ADMINISTRATIVE LAW

Introduction to Turkish Administrative Law

Turkish Administrative Law is a significant branch of public law governing the activities of administrative authorities in Turkey. It establishes the legal framework for the functioning and organization of public administration, ensuring that administrative actions comply with the law and protect citizens' rights. The primary purpose of administrative law is to regulate the relationship between public authorities and individuals, aiming for transparency, accountability, and efficiency in administrative operations.

The Turkish administrative system is influenced by the French administrative law tradition, and it encompasses a set of legal norms derived from the Turkish Constitution, statutes, decrees, and other legal instruments. The Constitution of the Republic of Turkey, particularly Articles 123 to 137, provides the foundational principles for the organization and duties of the administration.

Administrative law in Turkey covers various aspects such as the delegation of powers, administrative procedures, public service delivery, and the mechanisms for individuals to challenge administrative decisions. One of the essential features of the Turkish administrative legal system is the principle of legality, ensuring that all administrative actions are subject to legal scrutiny. Additionally, judicial review by administrative courts serves as a critical mechanism for safeguarding citizens' rights against unlawful administrative actions.

Sources of Administrative Law in Turkey

The sources of administrative law in Turkey are diverse and structured to ensure a comprehensive legal framework for administrative activities. The primary sources include the Turkish Constitution, statutory laws, presidential decrees, regulations, and other subordinate legislation.

1. The Turkish Constitution: The Constitution is the supreme law of Turkey and lays down the fundamental principles governing the state, including the administration. Articles 123 to 137 specifically deal with the organization and functioning of public administration. The principle of the rule of law, enshrined in the Constitution, mandates that all administrative actions must be lawful.

2. Statutory Laws: Statutory laws are enacted by the Grand National Assembly of Turkey and provide detailed regulations for various administrative activities. Key statutes include the Administrative Procedure Act, the Public Procurement Law, and the Law on the Organization of the Administration.

3. Presidential Decrees: Following the transition to the presidential system in 2018, the President of Turkey has the authority to issue decrees on matters related to executive functions. These decrees have the force of law and play a crucial role in shaping administrative policies and procedures.

4. Regulations and By-Laws: Regulations are issued by the President or the Council of Ministers to implement statutory laws. By-laws, on the other hand, are issued by administrative agencies to provide detailed guidelines for specific administrative functions. These subordinate legislations must conform to the Constitution and statutory laws.

5. Judicial Decisions: Decisions of the Constitutional Court, the Council of State (Danıştay), and administrative courts form an essential source of administrative law. These judicial bodies interpret and apply administrative laws, setting precedents that guide future administrative actions.

Principles of Administrative Law

Turkish Administrative Law is underpinned by several fundamental principles that ensure the legality, fairness, and efficiency of administrative actions. These principles include the rule of law, equality before the law, proportionality, and accountability.

1. Rule of Law: The principle of the rule of law requires that all administrative actions must be based on and conform to legal norms. This principle ensures that public authorities do not act arbitrarily and that their actions are subject to judicial review.

2. Equality Before the Law: Article 10 of the Turkish Constitution guarantees equality before the law. In the context of administrative law, this principle mandates that public authorities must treat all individuals and entities equally without discrimination.

3. Proportionality: The principle of proportionality requires that administrative actions must be appropriate, necessary, and not excessively burdensome. This means that the measures taken by administrative authorities should be suitable for achieving the intended objective, must not exceed what is necessary, and should not impose an undue burden on individuals.

4. Accountability: Accountability ensures that public officials are responsible for their actions and decisions. Mechanisms for accountability include internal administrative reviews, parliamentary oversight, and judicial review by administrative courts.

5. Transparency: Transparency in administrative processes is essential for maintaining public trust and ensuring that administrative actions are open to scrutiny. Public authorities are required to provide reasons for their decisions and make information accessible to citizens.

Administrative Organization in Turkey

The administrative organization in Turkey is structured to ensure the efficient delivery of public services and the implementation of governmental policies. The administrative structure includes central administration, local administrations, and independent regulatory agencies.

1. Central Administration: The central administration is headed by the President, who is the chief executive authority. Ministries and other central agencies operate under the President's direction to implement national policies and manage public services. Each ministry is responsible for specific sectors such as health, education, and finance, and is headed by a minister appointed by the President.

2. Local Administrations: Local administrations include provinces, districts, municipalities, and villages. Provincial administrations are headed by governors appointed by the President, while municipalities are governed by elected mayors and municipal councils. Local administrations have their own administrative bodies and budgets, allowing them to manage local affairs independently within the framework of national laws.

3. Independent Regulatory Agencies: These agencies are established to regulate specific sectors such as telecommunications, energy, and banking. They operate independently from the central administration to ensure impartiality and fairness in their regulatory functions. Examples include the Banking Regulation and Supervision Agency (BDDK) and the Energy Market Regulatory Authority (EPDK).

Administrative Procedures and Acts

Administrative procedures in Turkey are governed by the Administrative Procedure Act, which sets out the rules and principles for administrative decision-making processes. These procedures ensure that administrative actions are lawful, transparent, and fair.

1. Administrative Acts: Administrative acts are decisions made by public authorities that have legal consequences. These acts can be general (applicable to a group of people) or individual (affecting a specific person). They include regulations, orders, and individual decisions.

2. Procedural Requirements: The Administrative Procedure Act mandates certain procedural requirements that public authorities must follow when making administrative decisions. These include the obligation to provide reasons for decisions, the right to be heard, and the requirement to notify affected parties. These procedures aim to protect the rights of individuals and ensure that administrative actions are justified and transparent.

3. Public Participation: Public participation in administrative decision-making is encouraged to enhance transparency and accountability. This can involve public consultations, hearings, and the ability to submit opinions on proposed regulations.

4. Appeals and Remedies: Individuals affected by administrative acts have the right to appeal against these decisions. Administrative appeals can be made to higher administrative authorities or specialized administrative bodies. Additionally, individuals can seek judicial review of administrative acts by filing a lawsuit in administrative courts.

Judicial Review of Administrative Acts

Judicial review is a fundamental aspect of Turkish Administrative Law, providing a mechanism for individuals to challenge unlawful administrative actions. Administrative courts play a crucial role in this process by reviewing the legality of administrative acts and ensuring that public authorities comply with the law.

1. Administrative Courts: The administrative judiciary in Turkey is composed of administrative courts, regional administrative courts, and the Council of State (Danıştay). These courts have the authority to review administrative acts, annul unlawful decisions, and award compensation for damages caused by administrative actions.

2. Grounds for Judicial Review: Judicial review can be sought on various grounds, including illegality, procedural errors, abuse of power, and violation of fundamental rights. The courts examine whether the administrative authority acted within its legal powers, followed proper procedures, and respected the rights of individuals.

3. Procedures for Judicial Review: The procedures for judicial review involve filing a petition with the administrative court, which then examines the case based on the evidence and arguments presented by the parties. The court can annul the contested administrative act, order the administration to take specific actions, or award damages to the affected individuals.

4. Role of the Council of State: The Council of State (Danıştay) is the highest administrative court in Turkey and serves as the court of last resort for administrative disputes. It also has advisory functions, providing opinions on draft legislation and regulations related to administrative matters.

Conclusion

In conclusion, Turkish Administrative Law is a comprehensive legal framework that governs the activities of public authorities, ensuring that their actions are lawful, transparent, and accountable. It is based on principles such as the rule of law, equality, proportionality, and accountability, which safeguard the rights of individuals and promote efficient public administration. The sources of administrative law include the Turkish Constitution, statutory laws, presidential decrees, and judicial decisions. The administrative organization in Turkey comprises central and local administrations, as well as independent regulatory agencies, all working together to deliver public services and implement governmental policies. Administrative procedures and judicial review mechanisms ensure that administrative actions are subject to legal scrutiny, providing individuals with avenues to challenge unlawful decisions and seek remedies.