T.R. SUPREME COURT
- Department of Law
Basis: 2016/4562
Decision: 2016/7793
Decision Date: 03.05.2016
CANCELLATION OF THE INSTITUTIONAL TRANSACTION – DETERMINATION OF THE RIGHT TO BORROW THE WORKING TIMES REALIZED ABROAD WITHOUT THE CONDITION OF BEING A TURKISH CITIZEN – OVERFLOW OF THE PROVISION
SUMMARY: The Plaintiff has requested that it be determined that he has the right to borrow the working hours abroad, without the condition of being a Turkish Citizen, and that the Institution’s transaction to the contrary be cancelled. In the concrete case; the claimant’s insurance in Turkey was working subject to the TR Pension Fund between … – …, he was allowed to renounce his Turkish citizenship in order to acquire German citizenship with the decision of the Council of Ministers dated … It has been found that it actually works. It is understood that the plaintiff, who was a member of the Pension Fund due to his work in Turkey before the law came into force, resulted from the request of borrowing his work abroad in accordance with the Law, and considering that the resolution of the dispute falls within the jurisdiction of the administrative judiciary, the “judiciary While it should be decided to reject the lawsuit due to the fact that the way of the action is not permissible, it is against the procedure and the law to decide on the merits of the case and is the reason for annulment. The respondent Institution’s appeals aimed at these aspects should then be admitted and the judgment quashed.
(6100 S. K. Art. 114) (5510 S. K. Art. 101, Cr. Art. 4) (2577 S. K. Art. 2)
Lawsuit: The plaintiff requested that it be determined that he has the right to borrow the periods of work abroad without the condition of being a Turkish citizen, and that the Institution’s transaction to the contrary be cancelled.
The court decided to grant the request, as stated in the decision.
After the verdict was appealed by the defendant’s attorney, it was understood that the appeal request was in time and after the report prepared by the Investigation Judge and the papers in the file were read, the necessity of the work was considered and the following decision was determined.
The case is related to the determination that the plaintiff can be indebted within the scope of Law No. 3201 in accordance with the provisions of the Pension Fund, taking into account the military service he has done while he was a Turkish citizen, his services abroad are subject to the Pension Fund, and the request for the cancellation of the transaction of the institution in the opposite direction.
The court decided to accept the case in written form.
The dispute is gathered at the point of determining the authorized judicial remedy.
According to Article 114/1-b of the Code of Civil Procedure numbered 6100, “the permissibility of judicial remedy” is a condition of action, and the court automatically investigates whether the conditions of the lawsuit are present at every stage of the case. The parties can always claim the lack of litigation. If the court determines that the case condition is lacking, it decides to reject the case on a procedural basis.
Social Insurance and General Health Insurance No. 5510 entered into force on 01.10.2008, and in cases where there is no contrary provision in this Law according to Article 101 of the Law, disputes arising regarding the implementation of the provisions of this Law are heard in labor courts.
According to the 4th paragraph of the Provisional Article 4 of the Law No. 5510 titled “Transitional Provisions Regarding the Law No. 5434”, “Unless there is a contrary provision in this Law; Those who were included in the scope of subparagraph (c) of the first paragraph of Article 4 of this Law as of the effective date of this Law, worked under the provisions of Law No. 5434 before the effective date of this Law, and were subject to subparagraph (c) of the first paragraph of Article 4 of this Law Those who start working again and their widows and orphans will be dealt with in accordance with the provisions of Law No. 5434, including the provisions repealed by this Law.”
In Article 101 of Law No. 5510, “…disputes arising regarding the implementation of the provisions of this Law are heard in Labor Courts.” The Constitutional Court, with its decision dated 22.12.2011 and numbered E: 2010/65, K: 2011/169, decided to reject the request for annulment, and in the reasoning part of the decision, civil servants who were working as associates before the Law No. 5754 came into force and Since the actions and actions to be taken by the Social Security Institution will continue to maintain the quality of administrative action, in terms of other public officials and those who receive pensions, widows and orphans in accordance with the Law No. 5434 as retired, as well as civil servants and other public officials who will be entitled to retirement in the future It has been stated that the administrative judiciary will continue to be in charge in disputes related to According to Article 153/last of the Constitution, the decisions of the Constitutional Court are published in the Official Gazette and bind the legislative, executive and judicial organs, administrative authorities, real and legal persons. The dominant opinion in the doctrine with the decisions of the Constitutional Court; The reasoning of the decisions of the Constitutional Court is also binding.
On the other hand, the Court of Disputes dated 4.9.2012
In the decision numbered 2012/64-83, Principles and Decisions No. for those who will be entitled, the actions and transactions established by the Social Security Institution will continue to maintain the “administrative action” and “administrative action” nature, therefore, authority, form, reason, After the enforcement of this Law No. 5510, the judgment and resolution of the lawsuit filed by the plaintiff, who is a retired civil servant, who is within the scope of annulment lawsuits filed by those whose interests have been violated due to being unlawful due to one of the subject and purpose aspects, will be heard in the administrative jurisdiction. started working as a civil servant On the other hand, in accordance with Article 4/c of the Law No. 5510, it has been concluded that the insured subject to the provisions of this Law will be deemed to be insured and that the rules and principles stipulated by the Law No. 5510 will be applied, not the Law No. 5434, so that the disputes will be resolved in the judicial jurisdiction.
In the concrete case; On 23.10.2000, when the claimant received his citizenship renouncement document, the plaintiff’s insurance in Turkey was between 31.03.1987 – 31.03.1988, which was subject to the TR Retirement Fund. It has been understood that he has renounced his citizenship and has been working in Germany since 01.04.1996.
It is understood that the plaintiff, who was a member of the Pension Fund due to his work in Turkey before 01.10.2008, when the Law No. 5510 came into force, arose from the request of borrowing his work abroad in accordance with the Law No. 3201, considering that the resolution of the dispute fell within the jurisdiction of the administrative judiciary. According to Article /1-b, the decision to reject the case out of procedure should be decided due to the “not permissible legal remedy”, which is the condition of the lawsuit, but giving a written decision based on the merits of the case is against the procedure and the law, and it is a reason for reversal.
The respondent Institution’s appeals aimed at these aspects should then be admitted and the judgment quashed.
Conclusion: It was unanimously decided on 03.05.2016 that the provision be VOID for the reasons explained above.
