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Conseil D'etat: The French Layer of Turkish Administrative Law

Published online by Cambridge University Press:  17 January 2008

Esin Örūcu
Esin Örūcu
Affiliation:
Professor of Comparative Law, University of Glasgow and Erasmus University, Rotterdam.
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Extract

In both the Ottoman Empire and the Turkish Republic, legal reform efforts have invariably relied on Western models and in administrative law this model has been the French. The first such effort was with the Tanzimat (The Charter of Reformation) in 1839, though these reforms did not have deep effect until the 1860s when the bases of the main administrative institutions such as the Turkish Conseil d'Etat were laid down.1 However, the Conseil d'Etat was not the only institutional model taken from France. The French layer of Turkish administrative law includes other institutions such as the Cour des Comptes, the Tribunal des Conflits, some financial organisations, the system of autonomous provincial and local administration and administrative tutelage.2

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 49 , Issue 3 , July 2000 , pp. 679 - 700
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. However, some institutions of religious origin continued to exist during the life of the Ottoman Empire alongside the legal and administrative ones.

2. Some important dates in this development are 1839, 1865–1868, 1887, 1908 and, at the time of the Republic, 1925, 1946, 1964, 1982, 1990 and 1999.

3. Örücü, E., “Turkey: Change under Pressure”, in Örücü, E., Attwooll, E. & Coyle, S. (Eds) Studies in Legal Systems: Mixed and Mixing (Kluwer Law International, 1996), pp.90–95Google Scholar. Also see Örücü, E., Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition (Kluwer Law International, 1999), chap. 6.Google Scholar

4. Lewis, B., The Emergence of Modern Turkey (2nd edn, 1968), p.121.Google Scholar

5. Onar, S. S., “Des'Rapports et des Ressemblances Existant Entre Les Conseil D'Etat Ture et Francais' Etat Livre Jubilaire (1952), pp.555–574, at p.567.Google Scholar

6. Now subject to Law No.2575 of 6 Jan. 1982 with 12 judicial sections.

7. Now subject to Law No.2247 of 12 Jun. 1979 amended by Law No.2592 on 21 Jan. 1982.

8. Onar, op. cit., supra n.5, at p.570.

9. Onar, op. cit., supra n.5, at p.571.

10. Ibid., p.572.

11. Ibid., p.572.

12. Ibid., p.573.

13. Güran, S., “Administrative Law”, in Ansay, T. & Wallace, D. (Eds) Introduction to Turkish Law (4th edn, Kluwer Law International 1996), 47 at p.56.Google Scholar

14. See Decision 98/85; 98/81; 11 Jun. 1998 of the Idari Isler Kurulu (Session of Administrative Matters), (1999) 98 Danistay Dergisi 18, at pp.21–22. Here the doctrinal references are to Maspetiol, and Odent and four Conseil d'Etat cases are cited.

15. Most of the information provided on pp.167–201 in Principles of French Law ((J. Bell, S. Boyron & S. Whittaker, 1998) could, with minor alterations, apply to Turkish Administrative Law.

16. Amended on 14 Aug. 1999 by Law No.4446, 13 Aug. 1999.

17. This will be further discussed below.

18. Art.24 of Law No.2575 enumerates suits with which the Danistay deals as a court of first instance among which cases arising from concession contracts arc cited. As of 21 Dec. 1999 this art. has been amended by Law No.4492, together with Arts.23, 42, 46 and 48 and Art.2 of Law No.2577 (RG: 23913).

19. The previous version read: The Danistay shall hear and settle administrative disputes, shall express opinions on draft laws sent by the Prime Minister and the Council of Ministers, shall examine draft regulations, specifications and contracts of concessions, and shall discharge such other duties as are prescribed by law.

20. Before 1982, all members were selected by the Anayasa Mahkemesi. Note that there has never been an equivalent to the Ecole Nationale d'Administration.

21. Each section of the Danistay has one President and four members as well as a rapporteur.

22. The first privatisations were in 1984 but the decision to privatise the ground-services of Turkish Airlines (THY) and cement factories in 1987 was annulled by lower administrative courts and the Danistay. Two laws were passed in 1993 and 1994 by which the Council of Ministers was authorised to issue Statutory Decrees (Kanun Hukmunde Kararname). This time the Anayasa Mahkemesi annulled the authorisation laws and the decrees based on them. The National Assembly (TGNA) could successfully enact the Privatisation Law No.4046 only in 1994.

23. There are other art. of the Constitution which make reference to the Danistay, and to administrative courts as such, such as Arts.104, 138–141 and 159.

24. The General Council of Administrative Contentious Matters held: “It cannot be legally accepted that the Danistay investigation is just an expression of recommendation and is not binding. It is a Constitutional imperative that in order for the Council of Ministers to introduce a regulation, it must be examined by the Danistay. ‘To express an opinion’ and ‘to carry out an examination’ arc different concepts. Art. 155 of the Constitution points out this distinction.” 87/31, 88/45; 12 Jun. 1987, (1989) 86–69 Danistay Dergisi, pp.207–211.

25. Brown, L. N. & Bell, J. S., French Administrative Law (5th edn, 1998), pp.51–54.Google Scholar

26. This last law replaced Law No.521 of 1964 and then was itself amended in 1990 by Law No.3619.

27. Regional Administrative Courts consider appeals against decisions given by single judges in the inferior administrative tribunals, resolve conflicts and perform other functions given by law. An individual cannot go directly to a Regional Administrative Court (Art.8 of Law No.2576).

28. Decisions of Unification of Judgments are published in the official Gazette (Resmi Gazete) within one month of being taken and are binding for all sections of the Danistay and administrative courts.

29. The Plenary Session for the Unification of Judgments must have a quorum of 31 members.

30. A suit must be brought within 60 days of the administrative decision (Art.7 of Law No.2577), comparable to two months in France. However, unlike in France, there is no actio popularis. The interest must be personal. The administration must act within 60 days of the court decision, otherwise there will be material and moral damages. The interested individual person can also sue the individual administrator if the non-performance is intentional (Art.28 of Law No.2577).

31. Onar, S. S., Idare Hukukunun Umumi Esaslari (Ismail Akgun, 1952, 1960, 1966).Google Scholar

32. Nevertheless, recently there have been references in the area of “administrative tutelage” (sec supra n.14). See also a Unification of Judgments where French doctrine and jurisprudence is referred to, related to the administration retracting a decision after the end of the delay period because the decision was based on the bad faith of the individual concerned. 87/1–2–4; 87/2; 6 Jul. 1987; RG: 19759; 19 Mar. 1988.

33. 8.D., 92/3342; 93/2611; 5 Jul. 1993. See Örücü, E., “Turkey: A Survey of the Public Law Framework” 5 European Public Law (1999), 30 at p.38Google Scholar. Also digested in (1994) Euro.C.L.Y., 2395.

34. See Brown & Bell op. cit., supra n.25, at p.160 for the opposite direction taken in 1989 by the Conseil d‘Etat in the headscarf case in schools, seeing it as an individual right and freedom and consistently so over the years. Ministre de l'education nationale v. Ali CE 20 May 1996.

35. 27 Jan. 1998. Reported in Cumhuriyet 21 Jul. 1999.

36. Resmi Gazete No.23554; 15 Dec. 1998.

37. 95/5447; 98/1162; 15 Mar. 1998; (1999) 97 Danistay Dergisi, 649–652.

38. For a similar approach to economic and social rights by the Conseil d'Etat, see cases discussed by Brown & Bell, op. cit., supra n.25, at pp.227–229.

39. 5.D., 91/3725; 92/1960; 23 Jun. 1992. Also digested in (1994) Euro. C.L.Y., 1661.

40. 9.D., 90/3310, 91/1788; 15 May 1991; 84–85 (1992) Danistay Dergisi, 635.

41. Brown & Bell op. cit, supra n.25, at p.299.

42. Hürriyet 15 Jul 1999.

43. 10.D., 96/8401; 98/2672; 17 Jun. 1998; (1999) 98 Danistay Dergisi 594–596.

44. 10.D., 96/7166; 98/5511; 3 Nov. 1998; (1999) 99 Danistay Dergisi 473–478.

45. Bilgen, P., Idare Hukuku Dersleri: I dare Hukukuna Giris (1996), pp.286–288.Google Scholar

46. Sec for cases Brown & Bell op. cit., supra n.25, at pp.171–174.

47. 10.D., 91/1262; 92/3911; 10 Nov. 1992. Also digested in (1994) Euro. C.L.Y. 1080.

48. And to Law No.2575 on 21 Dec. 1999 by Law No.4472 RG: 23913.

49. A duty now removed by Constitutional Amendment of Art.155. Also see Ibid.

50. I.D., 98/105;98/295;4 Nov. 1998; IIK 98/178; 98/199; 15 Dec. 1998; (1999) 99 Danistay Dergisi 31–37.

51. Hurriyet 4 Sept. 1999.

52. 10.D., 91/1; 9/1752; 29 Apr. 1993. Also digested in (1994) Euro. C.L.Y. 2493.

53. Güran, op. cit., supra n.13, at p.66.

54. Güran, op. cit., supra n.13, at p.66.

55. 99/1; 99/11; 3 May 1999; Resmi Gazete No.23719; 8 Jun. 1999.

56. All published in the Resmi Gazete No.23848, 16 Oct. 1999.

57. 88/5; 88/55; 22 Dec. 1988.

58. 99/18; 99/23; 21 Jun. 1999, Resmi Gazete No.23823, 21 Sept. 1999.

59. Cass. Ass. Plen., 20 Dec. 1996 Rey-Herme v. Association l'alliance Française. See Brown & Bell, op. cit., supra n.25, at p.42.

60. Except in cases where the environment, historic and cultural values and planning applications closely related to public interest arc involved.

61. 95/27; 95/47; 21 Sept. 1995.

62. 99/2003; 98/2445; 9 Jun. 1998; (1999) 98 Danistay Dergisi 577–579.

63. 97/36; 97/45; 9 Apr. 1997.

64. 10.D., 96/4292; 98/83; 25 Feb. 1998; (1999) 97 Danistay Dergisi 675–676.

65. 10.D., 96/4835; 98/703; 18 Feb. 1998; (1999) 97 Danistay Dergisi 670–672.

66. 10.D., 97/10292; 98/1190; 18 Mar. 1998; (1999) 98 Danistay Dergisi 678–683.

67. See cases cited in Brown & Bell, op. cit., supra pp.n.25, at 190–193.

68. 10.D., 96/7336; 98/2700; 18 Jun. 1998; (1999) 98 Danistay Dergisi 534–556.

69. 10.D., 96/10146; 98/2344; 28 May 1998; (1999) 98 Danistay Dergisi 572–575.

70. Milliyet. 19 Aug. 1999.

71. IDD., 96/755; 98/160; 27 Mar. 1998; (1999) 97 Danistay Dergisi 62–65.

72. 97/32; 98/442; 21 Jan. 1998; (1999) 97 Danistay Dergisi 359–361.

73. The Anayasa Mahkemesi held that the purpose of judicial review of administrative acts and actions is to keep the administration within the boundaries of the law and to ensure that it does not act ultra vires and abuse its competence and does not act in repugnance to the law and legislation. This is done by annulling such acts on the grounds of lack of competence and form, subject, object and purpose. 76/1; 76/28; 25 May 1976; R.G. No.15679; 16 Aug. 1976.

74. However, see the case cited in Bilgen, op. cit., supra n.45, at pp.286–288.

75. See Brown & Bell, op. cit., supra n.25, at pp.120–121.

76. See for examples, Bilgen, op. cit., supra n.45, at pp.279–288.

77. Güran, op. cit, supra n.13, at p.69.

78. The administration must use its discretionary power in keeping with the requirements of the public services and with public interest. There is no absolute discretion in a Rechtsstaat.

79. Erkut, C. & Soybay, S.. Anayasa ve Idari Yargilama Hukukuna lliskin Kanunlar (Filiz Kitabevi, 1990), p.250.Google Scholar

80. See for a selection of important cases, Bilgen, op. cit., supra n.45, at pp.295–306.

81. Bilgen, op. cit., supra n.45, at pp.294–295.

82. Bilgen, op. cit., supra n.45, at pp.297–302. The most frequently cited criteria used by the Danistay, even in preference to the principle of “administrative certainty and continuity”, arc “public interest“public order” and “public service”.

83. As seen above, constitutional amendments to Arts.47 (Privatisation), 125 (International Arbitration) and 155 (Danistay), proposed by the government have recently been accepted, to this end.

84. The same wording has now been inserted into the amended Art.23 of Law No.2575 by Law No.4492 (23 Dec. 1999, RG: 23913).

85. In a case involving Turkish Telecommunications AS and Sincan Municipality, the Yargitay (Cour de Cassation—the Supreme Ordinary Court) held that arbitration awards are final and there can be no appeal. According to Art.427/vi, viii of the Code of Civil Procedure, appeal can only be made in the “public interest” by the Yargitay prosecutor of the Republic. 4HD., 99/3253; 99/6369; 1 Jul. 1999. RG: 23782; 10 Aug. 1999.

86. Law No.4492 amending Law No.2375 inserted in Art.48 that the Danistay must finalise its investigation into draft bills and draft regulations and must give its opinion on concession contracts within two months of receipt

87. This court was inspired by the German model rather than the French; therefore by reason of its formation it is a very active court annulling legislation not in keeping with the Constitution.

88. In this context the Yargitay (Cour de Cassation) must also be mentioned as such a court.

89. See Brown & Bell, op. cit., supra n.25, at p.23.

90. Brown & Bell, op. cit, supra n.25, at 57.

91. Alan, N., “Idari Yarginin Sorunlari ve Cozum Onerileri”, (1999) 97 Danistay Dergisi pp.3–28.Google Scholar

92. Yet, O., “Jlk Derece Mahkemelerinin Kurulusunun 17. Yilinda Idari Yarginin Sorunlari ve Cozum Onerileri”, (1999) 99 Danistay Dergisi 3–14.Google Scholar

93. The absence of a ENA, already mentioned, is partly responsible for this.

94. The year before the lower tiers of administrative tribunals were set up in 1982, the backlog in the Danistay was 52, 107 files. In 1997 there was a backlog of 4,258 cases in the administrative tribunals and 56,151 appeal riles in the Regional Administrative Courts. In 1998 there was a general backlog of 112,502 files. During the year 52,083 decisions were rendered. These figures are taken from Alan, op. cit., supra n.91, at p.20.

95. Some of the defects and problems such as delay and failure on the part of the administration to implement decisions, are also shared between the two systems. See Brown –302.

96. In contrast to France, no increased power is given to the Danistay in “referé précontractuel” to ensure compliance with publicity and open competition in tenders.