What are the Legal Remedies for the Determination and Compensation of the Losses Incurred within the Scope of OYAK Savings after the Reinstatement of those whose OYAK Membership was Terminated as a Result of their Dismissal?

General

The Army Aid Institution is a supplementary occupational pension fund established by the Army Aid Institution Law No. 205 to provide additional benefits to its members in the areas of retirement, death and disability. Regular officers, contracted officers, regular non-commissioned officers, contracted non-commissioned officers, contracted non-commissioned officers and specialist gendarmes serving in the Turkish Armed Forces, Gendarmerie General Command and Coast Guard Command are permanent and compulsory members of the institution. In addition, specialist sergeants serving within these institutions can also become OYAK members on a voluntary basis. Reserve officers and reserve non-commissioned officers who fulfill their military service obligation are temporary members of the Institution.

OYAK membership is a legally contiguous status. OYAK membership ends with the termination of the duty. Therefore, the OYAK membership of the personnel who are dismissed/dismissed from the profession as a result of the decision of the criminal court, disciplinary sanction or termination of the contract will end. OYAK does not make any payment to members whose membership period is less than 3 years (36 months of dues) and who are dismissed. For members whose membership period is more than 3 years (36 months of dues) and less than 10 years (120 months of dues) and who are dismissed from service, all of their accumulated dues are paid as dues refund. If the membership period is 10 years or more, the entire OYAK reserve is either paid to the personnel or transferred to the OYAK Pension System with the consent of the personnel.

Determination of Losses within the Scope of OYAK for Members Reinstated by Court Decision 

OYAK membership dues are deducted from the salary of the personnel by the institution they work for and transferred to OYAK during the payment of their salaries and wages. Members cannot deposit their dues from outside during the period when deductions cannot be made for any reason. For this reason, since the OYAK membership of the personnel who are dismissed/retired while they are OYAK members will be terminated, their OYAK membership dues will not be transferred to OYAK on time and the OYAK savings of the member will not increase and the member will be deprived of the accumulation dividend at the rate determined by the OYAK General Assembly every year. In addition, the personnel whose OYAK savings are paid to them will also be deprived of the dividends on their savings. 

In the event that the personnel is reinstated with a judicial decision, OYAK membership will be reactivated and OYAK dues for the period of separation will be transferred to the institution in bulk. However, the accumulation profit share at the rate determined by the OYAK General Assembly during the separation period will not be transferred by the institution. In this case, some losses will arise for the member. These are

- Losses arising from the non-investment of the accumulation before the termination of OYAK membership,

- It is the loss arising from the fact that the membership fees paid in bulk by the institution for the period of separation are not accrued interest.

Therefore, after the dismissed personnel are reinstated, their OYAK savings and interest will be less than their peers. The interest and precedent difference amount will be requested from the member by OYAK. As can be seen, due to the dismissal process canceled by the judicial decision, the personnel will have to pay out of their own pockets in order to reach the same reserve with their peers. 

Compensation from the Relevant Institution for the Losses Incurred by the Reinstated Personnel within the Scope of OYAK

As explained above, in the event that the personnel are unlawfully dismissed or dismissed from their jobs, when they are reinstated with a judicial decision, a loss arises due to the fact that they have a lower reserve compared to the OYAK reserve of their peers. The reason for this damage is the unlawful dismissal or dismissal of the personnel. 

Pursuant to Article 125 of the Constitution, "The administration is obliged to pay the damages arising from its own actions and transactions." The Ministry of National Defense or the General Command of Gendarmerie, which established the unlawful transaction, must compensate for this damage. There are three different legal remedies to ensure that the relevant institution compensates the damage. These are

The Personnel can claim the OYAK Damage Arising from the Unlawful Procedure after the Notification of the Court Decision Providing the Return of the Personnel to Duty by Filing a Full Jurisdiction Lawsuit.

Within 60 days after the notification of the annulment decision that allows the personnel to return to duty or the Regional Administrative Court or Council of State decision, if the legal remedy has been applied, the personnel may file a full remedy lawsuit in the administrative court located in the place where the lawsuit for the annulment of the transaction was filed. In this lawsuit, compensation for the damages incurred within the scope of OYAK due to the canceled transaction will be requested. The decision given in a precedent case followed by us on this issue is as follows;

"In order for the plaintiff's membership to reach the same level with his peers due to the failure of the defendant administration to send OYAK membership fees to OYAK in a timely manner due to the non-payment of his duty salaries between the date of his dismissal due to his dismissal from public office and the date of his reinstatement upon the court decision, the total amount of the profit share difference and the precedent difference for the period he was separated from the duty, which is 83. 572.86 TL, which is the sum of the profit share difference and precedent difference amount for the period when the plaintiff was out of status, and accordingly, the membership fees were not deposited into the OYAK account, in other words, since OYAK deductions were calculated over the salary and deposited into the OYAK account, the plaintiff was prevented from continuing his duty as a result of the faulty action of the defendant administration due to a reason not caused by him, Considering that it is undisputed that the plaintiff would have fulfilled his duty if the defendant administration had not taken the erroneous action in question and that the OYAK deductions calculated on his salary every month would have been deposited into the OYAK account, the defendant administration should compensate the material damage related to the OYAK account in order to reach the level of his peers and to restore his OYAK membership due to the fact that the membership fees for the period when the plaintiff was out of status due to the unlawful action of the defendant administration were not paid to the institution on time. "

Personnel can pay the precedent difference and interest difference and request the relevant institution to pay the amount paid with interest.

The personnel may have OYAK calculate the loss incurred during the period of separation and pay this loss from their own savings. In this case, he/she may request the administration to compensate the amount he/she paid with interest through a full judgment lawsuit to be filed at the Administrative Court within 60 days from the date of payment. The decision given in a precedent-setting case followed by us on this issue is as follows

"In the case at hand, following the plaintiff's return to duty on ....., the plaintiff paid to the Army Assistance and Solidarity Institution 11.857,56-TL interest difference on .... and 4. 358,12-TL precedent difference, the amount of interest to be accrued on the aforementioned amounts from the date of payment to the date of the lawsuit is 859,59-TL and 342,80-TL, respectively, and it is understood that the loss incurred by the plaintiff due to the payments made after his separation from duty and reinstatement is 17.418,07-TL in total. 

The procedure for the dismissal of the plaintiff was declared unlawful by the Court's decision dated .... and numbered E:.... ...., the damages incurred due to this transaction should be compensated by the defendant administration in accordance with the mandatory provision of the Constitution, and all consequences of the transactions whose illegality has been revealed by judicial decisions should be eliminated, in this case, the damages incurred by the plaintiff due to the separation of the plaintiff from his duty between ........ dates should be paid to the plaintiff by the defendant administration."

Personnel can apply to the relevant institution for the payment of precedent and interest difference.

The personnel may apply to the institution that imposed the dismissal / dismissal penalty on the personnel and request OYAK to transfer the amount required to bring their reserves in OYAK membership to the level of their peers. If the institution rejects this application with a reply letter or implicitly rejects it by not responding within 30 days, the personnel can file an annulment lawsuit in the administrative court within 60 days. 

Conclusion

As explained in detail above, OYAK members who are dismissed or discharged from their jobs incur losses within the scope of OYAK. This damage must be compensated by the administrations that have established the unlawful transaction through various methods. In this context, it is necessary to apply to administrative jurisdiction by choosing one of the full judgment or annulment lawsuit options.  The lawsuit will not be directed against OYAK and the administration will be shown as the opponent. Since there will be different situations depending on each concrete case, it will be beneficial for OYAK member personnel and their lawyer to determine the most appropriate legal remedy together.