Establishing Judicial Precedent: Constitutional Court Affirms Right of Pretrial Detained Employees to Recover Half of Withheld Salary Where Criminal Liability Is Negated

In its judgment issued on 7 March 2026 in Constitutional Case No. 98 of Judicial Year 43, the Supreme Constitutional Court held that the first paragraph of Article 61 of the Civil Service Law, promulgated by Presidential Decree-Law No. 18 of 2015, is unconstitutional insofar as it deprives an employee placed in pretrial detention of the right to recover half of the salary withheld during the period of detention, in cases where criminal liability is negated by a final judgment or by a judicial decision not subject to appeal.

The ruling—issued in the context of an administrative dispute brought by a lawyer who requested referral to the Supreme Constitutional Court to challenge the constitutionality of Article 16(1) of Law No. 18 of 2015—establishes that any public employee whose salary was reduced by half due to pretrial detention in connection with a criminal case, during the period of application of Civil Service Law No. 18 of 2015 and prior to its repeal by Civil Service Law No. 81 of 2016, is entitled to recover the withheld portion of their salary for the entire duration of detention, provided that a final judicial ruling establishes the absence of criminal liability.

The first paragraph of Article 61 of Civil Service Law No. 18 of 2015 provides: “Any employee who is placed in pretrial detention or detained in execution of a criminal judgment shall be suspended from duty by operation of law for the duration of detention and shall be deprived of half of their salary if the detention is pretrial or in execution of a final criminal judgment.” Likewise, the first paragraph of Article 64 of Civil Service Law No. 81 of 2016 provides: “Any employee placed in pretrial detention or detained in execution of a criminal judgment shall be suspended from duty by operation of law for the duration of detention and shall be deprived of half of their salary if the detention is pretrial or in execution of a non-final criminal judgment, and of their full salary if the detention is in execution of a final criminal judgment.”

The Court held that the impugned provision, by depriving an employee in pretrial detention of half of their salary despite the subsequent negation of criminal liability by a final judgment or an unappealable judicial decision, violates the principle of justice. The Court reasoned that the legal regulation of public employees’ remuneration is not confined solely to compensation for the performance of official duties, but is also intended to enable employees to meet their social obligations and provide for their families.

The Court further affirmed that the provision lacks a fundamental safeguard guaranteed to public office holders—namely, the right to receive the salary attached to their position whenever they are ready and able to perform their duties. This guarantee should not be undermined by the employee’s inability to work due to pretrial detention, so long as their criminal liability for the alleged conduct has been definitively negated. Accordingly, depriving the employee of this guarantee constitutes a failure by the State to uphold the rights of public office holders and a disregard for the constitutional protection afforded to those rights.

The judgment further clarified that the unconstitutional provision effectively treated pretrial detention as a conclusive legal presumption of a breach of professional duty, without regard to the absence of any logical nexus between the two where criminal liability has been definitively negated. This undermines the presumption of innocence, as reinforced by the authority of res judicata, and constitutes an infringement upon judicial independence, the right to litigation, the right of defense, and the constitutional right to compensation for pretrial detention, which the Constitution obliges the State to guarantee.

It is noteworthy that the Supreme Constitutional Court had previously ruled, in its judgment of 4 November 2023 in Constitutional Case No. 100 of Judicial Year 43, that the first paragraph of Article 64 of Civil Service Law No. 81 of 2016 is unconstitutional insofar as it deprives employees in pretrial detention of half of their salary during the period of detention in cases where criminal liability is negated by a final judgment or an unappealable judicial decision.