Human Rights and Discretion of the Administration

1. Introduction

Before going into detail on human rights and the discretionary power of the administration, I think it is necessary to explain the concept of human rights and the concept of discretionary power of the administration in detail. Because the meanings we give to the concepts will guide us in the discussion of the subject.  Concepts are dangerous when their content is blurred and when everyone thinks that they know this concept.  Unfortunately, the concept of human rights has become dangerous today. People sometimes want to show their interests as rights in order to protect their interests. The discretionary power of the administration is also a concept that is blurred and whose boundaries can be easily expanded. Sometimes this authority can be expanded to the extent that it may cause human rights violations. The necessity of not conducting the subsidiarity review when judicial review of the discretionary power of the administration is to be conducted also raises the problem of finding criteria for the judicial review of the discretionary power of the administration. 

Determining what human rights and individual rights are is the first condition for the protection of human rights. In this study, the concept of human rights and their philosophical foundations have been explained in general, but determining what individual human rights are and their content has been kept outside the scope of this study, and these explanations have been included in the evaluations made as examples when necessary.  In our daily life, people are the ones who respect human rights or protect human rights or violate them.  The function of the state, which is a legal human institution, is to regulate the relations between people by paying attention to their fundamental rights and to manage the public in a way to provide fundamental rights and the needs related to fundamental rights equally. However, it must be emphasised again that it is only natural persons who can protect or violate rights. Even if these persons are officials of the state, they are ultimately real persons. 

2. The Concept of Human Rights 

While defining human rights, we believe that it would be more useful for the discussion of the subject to reach a definition other than the definitions known by all jurists. By analysing the concept of human rights, we have to reveal where this concept comes from and its foundations. In order to do this, firstly, we can benefit from philosophers' views on what a human being is and philosophical anthropology. In the thoughts of philosophers and non-philosophers, there is an understanding of man, a design of man. The conception of human being of Max Scheler, the founder of philosophical anthropology, is the conception of human being that accepts in advance that there is an essential difference between human beings and animals. The conception of man accepted by Europe from the Greeks and Aristotle to the present day is the conception of homo sapiens, which is derived from reason, which distinguishes between man and animal and recognises that man possesses the power of reason that drives him to action. The other understanding of man that excludes homo sapiens is homo faber, which asserts that there is no psychic and neoethical difference between man and animal, only a difference in degree. All three of the above-mentioned conceptions or designs of human beings are mostly the conception of human beings in the minds of Europeans. The Turkish philosopher Takiyettin Mengüşoğlu, on the other hand, answers the question "What is a human being?" by looking at what human beings as a whole have created, what they have done and their achievements, and by identifying the activities he sees in every human being. According to Mengüşoğlu, man is a being who knows, a being who works, a being who acts, a being who educates and is educated. Mengüşoğlu's understanding of human is not reductionist.  It is open-ended, it does not claim to exhaust human phenomena. When we look at Takiyettin Mengüşoğlu's understanding of man, we see that man has a special place among other living beings. What gives man this special place is the totality of his characteristics among other living things. These characteristics of man are the possibilities that distinguish him from other living things. When we consider Takiyettin Mengüşoğlu's understanding of man, man is a knowing being.  Man is a being who makes.  He is a being who thinks and hears values and continues his life in line with them. Man is a free being who has an attitude, foresees, determines, wants, and wants. He is a creator of art who works, educates, educates, establishes a state.  These characteristics are in addition to the characteristics that humans have in common with other living beings. These characteristics or possibilities constitute the value or honour of man. It is the duty of every individual, every real person, every individual to protect and develop these possibilities of the human being, and it is also the right of every individual who is a member of the human species to demand the protection of these possibilities. The demands for the protection of these possibilities, which are unique to human beings, constitute fundamental human rights. To demand the protection of these possibilities in every individual is to demand the protection of the value of the human being, of our own value in existence.  

There are some differences between the above-mentioned aspirations to protect, utilise and develop human possibilities. Some of these demands are directly related to human capabilities.  Another part of the demands is related to the preconditions necessary for the development of human capabilities, and another part is related to some variable conditions. Aspirations directly related to human capabilities are those relating to the security and freedom of the individual. Aspirations related to the preconditions for the preservation of human capabilities in general are the aspirations for the level of life necessary for health, education, labour, etc. etc. These two types of claims are included in the concept of human rights. 

The first type of claims is directly related to the realisation of human possibilities. They express the wish that people should not be touched while realising human activities or using human possibilities. They include claims that cannot be granted by a state but must be respected by the state. In this case, the role of the state is to protect these rights, to prevent them from being violated, to guarantee these rights through laws and to intervene with its various organs when they are violated. (The right to life, the prohibition of torture, freedom of thought and expression, the right not to be arbitrarily arrested, the right not to use anyone as a slave, etc. are among such claims that cannot be suspended under any circumstances).   

Demands related to the prerequisites that enable human beings to develop their possibilities also constitute human rights. For example, the right to education is one such right. The fulfilment of these rights is only possible through the state's recognition of another type of rights, social, economic and sometimes political rights. Unlike the rights in the first group, the protection of such rights depends on the regulations and political decisions made in the country. They can only be protected in a country through recognised rights, which are rights whose borders can be drawn in different widths according to the conditions of that country.  Whether the borders drawn for these rights can protect the rights they mediate depends on whether they are drawn taking into account the equality of all citizens in this country. 

This interdependence of human rights is the case in relation to the person. The claims are not interdependent.  In no case may the protection of one human right or group of rights be postponed in favour of the protection of another human right or group of rights. To assert that it can be postponed is a fallacy arising from ignorance of what human rights are or from a failure to see clearly what the content of a particular right is. In the absence of this knowledge, it is observed that rights that cannot be restricted are restricted, while economic and social rights, which are not included in the first and second groups mentioned above and which are recognised rights, are not restricted at all.  

The systematic knowledge on the grounding of human rights that we have explained above will be the premise for our determinations on which rights can be accepted as human rights, whether new human rights can be identified, which rights should be defined as fundamental rights and what the limits of rights should be. The same systematic knowledge will also help us in determining the duties imposed on the state with regard to the protection of human rights and the limits of the state's actions and transactions. Moreover, this systematic knowledge will also guide us on how the officials of the administration can protect and develop the possibilities of human beings in their actions and transactions, and where the limits should be, especially when using the discretionary power. The same systematic knowledge may also be a criterion for the administrative judge to determine the limits of whether the administration has used its discretionary power in accordance with human rights, without engaging in the supervision of subsidiarity. 

3. Discretionary Power of the Administration 

The discretionary power of the administration is defined by different authors as follows. According to Sıddık Sami ONAR, the basic principle in administrative law is the adherence of the administration to the law. There is no doubt that some difficulties will be encountered in the application of the principle of restriction of administrative activities by legal principles.  Is it possible to regulate all the activities of the administration and all the elements of administrative acts with the rules laid down beforehand? If such a possibility exists, how can such a system be reconciled with the elasticity required in the principles of administrative law and the necessity of adapting these principles to time and place and to the ever-changing requirements and necessities of public services? Can it not be argued that the state has certain acts of government which, due to the nature of the government, cannot be bound by previously established rules?   In order to overcome certain difficulties, the administration wants to be given freedom of action within the rules of law.  The rules of law which regulate public services cannot regulate these services in all their details, and the administration is left free to make judgements according to the needs of the time, place and situation. 

This constitutes discretionary power of the administration. Everyone is unanimous in recognising the discretionary power of the administration. The administration cannot be said to have the power and authority of discretion in matters which the legal principles order it to do or oblige it not to do. This is especially the case when it comes to the rights, powers and freedoms of the individual derived from the constitution and the main principles of law.   When we look at the place of the power of discretion in the hierarchy of norms, we see that there is a gap between each level in the hierarchy of norms. This gap is an area where the body or person who sets the rule can exercise discretionary power. According to this principle, the gap between the hypothetical rule, which constitutes the highest level of the hierarchy of norms, and the constitution is the area of discretion of the Constitutional organ, the Institutional Assembly.  After the constitution is established, laws come at the second level. For example, when the right to property and the principle of the protection of this right are enshrined in the constitution, the legislative body uses its discretionary power to determine the limits of this right and the rules to be applied to this right and to choose one of the various ideas and systems within it.  After that, new rules are created by the application of these higher level rules. For example, it is left to the administration to take some secondary measures for the protection of property. Filling these gaps is also the exercise of discretionary power. The discretionary power of the administration does not stop here.  This power is also available in the field of individual and subjective savings.  Since this explanation is based on rules and legal order, it is a completely objective explanation. In other words, it attributes the reason for the power of discretion not to the right holder (subject) but to the principle outside of it, and it deduces the power from the principle, not from the individual.  

According to İsmet GİRİTLİ, the power of discretion is the power of the administration to act freely and take free decisions.  If the administration bases the reason for the action on vague words such as "in case of necessity", "in compulsory cases", "may assign", "may be seen", "may be done", etc., the administration is left a free field. If a rule of law does not specify the manner and content of the administration's behaviour, the administration has discretionary power if it has the opportunity to act freely.  

According to Kemal GÖZLER, discretionary power is essentially the possibility of the administration to choose between at least two decisions or behaviours. The discretionary power of the administration is called the discretionary power of the administration to decide or not to decide on a certain matter or to choose between more than one decision.  

According to İlhan ÖZAY, if the rules of law determine all the elements of an action and do not leave the administration with any choice or preference at this point, we speak of discretionary power. The administration, which has no discretionary power and authority in matters that the rules of law order it to do or oblige it not to do, has such an opportunity in cases where the rule offers it options. Since it is not possible to know in advance all the situations to be encountered while making legal arrangements, the rules are sufficient to make only general arrangements.  In some cases, they do not stipulate any special provisions, but leave the administration free space to act in accordance with the requirements of the situation. The administration needs the freedom to act freely within the rules of law in order to overcome certain difficulties.  This freedom of the administration to act freely constitutes the discretionary power.  

It is seen that there is no fundamental difference between the explanations on the concept of discretionary power explained above, and the same or similar meanings are attributed to the concept by the authors. It is also stated that the discretionary power shall be directed towards the reason and motive, form and procedure, and subject matter elements of the legal act. The most common cases where the discretionary power is used by the administration are the cases where it is directed towards the reason element of the administrative act. The reason for the action may not be explicitly determined in the norms. Most of the time, discretionary power is granted to the administration on the basis of vague concepts such as public order, national security, general health, general morality, need, necessity, administrative public order and compulsory reasons. Sometimes, the procedure and form of an administrative act may not be determined, and discretionary power may be left to the administration, especially in terms of procedure. Sometimes the subject matter may not be determined. Unlike the reason and motive, form and procedure, and subject matter of the administrative act, the purpose of the administrative act is always public interest.  Since the authority of the administration is derived from the law and the authority or administrative person who will carry out an action is predetermined, the administration has no discretionary power in the element of authority.

4. Administrative Judicial Review of the Discretionary Authority of the Administration 

Article 125 of the Constitution of the Republic of Turkey stipulates that "Judicial power is limited to the control of the conformity of administrative actions and transactions with the law, and cannot be used in any way as a check of expediency. Judicial decisions cannot be made in a way that restricts the execution of the executive duty in accordance with the form and principles set forth in the laws, in the nature of administrative actions and transactions or in a way that removes the discretionary authority.  In Article 2 of the Administrative Procedure Law, in parallel with the above-mentioned norm in our Constitution, '' Administrative jurisdiction is limited to the control of the conformity of administrative acts and procedures with the law. Administrative courts shall not conduct a review of the conformity of administrative acts and procedures with the law, and shall not make judicial decisions in such a way as to restrict the fulfilment of the executive duty in accordance with the form and principles set out in the law, or to remove the discretionary power of the administration.'' 

Discretion and expediency are intertwined.  The preference of the administration in determining the place and time of the activity, determining the appropriate tools and methods is included in the concept of expediency. This is nothing but discretionary power.  According to some authors, there is no judicial review of discretionary power. The field of discretion is the field of subsidiarity.  Discretion may be exercised in all three areas, or in only one of these areas, such as the evaluation and characterisation of material events, the possibility to act in a certain direction or not, and the determination of the time to act.  The administrative judge shall review the legality of the administrative action, not its appropriateness. Judicial power is limited to the review of the legality of the administrative act or action.  The discretionary power of the administration should be examined only in terms of purpose.  If the administration uses its discretionary power contrary to the public interest, if it uses it for the benefit of a third party, if it uses it for personal interest, grudge and damage, the transaction becomes disabled in terms of purpose. With its discretionary power, the administration appreciates the appropriateness of the transaction, not its legality. A lawful transaction does not become unlawful just because it is done with discretionary power. An unlawful act does not become lawful just because it is done with discretionary power. Administrative judicial bodies cannot control the discretionary power of the administration.   There are exceptions to the rule that discretionary power cannot be reviewed. If there is a clear error of discretion in the transaction or if the administration has not used its discretionary power in accordance with the principle of proportionality, it is possible to review the discretionary power of the administration in the administrative judiciary. However, both principles do not contain objective criteria. This is because there is no objective criterion to determine whether the error made in the exercise of the discretionary power is clearly an error.  Proportionality review is a measure used in France against law enforcement measures, especially in the field of fundamental rights and freedoms. This review is also called benefit-loss balance sheet review. In this method, the administrative act is evaluated in terms of its benefits and disadvantages. If the benefits of the action outweigh its drawbacks, the action is considered lawful. There is no objective criterion that determines which measure is proportionate and which measure is disproportionate. These methods, proportionality and clear error of discretion, may eliminate the discretionary power of the administration and allow the courts to substitute it with the discretionary power of the courts.  

According to some authors, the discretionary power is not excluded from judicial review. The Council of State controls the discretionary power with various criteria.  According to the Council of State, both Article 125 of the Constitution, which stipulates that the judicial remedy is open against all kinds of actions and proceedings of the administration, and Article 2 of the Law No. 2577, which stipulates that the judicial review of administrative actions shall be carried out in terms of the elements of authority, form, reason, subject matter and purpose, show that the actions taken by the administrations based on discretionary power are also subject to administrative judicial review. The use of discretionary power does not make the administration immune from judicial review, and there cannot be an unlimited and absolute discretionary power in the State of Law.  The principles used by the Council of State when reviewing the discretionary power are "the principle of public interest and the requirements of the service", "the principle of the transaction being based on the reason", "the principle of inconsistency with the Constitutional Principles".   The Council of State utilises the principles of equality, social state, rule of law and democratic administration in the Constitution within the scope of the "Principle of Non-Conformity with Constitutional Principles". In the decisions of the Constitutional Court, the criteria of public interest, service requirements and the necessity to carry out the service without interruption and the criteria of the obligation of the administration to act in accordance with the principles of generality, equality and objectivity (Constitutional Principles) are taken into consideration in the control of the discretionary power of the administration.  

5. Judicial Review of the Discretionary Power of the Administration in terms of Human Rights 

The content, limits and foundations of the concept of human rights have been set out in detail above.  In every single case where the administration uses its discretionary power, whether or not the discretionary power of the administration causes a violation of a fundamental right can be easily determined by taking into account the above-mentioned criteria regarding human rights and by making an assessment free from value judgements. In this assessment, it is expected that the value of human rights will be demonstrated separately in each individual case. This value of human rights arises from its structural characteristic. This value is not a value that will change according to the person making the assessment. It is a value different from the value that persons may subjectively assess or attribute.  The norms that exist in our Constitution and reveal the value of human rights are the norms that will constitute a justification for the protection of human rights, which will enable the prevention of human rights violations against the discretionary power of the administration after the correct evaluation to be made.  Article 2 of the Constitution, entitled "Qualities of the Republic", states that "The Republic of Turkey is a democratic, secular and social state of law, based on the fundamental principles set out in the preamble, respectful of human rights, loyal to Atatürk's nationalism, in the spirit of social peace, national solidarity and justice". As stated in many decisions of the Constitutional Court, the state of law as defined in Article 2 of the Constitution is a state whose actions and transactions are in conformity with the law, which is based on human rights, which protects and strengthens these rights and freedoms, which observes equality in all areas, which considers itself obliged to establish and maintain a just legal order, which ensures legal security, which complies with the law and the Constitution in all its activities, and whose transactions and actions are subject to independent judicial review. The Constitution emphasises the democratic rule of law characteristic of the Republic of Turkey and aims to ensure that all acts and actions of the state are subject to judicial review. Judicial review is a "sine qua non" condition of the rule of law.  Article 13 of the Constitution Fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons specified in the relevant articles of the Constitution and only by law. These limitations cannot be contrary to the word and spirit of the Constitution, the requirements of democratic social order and secular republic and the principle of proportionality. Article 14 stipulates that "None of the provisions of the Constitution shall be interpreted in such a way as to enable the State or individuals to engage in any activity aimed at the destruction of the fundamental rights and freedoms recognised by the Constitution or to limit them more extensively than provided for in the Constitution. 

Within the scope of the judicial review of the discretionary power of the Council of State, there are decisions in which the Council of State determined that the action taken by the administration by using its discretionary power caused a violation of human rights and cancelled the action. In the two decisions of the Council of Administrative Chambers of the State Council presented below, the decisions are the decisions given as a result of the retrial as a result of the determination of a violation of human rights by the European Court of Human Rights. 

In the decision of the Council of State Administrative Case Chambers Board E. 2009/1188, K 2010/2507; the decision of the 8th Department of the 8th Chamber of the Council of State, "The commission report, which constitutes the basis of the transaction regarding the invalidation of the result of the Student Placement Examination that the plaintiff entered in 1997, is based on probability and estimates, and no legal basis can be shown on the grounds that ÖSYM has discretionary authority to cancel the exam results of the candidates on the grounds that they cannot explain their success, In fact, such a discretionary power may create legal uncertainty, the administration should not take action unless it is supported by concrete and legally valid evidence, a contrary situation would eliminate the legal validity of the action taken, and the action taken against the plaintiff resulted in a violation of the right to education and training guaranteed by the Constitution.  

Council of State Board of Administrative Chambers E.2006 /4597, K. 2009/1709 numbered decision of Ankara 6th Administrative Court dated 20.6. 2006 dated 20.6.2006, E:2006/1558, K:2006/1248 numbered insistence decision on the grounds that "it cannot be considered that the administrative decision not to grant the permission should be excluded from judicial review and the administrative decision in question should be accepted as a transaction that gives rise to legal results within the discretionary power of the administration (preventing the filing of a public lawsuit), subject to administrative judicial review, final and compulsory to be executed, subject to administrative lawsuit", on the other hand, "the European Convention on Human Rights regulates the right to a fair trial.

On the other hand, in the judgements of the European Court of Human Rights concerning Article 6 of the European Convention on Human Rights, which regulates the right to a fair trial, it is stated that if there is no trial, there can be no question of a fair, public and prompt trial (Golder v. the United Kingdom, 21.2.1975, p.12 ); that the de facto or de jure closure of the right to seek remedy before the court, even temporarily, or the restriction of its use by imposing conditions that make it impossible, would constitute a violation of the right to a fair trial (Airey v. Ireland, 9.10.1979, p.12 and Pudas v. Sweden, 27.10.1987, paras. 40-41)''.  

The decision of the 5th Chamber of the Council of State, which we present below, is the decision for the cancellation of the appointment process as a result of the determination that the discretionary power of the administration is contrary to the Constitutional Principles. E.2003/3647 K.2006 of the 5th Chamber of the Council of State In the decision numbered /1140, it was stated that "The lawsuit filed by the plaintiff, who was working as a supervisor in Ağrı Sugar Factory, requesting the cancellation of his application dated 2.9. 2002 dated 2.9.2002, requesting the cancellation of the transaction regarding the rejection of his application by not responding; The administration, which has the discretionary power on the transfer of civil servants, should evaluate the plaintiff's request for appointment within the framework of the principle of protection of family unity guaranteed by the Constitution, and in this sense, the plaintiff should be temporarily assigned to Ankara by applying to the temporary assignment institution on a permanent basis, and considering the travel and allowances to be paid to the relevant person each time, this situation will bring an additional burden to the administration and it is accepted that the plaintiff will not be able to get efficiency from the plaintiff in this way, and the appointment of the plaintiff is in the public interest, E. 2002/1633 K:2003/263 numbered decision of Erzurum Administrative Court for the cancellation of the action in question on the grounds that there is no compliance with the law and service requirements in the transaction related to the rejection of the plaintiff's application by not responding, while it should be made to Ankara in line with the service requirements and the Constitutional principles mentioned above: 2002/1633 K:2003/263 numbered decision'', the issue emphasised in this decision within the scope of constitutional principles is the protection of family unity.

It is clear that the actions and proceedings of the administration cannot impose limitations on the fundamental rights directly related to the realisation of human possibilities (right to life, prohibition of torture, no one can be arbitrarily arrested, no one can be used as a slave or servant, freedom of thought, conscience, religion and expression) and that discretionary power cannot be left to the administration regarding these rights. Demands related to the prerequisites that enable human beings to develop their capabilities also constitute fundamental human rights. For example, the right to education and health are among such rights. Although we clearly state that these rights will not be violated by the acts and procedures of the administration in relation to such rights, it will not be possible to determine whether such rights have been violated as clearly as the above rights. Protecting such indirectly protected rights means ensuring that these rights can be experienced. The realisation of such rights depends on the state. The political decisions taken by the state, the regulations made by the administration, the social, economic and political rights provided to citizens will ensure that these rights are realised. These fundamental rights, other than the rights directly related to the realisation of human possibilities mentioned above, are the rights that may be violated by the actions and transactions of the administration. The appointment process carried out by the administration using its discretionary power may affect the education or health of an individual. Such an action is against the public interest. Because when we violate the right to education, we create an individual who cannot sufficiently use human opportunities. Such a procedure is also against the interest of the individual. We would also be preventing the right to self-development. However, due to all these reasons, such an action is first and foremost a violation of human rights. In such a transaction, we consider that a transaction involving the discretionary power of the administration, in which the right to education is prevented without the need to go to the clear discretionary error of the administration and the principle of proportionality, should be cancelled for Constitutional Reasons or due to violation of fundamental rights.  

Note: This article was also published on www.torunhukukburosu.com. Numerous articles, analyses and evaluations written in the field of law in a similar context can be accessed from this web page.