- Slides: 33
Administrative Law [İdare Hukuku]
In General l Administrative law is a set of rules that: – – l Governs relations between the administration and individuals Determines the legal status of government officials (civil servants) Indicates the rights and duties of individuals in their dealings with these officials Regulates rules applicable to financial matters (taxes and revenues) Laws are often written in general terms/abstract therefore it is necessary to take regulatory measures to apply these general rules to individuals regulatory acts are also part of the administrative law (statutory decree+regulation+by-law)
Special rules to administrative matters l l States are sovereign and they exercise their sovereignty through their administrative organs administration is given a sovereign role This is why administration can only be controlled by special courts administrative courts they apply special rules determined and defined in administrative law. In other branches there are single laws on the matter Constitıtional law: Constitution; Criminal law: Criminal Code; Civil law: Civil Code But in Adm. Law no such single code which applies to the field of adm. law as a whole.
Administrative law in Turkey l l In Turkey French institutions have been used as models in the field of public administration But not like the codes of civil law or criminal law which were adopted in toto A more selective approach in the adoption of foreign institutions in adm. law There are exceptions-----total adoption of the French institutional model: Council of State and Court of Accounts.
Some important principles of administrative law l * “legality of administration” or “principle of legality” (Kanunilik İlkesi) – – the executive function should be exercised and carried out within the framework of law (Art. 8 of Turkish Const) (necessary principle for the main component of the rule of law all acts and actions of administration should be subject to judicial review) A real guarantee of the liberties of individuals, preventing possible arbitrary rule by the administration.
Some important principles of administrative law l **”Indivisibility of Administration” (idarenin bütünlüğü ilkesi): l Turkish administration is build upon the principles of both centralization and decentralization. ------and it has both centralized and decentralized branches-----nevertheless---these branches constitute a single unit/system. Unity and indivisibility of the administration is secured through the central government and through the power of “administrative tutelage” (idari vesayet) over the acts and the organs of decentralized agencies. Unity requires similar principles and remedies to exist at both level of the administraion l l
Some important principles of administrative law l l “Unilateral Nature of Administrative Acts”: Administrative law----is related with the acts + actions + and contracts of administration. They are different from private law transactions. ----they are called administrative acts + actions + contracts. The basic characteristic of these transactions is that-----they are “unilateral”. This means that-----administrative organs can directly make changes in the legal status of individuals------in their absence and without their consent and approval. – Water meters, water supply
Administrative Organization in Turkey l l Turkish administration includes two branches: 1 - Central administration 2 - Decentralized administration functions under the administrative tutelage of the central administration.
Administrative Organization in Turkey l A) Central administration (merkezden yönetim): – – l 1 - Central departments (merkezi teşkilat) 2 - Provincial Administration (Taşra idaresi) B) Decentralized Administration (yerinden yönetim): – – – Local Administration (Mahalli İdareler) Functionally Decentralized Organizations (Hizmet Yerinden Yönetim İdareleri) Public Professional Organizations (Kamu Kurumu Niteliğindeki Meslek Kuruluşları)
Administrative Organization in Turkey l Central Administration: – – The government (the Council of Ministers)--appointed by the President and acting with the confidence of Parliament----is at the head of the central administration. President is the head of both the Council of Ministers and the administration.
Administrative Organization in Turkey l Central Administration: – Central Departments: (in the capital city) l l office of Prime Minister + the Council of Ministers + ministries + and some consultative agencies. Office of Prime Minister: Gradually Prime Ministry has become an office functioning as a ministry assuming responsibility for certain public services such as religious affairs + maritime + state statistics – These services are carried out by: l general directorates attached to the Prime Ministry l by State Ministries. –
Administrative Organization in Turkey l Ministries: Minister Under-Secretary Assistant Under-Secretaries General Director Other Subordinates (Civil Servants)
Administrative Organization in Turkey l Consultative Agencies: – – – State Planning Organization National Security Council of State l l Highest court of appeal for administrative cases Consultative agency to the government for example on contracts for public procurement issues.
Administrative Organization in Turkey l Central Administration: – Provincial Departments/adm: l l Each ministry has central and also provincial parts. There administrative bodies in different subdivisions of the administration: in Provinces (İl) – in sub-provinces (ilçe) – in districts (bucak). –
Administrative Organization in Turkey l Provincial adm: – – Administration of each divisions is headed by an official who is the local representative of the central administration. This person has authority over all the civilian branches of the central department in the division (including police excluding the judiciary) l l l Head of province is the governor (vali) highest authority representing the state in the province & appointed by the Council of Ministers. The head of sub-province is sub-governor (kaymakam) he is appointed by a joint decree signed by President + prime minister + and minister of interior. The head of district is the director (müdür)-----appointed by the minister of interior.
Provincial Administration in Turkey
Provincial Administration in Poland
Administrative Organization in Turkey l B) Decentralized Administration (yerinden yönetim) – principle of decentralization is being increasingly applied in the administrative field because: l l l proliferation of public needs increasing importance of specialization Subsidiarity principle in EU
Administrative Organization in Turkey l Local Administration (Mahalli İdareler) l l – – – municipalities (belediyeler) villages (köyler) These administrative units are public corporate bodies their top officials are elected by citizens their officials may be removed from office by the minister of interior l Investigation/prosecution for offenses related to their duties
Administrative Organization in Turkey l l Municipalities are created in urban areas with specific number of inhabitants they are authorized to issue by-laws + tariffs and directives + to exercise police powers + to levy taxes and duties + issue licenses and develop city plans. Art. 127 of the 1982 Constitution states that “special local administrative arrangements may be introduced for larger urban areas” “Metropolitan Municipality”(Büyükşehir. Belediyesi) it consists of several sub-province municipalities Major decisions of both types of municipalities are subject to administrative control and approval of central authorities which is called “administrative tutelage”.
Administrative Organization in Turkey l Functionally Decentralized Organizations (Hizmet Yerinden Yönetim İdareleri): – countrywide public services Exp: l l General Directorate of Highways Public Economic Enterprises (Kamu İktisadi Teşebbüsleri) Turkish Radio & Television (TRT) Public universities: Rectors are appointed by the President and “they are under the control and supervision of the state” (Turkish Const) – All universities are attached to the Council of Higher Education (YÖK)---and members of this council are appointed by the President they are part of the adm. – YÖK also nominates Rectors & appoints deans –
Administrative Organization in Turkey l Public Economic Enterprises: – – – they are subject to private law in their activities But status of civil servants employed + tariffs + pricing decisions fall within the domain of administrative law. (tea & tobacco) They are autonomous but they are subject to administrative tutelage exercised by Central Administration; l l exempted from the financial control of the Court of Accounts (Sayıştay) But operate under the comprehensive control of the High Control Board & reports of this Board are examined by the TGNA.
Administrative Organization in Turkey l l l Public Professional Organizations (Kamu Kurumu Niteliğindeki Meslek Kuruluşları) E. g. Bar Associations + Architects Association + or Chambers of Commerce They are also Public Corporate Bodies. Their aim is to promote and meet the common needs of the members of a given profession. Their organs are elected by their members + their activities are subject to administrative and financial supervision of Central Administration.
Administrative Sanctions l l l Administration has the power to decide and enforce administrative sanctions against individuals violating certain rules Generally there is no need to take a court decision to enforce “administrative sanctions” They are unilateral decisions of the administration But these sanctions must be clearly defined and based on a law + a regulation + or a by-law.
Administrative Sanctions (idari yaptırımlar) l Examples of administrative sanctions: – – – l l disciplinary penalties (exp: cheating in exam) temporary or permanent prohibition from doing business or professional activities (Ex: Ph. D of an academic) (medical operation doctor) suspension of licenses (football) Affected persons from administrative sanctions can seek judicial remedies including “stay of execution”/interm measure Exhaustion of domestic remedies rule
Emergency Powers of the Administration l l In all countries we can see such powers during abnormal periods l State of emergency (OHAL in Turkey) l Martial Law (sıkıyönetim) State of Emergency: – – – For events of----natural disasters + dangerous disease + serious economic crisis and widespread acts of violence aimed at destruction of the democratic order and public order. declared by the Council of Ministers. can be limited to certain parts of the country or be applicable for entire country
Martial Law l l l Can be declared in case of widespread acts of violence more grave than those required for the declaration of the state of emergency. Again in case of war + rebellion + or events threatening the integrity of the country and the nation Martial law administration may be declared. Difference between Martial law and state of emergency – – State of emergency is a civil rule but martial law is a military regime. A general is appointed at the head of each region criminal justice is transferred to military courts police duties, powers and functions are transferred to martial law authorities.
Control of the Administration l 1 - Non-Judicial Control of the Adm. – – – l A- Control by the Parliament B- Presidential control C- Intra-administration control 2 - Judicial Control of the Adm. – – – A- Action for annulment (iptal davası) B- Full Remedy Action (Tam yargı davası) C- Stay-order (stay of execution)
Judicial Control of the Administration l l This control is performed by courts In Turkey-----these courts are: – – – A- the Council of State (Danıştay) B- Subordinate administrative courts C- Supreme Military Administrative Court.
Action for Annulment l l l Main remedy against the illegal administrative acts Plaintiff seeks annulment of the administrative act retroactively---on the ground that it is illegal. There are some conditions: – – – l 1 - Decision of the administration must be of an executory nature and final: Exp a letter advising something 2 - All administrative remedies must be exhausted 3 - A determined time-limit should not expire Commencement of this type of action does not automatically suspend the legal effects of the reviewed act
Stay-order (stay of execution) l l l Action for annulment does not automatically suspend the legal effects of the reviewed act Stay-Order is a temporary remedy and it is binding until the final decision is rendered For a stay-order to be taken there is a condition: – “implementation of that administrative act would result in damages which are very difficult or impossible to repair”
Full Remedy Action (Tam Yargı Davası) l l l It may be brought by a plaintiff who alleges that the Administration has infringed some rights and there occurred a right for compensation. For full remedy action----plaintiff should have standing to sue--which means the existence of; A- qualified damage – – l Concrete Personal Actual “direct” damage B- correlation between the damage and the administrative act