PRESCRIPTION IN STUDENT DISCIPLINARY LAW

Prescription is a waiver of the state’s power to punish due to the negative impact of the passage of the prescribed period on the obtaining and evaluation of evidence and the lack of social benefit. Prescription is the attachment of a consequence in the legal world to the passage of a certain period of time. This concept refers to regulations in which the legislator itself limits its power to punish.  The ultimate goal of introducing a prescription in student disciplinary investigations is to complete the disciplinary investigation as soon as possible and punish the perpetrator. This is because student status refers to a specific and short period of time. In this short period of time, the disciplinary action must be taken during the student status.

Prescription is subject to different periods and practices specific to each discipline in private and public law. While examining prescription in public disciplinary law, which constitutes the main purpose of this article, the relationship between criminal law and public disciplinary law has been utilized. One of the main reasons for this is that public disciplinary law is influenced by criminal law.

The main purpose of this article is to analyze prescription in student disciplinary law. In the article, firstly, student nonjudicial punishments, which are a type of public nonjudicial punishments, are mentioned. Then, the legal nature of the concept of prescription is analyzed. Finally, the concepts of disciplinary investigation prescription and nonjudicial punishments prescription in student nonjudicial punishments are discussed.

In the Turkish administrative law doctrine, the number of works dealing with prescription in student nonjudicial punishment is quite limited. When these works are examined, it will be seen that nonjudicial punishments are generally examined. The concept of prescription is discussed superficially. In addition, in Turkish administrative law doctrine, public nonjudicial punishments are generally analyzed in the context of nonjudicial punishments imposed on public officials. As a matter of fact, in administrative law textbooks, nonjudicial punishments are dealt with only as nonjudicial punishments applied to public officials. In other words, nonjudicial punishments imposed on students have not been sufficiently studied in the doctrine. This article aims to eliminate the ambiguities on the concepts of investigation prescription and criminal prescription in student nonjudicial punishments.

This article critically examines the provisions of the legislation and practice regarding the concept of prescription in student nonjudicial punishments. In this context, doctrine and judicial decisions have been utilized. While conducting studies on the concept of prescription in student nonjudicial punishments, the characteristics of the student status should be taken into consideration. Unfortunately, in some of its decisions, the Council of State ignored the characteristics of the status. Similarly, this is also the case in some opinions put forward in the doctrine.

Law No. 2547 does not contain a provision that stops or interrupts prescription for student nonjudicial punishments. Otherwise, it would be concluded through interpretation that prescription is suspended or interrupted. This would mean the restriction of human rights and freedoms. The Constitution stipulates that human rights and freedoms can only be restricted by law.

Law No. 2547 stipulates that criminal proceedings against higher education personnel shall be a matter of waiting. However, since the matter pending in the investigations to be carried out against students is not explicitly stated, it is not possible to make the criminal proceedings a matter pending by making a broad interpretation. Since the legislator wants a fast and effective investigation to be carried out in student disciplinary law, it has determined the limits of the issue with the time limit. In order to prevent loss of rights, it has also introduced special regulations regarding the effect of judicial decisions or annulment decisions. Due to the short duration of the student status, the periods regulated within the scope of prescription should be considered in terms of legal security. It would not be wrong to say that the legislator’s lack of regulation here is a conscious choice.

As mentioned above, in the Turkish administrative law doctrine, nonjudicial punishments are analyzed in terms of sanctions imposed on public officials. However, public nonjudicial punishments are also applied to students. The status of student and the status of public official are very different. Above all, being a student is a temporary and relatively short-term status. Therefore, while conducting a study in public disciplinary law, the general characteristics of the relevant status should be taken into consideration.