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Local Governance and Regional Development: Current Perspectives

by Fatih AYHAN (Volume editor)
Edited Collection 288 Pages

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the autor
  • About the book
  • This eBook can be cited
  • Contents
  • List of Contributors
  • Part 1 Local Governance
  • 1.1 Justification of Administrative Procedures and Evaluation of Implied Refuses on the Axis of Local Governments: Dr. Çağlar Burak Burtan
  • 1.2 Impact on Urban Governance of Local Politics and Terror Relationship: The Case of Turkey: Dr. Hasan Acar and Yunus Karaağaç
  • 1.3 The Perception of Istanbul’s Chromatic Identity through Urban Furniture: A Study on College of Communication Students: Prof. Dr. Filiz Balta Peltekoğlu and Dr. Zuhal Akbayır
  • 1.4 Why Should Firms Achieve Strategic CSR?: Assoc. Prof. Ouidad Yousfi and Assoc. Prof. Nadia Loukil
  • Part 2 Regional Development
  • 2.1 Conceptual View of Economic Development: Assoc. Prof. Fatih Ayhan and Elias Esteban Silva Lecuna
  • 2.2 The Impact of the EU Regional Policy Developed within the Scope of Lisbon Strategy and Europe 2020 Goals on Overcoming Interregional Differences: Dr. Omca Altın
  • 2.3 Solidarity Economics in Turkey: Its Ecosystem and Relations with Public Authorities: Dr. Selin Pelek and Dr. Olivier Gajac
  • 2.4 Contribution of University-Industry Collaboration in Science, Technology and Innovation: Dr. Muhammet Arucu and Dr. Taner Kalaycı
  • 2.5 The Role of International Trade in Regional Development: Dr. Gürçem Özaytürk and Dr. Faruk Mike
  • 2.6 Regional Development and Distance Education: Performance Evaluation of University Distance Education Programs: Dr. Başak Gök and Prof. Dr. Hadi Gökçen
  • 2.7 The Regional Distribution of Technoparks and Their Impact on Innovation: Dr. Arif İğdeli
  • 2.8 Financial and Technical Supports of Regional Development Agencies in Turkey: The Case of Two Provinces from Different Development Agencies: Dr. Zuhal Önez Çetin
  • 2.9 Effects of Foreign Direct Investments on High Technology Export: Data Analysis for Selected Developing Countries and Turkey: Dr. Mehmet Ali Polat
  • 2.10 Regional Development in Turkey: An Evaluation on Development Plans: Dr. Salih Ziya Kutlu and Emine Fırat
  • 2.11 Paradigm Shift in Rural/Regional Development: Endogenous Development and Territorial Capital: Dr. Peyman Uysal
  • List of Figures
  • List of Tables

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List of Contributors

Dr. Arif İğdeli

Aksaray University, Turkey

Dr. Başak Gök

Gazi University, Turkey

Dr. Çağlar Burak Burtan

Bandirma Onyedi Eylul

University, Turkey

Elias Esteban Silva Lecuna

Bandirma Onyedi Eylul

University, Turkey

Emine Fırat

Canakkale Onsekiz Mart

University, Turkey

Assoc. Prof. Fatih Ayhan

Bandirma Onyedi Eylul

University, Turkey

Dr. Faruk Mike

Hakkari University, Turkey

Prof. Dr. Filiz Balta Peltekoğlu

Marmara University, Turkey

Dr. Gürçem Özaytürk

Niğde Omer Halisdemir

Universityy, Turkey

Prof. Dr. Hadi Gökçen

Gazi University, Turkey

Dr. Mehmet Ali Polat

Malatya Turgut Ozal

Universityy, Turkey

Assoc. Prof. Nadia Loukil

Université Tunis-EL Manar, Tunisia

Dr. Hasan Acar

Gendarmerie and Coast

Guard Academy, Turkey

Dr. Muhammet Arucu

Bandirma Onyedi Eylul

Universityy, Turkey

Dr. Olivier Gajac

Galatasaray University, Turkey

Dr. Omca Altın

Kastamonu University, Turkey

Assoc. Prof. Ouidad Yousfi

University of Montpellier, France

Dr. Peyman Uysal

Antalya Bilim University, Turkey

Dr. Salih Ziya Kutlu

Canakkale Onsekiz Mart

Universityy, Turkey

Dr. Selin Pelek

Galatasaray University, Turkey

Dr. Taner Kalaycı

Bandirma Onyedi Eylul

Universityy, Turkey

Yunus Karaağaç

Istanbul Arel University, Turkey

Dr. Zuhal Akbayır

Marmara University, Turkey

Dr. Zuhal Önez Çetin

Usak University, Turkey

←12 | 13→

Dr. Çağlar Burak Burtan

1.1 Justification of Administrative Procedures and Evaluation of Implied Refuses on the Axis of Local Governments

Abstract: Administrative transactions have an efficiency that serves to explain the will of the administration. This situation also makes the administrative procedures stronger as they are realizing the provisions and results from the moment they are made. When administrative transactions are evaluated together with the five elements they have, it is clear that these transactions should have a causal link in terms of cause and effect. The existence of the specified cause-effect relationship brings along the obligation of the administrative act to be justified. Therefore, the administration should be able to explain the reason for the preparation of the said transaction while creating its administrative transactions. When we look at the axis of the Turkish administrative organization, we come across the concept of implied refusal, which the administration uses in some cases. In particular, in municipal administrations, which are a type of local government in practice, responding to the applications made by individuals through tacit refusal is a quality that needs to be examined. Although there are benefits of decentralization elements; the implicit refusal through silence can be interpreted together with the disadvantages of decentralization. In this case, the result arises that the period of responding to the application made to the administration can be extended in favor of the administration with sixty days, which is the general litigation period in the administrative court (but against the applicant, within the framework of the freedom to obtain information and to seek remedies). Making amendments in the Administrative Jurisdiction Procedure Law on the tacit rejection of the application and introducing regulations in accordance with the justification principle, which must be in administrative proceedings, will also ensure the transparency of the administration.

Keywords: Turkish administration, Local administrations, Municipal administration, Administrative procedures, Justification, European Law of Good Administrative Behavior, Implied refusal.

Introduction

The administration creates public services in order to achieve the purpose of public benefit. In this framework, administrative actions that the administration carries out in line with the rules of public law are encountered in its daily operations. Accordingly, the administration announces its will with the administrative actions it has brought about to have legal consequences. Since the administrative act is a declaration of the will that constitutes a legal result, ←13 | 14→the administration should also be able to express the justification for creating the said administrative act.

The Turkish administrative organization has a structure that is basically divided into central and decentralized management. One of the biggest differences between central and decentralization is that the decision-making bodies of local government organizations (decentralized in terms of location), especially under the heading of decentralization, are elected by the people as a rule.1 This situation enables the people to participate directly in the administration more than the central management principles. The stated result is also seen as a superiority within the framework of comparing decentralization organization with central government organization. In local governments, there are some damages against the stated superiority principle (Akgüner, 2017 : 224). Due to the local conditions and the employment preferences developing accordingly, the presence of people who will take part in areas requiring expertise in local governments is less than central government units. In my opinion, this damage is directly reflected in the establishment of administrative proceedings. Because, the administration’s ability to execute the administrative act together with its justification requires both knowing the technical features of the application subject to the administrative act that constitutes the justification, and preparing it in accordance with the law in accordance with the five elements of the administrative act.

In addition, like every formation in the Turkish administrative organization, local governments undoubtedly carry out administrative action with the aim of realizing the public interest. Moreover, since the administrative act serves a superior purpose such as the public interest and aims to meet the daily needs of the society, it must be in accordance with the law in accordance with the five ele ments it includes. Implied refusal,2 which is our subject of study, is clearly defined in IYUK (2577). In the first paragraph of Article 10 of the IYUK3 titled “Silence of administrative authorities”, it is regulated that anyone who has a valid and acceptable link of interest can apply to administrative offices for the purpose of carrying out an administrative action or administrative action that may be the subject of ←14 | 15→an administrative action. In the continuing second paragraph of the article, if the administration does not respond to the concerned person who made his application in accordance with the method within 60 days, which is the period of filing a general lawsuit in the administrative jurisdiction. It was stated that the request for the application would be deemed to have been rejected.4 Therefore, in order to be able to evaluate the concept of implied refusal, which is an administrative act, it is useful to briefly explain the administrative procedures together with their elements.

1 Elements of Administrative Transactions

Administrative transactions have a structure that affects both those who are directly affected by its terms and results, and everyone who has an interest. Therefore, they can be sued by anyone who has a legitimate, current and personal interest claiming that they are unlawful. The annulment cases filed in the administrative jurisdiction will be to fulfill a purely legal inspection that the administrative judicial bodies in charge should do, since one or more of the authority-form-reason-subject-purpose elements of the administrative act are filed with the claim that they are unlawful. In this context, the administrative judicial body, where concrete dispute is seen, will not be able to “check the appropriateness” in any way; That is, it will not be able to make a decision to replace the administration that carried out the administrative action and take a new decision. In fact, when an action for annulment is filed against an administrative act that has been tacitly rejected, the administrative judicial body must be able to fully control the legal compliance with the justification of the administrative act in question.

In the filing of annulment cases consisting of the evaluation of compliance with the law in the five elements of the administrative act, the condition of merely infringing the interest instead of violating personal rights can be considered as sufficient for the decisions made as a result of the annulment action, not only for the parties, but for everyone concerned. Therefore, it is once again understood that administrative acts, which may concern more than one person at the same time within the framework of a current interest, are justified. In my opinion, bringing an administrative act created by tacit refusal to the realm of law without any justification will also contradict the condition of being in the public interest. The execution of the cancellation decisions given as a result of the annulment case has a characteristic that concerns the public order and must be implemented immediately by the administration. The Administration cannot delay the execution of these decisions and cannot escape from its duty to fulfill the annulment decisions. ←15 | 16→This will be expected from the administration subject to the law. In this context, it can be thought that an administrative act whose justification is unknown or not understood will be far from achieving the desired result in legal and public terms.

1.1 Authority Element of the Administrative Procedure

The authority element of the administrative process may be in terms of person, place, subject or time. Namely, the ability to make a declaration of will on behalf of the administration in administrative law depends on the fact that the relevant authorities are clearly authorized in accordance with the provisions of the legislation. Thus, transactions made by unauthorized persons may be a reason for cancellation. The dimensions of the authority element and the domain of sovereignty may also be considered in terms of location of jurisdiction in terms of location will also constitute a reason for cancellation, since it can be clearly foreseen in which geographical areas a public official can exercise his authority. For example, the powers of the governor of a province will only be valid within the boundaries of that province. Authority element is also examined in terms of subject. As often repeated; the powers of public officials are specified in the legislation. Especially in statutory professions such as civil servant, a person who wants to enter the public office is included in a structure whose boundaries are predetermined. These limits indicate which powers can be used together with personal rights. Therefore, the act of a public official out of the authority granted to him by the legislation will cause a situation of inability to arise in terms of the subject and will result in the cancellation of the transaction made within this framework. Finally, the authority element can also be evaluated over time. Granting the given authorization for a certain period of time will cause the authorization to terminate due to the expiration of the period, and the administrative action that is made as if the authorization is still continuing even though the period has expired may be canceled due to lack of authorization in terms of time.

The appearance of the authority element on administrative transactions manifests itself in three different situations in administrative law: The first is the usurpation of function. The usurpation of function refers to the interchangeability of the three basic powers, whose powers and limits are declared by the 1982 Constitution, and which have a civilized division of labor. These transactions are legally invalid. For example, marriage procedures are completed by the couples who want to get married to apply to the marriage office of the relevant municipality and get their official wedding by the marriage officer with the authority given by the mayor. This process is carried out by the municipalities,5 which ←16 | 17→are a local government organization within the decentralization elements of the Turkish administrative organization. The fact that the marriage is carried out by the marriage offices affiliated to the municipalities will not indicate that the marriage offices working under the municipalities are authorized to terminate the same marriage. Because, according to the existence of the necessary conditions only family courts (where there are no family courts, civil courts of first instance as family courts) will be able to decide the divorce situation regulated between articles 161 and 184 of the Turkish Civil Code. Therefore, if the marriage department can decide to marry or want to carry out divorce, this will lead to a usurpation of function6 and the transaction will be null and void.

The second situation is the violation of authority. A breach of authority consists of the execution of a transaction by a person who is not authorized to perform that transaction. Namely, the person authorized to make a statement of will on behalf of the administration may have taken an administrative action on an issue that does not fall within the scope of his/her duty, or an administrative action may have been taken by a person who is not in charge of the public service. In both cases, the use of a power that is not within the scope of its jurisdiction by its use or the use of authority by establishing an administrative act as if someone who is not in charge of the administrative organization in any way will be an administrative act caused by an authority that does not exist. Here, the administrative action taken as a result of this situation, which is called as a violation of authority, will be deemed invalid.

The third case is authority encroachment. Power encroachment is the bringing of an administrative action in matters that fall under the jurisdiction of another public official who is outside his/her field of duty but also within the administrative organization. For example, one of the important examples of jurisdiction violations in administrative law is that the subordinate acts by substituting the superior subordinate (Derdiman, 2014: 207).

1.2 Form Element of Administrative Procedure

The second element in evaluating whether the administrative acts subject to the annulment case are in compliance with the law is the form. In fact, the manner in which administrative acts will be made is stated in the relevant legislation. In ge neral, when administrative transactions are examined in terms of form element, the existence of several important issues stands out. Administrative procedures should ←17 | 18→be created in writing first of all in terms of the style element. The fact that the transaction is in writing will provide the way for an action for annulment against that transaction; because it is not possible to file an action for annulment against the verbal acts of the administration. According to the case law of the Council of State, verbal decisions can only be sued when they are put in written form (Derdiman, 2014: 217). Moreover, the Council of State, in favor of the plaintiff who was deemed unsuccessful as a result of the oral examination and who applied for the annulment of the relevant decision, the basis of which the examination board formed its observations and thoughts as a result of the oral examination, and if it is a result based on concrete information and documents, what concrete information and He has to prove his existence with documents and put forward his reasons and decided to refuse the appeal request of the defendant administration.7 In this respect, in terms of the form element of the administrative acts, it can be stated as a mandatory element that they are justified as well as being written and signed. The declaration of will that constitutes the content of the administrative process and explains the transaction can be written and verbal; As we have examined in our study, it may also be implicitly revealing that the administration has rejected the present application because it did not respond to the applications made to it within sixty days, which is the general litigation period in the administrative jurisdiction.

Details

Pages
288
ISBN (PDF)
9783631843710
ISBN (ePUB)
9783631843727
ISBN (MOBI)
9783631843734
ISBN (Book)
9783631842010
Language
English
Publication date
2021 (January)
Tags
Local governance Regional development Economic development International trade Technology and innovation Regional development agencies Development plans Rural development
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 288 pp., 18 fig. b/w, 46 tables.

Biographical notes

Fatih AYHAN (Volume editor)

Fatih Ayhan is working as an academician in the Economics Department at Bandirma Onyedi Eylul University, Turkey. He has many different studies in several areas. His experiences are focused on especially international economics, labour market, and financial markets.

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Title: Local Governance and Regional Development: Current Perspectives