ABSTRACT
With the institution of the Ombudsman, citizens are intended to be protected from the administrative authority. Ombudsman institutions emerged as a necessity of human rights, the rule of law, and democratic state structure.
I. INTRODUCTION
The Ombudsman Institution of the Republic of Turkey, also known as the Ombudsman, was established in 2012 with the Law No.6328 as a constitutional public entity affiliated with the Grand National Assembly of Turkey1. In Turkey, Ombudsman is governed by Law No. 6328 on the Ombudsman Institution, which details their mandate, power, and operational procedures. Perhaps the most significant characteristic of the institution is its autonomy. The institution cannot accept instructions or directives from any organ, authority, or power. In addition, the institution’s decisions are not binding.
Unlike the administrative judiciary, the Ombudsman Institution has the authority to conduct research and examination regarding the transactions and actions of the administration, as well as the attitudes and behaviors of the administration. However, disputes between private parties are not covered by the agency’s mandate.
The Ombudsman Institution, which was first established in Sweden, holds significant importance in overseeing the administration, preventing arbitrary actions by public authorities, and addressing administrative dysfunctions. It is considered a crucial institution in upholding the rule of law and promoting human rights in various countries, including Turkey.
This research aims to explore the functioning of the Ombudsman Institution in Turkey. After providing a brief introduction to the concept of the ombudsman, this section examines the essential characteristics, powers, and operations of the Ombudsman Institution. It also delves into the selection process of the Chief Ombudsman and auditors, as well as their responsibilities and term of office, within the framework of Law No. 6328 on the Ombudsman Institution.
II. THE CONCEPT OF THE OMBUDSMAN
The Ombudsman institution, established as a requirement of the rule of law to ensure the oversight of the administration outside the judicial organs, is now implemented in many countries. The concept of Ombudsman originated from Switzerland and is formed by combining the words “ombuds,” meaning “mediator,” and “man,” referring to a person, implying the role of a mediator. In our country, expressions such as “Turkish Ombudsman,” “public inspector,” “public arbiter,” and “citizen representative” have been considered to represent the concept of ombudsman. However, following the recent changes made in Article 74 of the Constitution, the term “public oversight” has been preferred2.
The concept of Ombudsman, in short, is the oversight of the public administration. Its purpose is to prevent arbitrary behavior by the public administration, address operational deficiencies, and enhance the effectiveness and efficiency of the state by examining and investigating the administration’s actions, identifying improper practices, and finding solutions3.
While the scope, operation, and powers of the Ombudsman vary from country to country, their essential powers against the administration remain largely the same. The establishment of the Ombudsman institution is a necessity for human rights, the rule of law, and the democratic structure of the state. It aims to protect the rights and freedoms of individuals.
III. THE LAW ON THE OMBUDSMAN NO. 6328
A. Purpose of the Law
The purpose of Law No. 6328 on the Ombudsman Institution is to establish an independent and effective complaint mechanism in the functioning of public services, in order to examine, investigate, and make recommendations regarding the actions, transactions, attitudes, and behaviors of the administration in terms of compliance with human rights, justice based on the rule of law, and fairness4.
In other words, it aims to protect individuals against the power of the administration. As explicitly stated in the law, the Ombudsman Institution, or public oversight, aims to resolve disputes in the public administration without resorting to the judiciary.
B. Characteristics of the Ombudsman Institution
Although the Ombudsman Institution is not completely independent from the state, its most important characteristic is its independence and impartiality5. The institution cannot receive orders or instructions from any organ, office, or authority. By its nature, it is entirely independent from the executive branch and administration. The Ombudsman must maintain independence both from the authority that appoints them and from the organizations they oversee. Article 12 of the Law explicitly states, “No organ, office, authority, or person can give orders, issue directives, or provide recommendations or advice to the Chief Ombudsman and the auditors regarding their duties”. This provision aims to ensure that the institution acts in a neutral and independent manner in its duties and procedures.
The independence and impartiality of the institution are primarily related to the methods of selection, term of office, and removal, as well as its budget and staff6. Article 10 of Law No. 6328, which regulates the qualifications for the Chief Ombudsman and auditors, states that they must be Turkish citizens, not be deprived of public rights, have worked for a minimum of ten years in public institutions and organizations, international organizations, civil society organizations, or private sector, or not have been convicted of a crime that impedes employment. In addition, the Chief Ombudsman must be at least fifty years old, and the auditors must be at least forty years old. Furthermore, the same article includes a provision that states, “Not being a member of any political party during the application process,” which aims to prevent the Chief Ombudsman or auditors from becoming members of any political party during or after their candidacy, thus preserving their independence and impartiality.
According to the Law on the Ombudsman No. 6328, the Turkish Grand National Assembly is responsible for choosing the Chief Ombudsman and auditors. The Chief Ombudsman is responsible for reviewing complaints received by the Agency, conducting research, and making recommendations to the administration; drafting regulations and an annual report on the application of the Law; drafting a special report without waiting for the annual report; announcing the reports to the public; and choosing an auditor to stand in for him in his absence; arranging the division of labor between the auditors so that one of them is assigned in the field of women’s and children’s rights, appointing the Secretary General and other staff, and carry out any other responsibilities mandated by law. Auditors’ responsibilities are defined as providing assistance to the Chief Ombudsman and taking on any other tasks that may be entrusted to them. The Chief Ombudsman oversees and speaks for the organization. The Chief Ombudsman’s and auditors’ terms of office are set at four years. The newly elected Chief Ombudsman or auditor will serve for four years in place of the Chief Ombudsman or auditor who left before the end of his tenure for any cause, such as resignation, death, or dismissal. A person who has previously served as Chief Ombudsman or auditor for one term may only be chosen for one more term. The period of office of the Chief Ombudsman and auditors has been structured in parallel with the term of office of the Assembly, and the doctrine states that this arrangement is intended to ensure the ombudsman’s independence7.
In order to maintain the independence and impartiality of the institution, another aspect regulated in Law No. 6328 is the budget. Article 4 of the Law states, “In order to fulfill the duties specified in this Law, the Ombudsman Institution, which is attached to the Turkish Grand National Assembly, has been established as a public legal entity with a special budget located centrally in Ankara.” This provision aims to ensure the independence and impartiality of the institution by specifying that its budget is a special budget. Additionally, Article 16 of the same Law states that the Chief Ombudsman has the same financial and social rights as the Undersecretary of the Prime Ministry, and the auditors have the same rights as the Deputy Undersecretaries of the Prime Ministry. This further contributes to maintaining the independence and impartiality of the institution.
C. Duties And Powers Of The Ombudsman Institution
The primary focus of the Ombudsman Institution is to examine and investigate administrative actions and procedures, specifically those related to public administration. It does not have jurisdiction over conflicts between private individuals or legislative and judicial processes. Unlike administrative courts, the Ombudsman Institution has the authority to investigate and scrutinize various administrative activities, transactions, attitudes, and behaviors. However, it is important to note that administrative jurisdiction, as defined by Law No. 2577 on Administrative Procedural Jurisdiction, is limited to reviewing the conformity of administrative actions and procedures with the law. Under Article 5 of the Ombudsman Law, the Institution is responsible for examining, investigating, and providing recommendations to the Administration on all types of acts, actions, attitudes, and behaviors in response to complaints related to the functioning of the Administration. These examinations are conducted within the framework of a human rights-based understanding of justice, considering legality and fairness principles. Unlike administrative courts, the Ombudsman Institution evaluates administrative attitudes and conduct not only for legal compliance but also for appropriateness. It should be noted that certain acts fall outside the scope of the Institution8. These include acts related to the exercise of legislative power, acts related to the exercise of judicial power, and acts solely of a military nature carried out by the Turkish Armed Forces.
D. Application Procedure to the Ombudsman Institution
As stated previously, in order for the Ombudsman Institution to take action, a formal complaint is required since it does not have the authority to act on its own initiative. According to Article 74 of the Constitution of the Republic of Turkey and Article 17 of the Ombudsman Law No. 6328, everyone, without exception or restriction, has the right to access information and appeal to the Ombudsman Institution9. Both individuals and legal entities can submit applications to the Institution, and the confidentiality of these applications can be ensured upon the request of the applicants, as stated in Article 17(1) of the Ombudsman Law No. 6328.
Before making an application to the Ombudsman Institution regarding the actions and transactions of the administration, it is necessary to exhaust the available legal remedies. This means that the administrative remedies specified in the Administrative Jurisdiction Procedures Law No. 2577, as well as any mandatory administrative remedies stipulated in special laws, must be pursued. While the Administrative Jurisdiction Procedures Law No. 2577 provides both optional and mandatory administrative remedies, the Law No. 6328 makes the remedies that were optional under Law No. 2577 mandatory for application to the Ombudsman Institution. However, the exhaustion of administrative remedies required by special laws is considered sufficient. The requirement to exhaust administrative remedies before submitting an application to the Institution has been criticized in legal circles, as it is seen to make the application process more difficult and contradict the intended purpose of the Institution10. However, there is an exception to this rule, as outlined in Article 17(4) of the Ombudsman Law No. 6328. According to this article, if it is anticipated that damages would be difficult or impossible to compensate for, the Institution may consider applications even if administrative remedies have not been exhausted.
The applications with the same reasons, subject-matters, and sides, and which have been resolved beforehand shall not be examined.
The Institution accepts applications submitted through provincial or district governor’s offices. The legislation deemed it unnecessary to include any component of the matter of the application in the petition, deeming the applicant’s information sufficient. In addition, there is no requirement to submit an application with a petition, and pursuant to Article 10 of the Regulation on Procedures and Principles Concerning the Implementation of Law on the Ombudsman Institution (Regulation), if the conditions specified in Article 9 of the Regulation are met, it will be possible to submit an application electronically or via other communication tools.
After the initial examination of applications that meet the specified criteria, certain applications will not be further examined. These include applications that lack specific matters, concern disputes already being dealt with or resolved by judicial organs, do not meet the criteria set out in Article 17(2) of Law No. 6328, have identical reasons, subject matters, and parties, or have been resolved previously11. The filing of an application during ongoing litigation will suspend the litigation process, as stated in Article 17(8) of Law No. 6328. Upon receiving a response to the application, the remaining time for filing an administrative lawsuit will be available as a remedy. If the application is accepted, the Institution may request information and documents from relevant individuals and institutions regarding the subject matter of the application.
According to Article 18(1) of Law No. 6328, it is mandatory to provide the information and documents requested by the Institution within thirty days from the notification date. Failure to comply with this request may result in an investigation initiated by the relevant authority, upon the request of the Chief Ombudsman or ombudsmen.
State secrets or trade secrets cannot be submitted to the Institution by the highest-ranking officials or board of competent authorities, with a justification for refusal. However, the Chief Ombudsman or a designated ombudsman may examine such state-secret information or documents on-site, as outlined in Article 18(2) of Law No. 6328.
The Chief Ombudsman, ombudsmen, or experts may interview witnesses or relevant individuals, or appoint referees in relation to the subject matter under examination and investigation. The Institution is required to complete its examination and investigation within six months from the date of application.
The Institution will notify the outcome of its examination and investigation, along with any recommendations, to the relevant authority and the applicant. According to the ombudsman’s recommendation, the relevant public authority must act or take action within 30 days. The applicant will also be informed about available remedies, the deadline for application, and the authority to which the application should be submitted12.
IV. CONCLUSION
The Ombudsman Institution, known as the Public Auditor, is implemented in many countries, including Turkey, to ensure public oversight. In Turkey, the Ombudsman Institution is regulated by Law No. 6328, which outlines its formation, responsibilities, and operational procedures. The main objective of this law is to establish an independent and effective mechanism for addressing complaints related to public services and protecting individuals from arbitrary administrative actions.
The autonomy and impartiality of the Ombudsman Institution are its fundamental characteristics. It is not subject to instructions or directives from any organ, authority, or power. The provisions in Law No. 6328 regarding the selection process, term of office, dismissal procedures, budget, and personnel of the Institution are designed to ensure its independence and impartiality. It’s important to note that the institution’s decisions are not legally binding. The Institution’s findings and recommendations are not mandatory, and it does not have the power to enforce its decisions. This distinguishes it from the administrative judiciary.
To initiate action, the Ombudsman Institution requires the submission of an application. There are no exceptions to this requirement, and anyone can file an application. Applications can be submitted to provincial or district governor’s offices, and there is no specific format for the application. The Law No. 6328 does not prescribe specific elements that must be included in the application; the information provided by the applicant is considered sufficient. Upon accepting an application for review, the Institution may request information and documents from relevant individuals and institutions. The Institution is given a timeframe of six months to complete its examination of the application and reach a conclusion. In summary, the Ombudsman Institution, established under Law No. 6328, operates independently and impartially to address complaints related to public services. It requires the submission of an application for action to be taken, and its decisions are not legally binding. The Institution conducts its examinations within a six-month timeframe.
BIBLIOGRAPHY
ERHAN TUTAL , Ombudsman in the World and Turkey, Ankara 2014.
FERHAT YILDIRIM, Mediation and Ombudsman Seçkin Publishing, Ankara 2014.
MUSTAFA BÜYÜKAVCI, “Ombudsman Institution”, Ankara Bar Association Journal, Year 66, Issue 4, Fall 2008.
SELAMİ DEMİRKOL, “A Comparative Study Draft on Ensuring the Effectiveness of the Ombudsman Institution and Its Relationship with the Judiciary”, Journal of Administrative Law and Sciences, Vol. 15, P. 2, 2012.
TURGUT TAN/ BAHAR BEYAZIT, Administrative Law, 10th Edition, Turhan Bookstore, Ankara 2021.
UFUK CEREN MENSIZ, Ombudsman (Ombudsman), Galatasaray University Institute of Social Sciences, Master Thesis, Istanbul August 2014.
ZEKERİYA TEMİZEL , “A Supervisory Body in the Protection of Citizens Against Government: Ombudsman” New Turkey Journal, P. 14, Ankara 1997.
FOOTNOTE
1 The Owmbudsman Institution Law No. 6328 was published in the Official Gazette No. 28338 on June 29, 2012.
2 Erhan Tutal, Ombudsman in the World and in Turkey, Ankara 2014, p. 75; Mustafa Büyükavcı, “Ombudsman Institution”, Journal of Ankara Bar Association, Year 66, P. 4, Fall 2008, p. 10-13.
3 Zekeriya Temizel, “A Supervisory Body in the Protection of Citizens Against Government: Ombudsman” New Turkey Journal, P. 14, Ankara 1997, p. 764.
4 Turgut Tan/ Bahar Beyazıt, Administrative Law, 10th Edition, Turhan Bookstore, Ankara 2021, p. 590-591.
5 Tutal, p. 205-206.
6 Ufuk Ceren Mensiz, Ombudsman (Ombudsman), Galatasaray University Institute of Social Sciences, August 2014, p. 36.
7 Tutal, p. 194.
8 Ferhat Yıldırım, Mediation and Ombudsman Seçkin Publishing, Ankara 2014, p. 186.
9 However, in accordance with Article 17(3) of Law No. 6328 on the Ombudsman, applications which: a) do not contain a specific matter; b) concern disputes which are being handled or have been resolved by judicial organs; c) do not meet the criteria set forth in the second paragraph; c) have the same reasons, subject-matter, and parties; and d) have already been resolved shall not be examined.
10 Mensiz, p. 183.
11 Selami Demirkol, “A Comparative Study Draft on Ensuring the Effectiveness of the Ombudsman Institution and Its Relationship with the Judiciary”, Journal of Administrative Law and Sciences, Vol. 15, P. 2, 2012, p. 77.
12 Demirkol, p. 80.
