The Right to Good Administration under Turkish Law

Author(s):  
Müslüm Akinci

This chapter discusses the impact of the pan-European general principles of good administration on Turkish administrative law, whose evolution is deeply marked by the great constitutional changes Turkey has experienced since 1950. Those are due to three military coups (1960, 1971, 1980) as well as the democratization process since the 1990s stipulated as a prerequisite for EU membership. The Chapter shows that since the 1990s the reception of the pan-European general principles of good administration has mostly occurred through national legislation, the Turkish Constitutional Court and the Council of State but in a quite selective manner. The chapter finishes by describing the constitutional changes and the legislative and governmental measures in the aftermath of the coup of 2016 and their effects on the Turkish civil service, the court system and society. The upcoming era, thus, remains a “wait and see” period regarding the development of the said principles for Turkey.

Author(s):  
Gürsel Özkan

In terms of administrative sanctions, application of the more favorable law means that when the law in force the time an act was committed and a law subsequently brought into force is different, the law which is more favorable should be applied. EHRC states that applying more stringent punishment to an offender on the grounds that more stringent punishment was in force when the time criminal offence was committed. Misdemeanors have been considered within the scope of criminal law by the Constitutional Court and the Constitutional Court accepts that the principle of the application of the more favorable law should be applied to misdemeanors. Danıştay (the Turkish Council of State) decides that “it should be take into account in terms of administrative sanctions, when a law which is the ground of punishment is set aside or more favorable law is brought into force”. Since administrative acts are reviewed during annulment cases, a law brought into force after an administrative act cannot affect the act retrospect. A law which is enters into force after an administrative act established, could set up a rule which has retrospective affect only if the rule clearly is an amnesty. After an administrative fine is imposed, applying criminal law principals to administrative law and administrative sanctions, in other words, rendering decision of annulment on the ground of the principle of the more favorable law betrays the trust on judicial bodies and law.


Author(s):  
Tamar Gvaramadze

This chapter discusses the impact of the pan-European principles of good administration on Georgian administrative law. It shows that the legal reforms and modern administrative legislation that started in Georgia in the 1990s were mostly influenced, and directed by, Western values and European principles, including core provisions of the Council of Europe. This influence has manifested itself, among other things, in the Georgian legislator giving constitutional importance to the right to a fair hearing in administrative proceedings and underlining the importance of good administration. Moreover, special parts of administrative law, such as regulation of local self-governance and personal data protection, have also not been immune to this influence, which has been strengthened by the progressive approach undertaken by Georgian courts.


Author(s):  
Ulrich Stelkens

This chapter discusses the impact on German administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter highlights that most of the German core statutes on administrative law had already been enacted or were developed before the adoption of the said principles. Moreover, the low availability and the lack of translation of the ‘CoE sources’ as well as the (over)reliance of German courts on the national constitution in developing standards of individual protection present further hindrances for their full permeation. However—at least conceptually—German law lives up to the said principles and often even exceeds them. The chapter concludes that it seems to be only a matter of time and the right opportunity for such impact to become full-blown in the German legal system.


Legal Studies ◽  
1992 ◽  
Vol 12 (3) ◽  
pp. 364-376 ◽  
Author(s):  
Satvinder S. Juss

The purpose of this article is to examine the impact of two recent decisions on an immigrant’s right of appeal: Secretary of State for the Home Department v Sonia Mahli was decided in the Court of Appeal in December 1989 and R v Secretary of State for the Home Department, ex p Oladehinde was decided by the House of Lords in October 1990. Both cases raised other substantive issues of considerable importance for public lawyers: Oldehinde made the important point that the Secretary of State for the Home Department could delegate to senior immigration officers his powers to make deportation decisions; Malhi demonstrated how limited are the natural justice rights of overstayers.


Author(s):  
Dwi Sakti Muhamad Huda ◽  
Dodi Alaska Ahmad Syaiful ◽  
Desi Wahyuni

The Constitutional Court Decision Number 46 / PUU-VIII / 2010 annulled the provisions of Article 43 paragraph (1) of the Marriage Law because it contradicts the 1945 Constitution of the Republic of Indonesia and does not have binding legal force. The legal reason behind the rechtfinding is to emphasize that children born outside of marriage have the right to legal protection. This research was conducted with the aim of knowing the impact of the Constitutional Court Decision Number 46 / PUU-VIII / 2010 on one of the judges' judicial duties. This study uses a socio-legal approach with data collection techniques for study documents of literature materials. Based on the results of the analysis of the Constitutional Court Decision Number 46 / PUU-VIII / 2010, it does not contradict and intersect with the sociological discourse in accordance with the argumentum a contrario method. Then have coherence between the parental or bilateral kinship system with the Constitutional Court Decision No. 46 / PUU-VIII / 2010 in its application in Indonesia. This condition demands the intellectuality of Judges who are required to think on a broad scale and consider other disciplines in their legal findings.


Author(s):  
Jesús Sánchez Lorenzo

El derecho a la información es un pilar fundamental del Estado democrático del que los periodistas no son los únicos titulares aunque son los que lo ensalzan. Por otro lado, no existe una definición concreta de estos sino una que podría considerarse ambigua ofrecida por el Tribunal Constitucional para evitar, efectivamente, una interpretación inconstitucional del derecho a informar y las garantías en su ejercicio. La deontología profesional de la actividad periodística, recogida en diferentes códigos deontológicos, pretende proteger a los periodistas, a la información y al propio derecho a informar por la repercusión que tienen en la opinión pública libre, institución política fundamental en un Estado democrático. Sin embargo no puede hacer efectiva esta función protectora porque no existe control respecto a las infracciones que se puedan cometer. Y no existe este control porque no se ha llegado a un consenso respecto a la naturaleza que debe regir tal control, pública o privada. Esto facilita que los medios sobrepasen los propios códigos tratando la información como mercancía que se puede manufacturar y hasta fabricar, dada la presión del mercado por ser mejores, con lo que la actividad de los profesionales de la información queda supeditada a aquéllos, con las consecuencias que conlleva para la formación de la opinión pública y el propio Estado democrático.The right to information is a fundamental pillar of the democratic State of which journalists are not the sole holders although they are the ones who extol. On the other hand, there is no a concrete definition of these but one that might be considered ambiguous offered by the Constitutional Court to avoid, really, an unconstitutional interpretation of the right to inform and the guarantees in its exercise. Professional ethics of journalist activity, gathered in different codes of conduct, aims to protect journalists, information and the right to inform itself about the impact they have on the free public opinion, fundamental political institution in a democratic State. Nevertheless it cannot make this protective function effective because there is no control over the offenses that could be committed. And this control does not exist because it has not come near to a consensus regarding the nature that must govern such control, public or private. This facilitates the media exceed the codes themselves treating information as a commodity that can be manufactured and be manufactured, given the market pressures to be better, so the activity of information professionals is subordinated to those, with the consequences that it carries for the public opinion formation and the democratic State itself.


2014 ◽  
Vol 15 (4) ◽  
pp. 569-597
Author(s):  
Roderic O'Gorman

As part of the 2010 EU/IMF economic adjustment program or “bail-out,” the Irish Government was required to undertake billions of euros in cuts to social protection spending over a three-year period. These have been implemented in subsequent budgets, resulting in increased levels of poverty and social exclusion. In light of these impacts on social rights in Ireland and other Member States, this article argues that the outcome of such Union legislative measures should be subject to some degree of rights-based scrutiny. It examines how, in theHartz IVdecision, the German Constitutional Court ruled that an attempt by the German Government to pass legislation that significantly cut a range of social welfare benefits breached the fundamental right to a subsistence minimum under the German Basic Law. Drawing inspiration from the approach of the German Constitutional Court, the article argues that the two elements of the German Basic Law which grounded that decision—the right to human dignity (Article 1(1)) and the social state principle (Article 20(1))—are both present within the Union Treaties as a result of changes occasioned by the Lisbon Treaty. The article advocates that the European Court of Justice should discover such a right within Union law and use it as a tool to analyze the impact of future cuts mandated by Union institutions on the economically disadvantaged.


Author(s):  
Beata Nuzzo

Rapidly progressing computerisation of administrative procedures requires reflection on its consequences, both in the legal sphere and in the sphere of the practical functioning of administration. One of the most more important issues connected with topic is the impact that computerisation exerts on the right to good administration. Analysis of Italian legal regulations in this area reveals the need to find the right balance between the efficiency and speed of computerised administration and the protection of citizens’ interests. Facilitating the functioning of administration, which results from the implementation of modern information and communication technologies to administrative procedures, should contribute to better implementation of the right to good administration.


2017 ◽  
Vol 14 (1) ◽  
Author(s):  
Gianni Lo Schiavo

The Single Supervisory Mechanism (SSM) Regulation has conferred prudential tasks to the European Central Bank (ECB) which it shall carry out within a SSM composed of the ECB and national competent authorities (NCAs). This article assesses the legal feasibility to attach conditions and obligations in ECB supervisory decisions. It looks at other areas of EU administrative law (merger control and State aid law), assesses the ECJ Atradius (C-18/14) judgment in the area of insurance supervision and argues that conditions and/or obligations are ancillary provisions that can be included in ECB supervisory decisions as a matter of EU law. The article evaluates also the impact of the inclusion of conditions and/or obligations on the right to be heard under art.22 SSM Regulation. While conditions and obligations may have adverse effects, the article examines to what extent the right to be heard applies in cases the ECB includes conditions and/or obligations in ECB supervisory decisions.


Author(s):  
Jane Reichel

This chapter explores the impact of the pan-European general principles on Swedish administrative law. The chapter claims that the European Convention on Human Rights and the case law of the European Court of Human Rights have had a great impact on important sectors thereof, such as areas connected to the right of access to courts, procedural safeguarding of administrative sanctions, and state liability. At the same time other standards of good administration developed within the framework of the Council of Europe seem to slip under the radar in the Swedish legal system and are not usually relied on by Swedish administrative courts or the Swedish ombudsman. An explanation for this lack of reliance may lie in the fact that Swedish law already has long-standing traditions with well-defined concepts and procedures in this field.


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