Civil Servant Disciplinary Investigation — Process, Penalties and Remedies

Civil Servant Disciplinary Investigation — Procedure, Penalties, and Avenues of Appeal

Disciplinary penalties imposed on civil servants for culpable conduct related to their duties are regulated under Articles 125 to 136 of Law No. 657 on Civil Servants (Devlet Memurları Kanunu — DMK). Disciplinary law subjects to sanctions the conduct of civil servants contrary to service discipline, with the aim of ensuring the orderly and effective delivery of public services. This article examines in detail the disciplinary investigation procedure, disciplinary penalties, limitation periods, avenues of appeal and litigation, and decisions of the Constitutional Court.

What Is a Disciplinary Investigation and How Is It Initiated?

A disciplinary investigation is an administrative inquiry initiated by the competent superior or disciplinary board, directed at examining and evaluating the conduct of a civil servant who is alleged to have acted culpably in connection with their duties. Pursuant to Article 126 of Law No. 657 (DMK), investigations are conducted directly by competent disciplinary superiors or through appointed investigators.

A disciplinary investigation may be initiated upon a complaint, report, or ex officio (of its own motion). The authority to initiate an investigation belongs to disciplinary superiors. Disciplinary superiors are identified separately for each institution in the Civil Servants Discipline Regulation (Devlet Memurları Disiplin Yönetmeliği). The investigation order must be given in writing and an investigator must be appointed.

In appointing an investigator, the principles of objectivity and impartiality are observed. The investigator must be hierarchically senior to, or at least of equal rank with, the civil servant being investigated. Circumstances that would cast doubt on the investigator's impartiality — such as a personal dispute between the investigator and the civil servant being investigated — may render the investigation unlawful.

During the investigation, evidence is gathered, witnesses are heard, and relevant documents are examined. The most important stage of the investigation is the taking of the civil servant's statement of defence. Article 129(2) of the Constitution provides: “No disciplinary penalty may be imposed on civil servants and other public employees without the right to a defence being afforded.” This provision is the constitutional guarantee of disciplinary law.

What Are the Disciplinary Penalties and to Which Acts Do They Apply?

Article 125 of Law No. 657 (DMK) provides for five types of disciplinary penalty: warning (uyarma), reprimand (kınama), salary deduction (aylıktan kesme), stoppage of grade advancement (kademe ilerlemesinin durdurulması), and dismissal from civil service (devlet memurluğundan çıkarma). These penalties are ranked from least to most severe and the acts corresponding to each type of penalty are exhaustively listed in statute.

Warning (Article 125/A of DMK): The civil servant is notified in writing that greater care is required in carrying out their duties and in their conduct. It applies to acts such as arriving late or leaving early, improper applications or complaints, and behaviour contrary to public morals and decency at the workplace.

Reprimand (Article 125/B of DMK): The civil servant is notified in writing that they have been at fault in carrying out their duties and in their conduct. It applies to acts such as disrespectful behaviour toward superiors during service, failure to protect official documents and equipment related to the duty, and mistreatment of colleagues and service recipients.

Salary deduction (Article 125/C of DMK): A deduction of between 1/30 and 1/8 of the civil servant's gross salary is made. It applies to acts such as intentional failure to fulfil job requirements, conduct unbecoming a civil servant, and making false or misleading statements to persons to whom an obligation is owed in connection with the duty.

Stoppage of grade advancement (Article 125/D of DMK): The civil servant's advancement in the current grade is stopped for 1 to 3 years. It applies to acts such as obtaining personal gain in connection with the duty in any manner, drawing up false reports and documents, and disclosing confidential information learned through or in the course of duties.

Dismissal from civil service (Article 125/E of DMK): The most severe disciplinary penalty; the civil servant is dismissed from civil service and is barred from being appointed as a civil servant again. It applies to acts such as disturbing the peace of institutions for ideological or political purposes, keeping prohibited publications at the workplace, disclosing confidential information without authorisation, joining a political party, and engaging in morally disgraceful and shameful conduct incompatible with civil service.

How Is the Right to a Defence Exercised in a Disciplinary Investigation?

Pursuant to Article 129(2) of the Constitution, no disciplinary penalty may be imposed on a civil servant without the right to a defence being afforded. According to Article 130 of Law No. 657 (DMK), no disciplinary penalty may be imposed on a civil servant without taking their statement of defence, and at least 7 days must be allowed for the defence. Breach of the right to a defence is an absolute ground of illegality that requires the disciplinary penalty to be annulled.

The right to a defence is one of the most fundamental principles of disciplinary law. The investigator or disciplinary superior must clearly notify the civil servant of the act attributed to them and must allow sufficient time for the defence to be submitted. According to Article 130 of DMK, at least 7 days must be granted for the defence.

If the civil servant does not submit a defence within the specified period, they are deemed to have waived the right of defence. However, for this to be valid, the defence request must have been duly served. It is mandatory for the defence invitation to be sent to the civil servant's known address and for the attributed act to be clearly stated.

In the exercise of the right to a defence, the civil servant may benefit from the assistance of a lawyer, have witnesses heard, submit evidence, and inspect the investigation file. According to Council of State (Danıştay) case law, the civil servant must be given the opportunity to inspect the investigation file in order to exercise the right to a defence effectively.

In the case of dismissal from civil service, the high disciplinary board allows the civil servant to make an oral defence in person or through their representative. The civil servant may be represented by a lawyer at this hearing. Failure to afford the right to oral defence is also a ground for annulment of the disciplinary penalty.

What Are the Limitation Periods in a Disciplinary Investigation?

According to Article 127 of DMK, a disciplinary investigation must be initiated within 1 month of the date of learning of the act for the penalties of warning, reprimand, salary deduction, and stoppage of grade advancement, and within 6 months for dismissal from civil service. In any event, no disciplinary penalty may be imposed after 2 years from the date the act was committed.

Limitation periods are divided into investigation limitation periods and penalty limitation periods. The investigation limitation period begins running from the date the act is learned. The penalty limitation period begins from the date the act was committed and is set at 2 years.

The commencement of the investigation limitation period is the date on which the disciplinary superior having authority to impose the disciplinary penalty learns of the act. This date is not the date any public servant learns of the act, but the date it is learned by the disciplinary superior. The Council of State has developed consistent case law on this point.

Disciplinary penalties imposed after the expiry of the limitation period are unlawful and will be annulled by the administrative courts. Limitation periods concern public policy and are examined by the court of its own motion. Even if the civil servant does not raise the limitation defence, the court will examine this issue ex officio.

After a disciplinary penalty has become final, pursuant to Article 133 of DMK, after 5 years from the application of a warning or reprimand penalty, or 10 years from the application of other penalties, an application may be made to the appointing authority for the disciplinary penalty to be removed from the personal file. The condition that the civil servant must not have received a new disciplinary penalty is required in calculating these periods.

What Are the Avenues of Appeal and Litigation Against Disciplinary Penalties?

Against warning, reprimand, and salary deduction penalties, an appeal may be lodged with the disciplinary board within 7 days of service of the decision. Against the stoppage of grade advancement penalty, an appeal is lodged with the high disciplinary board. Following rejection of the appeal, or directly in respect of all disciplinary penalties, an annulment action may be brought before the administrative court within 60 days.

The administrative appeal avenue against disciplinary penalties is not a mandatory avenue that must be exhausted before the penalty becomes final. The civil servant may, if they wish, bring an annulment action directly before the administrative court without pursuing the appeal avenue. However, using the appeal avenue affects the time limit for bringing an action, since an appeal application under Article 11 of İYUK suspends the time limit for filing an action.

The administrative court with jurisdiction over the annulment action to be filed in administrative courts is the administrative court. The competent court is the administrative court in the place of the administrative authority that rendered the decision. The time limit for filing an action is 60 days from service of the penalty; however, if the appeal avenue has been used, the remaining time limit resumes running from the day following service of the rejection of the appeal.

Following the 2010 constitutional amendment, the exception in Article 129(3) of the Constitution — “Judicial review of disciplinary decisions shall not be prevented except for those relating to warning and reprimand penalties” — was removed, and the judicial avenue was opened against all disciplinary penalties. Accordingly, annulment actions may now also be brought in administrative courts against warning and reprimand penalties.

The Constitutional Court (Anayasa Mahkemesi) has rendered significant decisions on disciplinary penalties through individual applications. In particular, violations of rights have been found in many applications on the grounds of breach of the right to a defence, violation of the principle of proportionality, and breach of the right to a fair trial. The Constitutional Court reviews whether disciplinary penalties constitute a disproportionate interference with the civil servant's fundamental rights and freedoms.

How Does the Application of Lesser and Higher Penalties Work in Disciplinary Penalties?

Pursuant to the final paragraph of Article 125 of DMK, civil servants who have performed satisfactorily during their past service and received good or very good performance ratings may receive a penalty one grade lighter. The application of a higher penalty in the case of recidivism (tekerrür — repetition of the same penalty) takes place under the final paragraph of Article 125 of DMK by imposing a penalty one grade heavier.

The application of a lesser penalty is left to the discretion of the disciplinary superior or disciplinary board. Criteria such as the civil servant's past service, performance record, remorse, and the gravity of the act are taken into account. It is mandatory to state reasons for applying a lesser penalty.

The application of a higher penalty in the case of recidivism is regulated in the last paragraph of Article 125 of DMK. A penalty one grade heavier is imposed in the case of recurrence of the act or conduct that gave rise to the disciplinary penalty within the period for removal of the penalties from the personal file. For recidivism to occur, the previous penalty must have become final.

Since there is no penalty higher than dismissal from civil service, recidivism does not apply to this penalty. Similarly, since there is no penalty lower than a warning, a lesser penalty cannot be applied in respect of an act attracting a warning.

What Procedural Rules Must Be Observed in a Disciplinary Investigation?

To ensure legality in a disciplinary investigation, the investigation order must be in writing, the investigator must be impartial and of sufficient seniority, the right to a defence must be duly exercised, evidence must be gathered in accordance with the law, and the decision must be reasoned. Non-compliance with these procedural rules leads to annulment of the disciplinary penalty.

The investigation report contains the findings reached by the investigator following their examination and the recommended penalty. The report must include a summary of the events, the evidence gathered, witness statements, the civil servant's defence, and the investigator's assessment. The investigation report is submitted to the disciplinary superior or the disciplinary board.

The procedures for convening and decision-making of disciplinary boards are regulated in DMK and related regulations. Boards convene with an absolute majority of the total number of members and make decisions with an absolute majority of those attending. It is mandatory for board decisions to be reasoned.

The suspension from duty of the civil servant under investigation is regulated under Articles 137–145 of DMK. Suspension from duty is a precautionary measure, not a penalty. It is applied when deemed necessary for the proper conduct of the investigation. As a rule, the suspension period may not exceed 3 months; at the end of this period the civil servant is reinstated or a decision is made.

The Council of State and regional administrative courts carry out both procedural and substantive review in judicial scrutiny of disciplinary penalties. From a procedural perspective, the court examines whether the right to a defence was exercised, whether limitation periods were observed, and whether the decision was taken by the competent authority; from a substantive perspective, whether the act is established, whether the act warrants the penalty, and whether the principle of proportionality was observed.

This content is for general informational purposes only and does not constitute legal advice.