Extended Summary

In accordance with Article 2 of the Constitution, the Republic of Türkiye is a social state of law. One of the duties of being a social state is to eliminate social inequality and distribute justice equally to all citizens. It is guaranteed in our Constitution that everyone will benefit from the right to social security. Taking the necessary measures to ensure this assurance and establishing the organization are among the responsibilities of the social law state. The right to social security should not be applied differently to those in similar situations unless there is a justified reason. With the gathering of the Social Insurance Institution, the Self-Employed Social Insurance Institution and the Pension Fund under the Social Security Institution, the legislation applied by these Institutions to the insured has been combined within the scope of Social Insurance and General Health Insurance No. 5510. Since the pension deduction and institution provision are not deducted from the side payments, special service compensation, additional compensation and additional payments that the participants within the scope of Law No. 5434 receive while working, these wages and compensations do not have an impact on the pension. Although there is no regulation in the legislation stating that insurance premiums will not be subject to deduction, the Social Security Institution practice continued in this direction. The institution does not deduct insurance premiums, taking into account the legislative provision that the mentioned wages and compensations cannot be subject to any tax.

Tax is a public expenditure, and premium is the financing of social security. Although both are collected by the public authority, the disciplines of taxes and premiums are different and their legal regulations are also different. With the regulation made in the Decree Law No. 666 in 2011, the legislator clearly stated that the additional payments of contracted personnel will not be subject to ‘insurance premium deduction’. The legislator has clearly regulated which payments will not be subject to insurance premium deduction, and the fact that insurance premium deduction is not mentioned in other wages and compensations shows the will of the legislator in this direction.

Premiums are not deducted from the position, duty and representation compensation that the participants receive while working, but they are taken into account in calculating the pension. Provisions regarding salaries are applied in qualifying for the additional payment received by the participants and in making this payment.

Public officials who are participants within the scope of Law No. 5434 or who are insured for the first time under Law No. 5510 are accepted as insured according to paragraph (4/1-c) of paragraph 1 of Article 4 of the Law. Significant changes have been made in determining the premium earnings of 4/c insured individuals within the scope of Law No. 5510, compared to the retirement deduction basis salaries of participants within the scope of Law No. 5434. Unlike Law No. 5434, Law No. 5510 lists the elements that will be included in the premium-based earnings one by one in its 80th article, so the wages and compensation paid to the 4/1-c insured while working, other than these mentioned elements, will not be included in the premium-based earnings, regardless of the name under which they are paid.

Calculation of old-age pension is the same for all insured people within the scope of Law No. 5510. Therefore, there is no difference between 4/1-a insured and 4/1-c insured people. Calculation of old-age pension in Article 29 of Law No. 5510 is the same for all insured people. As a rule, the aim of Law No. 5510 is to collect premiums from all the wages earned by insured people while working. While Law No. 5510 defines the fee for 4/1-a and 4/1-c insured in the same way, and Law No. 5510 defines the fee for 4/1-a and 4/1-c insured in the same way, the same Law contains different regulations in terms of the elements to be included in the premium-based earnings. While all wages earned by the insured while working, except for the exempt items for 4/1-a insured people, are included in the earnings subject to premium, the same elements are not included in the earnings subject to premium for 4/1-c insured people. Although social security institutions have been gathered under one roof and regulations have been made in the same Law and even within the same article for all insured people with the radical reform, the introduction of different provisions regarding the social security rights of insured people with different statuses regarding the factors to be included in the premium-based earnings causes inequality. The pension to be paid by the Institution to 4/1-c insured people or beneficiaries who face certain social risks such as old age, disability or death is considerably lower than that of insured people with other statuses. If no changes are made in the legislation, irreparable consequences will occur for the insured and the beneficiaries.