Ombudsman first came into existence in Sweden as an institution. The word “ombudsman” means interceder in Swedish. In French, this notion can be translated as mediator. The same notion transferred to English as “ombudsman” and described as the official investigating people’s complaints about administration.
In Ottoman empire, as there was no independent administrative jurisdiction system established as structured today, complaints of people regarding administration and qadis were heard at the Divan-ı Mezalim (The Royal Court of Unjust Treatments) or compliant to the Qadi-l Qudat. These institutions have provided effective supervision through investigations and considerations of the complaints of people against transactions, acts, attitudes and conducts of administrators including Sultan. Charles the XII of Sweden had analyzed this practice and legal institution when he was in Ottoman Empire (in the beginning of 18th century), and when he returned to his country, he established this foundation with the concept of “ombudsman”. Inspired by this practice, the other European countries have also established the institution of “ombudsman”.
In literature, “ombudsman” is defined as public official or officials who are appointed by the Parliament with a broad authority of investigation and pursuit but act independently not only from government but also from Parliament to investigate the complaints of persons aggrieved by the government with no formal restriction and the purpose of this institution are defined as setting forth government’s acts of injustice, preventing misuse of discretion, ensuring loyalty and respect to legislations and acting in accordance with them, making non-executive suggestions, suggesting equity measurements and reforms to the administration in terms of provision of better public service.
Following the application of Turkey for full membership of European Union in 1997, Turkey started to work in order to establish an Ombudsmanship institution as part of compliance process with European Union membership requirements.
In this context, 74th Article of Constitution was amended with the law (4709) enacted on the date of 17 October 2001 as follows;
“VII. Right of petition, right to information and appeal to the Ombudsman
ARTICLE 74- Citizens and foreigners resident in Turkey, with the condition of observing the principle of reciprocity, have the right to apply in writing to the competent authorities and to the Grand National Assembly of Turkey with regard to the requests and complaints concerning themselves or the public.
The result of the application concerning himself/herself shall be made known to the petitioner in writing without delay.
Everyone has the right to obtain information and appeal to the Ombudsman.
The Institution of the Ombudsman established under the Grand National Assembly of Turkey examines complaints on the functioning of the administration.
The Chief Ombudsman shall be elected by the Grand National Assembly of Turkey (GNAT) for a term of four years by secret ballot. In the first two ballots, a two-thirds majority of the total number of members, and in the third ballot an absolute majority of the total number of members shall be required. If an absolute majority cannot be obtained in the third ballot, a fourth ballot shall be held between the two candidates who have received the greatest number of votes in the third ballot; the candidate who receives the greatest number of votes in the fourth ballot shall be elected.
Paragraph added on 12 September, 2010; Act No. 5982) The way of exercising these rights referred to in this article, the establishment, duties, functioning of the Ombudsman Institution and its proceedings after the examination and the procedures and principles regarding the qualifications, elections and personnel rights of the Chief Ombudsman and ombudspersons shall be laid down in law.”
After the Constitutional structure was provided, the draft Ombudsman Institution Law, which was prepared by the Government in 2004, was adopted by the GNAT; however, although the regulation was taken to the Constitutional Court for the cancellation of the law, the ombudsman Institution was accepted and became a constitutional institution by the referendum dated 12 September 2010 with an amendment of Article 74 mentioning the right to petition.
Turkey has therefore eventually reaped of its four legislative and twenty year of infrastructure works by the establishment of the Ombudsman Institution as a constitutional organ as a result of the amendment of the 26 articles of the Constitution which was approved by 58% through referendum on 12 September 2010.
In the studies made so far, various terms such as “Turkish ombudsman” “mediator” “ombudsperson”, “public arbitrator”, “defender of the civil rights”, “commissar of the parliament” or “spokesperson of the citizen” were used and discussed, however as a result, it has been decided that the term ‘public auditor’ in accordance with the Law (KDKK2006 Law No. 5548) and ombudsmanship in line with the global use shall be used.
Constitutional Court has repealed the abovementioned Law with its decision numbered 2006/140 and dated 25 November 2008.
In its reasoning, although it accepts the possibility of establishing such a public entity in accordance with the law pursuant to Article 123 of the Constitution, it repealed the Law for the violation of article 6, 87 and 123 for the following reasons: (i) such public entity is required to be within the administration and within the administrative structure in line with the principle of “completeness of the administration”; (ii) there is no legal ground to establish a public administrative body which was supposed to be within the administration system according to the Article 123 of the Constitution, outside the administration and subordinate to the Legislative Body; (iii) on the other hand, when the Law is analyzed as a whole, it seems that that GNAT is assigned of the tasks such as electing, auditing and deposition chief ombudsman and Ombudspersons, however, according to the Constitution, GNAT’s authorities and responsibilities are listed in numerous clauses principle, and no further authority or responsibility can be extended to the GNAT such as those suggested.
In our opinion, Constitution Court’s repeal of the law by relying aforementioned Articles 6,87 and 123 seems to based on non-substantial legal considerations before the clear provisions of Article 74 of Constitution.
However, government did not give up its intention to establish ombudsman institution and the new draft entered into force on the date of 26 June 2013 with the title of “Ombudsman Institution Law” numbered 6328 adopted on the date of 14 June 2012.
In the preamble of the law, it is stated that; “In the scope of ‘Enhancing Activity of Public Service Project’ in “Seventh Five-Year Development Plan”, it was foreseen necessary to establish an Ombudsmanship system in Turkey as well, in order to resolve the conflicts taking place in the context of administration-individual relations, which was developed to address the need to audit administration more quickly and effectively outside the the strict and time-consuming judicial procedures and already exist in its own body and most of the member states of the European Union.
In the first article of the law, it is stated that, “The purpose of this Law is establishing Ombudsman Institution (“OI”) to analyze, investigate and make suggestions on all acts and transactions, attitudes and behaviors of administration in terms of law and equity and in sense of justice based on human rights by creating an independent and effective complaint mechanism.” OI is composed of two departments; Chief Ombudsman and General Secretary. In the institution, there would be one Chief Ombudsman and five ombudspersons positions together with a General Secretary and other personnel.
OI is entitled to analyze, investigate and make suggestions on all transactions, attitudes and behaviors of administration in terms of law and equity and in sense of justice based on human rights upon complaint about acts of administration excluding the president of the republic’s single-handed acts, decisions and orders signed ex officio, procedures regarding exercise of legislative prerogative, decisions regarding exercise of jurisdiction and acts of Turkish Armed Forces having purely military purpose. In case subject of the complaint is out of these procedures but is in the scope of exceptional circumstances, OI will not analyze or investigate; in other words, OI will not analyze the essence of the complaint and it will inform the complainant that the complaint is in the scope of exceptional circumstances, and therefore it is not within its work scope. However, if it is not clear whether the complaint is within the scope of these exceptional circumstances and if it can be found out only after an investigation, then OI is entitled to investigate and analyze the case and it can listen witnesses and those who concerned.
OI has a nature of public entity, and it is defined in the law but not in the Constitution. According to the law, the center of OI shall be in Ankara. However, depending the workload of the institution, OI is entitled and authorized to open offices in other places where there are overloading applications made.
As the authority and duty of analyzing and investigating complaints and making suggestions are assigned to the Chief Ombudsman and the task of assisting the Chief Ombudsman in his duties are delegated to other ombudspersons, offices outside the headquarter would carry out the works such as accepting and registering complaints to be sent to OI, corresponding the decisions of OI to those concerned and other similar correspondence. Furthermore, in the offices residing in other places than Institution’s headquarter, it will be possible for the ombudsman institution experts to hear witnesses or other relevant persons.
Both real persons and legal entities can make applications to OI. There will be no charge for these applications. Upon request of complainant, complaint shall be kept confidential. In order to make complaint to OI, administrative remedies stated in Code of Administrative Procedure numbered 2577 and compulsory remedies in special laws must be exhausted. However, in case there is possibility of irreparable loss, OI may accept complaints even the administrative remedies are not exhausted. Complaint made within term of litigation will toll the proceeded term of litigation.
Information and documents requested from a public institution OI in relation to subject matter of an investigation must be provided within thirty days from notification date of this request. Chief Ombudsman or ombudspersons may appoint experts with regard to the subject matters of the investigations.
OI shall conclude its analysis and investigation within six months at the latest from the complaint date, and it will inform the relevant authority and the complainant about the result of analysis and investigation and suggestions, if any. OI shall show the complainant remedies against transaction, complaint period and the authority to make complaint to.
In case the relevant authority deems the transactions or solutions suggested by OI as inapplicable or impractical, then it should inform of OI with its reasons of disapproval within thirty days. In case OI refuses a complaint, interrupted term of litigation will resume from the date of notification of reasoned dismissal decision to the relevant person. In the case that OI accepts a complaint and considers it appropriate but the relevant authority failed to take any action upon the decision and suggestions of OI within thirty days, then the interrupted tender period will resume. Moreover, interrupted term of litigation will resume again, in case OI could not conclude its investigation within six months from the complaint.
In the GNAT sitting on 26 November 2012, General Assembly of GNAT elected Mehmet Nihat OMEROGLU as the Chief Ombudsman, and OI started to be organized after this date.
As of today, there is no considerable number of applications made to OI due to the fact that it has recently established its organization structure and it is at the completion stage of its establishment. It is also clear that a just newly founded organization that has no previous example of practice in Turkey, needs certain time for completion of its institutionalization.
It is therefore necessary to wait for issuance of considerable number of decisions made by OI in order to assess the role it plays and its performance in terms of lessening the conflicts between individuals and administration, providing an environment that will help the administrative jurisdiction to work and function more effectively.
