The framework provisions on the disciplinary liability of public officials are essentially gathered within Civil Servants Act No. 657. Not all public personnel are, however, subject to that Act; for groups of civil servants bound by their own special legislation, any disciplinary act to be taken must likewise conform to the procedure in that legislation. Otherwise the act becomes unlawful and may be set aside by an action for annulment brought before the administrative court. The legislature has provided for a series of penalties graduated according to the gravity of the conduct alleged: beginning with the lightest, warning, reprimand, deduction from salary, suspension of grade advancement and, finally, dismissal from the civil service.
An in-house remedy has been afforded against some of these penalties. For the sanctions of warning, reprimand and deduction from salary the authority addressed is the Disciplinary Board, and for suspension of grade advancement the High Disciplinary Board; in both cases the application must be made within 7 days of the date on which the decision is notified. As regards judicial review, a 60-day time limit for bringing an action runs from the day following notification. Rejection of the in-house objection does not extinguish the person’s right to go to court.
Being a civil servant means having been appointed to carry out a public service on behalf of the administration, and it brings with it a series of rules of conduct and duties of office. A disciplinary sanction may be imposed on personnel who act contrary to these rules or who fail to perform the duty they have undertaken. Since such a sanction is a final and enforceable administrative act, its lawfulness is reviewed by reference to five elements: competence, form, cause, subject matter and purpose.
Legislation Governing the Disciplinary Regime
Which acts call for a sanction, the types of penalty to be applied and the procedure by which those penalties are to be imposed are set out in the seventh chapter, entitled “Discipline”, contained in Articles 124 to 145 of Civil Servants Act No. 657. The provisions there are binding in respect of all personnel within the scope of the Act; no disciplinary act taken by the administration may go beyond that framework. In order to clarify the application of those provisions, the Civil Servants Disciplinary Regulation has additionally been brought into force. The Act and the Regulation constitute rules of a general nature; alongside them, special provisions on discipline are also encountered in the founding statute of the public institution where the civil servant works or in a disciplinary regulation issued by that institution.
Whether the rule is of a general or a special nature does not alter the outcome: every disciplinary act taken in respect of public officials must remain within the limits drawn by Article 129 of the Constitution. That same article expressly guarantees that disciplinary penalties may not be placed outside judicial review. Accordingly, every penalty imposed may be made the subject of an action seeking its annulment.
Types of Penalty That May Be Applied and the Conduct They Correspond To
Article 125 of the Civil Servants Act lists the sanctions applicable to civil servants from the lightest to the most severe and sets out in detail the acts and situations in which each sanction arises. Accordingly, depending on the nature of the conduct alleged, one of the penalties of warning, reprimand, deduction from salary, suspension of grade advancement and dismissal from the civil service may be applied.
Details such as the individual counterparts of the penalties, which conduct gives rise to which sanction and the limitation periods applicable in a disciplinary investigation are addressed in a separate note entitled Disciplinary Penalties That May Be Imposed on a Civil Servant.
One point calling for particular emphasis is the rule on repetition: if an act or situation that has formed the basis of a sanction is committed again while the penalty concerned has not yet been erased from the personnel file, the civil servant is given a penalty one degree more severe. Another matter frequently raised in practice is whether a security investigation concluded unfavourably in respect of a civil servant has any effect as regards a disciplinary penalty. That subject is examined separately in the article entitled Objection to an Unfavourable Security Investigation and the Action for Annulment.
Limitation in Disciplinary Investigations
Once the administration has learned that an act or situation calling for a disciplinary sanction has been committed, the process must be commenced within specified periods of time. For conduct calling for the sanctions of warning, reprimand, deduction from salary and suspension of grade advancement, a disciplinary investigation must be embarked upon within one month. In cases calling for the penalty of dismissal from the civil service, the period afforded to the administration is longer and disciplinary proceedings must be commenced within 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 also an absolute 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 sanction took place, the power to impose a penalty becomes time-barred.
For detailed explanations of the stages through which the investigation passes and of how it is conducted, the note entitled Disciplinary Investigations Concerning Civil Servants may be consulted.
The In-House Objection and Its Consequences
The second paragraph of Article 40 of the Constitution requires the administration, when notifying an act it has taken to the person concerned, also to state which remedies are open and the time limits relating to them; this obligation must be complied with when a penalty imposed by the disciplinary superior is notified. It is at this point that the in-house objection comes into play, giving the civil servant the possibility of having the penalty set aside within a comparatively short time, and the authority to which the application is to be made differs according to the gravity of the penalty.
For the penalties of warning, reprimand and deduction from salary the competent authority is the Disciplinary Board, and for the penalty of suspension of grade advancement the High Disciplinary Board. In both cases the application must be made within 7 days of notification of the decision. A penalty against which an objection has been made in time becomes final either by the decision of the objection authority or by that authority failing to take any decision within its time limit.
The only sanction falling outside this picture is dismissal from the civil service. No in-house objection authority is provided for in respect of that penalty. The sole possibility open to personnel faced with this sanction is to bring an action directly seeking annulment of the administrative act.
An objection made in due form may be concluded by the disciplinary board or high disciplinary board concerned in two ways: acceptance or rejection.
Where the application is accepted, the disciplinary superior who imposed the penalty reassesses the decision and exercises the power to mitigate the sanction or to set it aside entirely. It is not open to the superior at this stage to turn to a more severe sanction or to persist in the original decision; whatever the ground relied on, no such power exists.
Where the application is rejected, the penalty becomes final. The right to have recourse to administrative proceedings against the finalised sanction is reserved, and that right must be exercised within 60 days.
The Action for Annulment of a Disciplinary Penalty
Whether the sanction is light or severe does not affect the possibility of bringing an action for annulment; a disciplinary penalty of any degree of severity may be made the subject of an action before the administrative court.
The time limit for bringing an action is 60 days, running from the day following notification of the penalty. The fact that the administrative objection has been used and the application rejected by the board concerned does not constitute an obstacle closing off the judicial route. The course to be followed so that no rights are lost in terms of time varies according to the situation the civil servant is in:
- If an objection has been made but the authority has not yet taken a decision, as a rule that decision must be awaited. An action may be brought within the 60-day period after the decision has been issued, and recourse may equally be had to the courts upon the implied rejection arising where no reply is given within the 30 days following the application.
- If an objection has been made and the request rejected, the time limit for bringing an action is calculated as 60 days from notification of the rejection decision.
- Since there is no objection authority in respect of the penalty of dismissal from the civil service, an action must be brought directly within 60 days of the date on which the decision is notified.
A related development should also be mentioned: the criterion “Not having been the subject of a security investigation or archive research” in Article 48 of Act No. 657, which governs the conditions required for entry to the civil service, has been annulled by the Constitutional Court. Notwithstanding this, the criminal record of the candidate is still examined pursuant to paragraph 5 of the same article. In practice, instances are encountered from time to time in which applications for civil service posts are rejected on the ground of an unfavourable security investigation.
Courts with Subject-Matter and Territorial Jurisdiction
Since a disciplinary penalty is by its nature an administrative act, subject-matter jurisdiction in an action seeking its annulment lies with the Administrative Court. The decisive criterion as regards territorial jurisdiction is the place where the civil servant subject to the penalty works.
If the court is not applied to within the 60-day period running after rejection of the objection or after expiry of the 30-day implied rejection period, the disciplinary penalty becomes final. Where no use at all has been made of the in-house objection, the period starts on the date of notification of the administrative act stating that the penalty has been imposed; judicial review must be sought within 60 days of that date.
Frequently Asked Questions
Is representation by a lawyer mandatory in an action before the administrative court?
In Turkish law the parties may defend themselves in person before the courts; save for a limited number of exceptions, no obligation of representation by counsel is provided for. Nor is representation by an administrative law lawyer mandatory in actions heard before the administrative courts. That said, the scattered structure of administrative law legislation and the fact that the time limits in the Administrative Procedure Act are both short and final make it risky for the process to be conducted by persons who have not received legal training; errors of procedure and of substance may be made that cannot afterwards be remedied. It is therefore appropriate to obtain support from lawyers practising in the field of Administrative Law before any step is taken.
What is the objection period and which authority is applied to?
Application is made to the Disciplinary Board for the sanctions of warning, reprimand and deduction from salary, and to the High Disciplinary Board for the sanction of suspension of grade advancement. In both cases the period is 7 days from notification of the decision.
Where should a civil servant seeking annulment of the penalty apply?
A civil servant who wishes the disciplinary penalty to be set aside must, following notification of the decision, bring an action for annulment of the administrative act before the Administrative Court in the place where he works.
Is it necessary to object to the administration before bringing an action?
No. The bringing of an action for annulment is not conditional on an objection having first been made to the administration. Nonetheless, for sanctions other than dismissal from the civil service, the in-house objection remains open to the person concerned provided it is used within the time limit.
How does limitation operate in a disciplinary investigation?
From the moment it is learned that an act or situation calling for a sanction has been committed, a disciplinary investigation must be commenced within one month for the penalties of warning, reprimand, deduction from salary and suspension of grade advancement, and disciplinary proceedings must be commenced within six months for the penalty of dismissal from the civil service. Where these periods are not complied with, the administration’s power to impose a penalty becomes time-barred.
Independent Legal Assessment
In disciplinary disputes the factor determining the outcome is more often the procedure followed by the administration than the argument over whether the act was committed. Failure to allow the right of defence to be exercised in due form, defects of competence in the appointment of the investigator, selection of a penalty disproportionate to the act, or the missing of limitation periods may result in annulment without the merits being reached. When mapping out the course to be taken in a specific file, the following headings should be given priority:
- Evidencing on what date and in what proper form the notification documents were served
- Reviewing the content of the letter requesting a defence and the period afforded to the civil servant
- Calculating, for limitation purposes, the interval between the date the act was learned of and the date the investigation was commenced
- Testing whether the sanction imposed corresponds to the type of penalty assigned to the act in Civil Servants Act No. 657, Art. 125
- Where repetition has been applied, ascertaining whether the earlier penalty has been erased from the personnel file
Independent Legal provides legal advisory and litigation services throughout the process in disciplinary proceedings against public officials, from the defence stage to the conduct of the action for annulment.