.128, the disciplinary superiors are obliged to give the penalties of warning, reprimand and deduction from salary within fifteen days from the day the investigation is completed. In cases where a penalty of suspension of level advancement is required, the investigation file is submitted to the competent disciplinary board within 15 days to make a decision The disciplinary board has to declare its decision according to the investigation documents within 30 days from the date it received the file. In cases where there is a penalty of dismissal from civil service, the file of the investigation carried out by the disciplinary superiors must be concluded within a maximum of six months after the officer is sent to the higher disciplinary board of the institution to which he is affiliated.