Objection to the Decision to Dismiss Public Service

Objection to the Decision to Dismiss Public Service. Dismissal from civil service is the most severe disciplinary sanction, terminating a public official’s status and preventing further employment in the public service. This action, regulated under Article 125/E of Law No. 657 on Civil Servants, not only terminates a civil servant’s career but also constitutes “professional isolation” with severe financial and social consequences. This study aims to comprehensively analyze the legal journey of the dismissal process, from the administrative investigation phase to the decision of the High Disciplinary Board, and from the subsequent annulment cases heard in the Administrative Courts to the appeals process at the Council of State, from the perspectives of the right to defense, procedural safeguards, the principle of fair trial, and post-reinstatement financial rights.

1. Introduction: The Place and Importance of the “Dismissal from Civil Service” Sanction in Administrative Law

In the systematic of Turkish Administrative Law, the principle of continuity and regularity of public service constitutes the basis of the civil service status. This status, guaranteed by Article 128 of the Constitution, aims to prevent civil servants from being removed from their duties through arbitrary actions. However, in order to protect the internal order of the administration, ensure hierarchy, and liquidate elements that damage the reputation of public service, the “Dismissal from Civil Service” (Expulsion) penalty, which is the heaviest sanction of disciplinary law, has been regulated. This report aims to deeply analyze the material and formal elements of this sanction regulated under Article 125(E) of the Civil Servants Law No. 657 (DMK), procedural guarantees during the investigation phase, judicial remedies, and the legal consequences of annulment decisions, in the light of current legislation, high court precedents, and doctrinal views.

Dismissal from civil service does not only mean the termination of the civil servant’s current duty; it is an administrative action in the nature of “professional death” or “statutory isolation” that prevents the person from being employed in public service indefinitely. Law No. 657 defines this penalty as “termination of the civil service status, never to be appointed to the civil service again,” thus revealing the finality and severity of the sanction. The emergence of such a severe consequence necessitates that the administration’s action be subjected to strict judicial review in terms of competence, form, cause, subject matter, and purpose elements, pursuant to the rule of law principle.

In our report, the process extending from the beginning of the disciplinary investigation to the decision-making process of the High Disciplinary Board, followed by the annulment lawsuits to be filed in Administrative Courts and finally the appeal stage at the Council of State, will be discussed from the perspective of “equality of arms” and “right to a fair trial”. Critical issues such as the principle of separation between the investigator and the disciplinary superior, the inviolability of the right of defense, the legal certainty of the imputed acts, and the principle of proportionality will be detailed with the support of relevant judicial decisions.

2. Material Legal Bases and Elements of the Penalty of Dismissal from Civil Service

For the penalty of dismissal from civil service to be applied, an act explicitly defined in the law must first occur. The principle of “nullum crimen, nulla poena sine lege” (no crime and no punishment without law) in administrative law also applies to disciplinary law. Article 125/E of Law No. 657 lists the cases requiring this penalty in a limited (numerus clausus) manner. However, in practice, how the administration interprets ambiguous expressions such as “acts of a disgraceful nature and degree incompatible with the title of civil servant” is of great importance.

2.1. Ideological and Political Acts and Public Order

Article 125/E-a of Law No. 657 aims to protect the security of the state and the neutrality of public service. According to this article; disrupting the peace, tranquility, and working order of institutions for ideological or political purposes, participating in actions such as boycott, occupation, obstruction of public services, slowdowns, and strikes, not coming to work collectively for these purposes, provoking, encouraging, or assisting these acts requires dismissal from civil service.

A noteworthy point in the analysis of this provision is the condition that the act must have an “ideological or political purpose.” According to the precedents of the Council of State, it is necessary to distinguish between the acts of the civil servant that remain within the scope of mere trade union activities or democratic reaction and the acts within the scope of this article. For example, whether a one-day work stoppage action taken in accordance with a trade union decision can be evaluated as “obstruction of public service for ideological purposes” should be examined in the context of the duration, purpose, and effect of the action on public order. However, the legislator has deemed acts that violate the strike ban and stop the functioning of the institution with political motives as the heaviest disciplinary offense.

2.2. Prohibited Publications and Political Party Membership

The neutrality of the civil servant is a constitutional obligation. Membership in a political party by civil servants is strictly prohibited by Article 7 of Law No. 657. Acting contrary to this prohibition, i.e., being a member of a political party, is a direct cause for dismissal from civil service pursuant to Article 125/E. The administration’s discretion here is quite limited; when membership is detected through the records of the Chief Public Prosecutor’s Office of the Court of Cassation, the act is deemed to be proven.

In addition, printing, reproducing, distributing prohibited publications of any kind or declarations, posters, banners, tapes, and similar materials for political or ideological purposes, or hanging or displaying them anywhere in the institutions are also evaluated within the same scope. At this point, the legal certainty of the concept of “prohibited publication” gains importance. Possession or reading of a publication that has not been decided to be confiscated or banned by a court decision cannot be evaluated within the scope of this article. While applying this article, the administration must strike a constitutional balance between freedom of expression and the duty of loyalty required by public service.

2.3. “Disgraceful Acts” Incompatible with the Title of Civil Servant (Article 125/E-g)

The provision that creates the most debate in practice and grants the widest discretion to the administration is clause 125/E-g. According to this clause; “Committing disgraceful and shameful acts of a nature and degree incompatible with the title of civil servant” requires dismissal from civil service.

The elements of this article are:

Nature of the Act: The act must be “disgraceful and shameful.” Acts defined as disgraceful crimes in the Turkish Penal Code, such as bribery, theft, embezzlement, extortion, and forgery, fall into this scope.
Degree of the Act: The act is required to be “of a nature and degree incompatible with the title of civil servant.” This expression envisages punishing not every unethical behavior, but behaviors of a severity that would shake the reputation of the civil service in the eyes of the public.
Sample Cases: Situations such as drug use, obtaining benefits by abusing duty, and sexual behaviors contrary to morality reflected in the public are evaluated within the scope of this article. The Council of State meticulously examines whether the act is proven (whether it is proven with conclusive evidence) in such cases. The operation of this article based on abstract imputations or gossip constitutes unlawfulness in terms of the “cause element.”

2.4. Other Reasons for Dismissal

Among other important reasons listed in the Law are;

Unexcused Absence: Not coming to duty for 20 days in total or 10 consecutive days without excuse within a calendar year.
Physical Assault on Superiors: Using or allowing the use of any place within the boundaries of the duty station for meetings, ceremonies, and similar purposes without permission, or closing these places.
Disclosing Confidential Information: Disclosing confidential information without authorization (Information in the nature of State secrets).

The table below summarizes the categorization of acts requiring the penalty of Dismissal from Civil Service:

Category of Act	Legal Basis (657 DMK 125/E)	Description and Scope
Political and Ideological Acts	Article 125/E-(a)	Disrupting peace and tranquility, boycott, occupation, slowdown, strike.
Prohibited Publication & Propaganda	Article 125/E-(b)	Printing, distributing, hanging prohibited publications in the institution.
Political Party Membership	Article 125/E-(c)	Being a member of a political party (Violation of neutrality principle).
Absenteeism	Article 125/E-(d)	Not coming to duty for a total of 20 days in a year without excuse.
Assault on Superior/Colleague	Article 125/E-(f)	Committing physical assault against superiors, subordinates, and business owners.
Disgraceful Crimes	Article 125/E-(g)	Shameful acts incompatible with civil service (Theft, bribery, etc.).
Disclosing Confidential Info	Article 125/E-(h)	Disclosing confidential information without authorization.
Crimes Against Atatürk	Article 125/E-(l)	Committing acts contrary to Law No. 5816.
Terrorist Organization Affiliation	Article 125/E-(k)	Being in unity of action with terrorist organizations, aiding them.

3. Disciplinary Investigation Process and Procedural Guarantees

Although the penalty of dismissal from civil service is an action established by the unilateral will of the administration, the formation of this will is tied to strict formal conditions. The disciplinary investigation, which is the “preparatory” phase of the administrative action, is the prerequisite for a lawful penalty. Procedural errors in the investigation phase are considered grounds for annulment by judicial authorities, no matter how justified the penalty is on the merits (Unlawfulness in terms of form).

3.1. Investigation Order and Appointment of Investigator

For the process to begin, the authorized disciplinary superior must give a written “investigation approval” or “investigation order.” Examinations made or defenses taken directly without an investigation order do not carry the quality of a legally valid disciplinary investigation. The investigator (muhakkik) is a public official appointed by the superior, usually superior or equal in rank to the civil servant.

The most critical procedural rule here is the principle of “Separation of Investigator and Disciplinary Superior/Board Member.” The principle of “impartiality,” which is a requirement of the rule of law, also applies to administrative investigations. According to the settled precedents of the Board of Administrative Chambers of the Council of State and the 12th Chamber of the Council of State; it is unlawful for the person who draws up the minutes regarding the incident, gives the investigation approval, or personally conducts the investigation to be the same person who imposes the penalty or votes in the board imposing the penalty. The investigator is the prosecution authority, and the Disciplinary Board is the decision-making authority. The combination of these two titles in the same person undermines the civil servant’s right to a fair trial and the right of defense.

3.2. Right of Defense: An Indispensable Fundamental Right

Article 129 of the Constitution mandates that “Disciplinary penalties cannot be imposed on civil servants… unless they are granted the right of defense.” This provision is concretized by Article 130 of Law No. 657.

Duration Condition: The period to be given to the civil servant to make their defense cannot be less than 7 days. If the investigator or the board notifies a letter saying “Submit your defense within 3 days,” this situation directly vitiates the action.
Clarity of Imputation: In the letter requesting defense, what the act imputed to the civil servant is (place, time, manner of occurrence) and under which article it is evaluated must be clearly stated. General and abstract expressions such as “Submit your defense regarding the allegations against you” mean restriction of the right of defense. A civil servant cannot make an effective defense without knowing exactly what they are accused of.
Right to Silence: A civil servant who does not make a defense within the specified period is deemed to have waived the right of defense. However, this silence does not mean acceptance of the guilt; the administration is still obliged to prove that the act was committed with concrete evidence.

3.3. Decision Authority: High Disciplinary Board (YDK)

The penalty of dismissal from civil service cannot be given directly by disciplinary superiors (e.g., School Principal, Branch Manager, Governor). This authority belongs exclusively to the High Disciplinary Board of the institution to which the civil servant is affiliated.

If the disciplinary superior completes the investigation file and concludes that the civil servant should be dismissed, they refer the file to the High Disciplinary Board with their reasoned proposal. The Board examines the file. As an important guarantee; the civil servant has the right to make an oral defense or to make their oral defense through their lawyer at the High Disciplinary Board (Law No. 657, Art. 129). It is a severe procedural error for the Board to make a decision without reminding of this right.

The authority of the High Disciplinary Board is limited; it either accepts or rejects the penalty in the file before it. The Board does not have the authority to reject the dismissal proposal and decide to “impose a penalty of reprimand” instead (Law No. 657, Art. 126/3). If the Board rejects the dismissal proposal, the file returns to the appointing authority, and the superior may impose a lighter disciplinary penalty (e.g., deduction from salary or suspension of progress in rank) on the civil servant within 15 days.

3.4. Decision Period and Statute of Limitations

Article 128 of Law No. 657 envisages a special period to speed up the decision process in dismissal files. Accordingly; the file belonging to the investigation conducted by disciplinary superiors must be decided within a maximum of six months from its submission to the High Disciplinary Board.

Nature of the Six-Month Period: Although this period is generally accepted as a “regulatory period” in the doctrine and Council of State decisions, there are signs in some decisions that exceeding this period may be evaluated as exceeding the disciplinary authority in terms of time. However, what is certain is that decisions made after the 6-month period becomes open to debate within the scope of the principle of “trial within a reasonable time.”
Statute of Limitations for Punishment: If disciplinary prosecution is not started within 6 months from the date the act requiring dismissal from civil service is learned, the authority to impose disciplinary penalties is barred by the statute of limitations. Furthermore, if a disciplinary penalty is not imposed within 2 years from the date the act was committed, the authority to impose a penalty is completely eliminated (Law No. 657, Art. 127). These periods are of the nature of forfeiture periods and are taken into account ex officio by the courts.

4. Administrative Judicial Remedy: Annulment Action and Conditions for Filing a Lawsuit

The dismissal decision given by the High Disciplinary Board is a final and executory administrative action subject to administrative lawsuit. At this stage, administrative remedies for the civil servant are exhausted or have become optional, and the judicial review process begins.

4.1. Competent Court and Venue

Competent Court (Subject Matter): Administrative Court.
Venue (Territorial Jurisdiction): Article 33 of the Code of Administrative Procedure No. 2577 (IYUK) introduces a special venue rule for lawsuits related to public officials. Accordingly, the authorized court is the administrative court of the place where the public official last served.
- Example: A civil servant who was investigated and dismissed while working as a teacher in Istanbul must file the annulment lawsuit in the Istanbul Administrative Court, even if they moved to their hometown Samsun after the dismissal. If filed in Samsun, the court will give a decision of “rejection due to venue” and send the file to Istanbul. This situation does not cause the dismissal of the case but leads to the prolongation of the process (approximately 2-3 months).

4.2. Time Limit for Filing a Lawsuit

The period for filing an annulment lawsuit is 60 days starting from the day following the notification of the dismissal decision to the civil servant.

Forfeiture Period: This period is a forfeiture period. If the last day of the period falls on a weekend or an official holiday, a lawsuit can be filed until the end of working hours on the first working day following the holiday. Periods do not run during the judicial recess (July 20 – August 31), but if the end of the period coincides with the judicial recess, the period is deemed to be extended by 7 days from the end of the judicial recess (IYUK Art. 8).
Absence of Mandatory Administrative Application: There is no obligation to appeal to a higher authority against disciplinary penalties given pursuant to Law No. 657. The action becomes final with the YDK decision. However, an objection can be made to the higher authority (Ministry, etc.) within the scope of IYUK Art. 11. This objection stops the lawsuit filing period. If the administration does not respond within 30 days, it is considered a “tacit rejection” and the stopped period continues to run from where it left off. However, in practice, filing a lawsuit directly is preferred.

4.3. Formal Requirements of the Petition (IYUK Article 3 and 5)

Administrative judiciary is subject to written trial procedure, and the formal requirements of petitions are very strict. Errors in the petition cause the process to be prolonged with a “rejection of petition” decision, if not the rejection of the case.

Mandatory Elements: Name, surname, T.R. ID number, address of the plaintiff (civil servant); name of the defendant administration; subject of the lawsuit (Annulment of the action and restitution of personal rights); notification date of the action; grounds for unlawfulness of the action and evidence.
Financial Rights and Interest Claim: In the petition, not only the annulment of the action but also the restitution of monetary rights (salary, additional course fees, etc.) deprived due to the action should be requested. Here, the interest start date is a critical detail. According to the precedents of the Council of State, it should be requested that the legal interest to accrue on the amounts to be returned should be operated “from the date of entitlement of each salary,” not “from the lawsuit filing date.” If the request is “from the lawsuit date,” the court may be bound by the request and rule for less interest.
Rejection of Petition Decision: In case of violation of IYUK Art. 3, the court rejects the petition and gives the plaintiff a period of 30 days. If a renewal petition is not submitted within this period correcting the deficiencies, or if the same mistake is made in the renewed petition, the lawsuit is rejected.

5. Request for Suspension of Execution (SoE) and Conditions

Since the dismissal from civil service causes the cessation of the civil servant’s salary, termination of social security, and psychological destruction from the moment it is applied, it is vital to suspend the effects of the action until the end of the lawsuit. This mechanism is the “Suspension of Execution” (SoE).

5.1. Conditions Required for SoE Decision

Pursuant to Article 27 of IYUK, two conditions must be realized together for the court to grant a SoE decision:

Occurrence of Damages Difficult or Impossible to Compensate: Since the dismissal action cuts off the civil servant’s livelihood by its nature, it is generally accepted that this condition is met.
The Administrative Action Being Clearly Unlawful: If the court concludes that the action is unlawful in the preliminary examination made on the file (e.g., if the investigator and the superior are the same person or if defense was not taken), this condition is also deemed to be realized.

5.2. Administration’s Defense and Decision Process

As a rule, a SoE decision is not given without taking the defense of the administration. The court notifies the lawsuit petition to the administration and gives a period for defense (usually 15-30 days). A decision on SoE is made after the defense is received or the period expires.

Effect of SoE Decision: If a SoE decision is given, the administration must temporarily reinstate the civil servant to duty and start paying their salary within 30 days. However, this is not a final victory; the lawsuit continues on the merits.
Objection: An objection can be made to the Regional Administrative Court (BIM) against decisions regarding the rejection or acceptance of the SoE request within 7 days from the notification of the decision. Decisions given by BIM on this matter are final.

6. Claims of Unlawfulness and Grounds for Annulment

In the annulment lawsuit, the court reviews the action in terms of 5 elements (Competence, Form, Cause, Subject Matter, Purpose). Basic arguments that the plaintiff civil servant should emphasize in their petition are:

6.1. Procedural (Form) Deficiencies

Procedural errors detailed in the previous sections of the report constitute the biggest justification for annulment decisions:

Investigator and disciplinary superior being the same person.
Giving a defense period of fewer than 7 days.
Not explicitly stating the imputation in the defense request letter.
Not granting the right to oral defense in the YDK.
Exceeding the statute of limitations.

6.2. Cause Element: Non-Establishment of the Act

The administration must prove that the act for which it imposed a penalty was committed by the civil servant “with conclusive and convincing evidence, free from any doubt.” The Council of State applies the principle of “the suspect benefits from the doubt” (in dubio pro reo) in disciplinary law as well. Penalties given only with contradictory witness statements or unproven denunciation letters are annulled due to “incomplete investigation.” Especially in Article 125/E-g (disgraceful crime), it is mandatory to concretize the nature and degree of the act.

6.3. Principle of Proportionality and Lower Penalty Application

There must be a fair balance between the act alleged to be committed by the civil servant and the penalty given. The Constitutional Court and the Council of State consider the “principle of proportionality” as one of the fundamental elements of the administrative action. In addition, for civil servants whose past services have been positive and who have awards/certificates of achievement, applying “one lower penalty” (Suspension of Progress in Rank instead of Dismissal) pursuant to Art. 125/2 of Law No. 657 is within the discretion authority. However, the administration must justify why it did not apply the lower penalty. Not applying a lower penalty without justification can be a reason for annulment.

6.4. Effect of Criminal Proceedings (HAGB and Acquittal)

The act of the civil servant constituting a disciplinary offense may also constitute a crime in the sense of the Turkish Penal Code.

Acquittal: Acquittal due to lack of evidence does not automatically remove the disciplinary penalty (Independence of disciplinary law). However, an acquittal decision given on the grounds that “it is fixed that the crime was not committed by the defendant” binds the administration.
HAGB (Deferral of the Announcement of the Verdict): The HAGB decision given by the criminal court is a decision that does not produce a conviction and legal consequences for the defendant. According to the settled precedent of the Council of State, the HAGB decision alone cannot be evidence that the disciplinary offense was committed; the administration needs to conduct its own investigation and prove the act. However, if there is a conviction for a crime impeding civil service (e.g., embezzlement) and this becomes final, the civil service terminates automatically pursuant to Art. 48 and 98 of Law No. 657 (deemed to have withdrawn from duty). This situation is different from disciplinary penalty.

7. Post-Trial Legal Remedies: Appeal (Istinaf and Temyiz)

The decision given by the Administrative Court is not final. Parties (Civil Servant or Administration) can carry the decision to a higher court.

7.1. Appeal to Regional Administrative Court (Istinaf)

Period: An application for appeal can be made within 30 days from the notification of the Administrative Court decision.
Process: The appeal petition is submitted to the court that gave the decision. The Regional Administrative Court examines the file in terms of both material facts (case) and law. It can collect evidence again if necessary.
Decision: It can reject the application (Approval), remove the decision and make a new decision, or return the file to its court.

7.2. Appeal to Council of State (Temyiz)

Lawsuits for dismissal from civil service are among the lawsuits subject to Temyiz (appeal to supreme court) pursuant to Article 46/c of IYUK, as they result in disqualification from the profession. It does not become final at the Istinaf stage.

Period: An application for appeal to the Council of State must be made within 30 daysfrom the notification of the regional administrative court decision.
Review: The Council of State (usually the 12th Chamber or 5th Chamber) reviews the decision only in terms of conformity with the law.

Legal Remedy	Competent Authority	Application Period	Scope of Review
Objection (to SoE)	Regional Admin. Court	7 Days	Only Suspension of Execution decision
Appeal (Istinaf)	Regional Admin. Court	30 Days	Material Facts + Legal Review
Appeal (Temyiz)	Council of State	30 Days	Only Legal Review

8. Implementation of Annulment Decision and Financial Consequences

The court’s annulment of the dismissal action results in the erasure (retroactive effect) of the action from the legal world from the moment it was born.

8.1. Obligation of Reinstatement

Pursuant to Article 138 of the Constitution and Article 28/1 of IYUK, the administration is obliged to implement court decisions without delay. This period cannot exceed 30 daysfrom the notification of the decision to the administration in any case. The administration must start the civil servant in their old position or an equivalent position. Reasons such as “lack of cadre” or “someone else was appointed to their place” cannot prevent the implementation of the court decision.

8.2. Restitution of Financial Rights and Legal Interest

The civil servant receives all salaries, bonuses, additional payments, and revolving fund shares that they could not receive during the period they were suspended, collectively.

Interest Calculation: The administration generally tends to start the interest from the lawsuit date or the application date to the administration. However, what is lawful and should be requested is the legal interest to accrue from the date each salary was supposed to be paid. In this way, the loss of rights in an inflationary environment is prevented to some extent.
Social Security Premiums: Retirement deductions belonging to the periods passed in suspension are deposited to the Social Security Institution (SGK) by the institution, and these periods are counted as service.

8.3. Non-Pecuniary Damages

Non-pecuniary damages can be claimed due to the deep pain, suffering, and loss of reputation in the social circle experienced by the civil servant due to the dismissal action. This claim can be submitted in the petition together with the annulment lawsuit (as a Full Remedy Action), or it can be requested with a separate lawsuit within the period (60 days from the notification of the annulment decision) after the annulment decision becomes final. Courts rule on non-pecuniary damages in amounts varying according to the severity of the incident.

9. Conclusion and Recommendations

The legal struggle against the decision of dismissal from civil service is a complex process where technical details and procedural rules are determinant. In administrative law, procedure comes before substance. Therefore, civil servants must pay maximum attention to:

Absolutely Not Missing Deadlines: (At least 7 days for defense, 60 days for filing a lawsuit, 30 days for appeal).
Identifying Procedural Errors: Prioritizing procedural deficiencies such as whether the investigator-superior separation was observed and statute of limitations in the lawsuit petition.
Making Defense with Concrete Evidence: Submitting concrete data (camera, HTS records, witnesses) to the court to refute the abstract allegations of the administration.
Correctly Claiming Financial Rights: Correctly stating the interest start dates.

Unjust dismissal decisions are reversed by administrative judicial authorities with an effective legal defense, and civil servants can regain their rights. Although this report serves as a guide in the said process, it should not be forgotten that each concrete case has its own unique characteristics, and professional legal support should be sought.

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