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Title: Principles of Turkish Administrative Law

Principles of Turkish Administrative Law

by Ahmet Yayla (Volume editor) Nihal ÖZKARDEŞ (Volume editor)
©2023 Edited Collection 302 Pages
Law, Economics & Management

Summary

To realize public interest, the administration is granted with superior powers, namely public force. In return, in a state governed by the rule of law, a mechanism is needed to protect the rights of persons before “public force” and to secure the lawfulness of the “powerful” administration. Administrative law may be seen as a balance between public interest which is in favor of people as a community and public force which restricts the rights of persons. This book covers the general principles that administration should abide by, while serving for public interest by using public force.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Preface
  • Contents
  • Abbreviations
  • Introduction
  • Section I: Public Force: Organization, Personnel and Property
  • 1. The Notion of Administration
  • 1.1. Principle of Legal Administration
  • 1.2. Public Corporate Bodies
  • 1.2.1. Establishment of Public Corporate Bodies
  • 1.2.2. Specification Criteria of Public Corporate Bodies
  • 1.2.2.1. Ability to Conduct Unilateral Actions
  • 1.2.2.2. Executability
  • 1.2.2.3. Ex Officio Execution of Administration
  • 1.2.2.4. Benefitting from the Presumption of Legality
  • 1.2.3. The Other Indicators
  • 1.2.3.1. The Statute of Goods and Personnel of Public Corporate Bodies
  • 1.2.3.1.1. Goods
  • 1.2.3.1.2. Personnel
  • 1.2.3.2. The Statute of Receivables and Debts of Public Corporate Bodies
  • 1.2.3.2.1. Receivables
  • 1.2.3.2.2. Debts
  • 1.2.3.3. Obligatory Membership and Contribution
  • 1.2.3.4. Tax Exemptions
  • 1.2.3.5. Obligations of Public Force
  • 1.3. The Principles of Centralization and Decentralization
  • 1.3.1. Centralization (A Single Public Corporate Body: State)
  • 1.3.2. Decentralization (Public Corporate Bodies Other Than the State)
  • 1.3.2.1. Local Administrations
  • 1.3.2.2. Decentral Administrations in Service
  • 1.4. The Principle of Integrity of Administration
  • 1.4.1. Hierarchy
  • 1.4.1.1. Over Persons
  • 1.4.1.2. Over Acts
  • 1.4.2. Administrative Tutelage
  • 1.4.2.1. Over Persons
  • 1.4.2.1.1. Provisionally Removal of Organs of Local Administrations from Office
  • 1.4.2.1.2. Provisionally Removal from the Office of Responsible Organs of Professional Organizations Having the Characteristics of Public Institutions
  • 1.4.2.2. Over Acts
  • 1.4.2.2.1. Authority to Approve
  • 1.4.2.2.2. Authority to Annul
  • 1.4.2.2.3. Authority to Postpone
  • 1.4.2.2.4. Authority to Request for Reevaluation
  • 1.4.2.2.5. Authority to Bring Action Before Administrative Courts
  • 1.4.3. A Different Organization from the Perspective of Integrity of Administration: Regulatory and Supervisory Institutions (Independent Regulatory Authorities)
  • 1.4.3.1. Organic Features of Regulatory and Supervisory Institutions
  • 1.4.3.2. Supervision of Regulatory and Supervisory Institutions
  • 1.4.3.2.1. Administrative and Financial Supervision
  • 1.4.3.2.2. Supervision of Judiciary
  • 1.4.3.3. Functional Features of Regulatory and Supervisory Institutions
  • 1.4.3.3.1. Laying Down Rules
  • 1.4.3.3.2. Monitoring and Supervision
  • 1.4.3.3.3. Implementing Sanctions
  • 1.4.3.3.4. Consultancy, Guidance and Delivering Opinion
  • 1.4.3.3.5. Dispute Resolution
  • 1.4.3.4. Constitutional Position of Regulatory and Supervisory Institutions
  • 2. Public Employees
  • 2.1. Fundamental Principles Regarding Public Employees
  • 2.1.1. Principle of Freeness
  • 2.1.2. Principle of Equality
  • 2.1.3. Principle of Career and Qualification
  • 2.2. Disciplinary Regime of Public Employees
  • 2.3. Legal and criminal liability of public employees: “criminal and legal protection”
  • 2.3.1. Safeguard Regarding Criminal Prosecution
  • 2.3.2. Safeguard Regarding Tort Liability
  • 3. Public Property
  • 3.1. Emergence of Public Property Quality
  • 3.1.1. Public Property by Their Nature
  • 3.1.2. Traditional Public Property
  • 3.1.3. Allocation Act
  • 3.2. Distinction of Public Property According to The Aim of Allocation
  • 3.2.1. Unowned Things
  • 3.2.2. Common Property
  • 3.2.3. Public Service Property
  • 3.3. Legal Regime of Public Property
  • 3.3.1. Public Property Cannot Be Transferred and Alienated (Abalienated)
  • 3.3.2. Public Property Cannot Be Prescribed
  • 3.3.3. Limited Real Rights Cannot Be Established on Public Property
  • 3.3.4. Public Property Cannot Be Subject to Private Law Agreements
  • 3.3.5. Public Property Cannot Be Confiscated
  • 3.3.6. Public Property Cannot Be Expropriated
  • 3.4. Usage of Public Property
  • 3.4.1. Public Property Allocated to Public Service
  • 3.4.2. Places That Are Left to the Direct Use of the Public
  • 3.4.2.1. Common Usage
  • 3.4.2.2. Private Usage
  • 3.5. Procedures of Property Acquisition By Administration
  • 3.5.1. Expropriation
  • 3.5.1.1. Expropriation Process
  • 3.5.1.1.1. Acts Before Expropriation
  • 3.5.1.1.2. Phase of Expropriation
  • 3.5.1.2. Renouncement of Expropriation
  • 3.5.1.3. Annulment Case Before Administrative Courts Against Expropriation
  • 3.5.1.4. Right of the Owner to Reclaim the Property
  • 3.5.1.5. Urgent Expropriation
  • 3.5.1.6. Seizure Without Expropriation
  • 3.5.2. Procedure of Transfer
  • 3.5.3. Requisition
  • 3.5.4. Nationalization
  • Section II: Activities of Administration
  • 1. Police (Law Enforcement)
  • 1.1. Public Order
  • 1.2. Elements of Public Order
  • 1.2.1. Safety
  • 1.2.2. Well-Being (Public Peace)
  • 1.2.3. General Health
  • 1.2.4. Other Elements of Public Order
  • 1.3. Essential Distinctions Regarding Police
  • 1.3.1. General Administrative Police—Special Administrative Police
  • 1.3.2. Judicial Police—Administrative Police
  • 1.3.2.1. Prevention-Suspension Criterion
  • 1.3.2.2. Criterion of Being Related to a Crime (Intent)
  • 1.4. Administrative Policing Procedures
  • 1.4.1. Freeness
  • 1.4.2. Notification Procedure
  • 1.4.3. Permission Procedure
  • 1.4.4. Prohibition Procedure
  • 1.5. Lawfulness of Police Acts and Actions
  • 1.5.1. Restriction Must Have a Basis Provided by Law
  • 1.5.2. Restriction Must Be in Conformity with the Reasons Mentioned in the Relevant Articles of the Constitution
  • 1.5.3. Restriction Must Not Be Contrary to the Letter and Spirit of the Constitution
  • 1.5.4. Restriction Must Not Infringe the Essence of the Fundamental Rights and Freedoms
  • 1.5.5. Restriction Must Not Be Contrary to the Requirements of the Democratic Order of the Society
  • 1.5.6. Restriction Must Not Be Contrary to the Principle of Proportionality
  • 1.5.6.1. Adequacy (Suitability)
  • 1.5.6.2. Necessity (Imperativeness)
  • 1.5.6.3. Proportionality Stricto Sensu
  • 1.6. Expansion of Police Powers
  • 1.6.1. State of Emergencies
  • 1.6.2. Consequences of Declaring State of Emergency
  • 1.6.3. Limits of Policing in State of Emergency
  • 2. Public Service
  • 2.1. The Principles of Public Service
  • 2.1.1. The Principle of Continuity
  • 2.1.2. The Principle of Regularity
  • 2.1.3. The Principle of Adaptation
  • 2.1.4. The Principle of Equality
  • 2.1.5. The Principle of Impartiality
  • 2.1.6. The Principle of Gratuitousness
  • 2.2. Establishment of Public Service
  • 2.3. Operating Procedures of Public Service
  • 2.3.1. Secure Modality
  • 2.3.2. Public Service Being Performed by a Private Law Person
  • 2.3.2.1. Unilaterally Assignment of Private Law Persons to Carry Out Public Service
  • 2.3.2.1.1. Establishment of Private Law Person by Administration
  • 2.3.2.1.2. Granting the Status of Public Interest Association
  • 2.3.2.1.3. Licensing Procedure
  • 2.3.2.2. Making Private Law Persons to Carry Out Public Service via Contract
  • 2.3.2.2.1. Concession Agreement
  • 2.3.2.2.2. Definition of Concession Agreement According to the Constitutional Court
  • Section III: Acts of Administration
  • 1. Administrative Acts
  • 1.1. Features of Administrative Acts
  • 1.1.1. Unilateralism
  • 1.1.2. Executability
  • 1.1.3. Administrative Act Being “Final”
  • 1.1.4. Presumption of Legality
  • 1.1.5. Judicial Review
  • 1.2. Types of Administrative Acts
  • 1.2.1. Administrative Acts According to Material Division
  • 1.2.1.1. Individual Administrative Acts
  • 1.2.1.1.1. Condition Acts (Actes-Condition)
  • 1.2.1.1.2. Subjective Acts (Personal Acts)
  • 1.2.1.2. General Regulatory Administrative Acts
  • 1.2.2. Administrative Acts According to the Number of Intents
  • 1.2.3. Implicit Acts
  • 1.3. Elements of Administrative Acts
  • 1.3.1. Authority (Power)
  • 1.3.1.1. Usurpation of Function
  • 1.3.1.2. Usurpation of Power (Authority)
  • 1.3.1.3. Serious and Obvious Trespassing of Authority
  • 1.3.1.4. Trespassing of Authority
  • 1.3.1.4.1. Authority on Subject
  • 1.3.1.4.2. Authority on Location
  • 1.3.1.4.3. Authority on Time
  • 1.3.2. Form/Procedure
  • 1.3.2.1. Form
  • 1.3.2.2. Procedure
  • 1.3.3. Motive
  • 1.3.4. Subject
  • 1.3.5. Aim (Distortion of Procedure, Distortion of Authority)
  • 1.4. Termination of Administrative Acts
  • 1.4.1. Abolishment of Administrative Acts
  • 1.4.2. Withdrawal of Administrative Acts
  • 1.5. Administrative Acts Which Are Null and Void
  • 2. Agreements of Administration
  • 2.1. The Notion and Criteria of Administrative Agreements
  • 2.2. The Types of Administrative Agreements
  • 2.2.1. Public Service Concession Agreements
  • 2.2.2. Administrative Service Agreements
  • 2.3. Termination of Administrative Agreements
  • 2.4. The Principles of Fait Du Prince, Unpredictability (Imprevision) and Force Majeure
  • 2.5. Private Law Agreements of Administration
  • Section IV: Administrative Liability
  • 1. The Notion of Administrative Liability
  • 2. The Types of Administrative Liability
  • 2.1. Fault-Based Liability (Service Fault)
  • 2.1.1. Appearances of Service Fault
  • 2.1.2. Principle of Service Fault as Prime Liability
  • 2.1.3. Severe (Gross) Service Fault
  • 2.2. Absolute Liability (Strict Liability, Liability Without Fault)
  • 2.2.1. The Principle of Risk
  • 2.2.2. The Principle of Equality Before Public Burdens
  • 2.2.3. The Principle of Social Risk (Social Damage)
  • 2.2.3.1. Application of the Principle in Case of Damages Caused by Terrorist Activities
  • 2.2.3.2. Application of the Principle in Case of Damages Caused by Other Social Incidents
  • 2.2.4. Absolute Liability of Administration as a Result of Legislative and Judicial Activities
  • 3. Compensation Liability of The Public Employees
  • 4. Factors Effecting Administrative Liability
  • 4.1. Force Majeure
  • 4.2. Unexpected Cases
  • 4.3. Fault of The Damaged
  • 4.4. Fault of A Third Person
  • References

Abbreviations

AN

Application number

APC

Administrative Proceedings Circuit

C.

Circuit

CC

Constitutional Court

CJD

Court of Jurisdictional Disputes

D.

Decision

DAC

District Administrative Court

DG

Decision Gazette

EPDK

Energy Market Regulatory Authority

IA

Individual Application

İLR

İstanbul Law Review

İSKİ

İstanbul Water and Canalization Administration

JALAS

Journal of Administrative Law and Administrative Sciences

MHAC

Military High Administrative Court

M.

Merits

no.

number

OG

Official Gazette

OIZ

Organized Industrial Zones

p.

page

par.

paragraph

SC

State Council

SCPSCAC

SC Plenary Session of the Chambers for Administrative Cases

SE

Suspension of Execution

Sec.

Section

SGD

Security General Directorate

TBMM

Grand National Assembly of Turkey

TEİAŞ

Turkish Electricity Transmission Corporation

V

Volume

Introduction

From the viewpoint of historical development process, we may state that there are two systems governing administration. The distinction on these systems emerges on whether a separate administrative law regime is adapted. Within the scope of common law, administration is scrutinized by general courts and disputes are resolved within the scope of general provisions which are also applied to private law persons. On the other hand, in administrative regime systems, which firstly arose in France, administration is subject to a separate branch of law and disputes concerning administration is scrutinized by a separate branch of judiciary.1 Turkey is one of the states which has a separate branch of judiciary, and which adopted a separate administrative law branch, which is also the subject of this book.

Generally speaking, the basic idea of Turkish administrative law is that administration serves to the public interest. Due to the obligations of public interest, it is also granted with superior rights compared to private law persons. Therefore, Turkish administrative law tries to establish the way in which public interest will be realized and the protection of private law persons confronting the “powerful” administration.

From this perspective, in the first section named “Public Force: Organization, Personnel and Property,” we will touch upon the organization, personnel and property of administration which are the tools that administration has while serving for public interest. In this section, within the subject of “The Notion of Administration” we intend to write on the basic principles governing administration, namely where the administration is situated in the organization of the state and its stance before judiciary and legislature. In this subject, firstly, we will explain “the principle of legal administration,” which rules administration to be regulated by laws (namely, legal codes of legislature). Secondly, we will touch upon “public corporate bodies,” which together forms the administration, and specifically how these bodies are established and specified. Thirdly, we will handle the principles of centralization and decentralization, which govern Turkish administrative organization and function according to the Turkish Constitution. Fourthly, we will explain the principle of integrity of administration, which is laid down in Turkish Constitution. We will detail the mechanisms such as hierarchy and administrative tutelage which serve to provide administrative integrity. Lastly, we will explain the legal status and regime of independent regulatory authorities as a different organization from the perspective of integrity of administration.

In the first section, secondly, we will elaborate the subject of “public employees,” specifically by dealing with the fundamental principles governing the subject, disciplinary regime and legal and criminal liability of public employees.

Lastly, in the first section, we will explain the regime of “public properties.” We will focus on the subjects of how public property emerges, the types of public properties according to the aim of allocation, legal regime of public properties, usage of such properties and how administration can acquire such properties.

In the second section named “Activities of Administration,” we will assess two main activities of administration, which are police and public service. Within the scope of police, we will specifically touch upon the notion of “public order” and its elements, which the activity of police aims to protect. Thereafter, we will assess essential distinctions regarding policing (such as general and special police, judicial and administrative police), policing procedures as freeness, notification, permission, prohibition and lawfulness of policing acts and actions pursuant to Turkish Constitution.

Within the scope of the subject of “public service,” at first, we intend to explain the principles of public service as the principles of continuity, regularity, adaptation, equality, impartiality and gratuitousness. Secondly, we will explain how public service can be established. Thirdly, we will detail operating procedures of public service through which we will explain the person who will carry out the service, with which monetary resource and personnel.

In the third section named “Acts of Administration,” we intend to assess unilateral acts of administration (administrative acts) and bilateral or multilateral acts of administration (administrative agreements). Firstly, within the subject of “administrative acts,” features of administrative acts will be handled. These features may be seen as the evidence of public force that administration benefits. Secondly, we will touch upon the types of administrative acts. Thirdly, we will detail the elements of administrative acts, which judiciary applies when determining on the lawfulness of administrative acts. Fourthly, termination of administrative acts and lawfulness of such terminations will be explained. Lastly, judicial review of administrative acts which are null and void will be handled, since such review differs from the (ordinary) unlawful administrative acts.

In the third section, secondly, we will touch upon agreements of administration, specifically focusing on how an agreement of administration may be seen as an “administrative agreement,” types, termination and important principles of such agreements and lastly private law agreements of administration.

Lastly, in the fourth section named “Administrative Liability,” we intend to assess how and when administration may be held liable due to its damages. In this section, we will specifically focus on the general conditions of liability, types of liability namely fault-based and absolute liability, compensation liability of public employees and factors effecting administrative liability.

1 Hayrettin Yıldız, “İdare Hukukunun Kısa Tarihçesi [Short History of Administrative Law],” Ankara Hacı Bayram Veli Üniversitesi Hukuku Fakültesi Dergisi 22, no. 4 (2008), 200, https://dergipark.org.tr/tr/download/article-file/685872.

Section I: Public Force: Organization, Personnel and Property

Abstract

By using public force, administration establishes unilateral and executable acts, benefits from the presumption of legality and is secured more than private law persons concerning their property, personnel, receivables and debts. While the idea behind this public force is the provision of public interest, administration nevertheless may violate the rights of persons who are clearly “weaker” compared to the “powerful” administration. Thus, a mechanism is needed to protect the rights of persons and ensure that administration acts lawfully. In this sense, administrative law emerges as an “opponent” branch of law, which constantly tries to push administration to the “lawful side.” Within this scope, to guarantee a “lawful” administration, administration is under the supervision of judiciary and is established by legislature.

In this section, we aim to “concertize” the abstract notion of “administration” which possesses public force to the aim of public interest. Truly, administration appears as an “organization,” with “employees” who use public force over persons in real and possessing “property” aimed at public interest. The organizational structure of administration comprises a community of public corporate bodies, which are separate from each other, but also integrated. In order for these public corporate bodies to carry out services, they need employees and properties which are governed with a different regime.

Keywords: principle of legal administration, public corporate body, public employee, public property, the principle of integrity of administration, administrative tutelage, hierarchy

1. The Notion of Administration

When handling Administrative Law, it is required to ask the question of “what is administration” at first. Administration is—or at least gives the impression of—a power or a force. Examples such as school administration indicating to some students that they cannot enroll to specific courses, police officer stopping people and asking for identification, municipality expropriating a person’s garden house within some conditions are a few of instances where the administration possesses or gives the impression to possess such a power or force.

The impression of a power or a force unavoidably calls to mind the question of whether the notions of “state” and “administration” are identical. Since the notion of state also associates with a force or power, is administration tantamount to state? Within this regard, if we start by defining the state, a set of different definitions would be at hand since this definition varies from person to person. Therefore, it is not possible to conclude certainly that one definition is more accurate over the others.

However, it is true that the state emerged from the need of people to live together. It may be possible to designate the occurrence and development of the state and the dynamics associated with it from a historical point of view. However, this identification would be subject to different studies and disciplines. Rather than an approach from the historical development, from the viewpoint of Administrative Law, the state can be designated pursuant to positive law. Pursuant to the article 6 of the Turkish Constitution; “Sovereignty belongs to the Nation without any restriction or condition. The Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution.” These prescribed authorized organs are also laid down in the Constitution:

“ARTICLE 7- Legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation. This power shall not be delegated.”

“ARTICLE 8- Executive power and function shall be exercised and carried out by the President of the Republic in conformity with the Constitution and laws.”2

“ARTICLE 9- Judicial power shall be exercised by independent and impartial courts on behalf of the Turkish Nation.”3

As seen, the state comprises of “legislature,” “executive” and “judiciary.”

Then what is the state in the lives of individuals? To receive education as well as being obliged to abide by the rules throughout the education; to receive health care as well as waiting in the corridor of a hospital for a doctor who does not show up; to receive protection as well as being conscripted for military service at a certain age and so forth. In brief, from the perspective of individuals, while state provides us with some services, sometimes it also restrains our fundamental rights and freedoms.

Is it the legislature that makes us live as such? On one side, there are decision makers and on the other side, there are implementers. The ones that are directly in relation with us are the implementers. The decisions of legislature, executive and judiciary do not generally affect us unless they are implemented.4 The mechanism called “administration” —is the one that implements those decisions.

We have mentioned that the state is comprised of “legislature,” “executive” and “judiciary.” At this point, we should also sort out where the mechanism of administration is located within these powers. Administration is laid down in the section related to the executive in the Constitution. Therefore, administration is located within the executive. In that case, are the president, ministers and deputies of the president included in the administration?

Details

Pages
302
Year
2023
ISBN (PDF)
9783631899069
ISBN (ePUB)
9783631906064
ISBN (Hardcover)
9783631898987
DOI
10.3726/b21056
Language
English
Publication date
2023 (July)
Keywords
Public administration Commercial Law Turkish administration
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2023. 302 pp., 4 fig. b/w.

Biographical notes

Ahmet Yayla (Volume editor) Nihal ÖZKARDEŞ (Volume editor)

Ahmet Yayla is an associate professor in the administrative law department at the University of Bahçeşehir. He teaches administrative law and administrative procedure law. His interests include artificial intelligence law, liability of administration law and energy law. Nihal Özkardeş is a research assistant in the administrative law department at the University of Bahçeşehir. Her interests include independent regulatory authorities law, competition law and state aid law.

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