Ogurlu - Proportionality

Ba makale Kamu Hukuku Arşivi (KHukA), İlhan Akın’a Armağan, Mart 2003 (1), Y.6'da yayınlanmıştır.

A Comparative Study on The Principle of Proportionality in Turkish Administrative Law

Obviously, the involvement and measures by administration in daily practice as an organ of the state on the rights and freedoms of individuals are not unlimited. When there is a restriction, concerning limits must also be determined. Importance of the doctrine of proportionality is increasing day by day as crucial review mean. So far, administrative courts in many European countries begun to apply the doctrine of proportionality as a principle developed in EC law, under pressure of the increasing importance of EC law. Its implication for internal laws of member states has crucial significance still. The dominance of the European Union law on the legal systems of member states is rather obvious.

Nearly for 200 years Turkish legal system follows the European legal systems. Moreover, even Turkey is not a full member state to EC, Turkish legal system is going on to become more Europeanized day by day. In fact, the last amendment in Turkish Constitution which includes the principle of proportionality is a part of this process.

I shall try to investigate whether principle of proportionality can be detected in Turkish administrative law field what is, its position in legal practice of administrative courts and how it has been or can be applied or sound in Turkish law, and what is the recent position after the last constitutional amendments.[1]

In Turkish administrative legal practice, the doctrine of proportionality has not as long past as German law that is mentioned below. The first study which was only on constitutional law referred to the principle was published 1982.[2] There was not any independent study on this issue in the field of administrative law by recent times. The first and recent study that is a comparative research has been published in this year.[3] However, before these studies, The Constitutional Court had been applying the principle for a long time and the principle is not rather new for this court, as it is expressed below.

It is crucial and novel solution of the case with a fair and reasonable conclusion in many fields of public law, such as constitutional law[4], criminal law and administrative law. The principle expresses particularly those measures and restrictions on individuals must not be more drastical than necessary for attaining the aimed result.

I shall research the following issues under the practice of the constitutional and administrative courts, firstly touching on the value of the principle in some of other European countries.

If we look first the principle of proportionality in a historical context, we can see that it was originated at Germany in 1870’s. In German administrative law the administrative acts of administrative authorities (Behörde) to be exercised with a principle known as ‘Verhaltnismassigkeit’[5]. The principle of proportionality in German law is called “Verhältnismäßigkeitsprinzip” and used in similar way as in today’s other European administrative systems.

The principle applies to legislative, judicial and administrative actions and decisions of the organs in the state in all level.[6] Disproportional restrictions, measures and other means are taken by administration will be considered illegal and voidable. Illegality is not considered a mean for repairing damages and offering financial compensation. An unbalanced, but lawful decision in German law can be void and be repaired only by a new balanced and lawful decision.[7]

It contains three interconnected conditions of which are examined by the courts. Three elements (sub-principles) which are included by the principle are:

-The means which applied by behörde (public authorities) should be available to reach to aims and they should be effective, in other words available for the result, that is, suitability (Geeignetheit).

-The means should be necessary to realize the aims and not be more than is necessary to reach the aim showed in the laws (Erforderlichkeit).

-The means which causes burden for individuals should be proportionate in relation to the aim. The restriction by an administrative action and fundamental rights of an individual should be balanced and include a clear proportionality between the parties. Shortly, the gain or loss of the community, that is necessary for public interest, and loss or gains of the individuals should be balanced (narrow Verhältnismäßigkeit).

It should be stated that these three sub-principles are applied in constitutional judicial review exactly in the same way in Turkish Constitutional Law as a mean of review.

The sources and bases of the doctrine of proportionality in modern perspectiveness can be found in German police law of 1870’s. Afterwards, It has been begun to be applied by German Constitutional Court after a period of time. After originated in German police law, the principle has been split to French, Dutch and English law originally developing in European Law with resistance. Under the affect of English Law on other Common Law countries the principle passed to Australian[8], Canadian and other laws of Common Law[9]. Even one of the most important administrative courts in the Netherlands has rejected to apply this principle in the beginning[10], afterwards such as other member states, begun to use for examining administrative acts. Such resistance in Dutch law against full proportionality test as in practice of the EC, though they have an explicit provision of an act (Sect. 3:4 GALA).

The principle, with its well known name in French law “the principe de proportionnalité” is not applied and regarded as a general principle of public law in French law.[11] Nevertheless, “coup de balance” is applied for a long time in French law for removing the unwilling results of an unbalanced acts and actions of administration. Afterwards Guy Braibant in 1974 welcomed the theory of proportionality into French Administrative law and considered the principle as “rule of common sense” it has been accepted as a supervision tool over administrative acts and actions.[12] In some cases, “error manifest” is used instead of the proportionality.

The fields which are used in French administrative law today are: town and country planning, public order, economic measures, and disciplinary sanctions. First of all, it offers proportionality of administrative restriction or measures that means a balance between contrary benefits of both individual and administration in public affairs, particularly parties of an administrative act or action. The second element of principle is to determine the necessity for restriction or measure to reach to pursuance of aim. The last element in the principle is being available for the pursued aim.

As a result, we can say that “the principe de proportionnalité” in French administrative law and the Verhältnismäßigkeitsprinzip of German administrative law have the same tools of review in this point of view. The restriction or measure on the fundamental rights or freedoms should be necessary to reach the legitimate aim. However, German practice of proportionality have a longer past than others, since Germany is origin country of the principle.

The principle of proportionality as a ‘general principle of law’ has been used to interpret of the some articles of European Convention of Human Rights. It can be used to resolve cases on articles Protocol No.1, Articles 8 to 11, Article 14, Article 15, Article 17, Article 18 [13] For instance, Article 10 (1) of the Convention guarantees “without interference by public authority” to the right to freedom and to impart information and ideas. As it is seen, the principle is not clearly exist in the article. However, The Court interprets the Convention and applies the principle in convenient disputes.

The principle as a doctrine in European judicial review is well known in German, French and European community law. It is a general starting point for public authorities in negative administrative decisions, as it is mentioned about.[14] The doctrine of proportionality has been used in European context for many years. The principle as a general principle of EC law is applied to all actions of community organs, on both level of the EC and the member states of EC. In some of European countries it is applied at least for 20 years as one of the general principles of community law. However, it is necessary to use proportionality for review of cases, specifically, involve a dimension of community aims. European Community has the same criterion for review of administrative action with together other principles. In today’s practice The European Court adopts the doctrine of proportionality to examine whether occurring the excessive power using for reaching to desired result.

The decisions of The European Court of Justice on economic measures which are taken by Commission and Council under broad discretionary powers are examined with a mild proportionality-test. Community sanctions to reach the aims of community policy dictated by EC regulations and applications are under review of The Court and the decisions for these aims should not be disproportionate and harsh.[15] The Court examines the measures, sanctions and restrictions for reaching the aims of community economic policy as well as the restrictions on fundamental rights and freedoms[16], and to examine the usage of discretionary powers of the organs of member states by using the proportionality with its sub-principles: suitability (relevance), necessity and narrow proportionality. The Court uses these criterion for balancing of interests of member states and individuals[17] and reviews the measures and the restrictions involving the rights of the individuals applies the most intensive proportionality-test.[18]

I shall investigate in a general way what the principle means in Turkish public law. In Turkish penal law, the principle is a part of performing proper punishment which fits to crime of criminal. In the field of international law, it means to use force against an attack from any country or terrorist group according to the necessity of the case and on condition that relevant is proportional to attack. The application of the principle have been increasing to other fields of law day by day. Having determined the usage of the principle in Turkish public law generally, I shall pass to application in administrative law in particular. Today, the principle is applied by Turkish Constitutional Court very similar way with application of German Constitutional Court. Later, Danistay (The Turkish Conseil d’Etat) followed the practice of The Constitutional Court of Turkey by improving and concentrating on balance between benefits of the parties of the administrative acts and actions.

The doctrine is an acceptable principle of constitutional and administrative judicial review with closely related the same procedural. The principle entails three sub-principles in Turkish Constitutional Law: relevancy, necessity, narrow proportionality. First of all, the principle is crucial during decision-making both in law making procedure at Parliament and in regulations of administration. However, the main and common application field of the principle is administrative law in regulating acts of administration such as administrative directives and application of general regulating acts of administration by its individual acts and actions.

The Constitutional Court applies the principle very similarly to practice of German Constitutional Court. The early decisions can be found during the supervision of Constitutional Court’s practice of the Constitution of 1961. In some of these decisions, it has been explicitly stated that regulations and especially sanctions must be proportionate and reasonable.[19] In that period of time, some scholars on Constitutional Law stated that the principle is absent in constitution, but it implicitly exists in 15^th article[20] of the constitution with the statements of “...measures may be taken, to the extent required by the exigencies of the situation”. However, it is alleged by some scholars of Constitutional Law that the existence and usage of the principle is not so new as it is thought. The source of the principle before that amendment was thought by many scholars[21] as article 15/I under title of “Suspension of the Exercise of Fundamental Rights and Freedoms” which contains a statement “...to the extent required by the exigencies of the situation”.[22] These scholars states that if the measures must be regard the exigencies of the case in extraordinary situations, it should be implicitly understood that proportionality is valid for ordinary cases by interpretation of the article.

Since the amendments of 2001 which aims to harmonize Turkish law to European common law, the principle of proportionality had its place in The Constitution of Turkey, in article 13. After amendment in the article under title of “Restriction of Fundamental Rights and Freedoms”[23], the restrictions are possible in accordance to “restrictions only by law”, “the requirements of the democratic order of the society” and “the principle of proportionality”. By this way, the constitution has been changed in conformity with the long time practice of The European Court of Human Rights.[24]

Today, though the principle is an explicit order of the Constitution, it is still absent as an evident order in many regulations in the field of administrative law. So, many a time during constituting the acts and in practicing the actions of administration, it is undervalued. However, after the amendment, it is alleged that the amendment on proportionality is a clear order and direct applicable provision of Constitution.[25]

It is the concept that forms on the basis for dealing justly for administrative agencies in administrative practice during the constituting administrative acts and actions, later as a supervision tool on administrative judiciary for their judicial review over administrative acts. However, it can be explicitly said that it has been accepted easily without any resistance against the principle in Turkish administrative scholars and judges on contrary to English and French judges.[26] In Turkish administrative law, the fields in which are applied the proportionality test are:

-Control of administrative sanctions[27]: Because of their characteristics the imposition of an administrative sanction is convenient for putting to full proportionality test by the administrative courts.

-Control of discretionary power of administration[28]: That means nearly all administrative acts and administrative actions that entail discretion.

-Control on the restrictions and measures on the fundamental rights by administration, that is, conclusion of individual decisions of administration which includes restriction on fundamental rights have to be in a fair balance with the aim stated in law.

The principle in Turkish law depending recent application of Danistay is applied in a very similar way to the application of ECJ, its aims to examine the usage of discretionary powers of administrative authorities to analyze the balancing of benefits. The courts often follow the way that is:

Firstly, it is checked whether the aim of restriction or measure have been determined and prescribed by law. Determining of the aim is followed by the second step which checks whether the tools of restriction is necessary and attainable. The last step is to look for a balance of advantages and disadvantages of restrictions against relevant persons; This is a treatment aiming determine if there is a proper balance of parties.

Although there has not been a lot of philosophical case law in Danistay practice, it can be seen to an extent in some of those decisions of The Constitutional Court. It is obvious that the principle is used in every case where the pursuit of results of administrative decisions should not be excessive. At the same time, the principle is used as grounds for judicial review of administrative decisions which are carried out by administration with discretion. The administrative authority has to take into consideration a ‘balance’ of facts and circumstances outweighs. The principle seeks to maintain some sort of balance in any case between any adverse effects for each sides. So, there should be reasonable balance in the administrative action as well as fair and should ensure a correlation of restriction and conclusion of this action.

It has been thought by Danistay as embodiment of a basic principle of fairness in spite of explicitly never expressed in that way. On the other hand, neither scholars nor judges resisted against this new principle of German law. Firstly, it has been applied by Turkish Constitutional Court for checking the legislative action during the valid term of Constitution of 1961 that is not evidently contain the principle. However the Constitutional Court did not hesitate to use this principle in 1960’s and 1970’s. Whereas The French and English courts was not able to use the principle because of resistance of judges in their courts during that time.

Turkish administrative law that has a close resemblance to French administrative law was under heavy affect of French law in its early stages. Although the Turkish scholars and jurisprudence followed the French administrative law almost in every field, they deviated from that French approach and determined their own way on application of the principle. Because before French scholars and jurisprudence, Turkish jurisprudence had begun to discuss the principle in 1973. Danistay choose to review almost every disputes by interpreting the doctrine in a narrow base. In the first application of the principle by Danistay in 1973 it has been realized their judge was on the basis of fairness and equality. Those very similar decisions of Danistay to this judgment can also be found in some other cases. So far, The Turkish Conseil d’Etat has been applying the principle on the base of balance of benefits and necessity.

The principle facilities some possibilities for attaining a fair trial by creating a balance for both parties of an administrative action while it is examined by both the courts of first instance and the Danistay, which highest ranking administrative court. The doctrine has been concealed behind other general principles of administrative law such as fairness, equality, balance etc. until the recent times. They should take consider the doctrine when taking their decisions public authorities on restriction of fundamental rights, police power, discretion of administration and administrative sanction law.[29] Nevertheless, it has been applied by Danistay in veiled form in many cases which lays out some crucial examples below after 1972. Today, in many cases, the concept of proportionality is applied in veiled form still.

During the period in which that the principle was not in the Constitution, practice of The Constitution Court in many cases encouraged the Danistay for applying the principle in administrative disputes. The Court has been applying the sub-principles of the doctrine of proportionality for a long time in some cases with only one sub-principle, while some others with two principles. We can see some early examples of the unconscious practice of the principle of Danistay. In these examples[30], as which one in 1969, putting disproportionate tariff into practice by the administration of municipality has been seen illegal by Danistay, based on the violation of “fundamentals of justice” as it is deemed one of the general principles of law. In fact, this decision can not be accepted as the first application the principle. In my opinion, Danistay did not use the word of “disproportionate” intentionally, but used the word only as in daily speeches.

The oldest decision which we could determine in the practice of Danistay was the decision in the year of 1970.[31] In this decision, Danistay decided to correct the judgment of first instance court that is consider sees a lawful disciplinary applied by administration. In the case Danistay has stated without mentioning the principle by name, that the infringement of the relevant person and the disciplinary as an administrative sanction has not in balance. In its decision and in other similar decisions, the word of “balance” is considered similar to “fair balance” in the recent practice of ECHR. However, neither in this decisions nor in the latest decisions there is not a meticulous supervision. The application of the principle by Danistay is limited only with its sub-principle of “narrow proportionality”. That means that Danistay has been applying the principle only in a roughly way as well as imperceptible.

On the other hand Danistay uses the words of “reasonable proportion” in some disputes.[32] For example, it is stated that “the balance between infringement and the sanction, and ‘reasonable proportion’ must be taken into consideration”.[33] In some cases Danistay has found unlawful the existence of different treatment between banks and other legal persons for attaining electricity and stated that the deposit is “excessive and disproportionate”.[34] The former decision is the main judgment we based our opinion on shows that Danistay has a long past in application of the principle comparing administrative fields of many other countries .

The administrative judges in Turkey used the principle in the fields of restriction of fundamental rights, discretion of administration as well as current, police and administrative sanction law.[35] Danistay often uses the principle in the field of disciplinaries and other administrative sanctions.[36] In its decisions, the common criterion is the result of administrative decision and the infringement must be in “a fair balance”. The supervision has been concentrated on the result of the administrative decision that is more excessive than the necessary of the situation. Danistay sees the case by examining whether “a fair balance” has been taken into consideration or not. For example, once The Court looked for a fair balance in the case of a removal a student from the school for an indefinite period of time, instead of removing for one year in compliance with law and found the decision absolutely disproportionate.[37] Also Danistay decided that one year of removal from University because of an article of the student in a journal is not in a fair balance and disproportionate.[38] Among these decisions some other examples of decisions related to civil servants can be found.[39]

The principle has been applied with its sub-principle of necessity in some of the exceptional decisions of Danistay.[43] For example, in another decision, a disciplinary on removal from dormitory under the guise of an article against the dormitory in a journal, Danistay decided that a disciplinary must be in a fair balance with the results of the infringements, and be necessary for gravity of the infringement. However the disciplinary of dormitory is not compatible to these facts, so, Danistay quashed and corrected the judgment of first instance court.[44]

In which period of time the principle should be used in Turkish administrative law is a problem. The principle can be used in two different stages: before judicial review during the creation of administrative act or action and throughout the judicial review. The first type is to use the principle for controlling the action by non-judicial control which is intra-administration review. (Turkish Administrative Judicial Procedure Law, article 11). This is a competence of the head of each administrative agency for enjoying hierarchical supervision.[45] This type of review is used before judicial review, but it is not affective as a judicial protection because of its using by persons who are parts of administration.

The main and affective way is to apply the principle throughout annulment lawsuit (action for annulment) that is a remedy against illegal acts, regulations and by means of laws of administration. The 1982 Constitution in Article 125 -I, laid down the rule that “recourse to judicial review shall be available against all actions and acts of administration.” This remedy is applied by persons whose personnel rights are affected negatively and it results retroactively annulment of act. In this stage, the plaintiff should have standing the sue on illegality of the act. The review is limited only with illegality but not expediency of the act. The illegality can be based on five different points: reasoning, aim, competency, procedure and result (subject). These control tools of French administrative law have been using in Turkish law for years. I think in many cases to apply the test of proportionality would solve the problems before using these five control tools. This is a new and important tool for accelerating the judicial review of administration that results in protection of individuals against powerful administration.[46]

However, the question is that whether the judicial power review over expediency of the administrative acts by proportionality. The 1982 Constitution in Article 125 III laid down the rule that “Judicial power is limited to the verification of the conformity of the actions and acts of the administration with law. No judicial ruling shall be passed which restricts the exercise of the executive function in accordance with the forms and principles prescribed by law, which has the quality of an administrative action and act, or which removes discretionary powers.” According to this provision the control over administrative acts is limited with the control of legality but expediency is not as in French administrative law. Then, we have to look that what the principle of proportionality means in this aspect:

As previously stated, the principle includes three elements: necessity, being available for aim, narrow proportionality as in German constitutional law. In fact, all of these elements have close relationship to expediency of the acts of administration. Here, the judicial power does not interest only in legality of the act but in extending control from legality to expediency. In my point of view, the courts use the principle for controlling the expediency of act in a meandering way. I offered some solutions for solving this question in one of my books: The first way is to amend the fact that prohibition of Constitution over expediency. This should be realized rapidly. Otherwise, the amendment which includes proportionality would be meaningless. The second way is to put the principle to the Turkish Administrative Procedure Act that is a draft of a law at present and expected to put in force in the next years. The third and easy way is to deem the principle of proportionality as an legal exception of the prohibition of review over the expediency of the executive decisions, by an amendment in Turkish Administrative Judicial Procedure Law. Choosing one of these solutions will provide to use proportionality as a tool of supervision over expediency of the administrative acts and actions. Or the practitioners must have to apply it directly. But this is not a so reliable way.

A disproportionate application by an authority can result damages and unwilling conclusions. Some solutions must be thought for protecting the individuals against disproportionate actions of administration. Those of some results of excessive restrictions or measures must be eliminate and compensate. So, it can be eradicated of unwilling results. Some of solutions that can be thought are:

-The first solution is to annul of the administrative action by applying the principle. Here, the principle of proportionality can be based on annulment of an act or action.

-The second result of using of the principle is to get compensation by “a full remedy action” which is available against both administrative actions and acts in cases “service fault” or “liability without fault”. This type of lawsuit finds its place in The Constitution.[47]

-The last result of disproportional acts and actions is a French concept of “voie de fait” that means unlawful decision or action of administration which affects fundamental rights or freedoms of individuals.[48]

Although Turkish administrative law has a low performance to accept new institutions to internal law, the proportionality test had its place in administrative courts rather rapidly comparing many countries in Europe. Nevertheless, the principle could not be improved and applied intensely and fruitfully.

I expect that, after the amendment in Article 13 of the Constitution application of the principle by Danistay, it will be changed the way of using the sub-principles of the doctrine widely for reviewing the administrative actions and acts. Thus, this crucial amendment will be served for protecting the individuals against excessive and disproportionate administrative decisions.

It has been tried on conforming Turkish administrative and judicial system to European Union Law for a long time. At the same time European Convention of Human Rights is formed a part of Turkish internal law since 1980’s. Thus, the principle is, as a part of these systems, should be regard as a mechanism for review of acts and actions of administration explicitly. I think the case law of Turkish administrative courts, especially Danistay is a good sample for other courts in Turkey and this will not cause difficulties in view of obligations of Turkey under EC law and jurisprudence of ECHR regarding to other countries. The concept of ‘proportionality’ with other review tools is quite significant for the Europeanization of Turkish Administrative system and protecting rights and freedoms of individuals.

*Associated Professor of Administrative Law, The Law Faculty of Atatürk University. yucelogurlu@yahoo.com

[1] Amended on 17 October 2001 by Law No. 4709.

[2] See Fazıl Sağlam, Temel Hakların Sınırlanması ve Özü (The Restriction and Essence of Fundamental Rights), AÜSBF Yayını, Ankara, 1982.

[3] Yücel Oğurlu, Karşılaştırmalı İdare Hukukunda Ölçülülük İlkesi (The Principle of Proportionality in Comparative Administrative Law), Seçkin Publications, Ankara, 2002.

[4] See Vicki C. Jackson, “Ambivalent Resistance and Comparative Constitutionalism: Opening Up Conversation on 'Proportionality' Rights and Federalism”, University of Pennsylvania Journal of Constitutional Law, Volume 1, Number 3, Spring 1999: See Christian Rumpf, “Ölçülülük Ilkesi ve Anayasa Yargısındaki Işlevi ve Niteliği” (“The Principle of Proportionality in Constitutional Juristictipon, its Function and Characteristic”), Anayasa Yargısı, Anayasa Mahkemesinin 31. Kuruluş Yıldönümü Nedeniyle Düzenlenen Sempozyumda Sunulan Bildiriler, Ankara, 1993.

[5] Yüksel Metin, Anayasa Hukukunda Ölçülülük Ilkesi, (The Proportionality Principle in Constitutional Law), Doctorate Thesis, Konya, 2002.

[6] See Kay HaIlbronner, “Fifty Years of The Basic Law-Migration, Citizenship and Asylum”, The Fifty Years of German Basic Law Conference, The John Hopkins University, American Institute for Contemporary German Studies, September 1999.

[7] See Adrienne J.C. de Vugt, “Proportionality in Dutch Administrative Law”, TFLR – Administrative Law , Vol. 7, n.7, 1998, p.3.

[8] See Timothy H. Jones, “Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?”, Federal Law Review, Vol 22, No 1, 1994, http://snazzy.anu.edu.au/CNASI/pubs FLR/jones.html.

[9] See Oğurlu, The Principle of Proportionality..., p. 194.

[10] See VUGT, p.1.

[11] Stéphane Enguéléguélé; Stéphanie Lourdel, , “Three Recent Argument for The Expansion Of Human Rights in French Criminal and Admninistrative Law”, T. Conclusion, http://www.law.gonzaga.edu/borders/3cases.htm. 2001: Celal Erkut, Hukuka Uygunluk Bloku, Idare Hukukunda Hukukun Genel Prensipleri Teorisi (The Legality Block; Theory of General Principles of Administrative Law), Istanbul, 1996.

[12] See for more knowledge M. Guibal, De la Proportionnalité, Actualité Juridique Droit Administatif, 1978, p. 477-478.

[13] See Yücel Oğurlu, “Avrupa Insan Hakları Mahkemesi ve Türk Idare Hukukunda Temel Hak ve Özgürlüklerin Sınırlandırılmasında Bir Yargısal Denetim Ölçütü Olarak Ölçülülük Ilkesi” (‘The Principle Proportionality on the Restriction of Fundamental Rights in Practice of ECHR and Turkish Administrative Law”) , Dokuz Eylül Hukuk Fakültesi Turhan Tufan Yüce Armağanı, İzmir, 2001.

[14] See VUGT, p. 2.

[15] See VUGT, p. 4.

[16] See Esin Örücü, “Avrupa Hukukunda İdare Hukukunun Genel İlkeleri” (“General Principles of Administrative Law in European Law”), İHİD, n. 1-3, Y. 9, Istanbul, 1990, p.248.

[17] See Carol Harlow, “European Administrative Law and Global Challenge”, European University Institute, Working Paper RSC No 98/23, May 1998, htttp://www.iue.it/RSC/WP-Texts/98_23.htm. See VUGT, p. 4.

[18] See VUGT, p. 4.

[19] See Turkish Constitutional Court, 1970/22, D. 1971/20, 18 February 1971, Anayasa Mahkemesi Kararları Dergisi, N. 10, p.18.

[20] “In times of war, mobilisation, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation...”

[21] See Ergun Özbudun, Türk Anayasa Hukuku (Turkish Constitutional Law), Yetkin Yayınları, Ankara 2000, p. 105; for opposite opinion see Kemal Gözler, Türk Anayasa Hukuku (Turkish Constitutional Law), Ekin Yayınları, Bursa, 2000, p.249-250.

[22] “In times of war, mobilisation, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated”.

[23] “Restriction of Fundamental Rights and Freedoms” in Article 13. (As amended on October 17, 2001), “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality.”

[24] ECHR uses the doctrine of proportionality, as a balancing tool to seek the need for social necessity. It seeks whether the restriction on individual rights was ‘necessary in a democratic’ society. If it is found not to be proportionate to the legitimate aim pursued for necessary in a democratic society the contracting state would have to pay compensation. See D. J. Harris; M. O. Boyle; C. Warbrick, Law of The European Convention on Human Rights, London, 1995; See Marc Andre Eissen, “The Principle of Proportionality in the Case Law of European Court of Human Rights”, The European System for the Protection of Human Rights, Martinus Nijhoff Publishers, London 1993, p.125-146.

[25] Tekin Akıllıoğlu, İnsan Hakları I, (Human Rights I), İnsan Hakları Merkezi Yayınları, Ankara 1995, p. 53.; Teziç, Turkish Constitutional Law., Istanbul, 2001, p.193-194; İl Han Özay, “Anayasa: Özgürlükler ve İdari Kolluk Etkinlikleri”, (“Constitution: Freedoms and Administrative Police”), 25-28 Nisan 2002, Anayasa Mahkemesinin Kuruluş Yıldönümü, Antalya, 2002, p. 2-3; For opposite opinion Güran, Sait, İfade Hürriyeti Üzerinde İdarenin Yetkileri (Competence of Administration on Freedom of Statement), İÜHF Yayını: 289, İstanbul, 1969., p. 407. See Oğurlu, The Principle of Proportionality..., p.95.

[26] See Yücel Oğurlu, “İngiliz ve Türk Hukuklarında Idarî Faaliyetlerin Denetlenmesinde Ölçülülük İlkesinin Rolü Hakkında Bir Değerlendirme” (An Essay on Value of The Doctrine of Proportionality in English and Turkish Law), Atatürk Üniversitesi Hukuk Fakültesi Dergisi, Atatürk Üniversitesi Hukuk Fakültesi Dergisi, V. IV, n. 1-2, 2000, p.179.

[27] See İl Han Özay, İdari Yaptırımlar (Administrative Sanctions), İÜ Yayın No: 3326, Hukuk Fakültesi Yayın No; 691, Istanbul 1985, p.29: See Oğurlu, Yücel, İdari Yaptırımlar Karşısında Yargısal Korunma (Judicial Protection Against Administrative Sanctions), Second Edition, Seçkin Yayınları, Ankara, 2001, p.185.

[28] See Yıldızhan Yayla, “Türk İdari Yargısında Yerindelik ve Takdir Yetkisi” (“Discretionary and Expediency in Turkish Administrative Jurisdiction”), İdari Yargıda Son Gelişmeler, 10-11-12 Haziran 1982, Ankara, 1982; Metin Günday, “1982 Anayasasına Göre Idari Yargı Denetiminin Kapsamı ve Sınırları”, (“The Scope and Limits of Judicial Supervision of Administration According to The Constitution of 1982”), 1 inci Ulusal İdare Hukuku Kongresi, Birinci Kitap, İdari Yargı, 1-4 Mayıs 1990, Ankara, 1990.

[29] See Oğurlu, The Principle of Proportionality..., pp.33-36

[30] DDK., 1961/641, 1965/781, 15 October 1965, Danıştay Kararları Dergisi., n. 97-98-99, (1966) p.121.

[31] 12.D.; 1969/627, 1970/120, 22 January 1970; Danıştay Dergisi, n.1, p. 369.

[32] 8.D.; 1995/3706, 1995/3622, 14 November 1995; Danıştay Dergisi, n. 91, p.817.

[33] 5.D.; 1968/5769, 1971/220, 18 January 1971, Amme İdaresi Dergisi V. 4, n. 1, 1971, p.25.

[34] 11.D.; 1970/2401, 1970/3088, 24 December 1970, Danıştay Dergisi, n. 3, p. 475.

[35] ERKUT, “Hukuka Uygunluk...”, p. 120.

[36] 8.D.; 1988/820, 1990/145, 5 February 1990, Danıştay Dergisi, n. 80, p. 304; 8.D.; 1983/212, 1984/178, 1 December 1984; Danıştay Dergisi, n. 56-57, p. 313-314. Aynı içerikte diğer kararlar için bkz. 8.D, 1993/1617, 1993/4214; 14 December 1993; Danıştay Dergisi, n. 90, p. 879; 8.D.; 1993/1617, 1993/4214, 14 December 1993, Danıştay Dergisi, n. 90, p. 879; 8.D.; 1988/820, 1990/145; 5 February 1990; Danıştay Dergisi, n. 80, p. 304; 8.D.; 1983/212, 1984/178, 1 December 1984; Danıştay Dergisi, n. 56-57, p. 313-314; 8.D.; 1988/820, 1990/1445; 5 February 1990; Danıştay Dergisi, Y. 21, n. 80, p. 305; 8.D.; 1984/497, 1985/437; 24 April 1985; Danıştay Dergisi, Y. 13, n. 50-51, p. 389; 8.D, 1993/1617, 1993/4214; 14 December 1993; Danıştay Dergisi, n. 90, p. 879; 8.D.; 1980/186, 1978/988; 28 March 1980; Danıştay Dergisi, n. 40-41, p. 91. 12.D., 1969/627, 1970/120, 22 January 1970, Danıştay Dergisi, n. 1, p. 369; 8.D., 1983/212, 1984/178, 1 February 1984, Danıştay Dergisi, n. 56-57, p. 313; 8.D., 1984/341, 1982/2833, 24 February 1984, Danıştay Dergisi, n. 56-57, p. 320; 5.D., 1968/5769, 1971/220, 18 January 1971, AİD. C. 4, n. 1, 1971, p. 25.

[37] 8.D., 1988/820, 1990/1445, 5 February 1990, Danıştay Dergisi, Y. 21, n. 80, p. 305.

[38] DDDK, 1977/517, 1978/459, 29 September 1978, Danıştay Dergisi, n. 34-35, p. 230; 11.D., 1974/1120, 1974/2538, 13 December 1974, DKD., n. 18-19, p. 604; 8.D, 1981/1718, 1982/1095, 11 October 1982, Danıştay Dergisi, n. 50-51, p. 344; 8.D, 1995/3680, 1997/3928, Danıştay Dergisi, n. 96, p. 409; 8.D., 1984/341, 1982/2833, 24 February 1984, Danıştay Dergisi, n. 56-57, p. 320; 8.D., 1995/3680, 1997/3928, 11 December 1997, Danıştay Dergisi, n. 96, p. 409; 8.D., 29 March 1982 , 29/2; 11.D, 1976/17, 1976/3958, 4 November 1976, Danıştay Dergisi, n. 26-27, p. 476; 5.D., 1969/5398, 1971/380, 26 January 1971, Danıştay 5 inci Daire Kararları (1970-1981), 1 inci Kitap, C. I, p. 271.

[39] 8.D., 1983/212, 1984/178, 1 February 1984, Danıştay Dergisi, n. 56-57, p. 313 and 8.D., 1995/3680, 1997/3928, 11 December 1997, Danıştay Dergisi, n. 96, p. 408.

[40] DDDK, 1979/334, 1980/640, 28 November 1980, Danıştay Dergisi, n. 42-43, p. 62.

[41] DDDK, 1978/940, 1979/271, 25.May 1979, Danıştay Dergisi, n. 36-37, p. 265 and 8.D., 1995/3680, 1997/3928, 11 December 1997 , Danıştay Dergisi, n. 96, p. 409.

[42] 5.D., 14 April 1988, Danıştay Dergisi, n. 74-75, p. 301.

[43] For instance decisions 8.D, 1993/1617, 1993/4214, 14 December 1993, Danıştay Dergisi, n. 90, p. 879; 8.D., 1993/1293, 1994/680, 2 March 1994 Danıştay Dergisi, n. 90, p. 893.

[44] 8.D., 1984/497, 1985/437, 24 April 1985, Danıştay Dergisi, Y. 13, n. 50-51, p. 389.

[45] Sait Güran, ‘Administrative Law, In Tuğrul Ansay; Don Wallace (eds.), ’Introduction to Turkish Law, The Hague, 1996, p.74.

[46] Oğurlu, The Principle of Proportionality..., p.230.

[47] Güran, p. 79: The Constitution in Article 125 V, by stating the rule on the system of judicial control of administration and compensation after the acts and actions of administration is so: “The administration shall be liable to compensate for damages resulting from its actions and acts.”

[48] İl Han Özay, Günışığında Yönetim (Government in Sunshine), İstanbul, 2002, p.512

(c) Yücel Ogurlu. 2004. Bu sayfaya izin almadan link verilebilir. Ancak, bu web sayfası, önceden izin almaksızın ne suretle olursa olsun, kopyalanamaz, çoğaltılamaz, tekrar yayınlanamaz, dağıtılamaz, başka internet sitelerine metin olarak konulamaz. 5846 Sayılı Fikir ve Sanat Eserleri Kanununun 21.2.2001 tarih ve 4630 sayılı Kanun ve 3.3.2004 tarih ve 5101 sayılı Kanunla değişik 71 ve 72’nci maddeleri, bir fikir ve sanat eserini herhangi bir yöntemle çoğaltanları, dağıtanları, satanları, elinde bulunduranları, paraya çevrilmeksizin, 2 (iki) yıldan 4 (dört) yıla kadar hapis cezası veya 50 (elli) milyar liradan 150 (yüzelli) milyar liraya kadar ağır para cezasıyla veya zararın ağırlığı dikkate alınarak bunların her ikisiyle birden cezalandırmaktadır.

Bu çalışmadan yapılacak alıntılarda (iktibaslarda) 5846 Sayılı Fikir ve Sanat Eserleri Kanununun 35’inci maddesinde öngörülen şu şartlara uyulmalıdır: (1) İktibas, bir eserin “bazı cümle ve fıkralarının” bir başka esere alınmasıyla sınırlı olmalıdır (m.35/1). (2) İktibas, maksadın haklı göstereceği bir nispet dahilinde ve münderecatını aydınlatmak maksadıyla yapılmalıdır (m.35/3). (3) İktibas, belli olacak şekilde yapılmalıdır (m.35/5) [Bilimsel yazma kurallarına göre, aynen iktibasların tırnak içinde verilmesi ve iktibasın üç satırdan uzun olması durumunda iktibas edilen satırların girintili paragraf olarak dizilmesi gerekmektedir]. (4) İktibas ister aynen, ister mealen olsun, eserin ve eser sahibinin adı belirtilerek iktibasın kaynağı gösterilmelidir (m.35/5). (5) İktibas edilen kısmın alındığı yer belirtilmelidir (m.35/5).

5846 Sayılı Fikir ve Sanat Eserleri Kanununun 21.2.2001 tarih ve 4630 sayılı Kanun ve 3.3.2004 tarih ve 5101 sayılı Kanunla değişik 71’inci maddesinin 4’üncü fıkrası, 35’inci maddeye aykırı olarak “kaynak göstermeyen veya yanlış yahut kifayetsiz veya aldatıcı kaynak” göstererek iktibas yapan kişileri, 2 (iki) yıldan 4 (dört) yıla kadar hapis veya 50 (elli) milyar liradan 150 (yüzelli) milyar liraya kadar ağır para cezasıyla veya zararın ağırlığı dikkate alınarak bunların her ikisiyle birdencezalandırmaktadır.

Ayrıca Yargıtay İçtihadı Birleştirme Genel Kurulunun 18 Şubat 1981 tarih ve E.1980/1, K.1981/2 sayılı İçtihadı Birleştirme Kararına göre kararına göre, “iktibas hususunda kullanılan eser sahibinin ve eserinin adı belirtilse bile eser sahibi, haksız rekabet hükümlerine dayanarak Borçlar Kanununun 49. maddesindeki koşulların gerçekleşmesi halinde manevi tazminat isteyebilir”.

Yukarıdaki şartlara uygun olarak alıntı yapılırken bu çalışmaya şu şekilde atıf yapılması önerilir:

Yucel Ogurlu, "A Comparative Study on The Principle of Proportionality in Turkish Administrative Law", Kamu Hukuku Arşivi (KHukA), İlhan Akın’a Armağan, Mart 2003 (1), Y.6. www.idare.gen.tr