HUKUKA GİRİŞ - Deneme Sınavı - 3

Human rights put human dignity in the center of concern. The characteristics of human rights are as follows:
• universal: human rights are applied equally and with no discrimination.
• inalienable: no one can have his/her human rights’ taken away without any justification.
• indivisible and interdependent: all human rights have equal importance. Neither of them are overriding another by being more important than the other.

The first four conventions are principal UN Conventions whereas the last one is a regional convention.

In order to monitor the implementation of human rights universally and for universal human rights complaints the Human Rights Committee United Nations Human Rights Office of the High Commissioner and United Nations Economic and
Social Council were established.

The European Convention on Human Rights is an international treaty that member States of the Council of Europe undertakes to secure fundamental
civil and political rights to everyone within their jurisdiction.

It is stated in the preamble of the Constitution that every Turkish citizen has the
right to the fundamental rights and freedoms laid down in the Constitution in accordance with “equality” and “social justice”, to lead an honorable life and to improve his/her material and spiritual well-being under the aegis of national culture, civilization, and the rule of law.

The Turkish Constitution also sets minimum standards for protection of human rights under state of emergency.

The individual application has been introduced into the Turkish Legal System by the constitutional amendment made on 12.09.2010 with the Law No 5982.

The article 45/1 of the Law No 6216 states that:
“Everyone can apply to the Constitutional Court based on the claim that any one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights and the additional protocols thereto, to which Turkey is a party, which are guaranteed by the Constitution has been violated by public force.”

Below cannot fall under the competence of the Constitutional Court with
regards to the individual application:
• legislative acts and legislative decrees,
• regulatory administrative acts,
• decisions of the Constitutional Court,
• acts of the President of the Republic in his/ her own competence (Article 125/2 of the Constitution)
• decisions of the Supreme Military Council on promotion and retiring due to lack of tenure, (Article 125/2 of the Constitution)
• decisions of the High Council of Judges and Prosecutors other than dismissal from the profession (Article 159/10 of the Constitution)

The power of the Constitutional Court in examination of the case is limited to whether there exists any violation of fundamental rights and freedoms, and if so, to determine how such violation could be remedied.

When we review history of constitutions in Turkey, Senedi İttifak (1808) was a kind of document in order to set balance and maintain relationships between the Sultan and nobles. Tanzimat Fermanı was the first action taken in the way of constitutional steps. The document granted equal rights to muslims and minorities regarding honour, modesty, right to property and life, judiciary,
military service and tax liabilities. But Kanuni Esasi (1876) was the first constitutionlike document in order to limit powers of rulers.

Duties and powers of the Turkish National Assembly are laid down in article 87 of the Constitution. Declaring war is one of the main duties and powers of Grand National Assembly, not the President of Republic.

As for the judicial review of administration, there are administrative and tax courts, district administrative courts and Council of State (Danıştay), as a high court.

The basic principle governing administration in Turkey would be “integrity”. This means central administration and decentralized administration together considered to be one single unit. Article 123/1 of the Constitution underlines this character of administration as follows: “The administration forms a whole, with regard to its constitution and functions, and shall be regulated by law”.

Central administration is where the public power is unified and exercised throughout thev country. Ministries are the main body of Central Departments.

The provincial departments are under the hierarchy of Ministries. The head of the province is the governor; head of the sub-province is the subgovernor. The governor is the chief executive of the province and is responsible for the coordination and cooperation of government authorities within the province.

Article 127 of the Constitution enumerates local administrations as “provinces” (other than the ones in central administration), “municipalities” and “villages”, and defines their function as to provide the common local needs of the inhabitants of provinces.

The relations between local administrations/ geographically decentralized administrations and central administration are provided with administrative tutelage. Administrative tutelage is a means of control of the central bodies on acts, actions, officers and financial resources of local administration.

Independent Regulatory agencies (under article 166 of the Constitution and laws that establish them) -independently from central administration- are established to regulate the operation of markets and make regulations in order to both set and protect the public interest in these markets by setting standards, issuing licenses, prohibiting unlawful practices.

Law on the Procedure of Administrative Justice introduces two types of remedies for disputes arising under Administrative Law; one being “action for annulment” and other being “full remedy action”.