A type of property right in the individual application decisions of the Constitutional Court: The right to social security

Social security is an entity that enters our lives through a variety of names, such as orphan's pension, insurance premium payments, pension bonus, additional indicators, length of service calculation, and old-age pension. Being a status law, social security disputes are frequently the focus of court rulings. These disputes are represented in the individual application to the Constitutional Court, as well. This paper analyses individual application decisions of the Constitutional Court on the right to social security as a type of property right. In principle, the right to social security incorporated in the Constitution, is not considered to be a subject to individual application, as it is not included in the European Convention on Human Rights. Yet the right to social security is reflectively subject to individual application under the concept of the right to property provided that it has an economic value. Evaluating social security rights as property and the protection of interventions in the context of property rights will be addressed within this concept. At its etymological origin, the word "property" has different meanings in different languages, such as property, kyrios, dominium, proprietas, which express sovereignty or dominance. Consequently, the concept of property is deeply entwined with the concepts of sovereignty, dominance, and power. For the right of property, three unchanged elements exist that are valid in all types of possession relations: The owner, the property, and their connection to one another make up these three components. In this arrangement, property actually equates to sovereignty. The Constitutional Court states that the right to property relates to a person's freedom to use, profit from, and dispose of property as he sees appropriate, so long as he respects the rights of others and the law. The concept of possession must have both economic value and a legitimate expectation in order to exist. This includes all possession with economic worth, including both movable and immovable possession, as well as all property rights, including licenses, monetary claim, intellectual property rights, and even claims derived from family and criminal law. Featured rights such as inheritance, intellectual property, commercial operations, and the right of occupancy are all described in subheadings under this subject. The possession in question must be present in the assets of the person seeking to benefit from the right to property, or the person must have a legitimate expectation of acquiring it. Otherwise, it is impossible to mention the existence of a property right. A legitimate expectation is one that is sufficiently concrete and is founded on a specific legal provision or a body of accepted jurisprudence that has a high likelihood of success, as frequently mentioned in Constitutional Court rulings. The right to social security will be covered as a sort of property right in the study. It is regarded necessary to convey some fundamental facts concerning the entitlement to social security before making observations in this regard. The right to social security is also defined as the ability to demand a minimal standard of living that is consistent with human dignity, together with the required steps to achieve this goal in accordance with the social justice principles that apply in the social state. It has been emphasized that the right to social security is a second-generation human right, that recognition of the right to social security, which began with the Bismarck and Beveridge models, taken place in Universal Declaration of Human Rights from 1948, and was developed in international legal texts with contributions from the ILO; and that the safeguards are being increased every year with the European Social Charter and the European Social Security Code. It is emphasized that the 1961 Constitution represents a milestone in terms of social rights in Turkish constitutional history. Then the babyhood of the right to social security in our national legislation is explained. Due to the social security legislation's ongoing revisions throughout the years, it has been compared to a "unfinished construction site." The criteria of the capacity of financial resources, which is addressed in both the 1961 and 1982 Constitutions, is also highlighted. Its implications for reviewing norms and, particularly on individual application are underlined. The presence of a legitimate aim and the proportionality requirement in individual application judgments have both been determined by the criterion of the capacity of financial resources. Social insurance, social aid, and social services are all manifestations of the right to social security. The long-term (disablement, old age, and death insurance) and short-term (occupational accidents, occupational illnesses, sickness, and maternity insurance) insurance branches make up social insurances. In the associated area, detailed descriptions of social assistance and insurance branches are provided. Further in this study it addresses whether the right to property is applicable with the right to social security. The Constitution's fundamental freedoms and rights may be subject to individual application if they are recognized by the European Convention on Human Rights and its additional protocols. Despite having a constitutional guarantee, social security cannot be applied on an individual application since it is not covered by the European Convention on Human Rights or any of its supplementary protocols. The right to social security can be reflectively assessed under the right to property if it represents an economic value. Our research focuses on how the right to property is applied on the right to social security and how that right is protected. As with other forms of possession, the presence of economic value and a legitimate expectation is required for the right to social security to be considered possession. The Constitutional Court focuses its legal analyses on the legitimate expectation in its rulings. Every legitimate expectation must be supported by applicable domestic law and/or well-established precedent. Consequently, it is important to avoid undermining the legitimacy of the justified expectation. Any deceptive or dishonest behaviour must not be allowed to undermine the legitimacy of the expectation. These themes have been attempted to be defined independently in terms of the right to social security by noting that the basis of a legitimate expectation is the law or accepted case law. Some decisions that are crucial to conversations about valid expectations are inconsistent with one another, and this discrepancy has been called out. Initially, the Constitutional Court's overall strategy for defending the right to property is described. The Constitutional Court first evaluates if possession exists, whether there is an interference with possession, and which rule under the tripartite rule typology the interference will be addressed. Then, in the context of the legitimacy of the interference, legality (whether the interference was prescribed by law), legitimate aim, and proportionality are assessed. By providing explanations under the headings of tripartite rule typology and legality, the Constitutional Court's approach is attempted to be summarized. The legality criterion's relevance in being definite, reachable, and foreseeable is emphasized. In terms of the principle of proportionality, the subheadings of appropriateness, necessity and proportionality have been discussed in various aspects in the decisions. Appropriateness indicates that the intervention is helpful in achieving the aim. Necessity means that the purpose cannot be achieved with a softer intervention. A "fair balance" is struck between an individual's right and the public interest, also the intervention must be in a reasonable proportion additionally, it is recalled that the entitlement to social security depends heavily on the State's affirmative responsibility. The idea of excellent governance in regard to incorrect social security payments is opened in a different conclusion. A procedural requirement, good governance is to act in good time in an appropriate and consistent manner by the state. The three steps of the evaluation of the intervention's jural status—legality, legitimate aim, and proportionality—were described above. The evaluation of the public interest will be respected as long as it is not demonstrated otherwise by admitting that it exists in every intervention about the legitimate aim, according to the rulings of both the European Court of Human Rights and the Constitutional Court. It is important to emphasize in this context that legality and proportionality are the criteria used to determine whether the right to property has been violated in respect to social security. The verdicts have been divided into two categories based on the validity and proportionality of the individual applications involving social security entitlements. The concerns of absence of a legal foundation, retroactivity, and the violation resulting from the law are examined under the title of legality. The loss of value, cessation of payments, return of wrongful payments, and social security debts are the four categories under which interventions are examined in terms of the proportionality criteria. The purpose of this research is not to provide, a summary, or a selection of the Constitutional Court's social security rulings. In applications involving social security, the Constitutional Court's methodology has been described, various viewpoints on connected topics have been advanced, and attempts have been made to communicate the points that restrict the exercise of the right. Analysing each of these problematic applications has resulted in assessments, identification of trouble spots, and formulation of remedy ideas.