Constitutional Court Cancels Certain Expressions of the Social Insurance and General Health Insurance Law

The Decision of The Constitutional Court dated 01.02.2024 with file no 2021/61 and decision no 2024/31 was published in the Official Gazette numbered 323496 on March 21, 2024.

With the relevant Decision, it has been decided to cancel the underlined expressions of the sentences,

"Daily earnings to be kept as the basis for the calculation of the allowances to be given or the income to be attached in case of work accident, occupational disease, illness and maternity; in the last three months of the twelve months preceding the date of the onset of incapacity for work, in the case of an occupational accident; In the case of maternity and illness, it is calculated by dividing the sum of the premium earnings to be calculated in accordance with Article 80 in the twelve months preceding the date of incapacity by the number of premium payment days based on these earnings. However, for those who have reported short-term insurance premiums for less than 180 days in the last year before the start of the incapacity, the daily earnings to be taken as the basis for the benefit in case of illness and maternity cannot exceed twice the lower limit of the daily premium earnings on the date of the start of the incapacity."

In the first paragraph of Article 17 of the Social Insurance and General Health Insurance Law No. 5510 ("Law").

In the justification of the decision, it is emphasised that it is not enough for the legal regulation to exist in form to limit the right to social security; the rules must be specific, accessible and foreseeable in a way that does not allow arbitrariness. In the relevant decision, although it is stated that the legislator's regulation to take the average of the last 12 months' premium based earnings as a basis (in other cases, the average of 3 months' premium based earnings is taken as a basis), which is specific to the cases of maternity and sickness, was made in order to prevent certain abuses, it was stated that the aim of preventing irregularities by reducing the expenses in the form of allowances would be contrary to The Constitution of The Republic of Türkiye.

To summarise, the Constitutional Court concluded that it is inappropriate to calculate the allowance to be paid to the insured in case of occupational accident and occupational disease according to the average of the insured's last 3 months' earnings based on the average of the last 12 months' earnings, as well as taking the average of the last 12 months as a basis in cases of illness and maternity.

In order to eliminate the legal gap, this cancellation provision will enter into force 9 months after the publication of the decision and the relevant decision is available here.

You can access the Official Gazette regarding the subject matter here (In Turkish).

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