Ombudsmanship

Ombudsmanship is an independent and impartial oversight mechanism that examines complaints from individuals harmed by the actions and procedures of public administration, acting as an intermediary between the administration and citizens. Its primary aim is to enhance the quality of public services and protect individual rights by ensuring administrative compliance with the law, fairness, and good governance principles.

Origin and Historical Development

The origins of the ombudsman institution are traced by some sources to practices in the Ottoman Empire such as the “Kadı” or “İhtisap Ağası,” as well as observations made by King Charles XII of Sweden during his years of exile in the Ottoman Empire. The institution took its first steps in 1713 with the appointment of a official titled “Högste Ombudsmannen” (Chief Ombudsman) in Sweden, and it acquired constitutional status in 1809 when it was incorporated into the Swedish Constitution. Following the Second World War, with the growing emphasis on human rights and good governance, the ombudsman institution spread globally. Finland adopted the system in 1919, Denmark between 1953 and 1955, Norway between 1952 and 1963, and West Germany between 1957 and 1959. The institution was also accepted in countries with different legal systems such as the United Kingdom (1967) and France (1973). Today, it operates at national, regional or local levels in more than 100 countries.

Core Characteristics and Functions

While the core characteristics and functions of ombudsman institutions may vary from country to country, several common features are widely accepted:

• Independence and Impartiality: The ombudsman is independent of both the body that appoints them (usually parliament) and the executive branch. They act impartially when making decisions and conducting investigations.
• Subordination to and Accountability to Parliament: Ombudsmen are typically appointed by parliament and are accountable to it. They submit annual activity reports to parliament.
• Broad Investigative Powers: They have the authority to investigate, examine and inquire into all types of administrative actions, procedures and conduct, either upon complaint or, in certain cases, on their own initiative. Their right to access all relevant information and documents is generally protected by law.
• Advisory Nature of Decisions: The decisions of ombudsmen are generally non-binding and advisory in nature. Their enforcement power derives from public criticism, persuasion and public disclosure.
• Accessibility and Free Access: Citizens’ access to the institution is typically easy, cost-free and subject to minimal formal requirements.
• Promotion of Good Governance: The ombudsman does not merely resolve complaints but also makes recommendations to improve administrative practices, enhance respect for human rights and ensure the rule of law.
• Moderation: The ombudsman acts as a mediator between citizens and the administration, aiming for amicable resolution of disputes.

The Public Oversight Institution in Türkiye

Efforts to establish an ombudsman institution in Türkiye date back to the 1970s, but the legislative process culminated only recently under the name “Public Oversight Institution.”

Establishment Process

In 2006, Law No. 5548 on the Public Oversight Institution was adopted, but it was annulled by the Constitutional Court in 2008. The Court cited as grounds that the institution had been established outside the administrative structure envisaged by the Constitution and that it had been granted powers not provided for in the Constitution. In response, the constitutional amendment of 12 September 2010 added the “right to apply to a public ombudsman” to Article 74 of the Constitution, thereby providing the institution with a constitutional basis. On this constitutional foundation, Law No. 6328 on the Public Oversight Institution was enacted and entered into force on 29 June 2012.

Structure and Appointment

The Public Oversight Institution is an entity under the Presidency of the Grand National Assembly of Türkiye, possessing public legal personality and a separate budget. The Chief Ombudsman is elected by the General Assembly of the Grand National Assembly through a secret ballot for a term of four years. Ombudsmen are similarly elected for a four-year term by a mixed committee composed of members of the Petitions Committee and the Human Rights Examination Committee of the Grand National Assembly. Both the Chief Ombudsman and the Ombudsmen may be reappointed for one additional term.

Duties and Powers

The primary duty of the institution is “to examine, investigate and make recommendations to the administration regarding all types of administrative actions, procedures, attitudes and behaviors, in light of justice based on human rights and in terms of compliance with the law and fairness, upon complaint.” The institution may request that relevant information and documents be provided within 30 days; if such documents are not provided, it may refer the matter to the relevant authority for the initiation of a disciplinary investigation. It may hear witnesses and appoint experts.

Excluded Matters

The institution’s mandate does not cover actions taken solely by the President of the Republic, decisions and orders signed by the President, actions related to the exercise of legislative authority, judicial decisions, or purely military activities of the Turkish Armed Forces.

Applications

Both natural and legal persons may submit applications to the institution. Applications may be made via a written petition in Turkish, electronically, or through other communication channels. Applications may also be submitted through provincial governorships and district governorships. No fees are charged for applications. When a complaint concerns human rights, fundamental rights and freedoms, women’s rights, children’s rights or general public matters, proof of personal interest is not required. The institution generally concludes applications within six months.

Lack of Ex Officio Investigation Authority

According to the current regulation, the Public Oversight Institution is restricted to acting only upon complaint and lacks the authority to initiate investigations ex officio. This limitation has been noted as a deficiency in some international reports.

Potential Contributions and Criticisms of Ombudsmanship

The ombudsman institution is expected to contribute significantly to public administration, the rule of law, transparency, good governance, democracy and human rights. These contributions include helping to consolidate a democratic rule-of-law state, preventing maladministration, improving administrative relations with the public, supporting parliament’s oversight function, protecting citizens’ rights and freedoms, accelerating administrative reforms, contributing to public and civil servant education, and reducing the burden on administrative courts.

However, some criticisms and concerns have also been raised regarding the ombudsman institution. These include questions about its effectiveness in countries with established administrative judiciary systems, doubts about its necessity as an additional oversight mechanism, whether initial conditions such as educational levels and a culture of rights-seeking are adequate, the risk of complicating existing oversight mechanisms, and concerns about excessive workload. Nevertheless, successful practices in countries with strong administrative judiciary systems such as France, alongside identified shortcomings in existing oversight channels, are presented as counterarguments to these criticisms.

International Connections

Ombudsman institutions are also organized at the international level. Organizations such as the International Ombudsman Institute (IOI) and the European Ombudsman Institute (EOI) promote cooperation and information exchange among ombudsmen. The European Union (EU) also has its own European Ombudsman. The EU has recommended that candidate countries establish institutions similar to ombudsman offices.