For the public service to be carried out without disruption, the personnel performing that service must adhere to certain standards of conduct. The sanctions that come into play where those standards are breached are determined having regard to the gravity of the conduct and the circumstances of the particular case. The graduated sanctions provided for in the legislation are listed as warning, reprimand, deduction from salary, suspension of grade advancement and dismissal from the civil service.
The administration’s ability to resort to these sanctions depends on its acting in conformity with the procedural framework drawn by the legislation. All the stages extending from the commission of the act constituting a disciplinary offence to the moment the penalty is imposed are referred to in practice as the disciplinary investigation. Where this process is not operated, or is operated defectively, the penalty imposed may not stand on grounds of unlawfulness even if it is sound on the merits.
One point should be stated at the outset: defects in the manner in which the investigator exercises his powers, or errors in the preparation of the investigation report, cannot on their own be made the subject of an action. Since those stages are not of a final and enforceable nature, they are not amenable to the direct bringing of administrative proceedings. By contrast, a disciplinary penalty imposed following an irregular investigation is subject to administrative judicial review and its annulment may be sought. In this briefing note we address each link in the process in turn.
Persons Who May Be Subject to a Disciplinary Investigation
The decisive criterion is the legal position at the moment the act was committed. Everyone holding the capacity of civil servant and in post on the date the disciplinary offence was committed may be the subject of an investigation, even if their position subsequently changes.
The following situations arising after the act do not constitute an obstacle to the conduct of the investigation:
- That the person concerned has been faced with the penalty of dismissal from the civil service
- That he has resigned from his post
- That he has been decided to be deemed to have withdrawn from the civil service
- That he has left his post by exercising his right to a pension
In short, the subsequent severance of the bond of civil service does not of itself extinguish the disciplinary examination of an act committed in the past. For a detailed assessment of which acts are regarded as disciplinary offences and which penalty is provided for in respect of each act, our note entitled Disciplinary Penalties That May Be Imposed on a Civil Servant may be consulted.
Limitation Periods in a Disciplinary Investigation
The administration’s power to impose a penalty is not unlimited in time. Article 127 of Civil Servants Act No. 657 provides for two separate periods, taking the date the act was learned of as the starting point.
For acts calling for the penalties of warning, reprimand, deduction from salary and suspension of grade advancement, the investigation must have been embarked upon within one month. In cases calling for the penalty of dismissal from the civil service, the period afforded for proceedings is six months. Where these periods are allowed to pass, the administration’s power to impose a penalty becomes time-barred.
Alongside these periods tied to the date of learning, there is a further upper limit tied to the moment the act was committed. If no penalty has been imposed within two years at the latest from the date on which the act calling for a disciplinary penalty took place, the administration’s power to apply a sanction likewise comes to an end. In practice these two periods must be assessed together; observance of one does not make good the neglect of the other.
The Competent Disciplinary Superior and the Operation of the Decision Process
Who the disciplinary superiors are is not listed collectively in a single text. Each institution makes that determination in its own special regulation, prepared having regard to its organisational structure and the characteristics of its duties and after obtaining the opinion of the Presidency of State Personnel. The competent superior is therefore identified by reference to the disciplinary regulation of the institution concerned.
The time limits binding on superiors at the decision stage are as follows: for the penalties of deduction from salary, reprimand and warning the decision must be taken within 15 days beginning from the day the investigation is concluded. In situations calling for suspension of grade advancement, the superior is obliged to transmit the file within the same 15-day period to the disciplinary board that will take the decision. The disciplinary board receiving the file notifies the disciplinary superior of the outcome of its examination of the investigation documents within 30 days.
The process is longer for the penalty of dismissal from the civil service. The file relating to the investigation caused to be carried out by the disciplinary superiors must be decided within at most six months from the date it reaches the high disciplinary board of the institution to which the civil servant is attached.
The Civil Servant’s Right of Defence
The most fundamental safeguard of disciplinary law is the right of defence. No penalty may be imposed without the acts alleged against the person concerned being notified in writing with the necessary and sufficient clarity and without a reasonable period for defence of not less than 7 days being afforded.
The notification must also warn that, if no written or oral explanation is given within the period afforded, the right of defence will be deemed not to have been exercised. Failure to provide this safeguard at all, or failure to operate it in the manner prescribed by the legislation, gravely vitiates the disciplinary penalty in terms of the element of form and may on its own constitute a ground of annulment.
The safeguards are broader for personnel in respect of whom dismissal from the civil service is proposed. A civil servant in that position may examine the investigation file and may name and have heard witnesses in his favour; he may submit his defence before the disciplinary board in writing or orally, either in person or through his representative as he chooses.
Repetition in Disciplinary Penalties
If the act or situation forming the subject of a penalty is repeated by the civil servant concerned before the period prescribed for erasure of the penalty from the personnel file has expired, a penalty one degree more severe is applied. It must be emphasised in particular that the administration has no margin of choice here: where the conditions are met, application of the provision on repetition is mandatory and is not left to discretion.
Certain periods have been fixed in the legislation for repetition to be capable of arising. For the penalties of deduction from salary and suspension of grade advancement that period is 10 years, and for the penalties of warning and reprimand 5 years.
Two separate possibilities are distinguished in practice. Where the same act is repeated, only the penalty one degree more severe than the penalty corresponding to that act is imposed. In situations arising from different acts but calling for a penalty of the same degree, the aggravation comes into play on the third occasion.
The commission of a further disciplinary offence forming a basis for repetition after a penalty one degree more severe has been applied on account of repetition does not result in aggravation by two degrees at once. In such a case, again only the penalty one degree higher is imposed; for there is no repetition of repetition. For detail on the removal of penalties from the personnel file, our article entitled Erasure of a Civil Servant’s Disciplinary Penalty from the Service Record may be examined.
Application of the Next Lower Penalty and the Duty to Give Reasons
Superiors and boards competent to impose penalties must, when exercising their discretionary power, assess the past service and service record of the person concerned at the investigation stage. Following that assessment, it is a legal requirement that the decision give reasons as to whether the next lower penalty is to be ordered. The Council of State has likewise held that a disciplinary penalty imposed without past service being considered is unlawful and must be annulled.
Decision of the Assembly of Administrative Law Chambers of the Council of State, Case No. 2007/1200, Decision No. 2011/268, dated 21.4.2011
“Although, pursuant to the legislative and administrative rules referred to, the administration has discretionary power as to the application of the next lower penalty, as also stated in the decision of the Eighth Chamber of the Council of State, superiors and boards competent to impose disciplinary penalties must, when exercising that discretionary power, first make an assessment as to whether the persons concerned are to be punished with the next lower penalty having regard to their past service and service records, and impose the penalty according to the result of that assessment; and since the act at issue, established without such an assessment being made, is not in conformity with the law….”
The decision makes it clear that the possibility of a lower penalty must without fail be considered.
In this framework, when the penalty stage is reached, the act must be established by weighing together the gravity of the act committed by the civil servant, whether he has previously been faced with a disciplinary penalty and whether he has shown remorse. A penalty imposed without regard to these elements will not be compatible with settled case law or with the law.
Action for Annulment of an Unlawful Disciplinary Penalty
Various errors and unlawful features may emerge in the exercise of the powers afforded to the investigator or in the assessments made at the report stage. A disciplinary penalty imposed as a result may become defective in at least one of the elements of competence, form, cause, subject matter or purpose.
As noted above, since the investigation and proceedings stages are not of the nature of final and enforceable administrative acts, no action may be brought against those stages themselves. A disciplinary penalty imposed on the basis of irregularities during the investigation may, however, be made the subject of an action for annulment within the framework of the provisions of the Administrative Procedure Act No. 2577 (the APA).
As regards time, the criterion is notification: an action for annulment may be brought before the administrative court against an unlawful disciplinary penalty within 60 days beginning from the day following the day on which the penalty is notified to the person concerned. For detail on the remedies to be pursued against the penalty, our note entitled Objection to a Disciplinary Penalty Imposed on a Civil Servant and the Action for Annulment may be consulted.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
The rule in Turkish law is that persons may defend themselves in person before the courts; save for limited exceptions, there is no obligation of representation by a lawyer. Nor is any requirement of compulsory representation provided for in actions brought before the administrative courts. That said, the multi-layered structure of administrative law legislation and the short and final nature of the time limits in administrative procedure may, where the process is conducted by persons who are not lawyers, lead to irreversible errors both of form and of substance. It is therefore recommended that support be obtained from lawyers practising in the field of administrative law before any step is taken.
May a disciplinary penalty be imposed without an investigation?
It may not. The imposition of a disciplinary penalty on a civil servant depends on the existence of an investigation conducted in due form. Where no investigation has been carried out at all, or where it has been conducted contrary to procedure, an action for annulment may be brought against the penalty imposed on that basis.
What happens to a penalty imposed without the right of defence being afforded?
A period of at least 7 days for defence must be afforded to the civil servant. If a penalty has been imposed without this opportunity being provided, the act becomes unlawful and its annulment may be sought before the administrative court.
Must the defence be made orally?
No. The defence need not necessarily be presented orally during the investigation process; the civil servant may also convey his explanations in writing. It is furthermore possible for the defence to be made through a representative.
Within what time must the investigator complete the investigation?
The person appointed to carry out the investigation is obliged to conclude the examination within 2 months. Where that period proves insufficient, the investigator may request an extension by setting out the reasons for it.
May an investigation be conducted against a civil servant who has retired?
It may. All civil servants in post on the date the disciplinary offence was committed may be the subject of an investigation; having retired after the act does not prevent a penalty from being imposed. The only condition required here is that the limitation period for imposing a penalty has not yet expired.
What does remorse mean in disciplinary law?
Remorse denotes a person experiencing deep regret on account of something he has said or a way in which he has behaved. The Turkish Language Association defines the word as a person being sorry for something he has done or said.
Independent Legal Assessment
In disciplinary disputes the element determining the outcome is more often the procedure followed by the administration than the act itself. Shortcomings such as the period afforded for the defence being insufficient, the possibility of a lower penalty not being considered at all, the limitation period being missed or the decision being taken by an authority without competence may lead to annulment of the penalty without the debate on the merits being entered into. It is therefore appropriate to begin the assessment of a file with the chronology of the process rather than with the nature of the act alleged.
Once the penalty has been notified, the room for manoeuvre narrows. The 60-day time limit for bringing an action is final in nature, and the choices made within that period shape all the subsequent stages. In a specific dispute we recommend that the following headings in particular be given priority:
- Evidencing the dates on which the act was learned of and committed, and reviewing the one-month, six-month and two-year periods separately
- Examining the content of the letter requesting a defence in terms of whether it sets out the allegation with sufficient clarity
- Verifying whether the authority that took the decision is genuinely competent under the disciplinary regulation of the institution concerned
- Checking, through the reasoning of the decision, whether past service and the service record were assessed
- Where repetition has been applied, establishing whether the 5-year and 10-year periods have expired and whether the aggravation has remained limited to one degree
- Recording the date of notification and diarising the 60-day time limit for bringing an action from the outset
Independent Legal provides advisory and litigation services throughout the process in disputes arising from civil service disciplinary law, from the preparation of the defence at the investigation stage to the conduct of the action for annulment.