The disciplinary sanctions applied by the administration to a civil servant and the penalties imposed at the end of criminal proceedings differ from one another in their character, in the aim they pursue, in the sanctions they provide for, in the effects they produce and in the conditions of their application. It is therefore unavoidable that criminal prosecution and disciplinary investigation should be treated as separate processes; on the other hand, it is equally impossible to think of the two as entirely disconnected. Indeed, the legislature has expressly stated that the initiation of a prosecution against a civil servant before a criminal court on the basis of the same incident cannot delay the disciplinary proceedings, and that whether or not the civil servant is convicted under the criminal law cannot constitute an obstacle to the application of a disciplinary penalty.
It is perfectly possible for the conduct calling for a disciplinary sanction to be applied to a public official also to constitute an offence under Turkish Penal Code No. 5237 (TCK) or under other laws. In such cases, whether criminal proceedings have been conducted, whether they are still pending, and what decision has been given at their conclusion all produce consequences for the disciplinary process. Furthermore, different pictures emerge according to whether the criminal case was determined before the disciplinary investigation, while that investigation was pending, or afterwards.
Below we address these possibilities separately; we assess what result acquittals produce in disciplinary law according to the ground on which they rest, and whether a decision to defer the announcement of the judgment has any binding force.
The Statutory Framework of the Link Between the Two Processes
The basic provision on the subject is contained in Article 131 of Civil Servants Act No. 657:
Civil Servants Act No. 657, Art. 131
"The fact that a prosecution has been commenced against a civil servant before a criminal court on account of the same incident cannot delay the disciplinary proceedings. The cases in which the civil servant is or is not convicted under the criminal law cannot, moreover, constitute an obstacle to the application of a disciplinary penalty."
The provision makes it plain that the two processes are not dependent on one another. Under the same article, nor is the conclusion of the criminal case against the civil servant concerned awaited before the disciplinary investigation may be completed.
As can be seen, the legislature has intended the criminal proceedings and the disciplinary investigation concerning a civil servant to be conducted independently of one another. Nonetheless, a practice confined to the bare wording of the article cannot be defended. For the judgment given in criminal proceedings has the character of res judicata, and some of the decisions given are binding in respect of the other branches of the judiciary as well.
Although the disciplinary process must be conducted separately from the criminal case, the statements of the complainant, the accused and the witnesses heard in the criminal file must be taken into account in the disciplinary investigation. In the same way, the evidence gathered in the criminal file and the decisions of the criminal court are also taken into consideration in the investigation.
On the other hand, it is equally unacceptable for a disciplinary penalty to be based solely on the evidence in the criminal file. Since sanctions established in this way will be unlawful, an action for annulment may be brought against the disciplinary penalty imposed on the civil servant so as to secure its removal.
A Criminal Decision Given Before the Disciplinary Investigation
The aim pursued by the words "the cases in which the civil servant is or is not convicted under the criminal law cannot, moreover, constitute an obstacle to the application of a disciplinary penalty" in Article 131 of Act No. 657 is that the decision given in the criminal proceedings should not directly determine the outcome of the disciplinary process. It should not, however, be inferred from this provision that the criminal file or the criminal decision is to be given no consideration at all in the disciplinary investigation. Indeed, the administrative courts and the Council of State accept in their settled case law that the evidence gathered in the criminal file and the decisions given must be assessed in the disciplinary investigation. Where it has been ruled at the end of the criminal proceedings that the public official "did not commit the act attributed to him", that decision directly affects the outcome of the disciplinary process and no disciplinary penalty should be imposed on the civil servant.
The judgment of the Court of Cassation, 5th Civil Chamber, dated 11.11.2020, docket no. 2016/29950 and decision no. 2020/2058 summarises the matter as follows:
"…On the other hand, where the acts committed by public officials constitute, alongside a disciplinary offence, an offence in terms of criminal law as well, the criminal proceedings and the disciplinary investigation will be conducted independently of one another and, apart from rulings to the effect that the public official "did not commit the act attributed to him", the decisions of the criminal court will have no direct binding force as regards the disciplinary proceedings…."
Where the civil servant’s conduct constitutes both a disciplinary breach and an offence, the effects of the various decisions issuing from the criminal court on the disciplinary process also differ. Quite apart from a conviction or a decision to defer the announcement of the judgment, even the ground on which an acquittal rests may alter the result. Accordingly:
- Where the criminal court has given a judgment of acquittal on grounds of lawfulness, no disciplinary penalty may be applied to the civil servant, since grounds of lawfulness are valid for the legal order as a whole.
- Where a disciplinary penalty is nonetheless imposed on a civil servant acquitted on the ground that he did not commit the act attributed to him, the sanction is left devoid of legal basis, since the conduct calling for the penalty was not carried out by the civil servant, and it may be annulled outright.
- Where a judgment of acquittal for insufficiency of evidence has been given, a twofold distinction is drawn: if the insufficiency concerns whether the act took place or whether the civil servant committed that act, no disciplinary penalty should be applied; where, on the other hand, the lack of evidence relates to the other elements of the offence, the disciplinary sanction corresponding to the civil servant’s conduct is applied.
- Where a judgment of acquittal on the ground that the elements of the offence required for punishment are not made out has been given, the disciplinary penalty corresponding to the civil servant’s conduct may be applied.
- Where there has been an acquittal on the ground that the conduct complained of does not constitute an offence under the TCK, the way is likewise open to a disciplinary sanction. For this, however, it must separately be established that the act was committed by the civil servant and that it constitutes a disciplinary offence according to the criteria of disciplinary law.
A Criminal Decision Issued While the Disciplinary Investigation Is Pending
Where, while the disciplinary investigation concerning the civil servant is pending, criminal proceedings have been conducted and determined in relation to the conduct forming the subject of the investigation, the continuing disciplinary process may be affected by that decision. Just as in the case where the criminal decision became final before the disciplinary investigation, here too the type of judgment given and the ground on which it rests are decisive. If the judgment acquitting the civil servant rests on one of the grounds that he did not commit the act, insufficiency of evidence, or lawfulness, the continuing disciplinary investigation must be brought to an end and no act imposing a disciplinary penalty on the civil servant should be established.
If, despite this, a disciplinary penalty is applied to the civil servant where a judgment of acquittal has been given on the grounds listed, it is of great importance that an action for annulment be brought against that administrative act. For, since an act established in this way will be unlawful, its annulment by the administrative judiciary may come into question.
The following point should also be noted: if no penalty is imposed within two years from the date on which the acts and situations calling for a disciplinary penalty occurred, the power to impose a penalty becomes time-barred. Because of this limit, the disciplinary investigation is in most cases completed earlier than the criminal proceedings.
Criminal Proceedings Concluded After the Disciplinary Penalty
It is legally possible for a disciplinary investigation to be conducted and a sanction applied while a criminal prosecution against the civil servant is pending; however, since the decision to be given at the end of the prosecution will affect the disciplinary penalty, this situation may give rise to various legal problems. The principal reason for this is that, whereas criminal proceedings generally take a long time, the power to impose a disciplinary penalty is subject to a 2-year statute of limitations running from the date on which the act was committed. For this reason, in practice the disciplinary process is concluded without awaiting the outcome of the criminal case. Yet, since certain decisions that may issue from the criminal proceedings are capable of removing the legal basis of the disciplinary penalty, sanctions imposed without waiting may subsequently be annulled.
If it is decided at the end of the criminal proceedings that the act never took place or that it was not committed by the accused civil servant, the legal basis of the disciplinary penalty that has been applied collapses. In this event it becomes possible for the sanction in question to be annulled by the administrative court.
The Effect of a Decision to Defer the Announcement of the Judgment
Deferral of the announcement of the judgment (HAGB) differs by its very nature in a number of respects from the other decisions issuing from the criminal courts. HAGB denotes that the judgment of conviction established against the civil servant produces no legal consequences; in terms of the consequences it produces it has a hybrid structure and contains within it two separate decisions:
- The first of these is the judgment which, although it counts as a judgment in the technical sense, cannot come into existence in the legal world because it has been decided that its announcement be deferred, and which for that reason produces no consequences. That criminal judgment is a judgment of conviction which will turn into a ruling of abatement if the conditions of the supervision period are complied with, and will come into existence if they are not.
- The second is the decision to defer the announcement of the judgment, which is built upon that preliminary judgment and prevents it from coming into existence. The most distinctive feature of this decision is that, for as long as it remains in force, the preliminary judgment cannot acquire the character of producing legal consequences.
When the legislation in force is assessed as a whole, the conclusion is reached that a decision to defer the announcement of the judgment given in respect of the person concerned at the end of criminal proceedings is not binding as regards the disciplinary investigation and the disciplinary proceedings. The disciplinary process must be conducted independently of the criminal case.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative courts?
Under Turkish law, parties may defend themselves in person before the courts; save for limited exceptions, there is no obligation to appoint a representative. No such obligation is laid down for the administrative courts either. Nonetheless, the complex structure of administrative law legislation and the short and strict time limits in the Administrative Procedure Act may, where the process is conducted by persons who are not lawyers, lead to errors that are difficult to remedy in both procedural and substantive terms. It is therefore advisable to obtain support from lawyers practising in the field of administrative law before any step is taken.
Is the criminal case treated as a preliminary issue in the disciplinary investigation?
Under Civil Servants Act No. 657, the fact that a prosecution has been commenced against a civil servant before a criminal court on account of the same incident cannot delay the disciplinary proceedings. The criminal proceedings are therefore not regarded as a preliminary issue as regards the disciplinary investigation.
May a disciplinary penalty be imposed on a civil servant acquitted for not having committed the act?
Where a disciplinary penalty is applied to a civil servant acquitted on the ground that he did not commit the act attributed to him, the sanction is left devoid of legal basis, since the conduct calling for the penalty was not carried out by the civil servant, and it may be annulled outright.
Is an HAGB decision binding on the disciplinary process?
A decision to defer the announcement of the judgment given in respect of the person concerned at the end of criminal proceedings has no binding force as regards the disciplinary investigation and the disciplinary proceedings. The disciplinary process must be conducted independently of the criminal case.
May a disciplinary penalty be applied where there has been an acquittal on grounds of self-defence?
Self-defence is regulated in criminal law as a ground of lawfulness. Where a judgment of acquittal is given on the basis of a ground of lawfulness, no disciplinary penalty may be imposed, since such grounds are valid for the legal order as a whole.
What happens where there has been an acquittal because the elements of the offence are not made out?
Where a judgment of acquittal has been given in the criminal proceedings on the ground that the elements of the offence required for punishment are not made out, the disciplinary penalty corresponding to the civil servant’s conduct may be applied.
The Independent Legal Assessment
What is decisive in disputes in this field is not the acquittal itself but the ground on which it rests. The error most frequently made by disciplinary authorities in practice is to treat a judgment of acquittal as a single, uniform outcome and to go no further into the distinctions between the grounds. Yet an acquittal resting on a ground of lawfulness, or on a finding that the act was not committed by the civil servant, removes the legal basis of the disciplinary sanction entirely. The two-year limitation period for imposing a penalty, in turn, drives the administration to decide without awaiting the outcome of the criminal case and thus structurally feeds the risk of subsequent annulment.
In a specific file, the following headings must be addressed with care:
- Extracting the ground of the judgment of acquittal from the text of the decision word for word and characterising it correctly
- Checking whether the disciplinary penalty has been based solely on the evidence in the criminal file
- Calculating the two-year limitation period running from the date on which the act was committed
- Examining whether the statements of the witnesses and the complainant in the criminal file have been reflected in the disciplinary investigation
- Advancing the unlawfulness of that assessment in acts established by treating an HAGB decision as binding
- Scheduling the time limit for bringing the action for annulment by reference to the notification of the disciplinary penalty
Independent Legal provides advisory services and litigation management in disciplinary investigations conducted in respect of public officials and in actions for annulment to be brought against the acts established as a result of those investigations.