THE OMBUDSMAN INSTITUTION:

A COMPARATIVE ANALYSIS OF
TURKISH AND HUNGARIAN OMBUDSMAN INSTITUTIONS

by

GİZEM GÜLTEKİN DR. VÁRKONYI

A thesis submitted in partial fulfillment of the requirements

for the Master degree in International Relations of the Faculty of Law at University of
Szeged

Szeged, 2016

Advisors: Prof. Dr. Trócsányi László

Dr. Péter Kruzslicz
 ABSTRACT
State, as a holder of people's power that transferred by them, is responsible to protect
people from its own wrong actions especially when it is in a position to serve them. Every
state has been taking some steps to make people satisfy with its services, to respect their rights
and offer them a solution when they would like to complain. Classical institutions sometimes
failed to give effective and fast solutions for people whose rights were damaged. It caused
states to take alternative actions in order to offer easily accessible, effective and fast response
institutions.
This issue was not realized currently, but it has a long history from Romans to
Ottomans, China to Islamic states. As it is most known, Swedish state structure is the first
example that have “Ombudsman” institution to offer an alternative solution to its people.
Globally following issues especially realization of human rights, need for protection of human
rights and political changes caused states to think over this possibility. Finally, nearly half of
the countries settled an ombudsman institution by the end of 90's.
Although the institution is called in different titles and may have some different duties,
there is a tendency in the countries to have this institution as an element of protection of
human rights. As long as there is no standard way of thinking on and protecting the human
rights, every state might have different framework for ombudsman institution. However,
especially in Europe, there is an expectation to ensure standard way of thinking and protecting
of human rights.
In order to understand how European countries have similar or different ombudsman
institutions, two countries' ombudsman institution was chosen for comparison. In this work,
Hungarian and Turkish Ombudsman institutions were evaluated in frame of Venice
Commission's ombudsman standards. Two institutions obviously have some similarities but
significant differences.
Keywords: Administration, Protection of Human rights, Hungarian Ombudsman, Turkish
Ombudsman

I
 ACKNOWLEDGMENTS

First of all, I would like to thank to my family in Turkey who supported me all my life to be a
better person, to be more educated, to be more aware of the life and to be more 'useful' for the
world.

I thank to my husband who is the best and most handsome Hungarian guy in the world. He
carried my all stress with me and helped me anytime even if I do not need. Also, thank to my
Hungarian family for their all support, their all effort to make me less stressful during this
study program.

I thank to my friends and colleagues for their all support, I appreciate.

I thank to my advisor who helped me to create this work, and actually helped me with his all
effort.

Lastly, I would like to thank to both Turkish and Hungarian Ombudsman institutions,
University of Szeged, and other nice and kind people and institutions that helped me to
improve this work.

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 TABLE OF CONTENTS
ABSTRACT ........................................................................................................................... I
ACKNOWLEDGEMENTS…………………………………………….…..….…………... II
TABLE OF CONTENTS.......................................................................................................III
ABBREVIATIONS LIST..…………………………………………..……….……….……VI
LIST OF CHARTS………………………………………………………………………...VII
INTRODUCTION................................................................................................................VII
PART I
1. HISTORICAL OVERVIEW OF OMBUDSMAN INSTITUTION…….....………….……1
1. 1 Defining the Ombudsman Institution………………..………..………….……3
1.1.1 Ombudsman-Administration Relationship……………...………....…..4
1.1.2 Ombudsman-People Relationship………………………..…….……...4
1.1.3 Ombudsman-Democracy and Human Rights Relationship..….....……5
1.1.4 Ombudsman-Court Relationship…………..………………….………6
1.2 International Definitions…………………………...…………...…….……....7
1.3 Features of the Ombudsman Institutions…………...………………...….…...8
1.3.1 Establishment………………………………...……...………....….….9
1.3.2 Election………………………………………...……...…………..….9
1.3.3 Complaints……………………………………....…..………………..9
1.3.4 Investigation, Powers and Competences…………...………...……....9
1.4 Typology of Ombudsman……………………………..…...………….…….10
1.4.1 Classical Ombudsman……………………….…..….…...……..…... 10
1.4.2 Human Rights Ombudsman………………….…..……....……..…...11
1.4.3 Private Ombudsman……………………………...……………..…...12
1.4.4 International Ombudsman……………………..……………...….….13
1.5 Evaluation of the First Part………………………….....……...………….....14
PART II
2. TURKISH OMBUDSMAN……………………………………………...…………..….15
2.1 Judicial Control Mechanisms……………………………………...………..…..15
2.2 Non-Judicial Control Mechanism………………………………...………..…...15
2.3 Control Institutions in Turkey……………………………………....…….…….17
2.3.1 The State Supervisory Council…………………….……….…….…17
2.3.2 Committee on Human Rights Inquiry………………..…...……...…18
2.3.3 Committee on Petitions……………………………….........……….18
2.3.4 Prime Ministry Inspection Board……………………...……..……..19
2.3.5 Board of Ethics for Civil Servants……………...…....………..……19

III
 2.3.6 Constitutional Court……………………………..………..…...…...20
2.4 Need for an Ombudsman in Turkey………………………..…….…………....21
2.5 Development of Ombudsman in Turkey………………….…....…..………….23
2.5.1 Initiatives and Reports…………………………....…..…….……...23
2.5.2 Implementations…………………………………..…….…….…....24
2.5.3 Legal Works…………………….…………....…….………..……..25
2.6 Law Nr. 6328 Ombudsman Law……………….…...…..…………….…....….28
2.6.1 Organization…………………….…...……...…..………...……….28
2.6.2 Competences and Duties………....………….………….…………29
2.6.3 The Office of the Chief Ombdusman………..………….…………31
2.6.4 Election Procedures…………………………..………….……...…32
2.6.5 The Office of the Ombudsmen……………….……..……..………33
2.6.6 Election Procedures……………………………..………..….…….33
2.6.7 Tenure and Removal……………….……………...….….…...……34
2.6.8 Criminal Procedure and Prosecution.……...….….……..…………34
2.6.9 Independence……………………….…...……………..…….…….35
2.6.10 Prohibitions………………………...…………...……..….….…….35
2.6.11 Salary and Institutional Budget…..….…….…….……..…..……...36
2.6.12 Complaints……………………..……..……….…………..….…….36
2.7 Evaluation of Turkish Ombudsman Institution.…………..…............……43
PART III
3. HUNGARIAN OMBUDSMAN…………………………………………..……….…..45
3.1 Constitutional Court……………………………………..…….....….………..45
3.2 Need for an Ombudsman in Hungary…………………………..……….…....47
3.3 First Ombudsman Institution of Hungary:
Parliamentary Commissioner for Civil Rights……………….……..…....………48
3.4 ACT CXI OF 2011 on the Commissioner for Fundamental Rights........…....51
3.4.1 Competences and Duties……………………….……........…....…..52
3.4.2 Election…………………………………...……..……......….....….54
3.4.3 Tenure and Removal………………...……………...….....…...…...54
3.4.4 Deputies………………………..…...………….…………......……55
3.4.5 Other Staff………………..…………………………………..…….56
3.4.6 The Equal Opportunities Regulation of the Office of
the Commissioner for Fundamental Rights……..……………………….56

IV
 3.4.7 Children's Rights……………………...………………...….…..…..57
3.4.8 Financial Issues………………………..……………….….….…....57
3.4.9 Independence…………………....…………………….....…………58
3.4.10 Complaints………...…….….………………………...….........….58
3.5 EU- Hungary Relationship…..…………….………………….....…......…….62
3.6 Evaluation of the “New” and “Old” Ombudsman in Hungary……............…62
3.7 Relationship between Turkish and Hungarian Ombudsman……. ….…...….64
PART IV
4. COMPARATIVE ANALYSIS OF TURKISH AND HUNGARIAN OMBUDSMAN
INSTITUTIONS…………………………………………………………… …........….66
4.1 Constitutional guarantee for the institution of the Ombudsman…......…..…67
4.2 Criteria for office………………………………………………..…......…...68
4.3 Election of the Ombudsman…………………………………….….…...…..68
4.4 Status of the Ombudsman institution and relation with
other state and local institutions / bodies……………………..……….….…….68
4.5 Features of the Ombudsman’s term of office……………….…....…...……69
4.6 Budgetary independence…………………...……………….…..….…....….70
4.7 Competences and powers of the Ombudsman………….…..…...…….……71
4.8 Applicants and formalities for application………..……….…..….…….….77
4.9 Organization of the Ombudsman Institution……………..….…..……..….79
5. Conclusions…………………………………………………………..…….…….…..81

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 ABBREVIATIONS LIST

CC : Constitutional Court
CFR : Commissioner for Fundamental Rights
CO : Chief Ombudsman
EU : European Union
GNAT : Grand National Assembly of Turkey
MEP : Member of Parliament
NGO : Non-governmental Organization

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 LIST OF CHARTS

Chart I. Turkish Ombudsman Institution Organizational Structure p.37

Chart II. Election procedure of CO p.41

Chart III. Hungarian Ombudsman Institution Organizational Structure p.57

VII
 INTRODUCTION

Many states today effort to protect human rights with help of different bodies.
Especially when there is a direct relationship between state administration and people, for
example in frame of public services, wrong actions or implementations may occur towards
them with or without will of the state administration. So called classical bodies, such as
administration courts, for protection of their rights against those actions sometimes may not
be enough for people.
Serious rules, length of showing results or even not satisfactory results and many other
issues appearing during the court processes push away people to look for their rights.
Ombudsman institution became an alternative body to cover those people who became
disadvantageous position to look for their rights. It is true that there were different
ombudsman institutions with different typology, but today the institution nearly covers all
types of rights of people either related to administration or private issues. It also gives
effective and easy ways them to complain against the state, look for their rights to be
protected in frame of those rights.
Protection of human rights is more national issue than international issue, even though
there are efforts to keep up the states around some standards. European countries have been
trying to follow the standards, moreover, making their own standards. One of the international
body Council of Europe aims to bring countries to ensure protection of human rights in an
effective and standard level. However, members of the Council may be different than each
other in a way of protection understanding which surely appears on their institutional level. In
order to test this, this work compares two Council members' ombudsman institution, Turkish
and Hungarian Ombudsman Institution. The aim of the work is to show how ombudsman
institution may differ in two countries even if they are under the same international body.
This work consists of four parts. The first part will be focusing on historical formation
of ombudsman institution based on different views. Also, the definition of the ombudsman
institution will be tried to given in frame of the institution's relationship between
administration, people, human rights and democracy, and courts. Lastly, functions of the
ombudsman and typology will be presented.
The second part will focus on presenting the first sample country, Turkey's
ombudsman institution. Briefly, Turkish control mechanism and the institutions will be given
and then long historical efforts to establish an ombudsman institution in the country will be
explained shortly. Finally, current Turkish Ombudsman institution will be presented in frame

VIII
of its establishment law.
The third part will present the other sample country, Hungary's ombudsman
institution. Briefly, Hungarian Constitutional Court as the strongest control institution in the
country will be introduced. Hungary is different than Turkey in a way that there was already
existed ombudsman institution, so first, the first ombudsman institution will be presented
shortly. Lastly, current Hungarian Ombudsman institution will be presented.
The fourth and the last part will be the comparison part of the two countries in frame
of Venice Commission's Compilation on the Ombudsman Institution which is considered as
standard for ombudsman institutions of the states as members of the Council. On one hand,
similarities and differences between two institutions will be given. On the other hand, there
will be recommendations given for two countries to catch the Commission's standards.

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 PART I
HISTORICAL OVERVIEW OF
OMBUDSMAN INSTITUTION
Since people created the State organism, the issue of transferring their power to
this organism was the first source of the establishment of an administration. The State
administration with this authorization basically becomes a responsible body to use this
power. As many times it may happen, that power might be misused willingly or not by
administrative organ. By nature, if the misuse is realized by the owner of the power,
certain correction must be done through other authorized organism. It might have been
taken as for the first time need for this correction mechanism was realized by Romans.
This need pushed them to give additional powers to 'tribunus plebis' which was
originally established for political reasons such as ensuring the separation of powers
and also operating as a special type of judiciary body. Later on, this body took a duty to
protect people against maltreatment of administrative power in Roman administrative
system. Similarly, 'Control Yuan' in China between 206-220, and 'Cencors' in the 17th
century America could be also called as basement for the ombudsman institution
(Altuğ, 2002, p.54; Efe and Demirci,2013, p.52). In many resources it is commonly
accepted that the exact establishment of ombudsman with today's understanding is more
based on 18th century Swedish administration structure. The name “Ombudsman”
called for the person who was elected to collect monetary penalties (vira) from the
perpetrators of the murder on behalf of the injured party. Swedish and other
Scandinavian nations translate the word "ombudsman" as "attorney" or "trustee."
According to many Western scholars it is certain that the founder of the ombudsman
institution is Swedish King Charles XII. During his kingdom (1697- 1714) he was out
of the country fighting at wars, mostly against Russia. When he was away, he was
always informed as there are many problems between people and the administrative
institutions that those institutions are not using the law in name of people in a positive
way. For this reason, Charles signed a law which created an office called the King’s
Highest Ombudsman whose task was to make sure that while the king was away; the
government workers, judges, and the military organs would be acting properly and
following the rules that the King had left for them.
Turkish and the Eastern scholars explain the source of an ombudsman idea in a
very different way. Turkish scholars are explaining the history of the ombudsman
institution as it is coming to Europe from Ottoman Empire. When the King Charles
XII., was beaten by Russia at the battle of Poltava in 1709, he came to Ottoman land for

1
protection. His name is given in Turkish scholars as 'Demirbaş Şarl' which means “a
property of State”. This expression surely has some side meanings, telling that, this
nickname was given him because he stayed in Ottoman Empire for a long time
(approximately 5 years). During his stay, he could have a chance to get know Ottoman
administration structure. He could have a chance to review 'Qadi al-Qadat' institution,
which is a bureau of highest judge. This rank was given to people who got high
education on Islam religion and specifically the Islamic law. They could become judge
because the Ottoman legislative structure was based on one hand to Islamic law, on the
other hand to customary law. Those people were not like an ordinary judge; they could
not have been taken from duty by anybody and they would work for a long time, so they
were fully independent from anybody, even from the Sultan. They were the highest rank
of judge. Their duty was to be ensure implementation of Islamic law and between
people and state (including Sultan) and also relationship between people and state. By
doing this, they were protecting the people against civil servant's misuse of power
(Odyakmaz, 2016, p.5) Another body that might took attention of the Swedish King was
“Divan-ı Mazalim”-Ministry of Justice as a part of Imperial Court. This important body
was also called as “Council of Complaints” because it was the body that receive
complaints from people about administration. Besides those there are some scholars
which indicates that ombudsman institution's historical basement is coming from
Caliphate Omar era. So called 'muhtesip' institution was settled for people to let the
administration know about their complaints. In Islamic States 'muhtesip'(constabulary)
were watchdog especially at cities and bazaars, and they were responsible to solve
problems between city administration and the people (Aktaş, 2016, p.362).
Although ombudsman institutions have existed for more than 200 years, on a
broader scale they have only been included in the systems of national state bodies
during the last 50 – 60 years. For almost two centuries the ombudsman was perceived as
an exclusively Nordic experiment where it almost may be count as the most democratic
area of the world. Then in the 1960s the world slowly discovered the powers and effects
of the ombudsman institution. By the mid-1980s, the concept had emerged clearly as a
global phenomenon (Ayeni, 2014, p.499). The real ombudsmania burst out with its full
powers in the 1990s after the fall of the totalitarian regimes (Remac, 2013, p.62) and the
number of institution was doubled (Ayeni, 2014, p.499). In Europe, countries that
governed under dictatorship for decades started to put into their systems values such as
democracy and human rights. During the transition period, institutional changes brought
many new bodies to ensure these values including ombudsman institution. That is why

2
ombudsman is named as a democracy project which exists in all continent. Establishing
an ombudsman became a good measure of a country’s seriousness about democratic
reforms. (Ayeni, 2014, p.499; Doğan, 2014, p.8). Europe based international union and
organizations also has an effect of establishing ombudsman in countries by advising or
putting it as a condition of to be counted as “democratic”. Today there are
approximately 190 ombudsman institutions all over the world, and the biggest amount
of them (43%) in Europe.
1.1 Defining the Ombudsman Institution
Literature review showed that there is no definition for ombudsman that
accepted by every scholar. The most valid reason why might be given as; the different
country profiles on integration, power and competences of the ombudsman institution
formed different ombudsman institutions. Those differences might be based on different
social, cultural, administrative and legal background of each country.
The Ombudsman does not create general rules of behavior, like the legislative
power, neither does he apply them in an authoritative way, like the executive, nor does
he settle legal disputes, like the judiciary (Patyi and Rixer, 2014, p.242), but it has some
relationship with all those mentioned bodies and actually with more elements. On the
basis of these relationship, it would be easier to understand what really ombudsman is.
1.1.1 Ombudsman- Administration Relationship
Ombudsman's relationship with the administration derives from several
functions of the ombudsman.
In name of creating a “good administration”, ombudsman can give framework to
create some standards with the help of its capabilities. Firstly, “good and bad”
expressions are so difficult to explain and has philosophical background, ombudsman
may give a framework to explain those expressions with help of public reality. Different
features of countries make difficult to find out the “good or the bad”; the only way to
explain good or bad administration is to find out what the society really understand from
good or bad. Ombudsman is helping to identify what is good or bad for the society so
ombudsman actually has a defining function. In frame of the good and bad in
ombudsman's point of view, it performs creating an “ombudsnorms” combine with legal
norms (including human rights norms) There are two characteristics of ‘ombudsnorms’.
They are legally non-binding and persuasive norms with the flexibility feature.
Ombudsman only rarely want their standards to become binding law. Thus,
ombudsnorms can be characterized as legally non-binding and flexible norms of
behavior that ombudsman consider to be proper and fair and which, despite their lack of

3
legal binding authority, are mostly followed by the administrative bodies to which they
are directed. By this way, these ombudsnorms also create assessment standards (Remac,
2013, p.75) One of the main reason why public administrations fail serving well might
be their lack of information on service standards. It is possible to find the ombudsman
standards in any of the publication of them. So they also codify standards flying on the
air. Via assessment standards and publications, other function of ombudsman might be
introducing as its education function. The assessment criteria of the ombudsman do not
try to deal with the existing problem but try to prevent hypothetical, future problems. As
they are mostly introduced in a comprehensible and non-complicated way, they can
leave an impact (Remac, 2013, p.74).
This impact can be on society point of view and also from administration
officials. Ombudsman might let the society know about their rights and freedoms while
it is also teaching administrative staff to how to implement administration law and how
to act society (Efe and Demirci, 2013 p.56).
Ombudsman has specificity to be bridge between people and the state. It directly
or indirectly affects these two actors’ relationships. It is a mechanism for people to be
able to deliver their problems or complaints to the related administrative body in case of
maladministration or misadministration. Maladministration or misadministration might
appear on the administrative bodies' wrong acts or implementation; their behavior or
decisions which is contrary to law, regulations or other legal sources; misuse of the
power; unequal treatments; failure to fulfill its duties, and misinterpretation of the
existed legal sources. Non-exhaustive list can be prepared according to each and every
states' administrative structure.
Administration, itself, will benefit from the ombudsman investigations on
several cases. First, with the help of investigations, the administration will have chance
to improve administrative process and realize its faults. If there is a need to reform,
administration may have the starting point to do that with the help of ombudsman
investigations. Secondly, the investigations will improve the transparency. By
improving the transparency, corruption at the administration level might be decreased.
All those benefits will surely serve to strengthen political and administrative structure of
the state.
1.1.2 Ombudsman-People Relationship
People of the state is the directly effected group of administration's activities.
Individuals have rights that should be respected by the states and of which they cannot
be deprived arbitrarily. In case of infringement of individuals' right by state, there are

4
many tools that individuals can apply certainly, such as courts in every level; but
claiming a suit to the court is needed time and money, nearly in every country. Also,
people who do not understand the complex laws or who feel powerless to ask an agency
to deal with their case or application, may not will to run after their right (McMillan,
2009, p.6).
Ombudsman office is a related body for safeguarding people's administrative rights,
initially, and ombudsman’s office play a constructive role in ensuring that the law is
properly observed (McMillan, 2009, p.2). If the necessary function is not performed by
an ombudsman, there is a fear that it will not be performed as well by other external
oversight mechanisms.
Ombudsman is an alternative and less informal body for people to be accessed
easily. His or her unique approach on a friendlier way to help them front of serious and
formal state bodies also encourages people to run after their rights. As an efficiency
point of view, it is bringing quick answers to people's problems and assisting people to
find the best way of solution, if necessary. In many countries, citizens apply to
ombudsman without any time and money restrictions such as only by phone or e-mail
and free from the formal shape. In these points, ombudsman is creating different view
from other legal mechanisms.
Ombudsman became a tool for communication and a platform for creating trust
between people and states. It helps states to correct wrong actions towards people,
promote its services, transparency and give them chance to create better services. To get
better services, ombudsman acts as feedback mechanism for citizens. As long as people
know where their taxes are being paid, their trust towards the state will increase.
1.1.3 Ombudsman-Democracy and Human Rights Relationship
Ombudsman is an additional control of the decisions in stable democracies like
Sweden, Finland. The ombudsman is supporting guarantee in the legal order rather than
primary deliverer of the basic rights or of constitutionality in general. Originally it was
not established in order to defense human rights, but in order to control state
administration, but today ombudsman surely helps to rise democratic accountability and
access to administration level transparently. With the help of ombudsman institution in
country, people have a chance to participate to democracy, indirectly. It is possible in a
way that; ombudsman can have effect on changing state regulations or implementations
on certain services as citizens ask for. When there is a regulation on an administrative
implementation initiated by people, it will raise the demand of them to take more active
roles on democratic state. Democracy, people's participation to administration and good

5
administration relationship triangle is possible to grow on a more positive way if
ombudsman could be a messenger between citizens and state. Ombudsman will help to
remove representative democracy's negative aspects in countries if especially the state is
with fragile democracy.
Ombudsman is an institution based on human dignity and justice (Tigerström,
1998, p.3). Human rights that accepted both national or international level must be
exercised within the state, and if not, ombudsman can be one of the institution of
inspecting the reason. It is an institution that ensuring nondiscrimination while the
administration is serving to public. Also institution itself is a body that open for
everybody from children to foreigners, non-citizens to prisoners. Everybody can
exercise their freedom on a right to complain, and do it equally.
It is important to mention that, many of the administrative transactions today
includes transactions involve human rights issues, directly or indirectly (Australian
pers). Ombudsman's duty is to watch over the actions of administration whether they do
act inappropriately to human rights issues while those transactions are being executed.
Today, many European countries have incorporated the ombudsman as an
integral part of public administration institution into their states with the principles of
democracy and human rights (Oğuşgil, 2015, p.42) modeled from Scandinavia to
Western countries, then to the Central and Eastern European countries, especially right
after the fall of totalitarian governments. The reason for this, is because in Europe, it is a
necessity to have an ombudsman institution perceived as one of the institution to ensure
protection of human rights. The EU accession with the requirement of democratic states
and ensuring human rights in the state will be easier if there is an alternative way to
ensure it, like ombudsman. Establishing an ombudsman will surely take the country
many steps further in name of being eligible for the EU accession.
1.1.4 Ombudsman -Courts Relationship
The last relationship of ombudsman is related to its positive effect on reducing
complaint at courts and settle the issues in an informal way, before they reach to court.
Ombudsman schemes make extensive use of informal settlements and conciliation; even
some of them offer access to mediation (Sapers and Zinger, 2010) p.1514) They do
negotiate between parties and solve the problems. This gives them to alternative dispute
resolution function. This function works more in countries such as US and the UK
where there are several acts on finding an alternative way to solve the problem before
going to court. Ombudsman, whether included in a public or private organization, are
unique because not only can they resolve disputes outside of court, but they also can

6
prevent disputes from occurring in the first place. This will save the corporation both
from huge amount of payments and even shamed in the media (Spanheimer, 2012,
p.667).
Starting from those relationships, some internationally definitions tried to be
generated, although there is no single definition for the ombudsman institution. In
addition, core features of the ombudsman followed internationally and this gave a
framework to be able to make some definitions.
1.2 International Definitions
Originally the word “ombudsman” translated from Swedish means an “agent or
representative of the people or group of people” (Ayeni, 2014, p.500). In order to avoid
discrimination between sexes, with some scholars we can see different usage version of
the word such as 'ombudsperson' (Brothers, 2014, p.421). International bodies such as
International Ombudsman Institute (IOI) and International Bar Association (IBA).
Many scholars prefer to give the definition of International Ombudsman
Institute's definition:
“The Ombudsman institution is an office established by constitution or statute,
headed by an independent high-level public official who receives complaints about
injustice and maladministration from aggrieved person against government agencies,
officials, employees or who acts on his/her own initiative. The Ombudsman has powers
to investigate, criticise, recommend corrective actions and generally to publicise
administrative actions. The Ombudsman as an individual is a person of prestige and
influence who operates with objectivity, competence, efficiency and fairness. He/she
uses fast, inexpensive and informal procedures, is easily accessible and has no powers
of sanction”.
Secondly accepted definition belongs to the International Bar Association:
“An office provided for by the constitution or by an action of the legislature or
parliament and headed by an independent, high-level public official who is responsible
to the legislature of parliament, who receives complaints from aggrieved persons against
government agencies, officials, an employees or who acts on his motion, and who has
the power to investigate, recommend corrective action and issue reports.”
The given definitions actually establish the basic necessities for an ombudsman
institution and they do it by more or less in a same way. They both refer ombudsman to
be established legally, either by constitution or by other legal documents. Both
definitions indicate the principle of the ombudsman should be based on independence
and the office should be managed by high level public official. According to the

7
definitions, the institution receives complaints from person who experience with
inappropriate actions or implementations. Ombudsman should act if there is wrong
actions or implementations done by government agencies, officials, employees or others
who act. By giving those institutions in a mandate of the ombudsman, its powers should
be investigation, recommendation or corrective actions, according to both institutions
Although these two internationally accepted definitions show similarity for
establishment, office principles, powers and mandate; they have different additions to
describe the ombudsman. IBA's definition is giving the idea of who will the
ombudsman be responsible to. The definition clearly shows that the ombudsman is
responsible to legislature of parliament. Additionally, IBA defines the ombudsman
institution as a body that issuing reports. IOI is using “maladministration” and
“injustice” terms for ombudsman to start acting against. According to IOI, eligibility of
being ombudsman has some criteria: prestigious, objective, efficient, fair and easy to
access. In addition, IOI indicates the criticize power of the ombudsman and publicize
administration actions. The power that ombudsman cannot have indicated in the
definition as “ombudsman has no power to sanction”. Finally, ombudsman should have
some more principles such as being inexpensive, fast and be holding informal
procedures.
Similarly, to the definition problem, different features of states such as political,
social, cultural and administrative structure (Efe and Demirci, 2013, p.50) caused
naming ombudsman differently in countries. The word “ombudsman” is often used in
both a generic sense and to refer to the name of a particular organization. Countries such
as Antigua and Barbuda, Belize, Botswana, Canada, Malawi, Lesotho, Malta,
Seychelles, Trinidad, and Tobago officially call their respective institutions by that
name. At the same time, the office is usually called by different names, in accordance
with its mandate. Examples of these more distinctive names of the institution include
the following: Ombudsman institutions with human rights mandate Defensor del Pueblo
(Argentina, Colombia, Ecuador Paraguay, Spain); Mediateur de la Republique (France
and Francophone Africa) because of the mediation role of the institution between people
and the government; Control Yuan (Taiwan) with the mandate for fighting against
corruption.
1.3 Features of the Ombudsman Institutions
Ombudsman has many specifies and tools for fulfilling its duty. Although its
legal frameworks, election and removal procedures, position and powers differ from
state by state, it is possible to draw a general picture about its working conditions (Efe

8
and Demirci, 2013 p.56).
1.3.1 Establishment
They established under constitutional law and take the power from that. Also, it
has its own internal regulations which is giving freedom about internal structure. It
should be free from all other organs and might be only responsible to people via
parliament. Nobody can remove them from their duty either nobody can order anything
to them. On budget issues, ombudsman is free from any kind of inspection.
1.3.2 Election
Ombudsman is appointed by parliament, in general. In general, their duty period
is 4-6 years with re-election possibility. In the very beginning, although some of the
ombudsman was chosen according to their personality (e.g trustful, have a good
relationship with people etc.), common accepted criteria to be an ombudsman is
required to be experienced and being expert on administrative law.
1.3.3 Complaints
In general, lodging a complaint to ombudsman and the services are free of
charge. People should be able to reach ombudsman by using any communication tools
and without any formal ways as it is for reaching to courts; it should be easy for them.
Ombudsman may ask for some information relevant to the cases and if needed, personal
information either. In this case, complainants' information and complaints' secrecy must
be secured by ombudsman and should not be shared with anybody unless they ask for
its opposite, so they should feel comfortable when they lodge a complaint.
1.3.4 Investigation, Powers and Competences
Ombudsman investigates, researches, inspects and acts in name of public good.
They can start investigating a certain issue both initiated by people complaints and ex
officio. ‘Own initiative’ powers would strengthen the capacity of the ombudsman to
exercise strategic discretion in the allocation of resources, focusing attention where it is
most needed and where it can yield broader people benefit than might be the case with
exclusive concentration on the individual circumstances of a particular complaint
(O'Brien, 2015, p.78).
During their work, they should be able to access all related documents and
information about the complaint. If needed, their access to information in broader term
should be ensured. Sometimes state organizations or private corporates might restrict
their access to certain type of information such as documents that carrying state secrets.
In this case, ombudsman might keep working with those documents but without
disclosing any information or breaching institution's rules.

9
Investigations might be private or present to public depending on a subject.
Ombudsman can examine and interview witnesses and use professional experts where
appropriate (British and Irish Ombudsman Association, 2015).
Ombudsman is not a body that can punish organizations. Only especially private
ombudsman may order compensation (O'Brien, 2014). The widest power of the
ombudsman is the recommendation power for the related administrative body to correct
its action or even the regulation that the wrong action is coming from. If the addressee
of the recommendation of the ombudsman does not agree and rejects the proposal, this
specific recommendation is evidently non effective (Varga, 2015, p.249). In this case
ombudsman to make the organizations to act is “naming and shaming, creating pressure
and public opinion by using media is the most effective tools for the related
organization to accept ombudsman's recommendations. Besides, creating a need for a
new regulation in the parliament makes them also effective. In some countries they
have a power to carry the case to court.
There can be one or more than one ombudsman at the office, differing by
country. Those ombudsmen may share the responsibility area such as children rights,
women rights, employee rights etc.
1.4 Typology of Ombudsman
Similarly, for the definition of ombudsman, it is hard to make some sharp
definitions about different types of ombudsman, too. When the first ombudsman
institution was established, there was only one type of ombudsman for long time.
Realization of human rights parallel with democratization movements increased the
need of institutional support for the protection of these values, so ombudsman
institution widely preferred. Each ombudsman institution in some way copies or
reflects some other ombudsman model, but on one hand social, historical cultural,
religious differences; on the other hand, different types of legal, administrative and
executive systems affected the establishment and functioning of the ombudsman
institution in every country. This starting point created the basement for different types
of ombudsman but all the types firstly based upon a classical ombudsman.
1.4.1 Classical Ombudsman
Before the ombudsman explosion in the world, it would be possible to speak
about so called classical/Swedish traditional ombudsman type. It is also called as
“Parliamentary Ombudsman” because classical ombudsman is elected and removed by
parliament. Classical ombudsman as a first type of ombudsman institution carries some
specific duties.

10
 Tasks and competences
Duty of that ombudsman is to search for maladministration or try to support its
positive opposite – good administration, sole or at least partial legislative standard of an
ombudsman’s control (Remac, 2013, p.64). Investigation or supervision of ombudsman
to administration takes the reason from maladministration so that the ombudsman's role
is to become watchdog of the governing body. It makes recommendations to the
administration, and tries to get these recommendations adopted in frame of “soft”
pressure.
The supervision pertaining to the human rights is considered only within this
concept and no special authorization takes place but still, it is obvious to say that Justitie
Ombudsman represented one of the first individual complaint power (Cominelli, 2002,
p.238).
Its activities are governed by constitutional law, and it was granted complete
autonomy in governing its office and in the management of its staff. It can control and
assess whether bodies within their competence which is every public authority including
military, civilian and sometimes even courts Cominelli, 2002) although the Swedish
example is excluding jurisdiction and parliament members. Likewise, the non-state
actors as media, trade unions, banks, medical doctors and attorneys are out of the scope
(later on they will be forming a new kind of ombudsman) (Eren, 2011 p.175).
The specific legal powers vary, but may include the power to; appeal to courts,
participate in court proceedings, file applications in administrative proceedings, propose
legislative amendments, and recommend disciplinary or criminal proceedings.
It is very hard to find purely classical ombudsman around the world. The
number of this ombudsman type is low because most of the younger ombudsman were
not created in order to supervise whether the central and local government and the
courts (Remac, 2013, p.64). Even in Sweden, there has been changes its ombudsman
perception and integration to current needs. Since 1976, Sweden has four Ombudsmen:
The Ombudsman of Justice, the Ombudsman consumers, Ombudsman for economic
freedom, the Ombudsman for the press.
1.4.2 Human Rights Ombudsman
Human rights ombudsman has specific mandate to look into the observance of
human rights. This type of ombudsman may aim only to look after human rights issues
in the country or may have additional mandate as the classical ombudsman has. The OI
mandate may be restricted only human rights issues, or it may be an addition to the
classic mandate.

11
 Human rights ombudsman has some relationship with the history of human
rights in Europe. Especially in Southern and Eastern Europe with non-democratic
regimes in 1990's looked for alternative solutions to have stable human rights guarantee
mechanism. The reasons why these ombudsmen are connected with this concept are
obvious: years of former dictatorship and regular breaches of human rights (Remac,
2013, p.68). Most of the new democratic countries deal with state-society relationship
from human rights aspect. Compliance with human rights as the most important
assessment standard and model behavior is mainly connected with the youngest
generation of ombudsman which was established after the fall of authoritative or
undemocratic communist regimes.
Tasks and Competences
As it is the case for the classic model, in the hybrid ombudsman model the
ombudsman is elected by the parliament and is responsible to the parliament. Likewise,
the ombudsman may supervise the activities of the entire public organizations including
the ministries. However, in the classic model there is no power granted to examine the
complaints about human rights, while in this model the institutions also have the power
to examine the human rights violations as well (Eren,2011, p.177).
Public education on human rights issues and generating reports for this issue in
the country is some tasks of the human rights ombudsman. Also, monitoring the
implementation of human rights laws and regulations in the country is a task of this type
of ombudsman.
Some scholars tend to call this kind of ombudsman as “hybrid ombudsman”
which means hybridization of human rights protection added to the classic ombudsman.
Today’s ombudsman is undeniably a human rights institution and cannot succeed
otherwise in the face of the issues and challenges that confront it in the twenty-first-
century environment (Ayeni, 2014, p.498-499). So that, protection of human rights shall
not be a piece of any other form of the ombudsman but the reason for the existence of the
institution.
1.4.3 Private Ombudsman
Although most of the ombudsman is not engaging with the special issues,
especially in the US and the UK, it is possible to find private ombudsman practices.
People's position front of states turned to be customers of the because of the public
services, as long as they pay taxes. Those ombudsmen stand for certain subjects such as
health care, students, children, football, prisoners, immigration, women etc. to help
them in case of dissatisfaction with the certain services.

12
 Task and Competences
Private ombudsman more likely to be a referee between people and the
institutions especially at the private sector. It is easier to explain those ombudsman task
and competences with the examples.
In the UK, Ombudsman Services Ltd. established in 2002, a not-for profit
limited company that offers ombudsman-like services to any sector that wants them,
whether telecommunications providers, energy companies, letting agencies or copyright
license holders. The Health Service Ombudsman’s powers include a remit to investigate
not simply maladministration but the level of service provided, and now also even that
aspect of service that falls under the definition of ‘clinical judgment’. Meanwhile a new
Legal Services Ombudsman had been established by the Courts and Legal Services Act
1990 not only with the task of reviewing the handling of complaints by the legal
profession in its self-regulatory capacity but also of assessing whether or not a lawyer
had provided ‘inadequate professional service’ to a client. (O’Brein, 2015, p.73)
The Legal Ombudsman for England and Wales was established with The Legal
Services Act 2007 aiming protecting and promoting the public and consumers interest,
promoting competition in frame of services, and assist legal profession to consumers1.
In the US, it is popular to have university ombudsman offices for students and
call them as “Ombuds offices”. Standford, Michigan, Kentucky, Colorado and many
other universities in different states have ombudsman to deal with students' problems
and complaints about university administration.
1.4.4 International Ombudsman
International ombudsman established regional or in global sense such as
European Union and United Nations ombudsman (Erdoğan, 2010, p.42). As in the
example of the EU Ombudsman, those institutions are creating the opportunity to enjoy
to be a part of such international organizations and opportunity to speak about
dissatisfaction with the organization's institutions.
Also, it is possible to mention so called anti-corruption ombudsman where
“Western” perception of the ombudsman faces numerous challenges. Although in the
beginning those were established as an example of hybrid kind of ombudsman, by the
time they turned more likely to an institution to fight against corruption among the
administration. In Africa, for example, it is possible to find those institutions (Remac,
2013, p.64)

1
Legalombudsman.org.uk http://www.legalombudsman.org.uk/about-us/ Accessed in 20.12.2015

13
 1.5 Evaluation of the First Part
Ombudsman institution, as it is mostly referred, established in Sweden in 18th
century. However, scholars show that the basement of the institution might be coming
from the culture of Islamic state. The relationship between ombudsman and different
elements help to understand its functions and give broader sense to understand what
really it is. Ombudsman, in frame of its functions, can be described as; either start
acting with people's complaint or ex officio, tool for problem solving in a costless and
quick way, in order to solve the problems, it can access all data and information, and
finally creating standard structure for the administration with the help of research
results. It has some features regarding to its establishment, elections, complaints,
investigation, powers and competences.
There is ombudsman with general purpose such as ensuring good
administration; special or single purpose ombudsman such as prison ombudsman;
national ombudsman such as classic ombudsman and international ombudsman. Classic
ombudsman stands for ensuring administrative law where human rights ombudsman
first ensures fundamental rights. Private ombudsman's duty area is restricted with
special groups or activities.
Today ombudsman is one of the institution that widely integrated into
democratic states aiming protection of human rights and principle of good
administration. Although consequences of differences of states caused different names
of the ombudsman institution, the aim of it has not been changed.

14
 PART II
TURKISH OMBUDSMAN
The constitution of Republic of Turkey clearly indicated as “The Republic of
Turkey is a democratic, secular and social state governed by rule of law...” (Art.2)2, this
statement requires for all the governing institutions to act in frame of law, so that state
power will be restricted by law, institutions will not behave out of the legal framworks
so the principles will ensure for individuals to be protected against state power
(Kahraman,2011, p.356). In case of opposite situation which mean if there is any breach
of any law by State or even there is a possibility for an infringement, social state
governed by rule of law requires to build control mechanisms. In general, control
mechanism is two tier system with judicial mechanism and non-judicial mechanism. In
Turkey, control mechanisms are varying in wide and have been existed for a long time.
2.1 Judicial Control Mechanisms
Any level of courts, from district to constitutional, can be counted under judicial
mechanism. If there is a case related to breach of individual's right by the state and the
case is carried by an indvidual to any court, judicial control mechanism starts to be
processing. Cases about administration body are processed in administration courts.
Taxation and regional courts are also counted under administrative justice. Except
administration courts, judicial justice, military justice and constitutional court are part
of judicial control mechanism. As a special organ, Turkish Council of State is also a
part of judicial mechanism which is basically the highest court of all administration
courts.
2.2 Non-Judicial Control Mechanism
Turkish non-judicial control mechanism is consisting of administrative control,
political/legislative control, public opinion and ombudsman institution.
Administrative control is a mechanism that control each and every
administrative body internally. It is hierarchically structured; for example,
responsibility of head of department of any institution is responsible for the department,
behavior and acts and those acts' suitability to institutional law and others in general.
Additionally, inspection boards in Turkish administrative structure are consisting of
inspectors whose aim is to ensure institutional behavior's suitability to law
(Odyakmaz,2013, p.11).
Political or legislative control is indicating the power of parliament to control

2
Constitution of the Republic of Turkey https://global.tbmm.gov.tr/docs/constitution_en.pdf Accessed in 12.11.2015

15
over members of parliament and government. Legislative body can use constitutional
methods for inspection such as questioning, interpellation, parliamentary investigation,
parliamentary inquiry and debates. These methods are also being used in The Grand
National Assembly of Turkey.
Public opinion is a direct way of controlling accountability of state
administration and an effective tool in especially democratic states. Public, itself, can
reflect administration's mistakes with its own power (Fendoğlu, 2013, p.25). Liable
governments cannot deny the power of citizens and take into account their reactions on
certain issues. The voice of citizens is most likely to be shown and deliver by
information technologies such as televisions, radios and internet which is one of the
most used IT technologies. Also, non-governmental organizations and their activities
are important for affecting state decisions. For example, there are 109.295 active
associations 3 in Turkey, that are carrying responsibility to reflect public opinion.
However, it is interesting to see that number of inactive associations are more then
active ones.
In Turkey, through international agreements, there are some external or
international control over the state. For example, UN Committee Against Torture and
Council of Europe Committee for the Prevention of Torture can inspect prisions in
Turkey. Also Turkish citizens have a right to lodge cases to European Court of Human
Rights which may mean acception of international Human Rights inspection in Turkey
(Fendoğlu, 2013, p.27).
Ombudsman, as it was indicated before, is already existed control mechanism in
Turkish land. Until modern ombudsman existence in Republic of Turkey there were
many other alike institutions. Ombudsma institution is a different way of control power
then others mentioned above. Firstly, it is important to indicate that ombudsman
institution is a body that can use or can make other institutions use both judicial and
non-judicial power. It can reflect public opinion, direct it and become a bridge between
public and administrative institutions. The ombudsman has or should have competence
over all the administrative bodies that serving public services, differently from
administrative control where each mechanism can have competence over only their own
institution. Ombudsman cannot use political control tools but this is because the power
is related to members of parliament and ombudsman does not have such an objective to

3
T.R. Ministry of Interior Department of Association, Number of Associations. [online] Available at:
https://www.dernekler.gov.tr/en/home-links/Association-Numbers.aspx Accessed 19 Nov. 2015. According to the
statistics, there are 162.523 inactive associations.

16
inspect them. Moreover, ombudsman can have broader powers in order to protect good
governance and protection of Human Rights. Last, ombudsman is an institution that is
an internal watch-dog of implementation of international agreements related to good
governance and protection of Human Rights.
2.3 Control Institutions in Turkey
2.3.1 The State Supervisory Council
In 1981, the Council was established “... attached to the Office of the Presidency
of the Republic with the purpose of performing and furthering the regular and efficient
functining of the administration and its observance of law, will be empowered to
conduct upon the request of the President of the Republic. All inquiries, investigations
and inspections of all public bodies and organisations, all enterprises in which those
public bodies and organisations share more than half of the capital, public professional
organisations, employers’ associations and labour unions at all levels, and public benefit
associations and foundations are under the competence of the Council. The Council is a
tool of President to execute some administrative control duties. It can only act with
President's initiation. It is said that the Council is giving opportunity to passive
President to strengthen his/her power in andministration and its control (Demirci,2013,
p.119). Power of the Council is restricted with Turkish Armed Forces' and judiciary
action. Member of Council is chosen by President and the Council does not have any
right to plan its own budget.
Council may investigate every subject. First, the Council prepares reports. If the
President approves, they might be passed to the Prime Minister to make the report
review, investigate the case or proceed a lawsuit. The reports may be passed directly by
the President to judicial or administrative bodies, if he or she thinks that there is a need
to do so. Reports are reflecting the Council's, so do the President's competent areas.
Some of the recent topics that covered by the reports are: Evaluation of Turkish
Development Agencies, Evaluating “Green Crescent” in frame of madde and other
addictions, Reviewing Turkish mining sector (upon increasing death and injury);
Research and Review on the death of a journalist Hrant Dink; Report on Evaluation of
Protection of Personal Data and Inspection on Information Security and Protetion of
Personal Data; Inspection Report on Turkish Patent Institute; Evaluating local and
central government's and NGO's efforts and facilities on fighting against woman and
children violance. The Council also may prepare reports on retrospective issues.
Although the Council described as similar institution to ombudsman, in fact,
there are not much similarity between those two institutions except preparing report and

17
investigating institutional documents under their competences. Both institutions do not
have competence over Turkish Armed Force and judicial bodies.
2.3.2 Committee on Human Rights Inquiry
Protection of Human Rights issue in Turkey got speed on membership
application to EU in 1987 (Acar, 2009, p.80). In 1990, the Committee was set up under
and is a committee of The Grand National Assembly of Turkey. The Committe acts in
case of any lodge, to look if there is any breach of the Turkish Constitution, the
Universal Declaration of Human Rights and European Convention on Human Rights
and other legal documents that Turkey is signatory country. Also, it is responsible for
ensuring compatibility of Turkish law with international standards, traties and other
regulations. If needed, the Committee can pass the issue to related bodies or notify the
parliament. In case of any crime factor in the appeals, the Human Rights Inquiry
Committee may file criminal complaints to the chief public prosecutor's office4 .
The Commiittee and Ombudsman Institution is different from each other. If
there is a complaint to be delivered to the Committee, it can only be lodge to the
Parliament. The Committee is not responsible for acts, actions and behaviors of
administration; it only evaluates cases in frame of legal documents. Members of the
Committee are also political party representatives in the parliament and number of
member of the Committee is decided as party members' and independents'
proportionality in the parliament. The only similarity between two institutions is that
they both can asks for related information and documents from complaint institutons
and generating reports, but the Committee does not have a duty to create annual report.
2.3.3 Committee on Petitions
The Committee is set under the GNAT, is responsible for reviewing, making
decision and monitoring this decision given on individuals' direct applications to the
Committee about their dissatisfaction of certain institutions. Example for these
institutions in Turkey might be given as GSM companies. Many of those companies
may apply wrong implementations which are against consumer protection (Aktaş, 2011,
p.370) such as upgrading price per minute costs for mobile phones, without informing
the user. If the user complains to the company's administration and cannot get answer,
then the person can write it down to the Committe as complaint. It has a right to decide
on the case and monitor whether or not the decision is implemented by the company. It
is important to point that; the completion must be prepared on a certain form. As it

4
Available at: https://www.tbmm.gov.tr/komisyon/insanhaklarieng/index.htm Accessed 19 Nov. 2015.

18
might be done electronically too, this formalism was critisized by many scholars
because if the individual cannot stress the situation exactly, the application will not be
review and this will damage the expectations from the committee.
The Committee has a right to access all the related information and documents
during its work. When the decision has made, it will be distributing to all member of
parliaments and cabinet. Decision of the parliament on committee decisions that present
to Parliament Presidency is accurate (Acar, 2009, p.11).
Ombudsman and the Committee is different from each other in frame of
members and duties. Members of Ombudsman is outside from the parliament where the
Committee members are from the parliament. The Committee's duty is to control the
administration both in public and prive sense in frame of legislative power and if there
is any breach of law, it can tirgger related offices.
2.3.4 Prime Ministry Inspection Board
Established in 1984, Board's duty is to conduct inspections and investigations,
determine general principles for efficient inspection and brings solutions both in
national and international level in order to increase transparency and accountability in
public sector and to ensure that the state system is effectively executed in accordance
with the rule of law. Inspectors are assigned upon approval of Prime Minister and they
carry out their duties on behalf of PM5 . The Board is not a body for complaint, but has
a role to create standards, carrying external inspection and examination duties over all
public institutions plus associations, foundations, cooperations, corporations and others.
2.3.5 Board of Ethics for Civil Servants
The Board is established under Prime Ministry to ensure that the principles such
as transparency, impartiality, honesty and accountability 6 of civil cervants, whether
those principles are followed and the ethical rules obeyed by them7. The Board efforts
for creating ethic culture among civil servants. Also, The Borad is obliged to “finalize
the examination and investigations within at most three months for the applications
received via complaint or denunciation”. Applications can be done by individuals and
the form of the applications is described in Law number 3071 on the Use of the Right to
Petition 8 . Members are appointed by Cabinet from various duty professionals.
President, Members of Parliament, members of Cabinet, Turkish Armed forces,

5
Republic of Turkey Prime Ministry Inspection Board Available at:
http://www.teftis.gov.tr/AnaSayfa.aspx?LangID=2 Accessed 20 Nov. 2015.
6
Related law can be accessible from:http://www.turkstat.gov.tr/jsp/duyuru/upload/Kanun.pdf
7
At least, General Directors level or higher levels
8
The legal resource is available at http://mevzuat.meb.gov.tr/html/18571_3071.html only in Turkish

19
universities and judicial organs are excluded from its duty.
2.3.6 Constitutional Court
Constitutional Court in Turkey established in 1961. It was modeled on the
European constitutional justice practice. Like most European Constitutional Courts, it
exercises a posteriori control of the consistency of the laws with the Constitution.
During 1982 reforms, CC also got some changes related to its powers and composition.
Last changes have made in 2010 reform, raised the number of members to 17 from 14,
changed the working style of the Court as two plenum and two section. Besides the
plenum and the sections, the Court organized as General Secretary, Commissions and
Reporteur. Judges of the Court are on duty for 12 years with re-election possibility.
Powers of the Court are listed as:
 Constitutionality review
 Supreme criminal tribunal
 Dissolution of political parties
 Financial audit of political parties
 Cases of Parliamentary immunity
 Membership to Parliament and
 Individual complaint9
Today more than 40 countries serve for their citizens the right to lodge complain
to constitutional court (Fendioğlu,). Within the 2010 constitutional reform in Turkey,
individuals have a right to lodge complaint to Constitutional Court to ensure protection
of fundamental rights. Complaints about breach of fundamental rights and freedoms of
an individual can be lodge formally and directly to the court so that can be taken as
secondary authority for protection of Human Rights. The source of rights is based on
Turkish constitution, agreements or treaties that Turkey is a signatory and especially
European Convention on Human Rights. This way, it is targeted to decrease the
applications to European Court of Human Rights, the problems are trying to solve
internally first and also it is targeted to decrease breaches indeed. Complaints are not
free of charge and currently it is 226,90 TL (apprx. 75€). Applications must be done in
30 days following exhausted of all administrative and judicial procedure, if there is.
Complaint cannot exceed 10 pages, cannot be delivered by e-mail, post or telegraph.
Complaints are controlled whether they are acceptable or not. Court can access all
relevant information and documents or interview with witnesses. Decisions of the court

9
Available on: http://www.anayasa.gov.tr/icsayfalar/mahkemehakkinda/kisatarihce/tarihselbilgi.html

20
is absolute, binding and finalise with punishment. Court has adopted the principle of
peaceful settlement of disputes.
The control institutions that introduced above have common duties more or less
with ombudsman but it was always known that in Turkey a modern Ombudsman
institution as it is known in the world is needed.
2.4 Need for an Ombudsman in Turkey
It is possible to give many different reasons from many different aspects to
explain need for ombudsman in Turkey. Many scholars argue the situation from
different aspects. Their consent is strong in a way that the establishment of ombudsman
in Turkey has both external and internal reasons, while the external reason is stronger
then the internal one, but they both and together trigerred the institution's establishment.
There is no doubt that ombudsman institution in Turkey is a big novelty and it
was brought to the country because of its willing for accession to the EU. When the
Copenhagen Criteria10 was announced in 1993 as accession criteria, with the criterion
requiring “demeocratic institutions ensuring protection of Human Rights”, the first
serious movements started on Turkish politicians and academics to act in order to fulfill
the need for additional institutions protecting Human Rights. Already existed but for
some reasons, remained poor demand of better protection of Human Rights in Turkey
got high speed with the approval of formal application to the EU and announcement as
candidate country (Helsinki 1999). Since 1999, many reforms done by different Turkish
governments to strengthen already existed institutions' role on protection of Human
Rights, either directly with the EU regulations and indirectly with the EU political
pressure. Again, many rights related to protection of Human Rights extended in the
national legislations. The EU Commission has started to prepare progress reports every
year showing Turkish and all other candidates' efforts for fulfilling the criteria. First
mentioned in 2000 progress report, ombudsman could take place nearly every year's
progress reports11. Reports covered the current situation about ombudsman in Turkey as
it is and stressed the importance to have it in order to fulfill Copenhagen criteria which
is strictly indicating that one of the membership criteria is having democracy, Human
Rights and rule of law in the country and ensure them with all the policies or institutions
that the country possibly may establish. Also it is worth to mention that in 23rd of

10
List of criteria can be accessed from: http://ec.europa.eu/enlargement/policy/glossary/terms/accession-
criteria_en.htm
11
In 2000 and between 2004-2010 every report included and gave overview about the progress of the ombudsman,
2012-2015 reports are about the evaluation on finally established ombudsman's work statistically.

21
January 2006, released Accession Partnership 12 report clearly indicated the need of
ombudsman in Turkey. Same expression was stressed out in the 2008 Accession
Report13, though. In the end only few institutions established newly, showing the real
reform in Turkey and ombudsman is one of those few institutions.
On the other hand, in Turkey relationship with public and public administration
is always hard and always problematic because of strong formalities and hierarchy.
Sağlam (2012, p.127) describes it as, “There is nothing harder than make civil servants
work in Turkey. When just a pure individual ask for anything form public institution,
the logic of “go today, come tomorrow” appears because of thousands of procedures
and became a part of culture. Public servants seem like not willing to take any
responsbility or initiative. The easiest task turns to be complicated situation by
administrations. If any of the civil servant do something good for citizen than it creates
perception of the civil servant benefits from it. Also, citizens are not willing to look
after their rights because of long, costful and formal legal procedures for tasks varies
from easy to complicated. This makes citizens feel trustless toward administration or to
be angry to it”. If the individual first try to solve the problem internally at the related
public institution's high level, with the high level administration officer who has a
power for inspection, it is not sure that the officer will be neutral because of not well
professionalized Turkish administration structure. Even if the citizen somehow could
take all the responsibility and apply administrative legal remedies for his/her right, the
result might not satisfy them (Fendoğlu, 2013, p.28). Also, it is important to point out
that administrative procedure does not cover behavior of administration but its acts
(Odyakmaz, 2013, p.11). It is also important to point out that, the individual may not
want to go after legal remedies but just to show his/her disatisfaction and complain
about it to somewhere/somebody.
In addition, it is possible to list some other reasons which have effect on
establishing ombudsman institution in Turkey (Özdemir, 2012; Özer, 2015):
 Looking for an answer to the question of “how to protect Human Rights
more efficiently”;
 Exhaustion of classical remedies;
 Helpful, fast, democratic, supportive, interrogator body to be able to in a
rhythm with changing administration philosophy;
 Respecting to Human Rights and being honest to find the solution in any
12
COM (2007) 661 final, p.6
13
2008/157/EC

22
 case;
 Inefficiency on democracy, civil society, parliament, judicial and parliament
audit;
 Need for an institution to reduce the administrative procedure’s busy
schedule.
Realisation of the need for an ombudsman institution turned to be demand in the
country and brought tangible improvements both in theory and practice.
2.5 Development of Ombudsman in Turkey
Idea of establishing an Ombudsman Institution in Turkey entered into country
for long time ago and from different initiatives such as academics, institutional efforts,
political efforts.
2.5.1 Initiatives and Reports
The first academic level of reviewing of ombudsman in Turkish scholar
environment was found in 1968 which is an article 14 about general information on
ombudsman in Sweden, Norway, New Zealand and England. The article called
“Ombudsman Institution that Protects Citizens Against Administration's Abuse of
Power” is an introductory work to show how the ombudsman looks alike (Çakmak,
2008, p99). According to Saygın (2008, p.1048), Turkey was also following
ombudsmania period in the world during 1970s. Turkish scholars who highly affected
by French administration law were also affected the fact that France established an
ombudsman in 1973. First reference to ombudsman in a scientific document was found
in 1970's 15 , the first comprehensive study, a book about ombudsman was done in
1978 16 . Same year, another work on offering ombudsman model for Turkey which
might be under president's competence17.
In 1982, Turkey was preparing for a new constitutional reform which would be
last until 2010. During the constitution preperations, the work for offering a constitution
model to a new constiution makers, is accepted by many scholars as first serious work
that mentioned establishment of ombudsman in Turkey, rather than introducing
ombudsman or giving just examples about it. The work's name can be translated as
“Justified Constitution Suggestion” was covering the subject comprehensively from the
reasons for need for an ombudsman to how it will work, its members, access to
information principle, complaints, annual reports and many other more aspects. The
14
Altuğ, Yılmaz, The Ombudsman institution that protect citizens against administrative power.
15
Balta, Tahsin Bekir. Introduction to Administrative Law.
16
Baylan, Ömer. Complaints of citizens on state administration and Swedish ombudsman formula for Turkey.
17
Eroğul Cem. Investigation tool of the President.

23
work was not taken into consideration by constiution makers.
Institutional level created works on ombudsman in Turkey was started in 90's. In
1991, initiated by State Planning Organization, Public Administration Institute for
Turkey and the Middle East released18 a report on how is the inspection channels in
Turkey, what are the main problems and challenges about it, and what might be the
possible solutions. One of the solution was offered as tranformation of The State
Supervisory Council to an ombudsman or make it work as ombudsman alike. Although
the report does not indicate how to, it shows that there was no attempt on creating an
ombudsman but transforming already existed institutions to ombudsman alike
institutions. After the report, there was no work on make it real either (Çakmak, 2008,
p.102).
In 1983 and 1997, Turkish Industry and Business Association released two
reports that include ombudsman in the content. Where the first report19 was identifying
the administration's behavior as “hard and robotic” so that an ombudsman alike
institution might direct it to be more careful and soft (Akkoca,2013, p.112); the other
report 20 was also presented to the parliament. Second report includes ombudsman
examples in the world and also accepted as the first serious report on establishing an
ombudsman in Turkey (Akkoca, 2013, p112).
A union for public institutions (Hak-İş Sendikası) stress out the importantce of
ombudsman in the conferences and symposiums that they prepared. The institution also
published a book about ombudsman in 199921 The Union of Chambers and Comodity
Exchanges released a report22 in 2005 which states that although there are many tools
for fight against corruption in Turkey, there is no tool for direct intervention institution
so in order to make this demand real, ombudsman might be beneficial (Demirci, 2013,
p.95)
All those efforts show how Turkey wanted to improve its protection of Human
Rights structure and how all the state actors efforted to push this into the agenda of
different governments regardless to their political philosophy. State bodies to
academics, private sectors to NGOs efforted because they altogether wanted to improve
Turkey which has a bad reputation according to the EU and also ensure protection of
people in Turkey in a better way. For a long time, EU bodies refused Turkish accession

18
The report is available only in Turkish.
19
TÜSİAD report on Public Bureucracy in 1983
20
TÜSİAD report on Review on Ombudsman Institution
21
Avşar Zakir, Ombudsman system; a model for Turkey.
22
TODAİE General Report on Public dministration Research

24
to the EU claiming that “weak protection of Human Rights in the country”.
2.5.2 Implementations
Before ombudsman became a part of an administrational chain in Turkey, two
so called pilot projects were examined within the will of institutions. First of those
projects was implemented in Bayburt city governorate in 1996 with the personal efforts
of the governer. The prepared directive set up “Public Advisors Board” aimed to
“deliver public services in frame of fairness, objectivity and efficiency principles;
protecting citizen's rights and interests who affected negatively from administration's
acts and processes, and raising citizens' trust towards state...” 23 . The attemption
remained only personal and as draft initiation and could not go further.
Second pilot implementation was based on a protocol between Ministry of
Industry and Commerce (older name) and ministry's working field related four other
NGO's to monitor Ministry's all organs and services in 1998. The implementation could
cover only for the forementioned Ministry and restrictively could not become functional
(Sezen, 2001, p.85).
Many of those attemptions could not become real because of political issues
both inside and outside of the country. Whenever Turkey started to develop, always
there were some issues pulling back the country from this development. Even if the
country was planning some development, many times there were more serious issues to
focus. Sustainable government reality was from Turkey, there were already two military
revolutions claiming that the country is getting far away from secularism and other main
elements of the Turkish Republic. After that, coalitions, right-left side fights, religious
group fights also damaged to the country. Turkey had to fight internal terrorsim as she is
doing now also, and this was one of the main obstacle fot the country to not being able
to further. On the other hand, because the country could not be more powerful, both in
economic and political aspect, external interventions and issues affected a lot the
counrty's development.
2.5.3 Legal Works
Establishing ombudsman in Turkey always took place in the state plans or
parliament agenda. Former State Planning Organization used to announce five years
state plans on expected development area and area to strengthened. First, it was the
Fourth Development Plan plan (1979-1983) that included ombudsman alike institution
that solving problems before bringing them judicial organs, named State Advocacy

23
Öner, H.Ali. Ombudsman implementation in the city level with Bayburt example

25
Institution. Following the Fifth Development Plan (1984-1989) stressed the importance
of steady relationship between administration and citizens especially on direct services.
Although the Sixth Development Plan (1990-1995) indirectly referred to ombudsman,
between 1979 and 1995, none of the development plan clearly gave the idea of
establishing an ombudsman in Turkey. Establishing ombudsman in Turkey plans were
clearly indicated in the Seventh and Eigth Development Plans. The Seventh
Development Plan (1996-200) included directly ombudsman system as referring to
existence of EU ombudsman and Member States' ombdusman. The Eight Development
Plan repeated the same will and finally, in 2000, first legal draft on Turkish
Ombudsman was prepared and presented to the Parliament (Acar, 2009, p84; Akkoca,
2013, p.111; Çakmak, 2008, p.103).
Although legal draft preparations had stareted in 1998 under the “Public
Speaker's Law Draft” (Ökten and Turhan, 2014, p.139), the most serious legal
document was drafted in 2000, on the 57th government period. The document was
prepared by Minister24 of Justice's initiation (Demirci, 2013, p.93) and passed to the
Parliament Presidency but it was not even brought to negotiations session (Acar, 2009,
p.80). Turkish governors and politicians did not renounce the idea of ombudsman and
the subject was brought again on 59th government. First, the ombudsman was planned in
regional governments level25. According to this statement, regional governments would
have a regional ombudsman, elected by provincial assembly and this ombudsman would
be responsible for solving the problems between citizens and private institutions,
regional governments and its organs (Acar, 2009, p.87). The planned legislation was
returned to the Parliament from the President, with the reason of unconstitutionality in
the first place. In 2006, the GNAT adopted an Ombudsman Law. The Law was sent to
the President for approve but again, it was sent back to the Parliament by asking for
some of the articles to be re-thinking by MEPs. MEPs adopted the Law without any
change and according to Turkish system, if the Parliament accepts any legal document
which was turned back by President as it was presented to him/her for the first time,
President must approve the law. Following this rule, the Parliament only changed the
number of the Law (from 5521 to 5548), so the President must have accepted it. Until
now, the reason why the President did not accept the law is as following:
- President thought that it would be better for ombudsman to take an oath before
another institution rather than GNAT,

24
Hikmet Sami Türk was the Minister of Justice 57th government.
25
Law Nr. 5227

26
 - He was opposed to the idea to regulate staff (expert assistants) issues with
regulation although it is a necessity in the Constitution to regulate it with law (Acar,
2009, p.90).
Finally, Ombudsman Law was announced in the official gazette after a
complicated and a long round. Right after at the same year, as the Turkish legal system
orders, the President and some of the MEPs used their right to complain to the
Constitutional Court about this Law claiming that it is unconstitutional. Constitutional
Court stopped the Ombudsman Law's implementation with the given reason: “(about the
2nd article of the afore-mention law) Strong evidences on unconstitutionality and
possible issues or threats that might occur later where might cause hard to impossible to
remove…until the certain decision, it is stopped to be implemented.” Constitutional
Court referred to the President's reasons for rejection at its decision announcement
(Acar, 2009, p.98). The Court explained the reasons in the report 26 referring to the
following articles of Turkish Constitution:
 Article 123: “The administration forms a whole, with regard to its constitution
and functions, and shall be regulated by law. The organization and functions of
the administration are based on the principles of centralization and
decentralization.” The Court reported that the Ombudsman Institution cannot be
tied to legislative body as it is indicated in 5548 Law. Administrative body
should be related to administration, not to legislation. Also, in the Article 7 of
Turkish constitution refers to the Parliament as a law maker, as Article 8 and 9 is
explaining executive and judicial power division.
 Article 87 is explaining the duties of the GNAT explicitly and this Law is not
confronted with the duties of the GNAT.
 Article 6 is the article that where the Court's power to cancel this Law is coming
from: “...No person or organ shall exercise any state authority that does not
emanate from the Constitution“
 Article 10 was referred because it says that “...Everyone is equal before the
law...State organs and administrative authorities are obliged to act in compliance
with the principle of equality before the law in all their proceedings.”
 Article 11 is the article that binding the legislative, executive and judicial
organs, and administrative authorities and other institutions and individuals, to

26
The decision is accessible at http://www.resmigazete.gov.tr/eskiler/2009/04/20090404-6.htm

27
 Constitution. “Laws shall not be contrary to the Constitution”.
In 2010, one of the biggest turned was occured in Turkish legislation history and
constitutional reform initiation of the government was decided to present to citizens’
decision via referendum. The so called “constitution pack” included many reforms and
strengths directly on Human Rights such as freedom of speech and thought, freedom for
press, equality and positive discrimination for woman, procedures of judgement,
prohibiton of torture and so on (Fendioğlu, 2013, p.25). The pack that including
establishment of ombudsman was accepted with 58% of “Yes” votes. The constitution
pack and the referandum was prepared and initiated by ruling party AKP (Adalet ve
Kalkınma Partisi). The party has been governing the country for the 4th period for 14
years. The party's vote has never been under 45% so it represents a big amount of the
Turkish voters. In case of referandum, acception of the constitutional reform was not a
big surprise in the country. Main oppositions to the pack were that the ruling party states
the need for a changing of the Turkish Constitution which was made in 1982 upon
military revolution. AKP claimed that, this constitution is weak for the current
neccessities. Opposing parties claim that, new constitution is an attempt to change
Republic of Turkey's main elements such as secularism and it is creating a ground for
implementation of the Prime Minister's 27demands.
All in all, constitutional changes were accepted, as it was indicated above and it
brought ombudsman institution to the country. Article 74 of the constitutional reform
was regulating the citizens' rights to complain. It included as: “Everybody has right to
be inform, right to petition and right to apply to ombudsman”. In 2013, 6328 nr.
“Ombudsman Law” is accepted and announced in the official gazettee.
2.6 Law Nr. 6328 Ombudsman Law
Law on establishing ombudsman in Turkey consists of 5 Chapters and 37
Articles. Chapters are following: General Provisions; Establishment, Duties and
Working Principles; Application; Provisions for Staff and Miscellaneous Provisions.
The law was published in the official gazette in 29.06.2013.
2.6.1 Organization
Turkish Ombudsman institution is organized as one Chief Ombudsman, five
ombudsmen under the Chief Ombudsman, one Secretary-General, assistant experts and
other personnel of the institution. The institution's organizational structure is presented
in the table below:

27
Mr. Recep Tayyip Erdoğan was the Prime Minister. He later became President and currently still he is.

28
 Chart I. Turkish Ombudsman Institution Organizational Structure

Source: http://www.ombudsman.gov.tr/en/content_detail-318-714-kamu-denetciligi-kurumu-
organizasyon-semasi-.html

2.6.2 Competences and Duties

The Ombudsman Institution is established to “examine, investigate, and submit
recommendations concerning all sorts of acts and actions as well as attitudes and
behaviors of the administration within the framework of an understanding of Human
Rights-based justice and legality and conformity with principles of fairness, through
creating an independent and effective mechanism of complaint concerning the public
services” (Art.1 (1)). It is very important to pay attention on “administration's acts,
actions, attitudes and behaviors” because of their intangible feature and their form of
hard to measure via legal systems because those values in general, are not described in
any legal document. The Turkish Ombudsman focuses, not just illegality but also check
the behavior of administration. It is recommended by foreign ombudsmen that besides
these notions, notion of “good administration” should be also stressed so that it will be

29
more effective and carry directly citizen focused purpose (Odyakmaz, 2013, p.12).
Regulation on Procedures and Principles Concerning the Implementation of Law on the
Ombudsman Institution (hereafter Regulation) explains the good governance priciples
as follow:
“...whether the acts and actions of the administration are fulfilled with an understanding
of Human Rights based justice and in conformity with principles of good governance
such as compliance with laws, prevention of discrimination, proportionality, abuse of
power, equality, impartiality, honesty, courtesy, transparency, accountability,
compliance with the fair expectation, protection of vested rights, right to be heard, right
to defense, right to be informed, taking decision in a reasonable period, taking reasoned
decisions, indicating remedies against decisions, notifying the decision without delay
and protection of personal data” (Article 6 (1) Regulation).
The establishment chapter of the Law is giving clues about how Turkish
Ombudsman follows internationally accepted establishment roots: Having an
independent budget and establishing under Parliament. As it may be seen from the
Table1, Office of the Chief Ombudsman, one Chief Ombudsman, five Ombudsmen and
the Office of the Secretary-General is described in the law as basic establishment needs.
Besides, there are many administrative organs under the Secretary-General to help to
the institution to execute its tasks. Article 4 (4) of the Law states that if needed, the
institution might form branches.
Given duties to the Institution was described on Article (5) and it is same as the
Institution's establishment purpose. However, Ombudsman has restricted power on
several issues: President's acts under his/her own competence and orders signed as ex
officio; the acts concerning the execution of the judicial and also legislative power; the
acts of Turkish Armed Forces that of military nature.
There are many things to discuss about these restrictions. In general, excluding
President's actions and orders that signed as ex officio is not an issue for discussion
because President is not given wide variety of competences that might effect
administration directly. Also, when it is case for drafting law, Parliament already has
stronger position than President in case of accepting any legislation even if President
does not agree so. This is somewhat compatible with Turkish political structure (Efe and
Demirci, 2013, p.60). However, restricting competence of ombudsman on judicial
power is not welcomed by Turkish authors. Many countries such as Spain and the US
have given the competence to ombudsman to investigate judicial power. Especially in
the U.S, there is a separate ombudsman for judicial actions. According to Odyakmaz,

30
both legislative and judicial administrative behaviors, processes and actions should be
included in ombudsman competence. Other ombudsman institutions also advise to
Turkish Ombudsman institution to be able to investigate court's efficiency, delay, file
distribution except adjudication. They also mention the importance of good relationship
between ombudsman and court, courts sometimes ask for an opinion from ombudsman.
Also she gave an example from her past lawyer experiences that courts sometimes
might disturb member of courts, judges, lawyers, plaintiffs, defendants and witnesses
with its behaviors and actions such as delays, delays on codifying the decisions, and
other actions that appear during trial. Excluding these administrative actions from
ombudsman's investigation competence cause loosing the chance for judicial power to
be transparent and accountable (Gülener, 2013, p.21). Turkish judicial system is audited
in accordance to principle of “legitimacy”. It means that the courts can be only audited
whether or not they follow the constitution, law, regulations and other legal sources. As
the Turkish Ombudsman Institution's primary goal is to investigate administration's acts
and actions which are not included in any legal documents, judicial power might be
logically excluded. However, ombudsman should have a power to investigate all organs'
public services.
The other restriction which is related to Turkish Armed Forces' military actions.
Military actions were described by The General Staff and Ministry of National Defense
as actions for training purpose such as military trainings, shooting, military exercises
and sentry duty. These institutions also indicated that military justice does not carry
problems like administrative does (Akkoca, 2013, p.125). Later on, it might be possible
to include all actions of the Turkish Armed Forces under ombudsman competence who
might be specialized on this area.
2.6.3 The Office of the Chief Ombdusman
The Chief Ombudsman (CO) is the administrator and the representor of the
institution. S/he is the person who eliminates the concerns about the scope of duty of
ombudsmen and giving explanations regarding the actions of the Institution. Also, the
CO is responsible for creating and publishing reports (both annual and special ones) and
drafting regulations on executing the Ombudsman Law. The CO appoints SG, other
personel and persons that will act in his/her place in his/her absence. Ombudsmen
appointment must be done according to rule of “one for woman and child rights” and
others freely. This rule was initiated and added at the drafting ombudsman law
processes. Also, opposition party proposed “at least one woman and children rights”
emphasis but it was not reflected in this law (Akkoca, 2013, p.127). It would be also

31
right to seperate children rights and women rights duties between at least two experts
because of these subjects' problematic position in Turkey. The CO is responsible for
cooperation and coordination among ombudsmen as well as assigning duties to them.
While the CO is reponsible for the division of work among ombdusmen, the CO should
take into account ombudsmen's field of experience and espertise; consider the number
of complaint and its density and appointing same ombudsman for similar topics (Article
45, Regulation). Division of work should be done according to certain subjects, as
indicated in Art. 44 of the Regulation. Those subjects are actually “titles” of general
Human Rights as they were given in Turkish Constitution.
2.6.4 Election Procedures
Qualifications to be CO at the Turkish Ombudsman requires some individiual
abilities and some legal aspects. In general, to be able to have duty on Turkish
government level, being a citizen of the Republic of Turkey is the first requirement.
Following important legal qualification neccessities are: Not to be banned from public
rights and not to have offenses that described in the Turkish Criminal Code28; not to be
a member of political party at the time of application which is crucially important to
ensure independency. Individual abilities are describing the experiences that the CO
should have. At least 10 years’ experience at public sector, NGO, international or
professional organizations which have public institution status, or private sector
experience is required because CO must know how administration works are flowing in
Turkey. For educational clauses, in name of not to close the doors for talented and
experienced higher education institution graduated persons, it was used four-year
education program “preferably” faculty of law, political sciences, economic and
administrative sciences, economy or management, or the other equal higher education
institutions at home or abroad. The last requirement is related to CO's age which is
indicated as “to be at least 50 years of age”. Although it was critisized to restrict CO's
age, it is explained as “To be able to solve the problems between citizens and
administration, it is needed to have administrative experiences. This requires to be over
of some certain ages. Whoever will give advices to administration should be respected,
honest and those should be accepted by everybody. It is possible with some ages”
(Odyakmaz, Bostancı and Güzel, 2012, p.20).

28
Law Nr. 5237 Turkish Criminal Code, related sections are Sections 1 and 2 of Chapter 1 of Book 2, Article 53,
Article 18, (1) c, Section 15. In addition, the offenses committed against the national defence, the offenses committed
against the state secrets, the espionage crimes, the offenses against the relations with foreign states, embezzlement,
extortion, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy, corrupt tendering, corrupt performance
of contract, money laundering and smuggling

32
The CO is elected by secret ballot at the General Assembly of the Grand National
Assembly of Turkey (the General Assembly) among three candidates who applied for
the election and are meeting with the qualification criteria. The candidates are chosen by
the Joint Commission comprising of the members of the Petition Commission and the
Human Rights Inquiry Commission of the Grand National Assembly of Turkey (the
Commission). Following 90 days of the Commission's notification, the General
Assembly should decide on CO. Election process is given on the illustration below:

Chart II. Election procedure of CO

NO NO NO

Second Third voting: Between teo top

First voting:
voting: 2/3 Absolute candidates, highest
2/3 majority
majority majority number of votes

If yes, CO is elected If yes, CO is elected If yes, CO is elected CO is elected

2.6.5 The Office of the Ombudsmen

Second Second
Third voting: Thirdteo
voting:
Second Between teo
Third top
voting: Betwee
First voting: First voting: voting: Between
First 2/3 top
First
Second
voting: 2/3 voting:
Absolute Absolute
candidates,voting:
highest2/3 voting:
candidates, highest
Absolute
voting: 2/3 candida
Ombudsmen is the
2/3 majority assistant of the
2/3 majority
majority
CO tomajority
ensure to fulfill
2/3 majority
majority the
numbermajority
duties of number
2/3 majority
of majority
votes
the majority
of votes
majority numbe
Ombudsman Institution. When any of the duty is given by CO, and even if the CO gives
duty on same topic to more than one ombudsmen, each of them should work alone and
ted ted
share theirtedrecommendations with CO. Except from being at least 40tedyears old to be
able to elected contrarily to the CO whom should be at least 50 years old, they must
carry same qualifications with the CO.
2.6.6 Election Procedures
Ombudsmen election procedure starts with the Commission's decision on
number of candidates. Number of candidates should be three times more then actual to
be elected ombudsmen. The Commission should elect the ombudsmen in 15 days after
the announcement of candidates. Election procedure is same as the CO election
procedure.
Article 11 (6) explains how the elections should be done if there will be two or
more ombudsmen elected. When two or more ombudsmen shall be elected, split tickets
shall be issued. Votes for specific candidates shall be cast by ticking the boxes
corresponding to those candidates. The tickets bearing ticked boxes more than the
number of candidates to be elected will be invalid. Odyakmaz mentioned that foreign
ombudsman advise that it would be better if the CO chooses his/her own workmates so
their work relationship will be good. She also indicated that “A key for success is to

33
work as “team”. So the CO should choose ombudsmen that s/he will work with”. One of
the possible solution to decide on the ombudsmen might be collaboration between the
CO and the Commission (Odyakmaz, 2013, p.53). The election processes of both
ombudsman and the CO was described like that so the democratic method was
consolidated (Sağlam, 2012, p.121).
2.6.7 Tenure and Removal
The CO and ombudsmen is in duty for 4 years with the possibility of to be re-
elected for one more term. Possibility to be re-elected for one more term clause was
critisized because of the possible damages to independency and objectivity in Turkey.
When the CO and ombudsmen is elected, their relationship with previous work
is released during their ombudsman duty period. If there is no condition to break any of
the requirement to be civil cervant and if they leave the duty with their will or
completing ombudsman duty period or termination of their ombudsman duty, within 30
days after the termination if they apply to their previous institution, they will be
appointed to equal positions. For the member of any of the high courts in Turkey, they
will return their previous position. Academics who are elected for the Ombudsman
Institution will keep their academic titles and benefit from same provisions that
mentioned above. When they appointed, they will loose financial rights that were given
by Ombudsman Institution.
The Commission and the General Assembly is the responsible for removal of
the CO or ombudsmen. The General Assembly carries the removal procedure for the
CO without deliberation, and the Commission carries it for ombudsmen. The procedure
is certain and based on the conditions:
 If the CO or the ombudsmen break eligibility criteria later or it is find out
that they were not carrying those criteria already.
 If any of them found guilty or restricted because of the crime that break
eligibility criteria, they will loose their position.
In case of resign, death or removal, newly elected ombudsman or the CO will
also be in duty for four years.
2.6.8 Criminal Procedure and Prosecution
Criminal procedure and prosecution on the CO and ombudsmen is described on
Article 31. The Grand National Assembly can start criminal investigation or prosecution
about the CO or ombudsman related to their performance of duty. Relevant department
of the Council of State can make decisions about them. Investigation power is held by
the Chief Public Prosecutor of the Supreme Court and if public action launch, relevant

34
chamber of the Supreme Court should hear. The appeal authority is the Criminal
General Assembly of the Supreme Court. Except from mentioned matters, “Law on
Litigation of Civil Servants and Other Public Employees” should be apply in general.
Secretary General and assistant experts stand for helping the CO and
ombudsman to fulfill their duty and hold the administrative duties of the Institution.
Secretary-General, assistant experts and staff from public institutions and agencies have
different regulations than Ombudsman Law.
2.6.9 Independence
The Institution's independence is secured in both the Ombudsman Law and the
Regulation. By this way, one of the most important principle for the ombudsman to be
able to make proper and independent decision is guaranteed by law. It is very important
to ensure those principles especially in a country like Turkey where most of the people
believe that all the state administration belong to and change according to the
government. However, it is clearly indicated that during the execution of the CO and
ombudsmen's duty, “no authority, organ, institution or person issue orders or
instructions or circulars or advices” to them (Article 12 of the ombudsman law). Also,
they are entitling to obey to the principle of indepence and impartiality during the
execution of their duties. Hereby it might be also taken into account the CO,
ombudsmen and the SG's prohibited in some actions to ensure these principles.
Ombudsman's independency towards other state organs and institutions; working on
complaints without any permission or being “free from judgement” because of their
advices and earning good amount of salary is consolidating their independence
(Özdemir, 2012, p.67).
The CO and ombudsmen start their duty with an oath: "I do solemnly swear on
my honour and on my dignity that I will carry out my duties with absolute impartiality,
diligence, fairness and honesty." They do it in front of the Parliament and the
Commission and this oath is giving extra motivation for them to keep in mind the
principle of independency.
2.6.10 Prohibitions
All the personel is binding with some rules in order to ensure independent,
transperant and operative ombudsman institution. These rules are described clearly in
the Article 30. According to the Article, they should not:
 become a member of a political party;
 act to the advantage or disadvantage of any political party, person or group;
 they shall not discriminate people based on linguistic, racial, gender,

35
 political, philosophical, religious or sectarian differences in performing their
duties;
 disclose the professional or trade secrets they learn during the performance
of their duties even after their leave from their office,
 use such secrets for their personal benefits or to the benefit of other people.
 examine the complaints filed by themselves, their spouses or their relatives
by consanguinity or by marriage up to (and including) third degree.
 assume official or private duties or deal in trade during their office at the
Institution.
In case preparing academic publications; attending national or international
congresses, conferences etc. related to their profession; or again in relation with their
profession as a member of association or partner at non-profit organization, these
provisions will not be applied.
2.6.11 Salary and Institutional Budget
The CO has the same financial and social possibilities with State
Undersecretariat where ombudsmen enjoy same rights with the State Deputy
Undersecretariat29. All the staff is entitled to general social and health insurance law
and regulations, and calculations.
The other staff of the institution is also given high ranks and salaries. Secretary General
of the institution keeps equal financial and social rights and benefits of general directors
at Prime Ministry. Experts and assistant experts are also enjoying same financial and
social rights with Prima Minster assistant and assistant experts. All others are given
same rights equal to Prime Ministry civil servants, which is again high position than
general.
Institution's budget is counted under “special budget” institutions which means
that is given directly by Parliament without any discussion. It is an important nuans
because special budgetary institutions in Turkey are more independent institution that
move more freely on their actions. Institution's budget consists of the Treasury funds
from the Parliament's budget, and so called other incomes.
2.6.12 Complaints
a) Application
Individuals, either foreigners and legal persons can complain against an institution if
they think that there is something wrong with the act, action, attitude or behavior of the
29
Net salary is between 2400-2550€ according to currency rate in 11.12.2015 between Turkish Lira and Euro.
Source: http://mts.org.tr/haber/yazdir/2015_yili_memur_maaslari_net_rakamlar_ve_tum_detaylar

36
institution with petition letters and totally free of charge. In some cases, in name of
protecting fundamental values, and to do it without waiting for its violation,
ombudsman do not look for a reason for complaint. These cases are related to Human
Rights, fundamental rights and freedoms, women rights, rights of children and others.
(Art 7 of Regulation)
Turkish Ombudsman cannot act without complaint. It is a serious restriction and
obstacle front of ombudsman to be able to investigate any administration with its own
will. Ombudsman should not be a body that only can work with the wrong action can be
seen and lodged by people. Ombudsman should engage with the current issues, news
and events; so should see and evaluate institutions from the eye of the people. This issue
already discussed between commission members who had a role for preparation of the
Ombudsman Law. Although this obstacle was foreseen and accepted among members
of the commission and it was decided to give ex-officio power for ombudsman, it was
not included in the Law (Akkoca, 2013, p.128). Odyakmaz (2013, p.34) indicated that
in the beginning there was an article which is giving power to ombudsman to act itself
but then they removed it because they worry about 75 million Turkish population's
complaint will not let ombudsman to review everything and also see the wrong actions
of some institution and investigate them. In that way, ombudsman would be an
institution where the people cannot find solution to their problems, institution's work
load would raise and it will make it useless. In this case, may be it would be better to
raise the number of ombudsman and the Chief Ombudsman so with the coordinated
work flow, they could handle this problem.
Complaints might be deliver by hand, e-mail, phone call or even by fax. If the
complaints lodged via e-mail except registered ones, or via fax, the original petition
papers must be sent to the Institution in 15 days, otherwise the complaint will not be
reviewed. Form for complaint should be attached to the petition. This forms include the
needed information 30 about persons but if complainant has other certification that

30
Needed information for individuals: 1) Name, surname and signature,
2) Citizenship ID number for the citizens of the Republic of Turkey and passport number, nationality and if available,
identity number for foreigners,
3) Residential or work address subject to the notification,
4) Administration against which the complaint is lodged, subject matter of the complaint and request,
5) Date of the application to the administration and date of the response of the administration,
6) If available, e-mail address, telephone and fax number subject to the notification.
Needed information for legal persons:1) Title,
2) Residential address, telephone number and if available, electronic notification address subject to the notification,
3) Name, surname, title, signature and if available, e-mail address, telephone and fax number of the authorized person
subject to the notification,
4) Administration against which the complaint is lodged, subject of the complaint and request,
5) Date of the application to the administration and date of response of the administration,

37
displays needed information about him/her, the form might not need to be used. These
forms are separately for individuals and for legal persons. If there is an acceptable
reason, orally given information is accepted to fulfill the forms. Turkish Ombudsman
official web site has special platform for lodging complaints so they can lodge
complaint via ombudsman web site even. If there is any related document that might be
informative about the complaint, it can be attached both in physical and electronic
format.
Complaints do not have to be done by person directly, it can be done via
governors in provinces or districts so that ombudsman targets to be accessible from
everywhere and by everyone. Governors are responsible for delivering the complaints to
the Institution within the three days. Complaints may be lodge through legal
representative or assignees if the reason can be documented by valid authorization.
Legal representative or the assignees that lodge the complaint must give the required
information to the Institution. In respect of “notifying the person bout the progress who
applied to an Institution a” rule, those legal representatives or assignees will be
informed about the progress.
Petition letter's language should be in Turkish but if the complainant thinks that s/he can
express the opinion in other languages better, it may be acceptable too. Especially, in
name of Kurdish population in Southern-East part of Turkey, it is compatible with
Turkey's duty that has been handled for a long time for protecting the minority rights.
Also, the Regulation includes an article about make people with disabilities comfortable
for lodging complaint. With the respect of confidentiality, if the complainant asks for,
the Institution will keep the complaint confidential.
b) Exhaustion of administrative remedies and time restriction
This topic is one of the most argued compliment criteria by academics. The
criterion gives the rule for the complaint to be exhausted from all administrative
proceedings which is described in the Administrative Jurisdiction Procedures Law 31 and
obligatory administrative remedies in order to be able to lodge a complaint to
ombudsman. The main arguments against this rule is that until the case will be
concluded, there will be very long process and this process will affect people
negatively. They are already trying to exit from those kind of formal and long
progresses, if ombudsman also requires this to be access, then it will not be perceived

6) Original or certified copy of the authorization certificate of the authorized person,

7) Central legal entity number, if available
31
Article 10, 11, 12, 13 of the related law is given as criteria to be fulfilled before applying to an ombudsman. Law is
accessible online: http://www.lawsturkey.com/law/2577-procedure-of-administrative-justice-act

38
very positive by people. Also, until ombudsman's intervention it will be too late to solve
the problem by this way, waiting for administrative procedures to be done. This will
also affect ombudsman's efficiency negatively. Özer (2015, p.138) compares this rule
with some of the other countries' conditions and found out that this looks a heavy
condition compared to others. As a result, it causes endless procedures which is pushing
back the citizens from claiming any of their right (Özer, 2015, p.139). On the other
hand, it is logically true to first try to solve the problems with the related body and its
own justice system. By this way, first, which institution created the problem, that one
should solve it. It is expected to be more effective if it works perfectly. If the related
administration refuse to do so, then the ombudsman should be the place to apply. It
works like this in Sweden, Denmark, Norway, France and England (Özdemir, 2012).
Besides, if judges decide, there will be some punishment for or compensation from the
institution which is not possible to get it from ombudsman in frame of current Turkish
Ombudsman system. It is important to note that administrative procedure conclude the
cases related to administration's acts and processes but not its behavior and attitudes and
the main complaints are arising in this field (Odyakmaz, 2013, p.22). Already, Article
12 (5) of the Regulation clearly indicates that if there is any complaint related to
administration's attitudes and behavior, no such rule will be implied. In addition, if the
damage is hard or impossible to compensate, again, no such rule will be followed.
Related to Article 12, there is a time restriction for lodging complain. Sixty days
following the answer that the potential complaint will get the answer from related
administration if the complaint can get any, or, at the end of the term if there is no
answer received in 60 days, only after these criteria it will be possible to lodge
complain. For the complaints might be related to administration's attitudes and
behaviors, same term must be followed right after the notification is given. This is
another negative criterion for complaints related to time issue that is mentioned above,
for the exhaustion of administrative procedures. People will have to wait sixty days to
be able to complain against the institution that might hurt them very badly. It is
expected from ombudsman to offer quick and demanded solutions for the people.
c) Evaluation
Turkish Ombudsman will not examine such complains if the received complains
are in process at the judicial organs or already resolved. Also, in progress complains that
belong to same complaint on same issues and subject or already on review complains
will not be examined. If the complain is without subject, again, ombudsman will not
review that.

39
 Received complaints will first be reviewed in frame of aforementioned criteria,
to remember, whether the complain fits with the Institution's duty area; exclusion
criteria; time criteria and complains that already solved or in progress at the courts
criteria. In addition, the Office will check whether the complain has all the required
information, whether it has any subject and whether it is carrying personal issues rather
than Institution's working area. If the complain is found breached any of this criteria
except exhaustion of administrative procedures, it will not be passed to Ombudsmen,
the process will finish, then the complaint will be informed about it via e-mail or printed
paper. This notification must include the reason, the decision and the information on
related other application bodies and also how to apply to them in frame of time and the
ways of application. The Institution seems like in here, even if it has to refuse complain,
it is assisting to people on showing how to continue. Also, if the complaint will correct
or complete the criteria that was reason for refusal, then s/he can re-lodge the complain.
If the complaint was lodge without following the rule for exhaustion of administrative
procedures, Ombudsman will pass this complain to the related institution. The
complaint will be informed about this process and then the complaint will have to obey
the time criteria that was mentioned above.
If all the criteria are fulfilled, then the next process will start.
d) Examination and Investigation
The CO, Ombudsmen, experts and expert assistants (if they are given duty by
the CO or ombudsman) can examine and investigate the cases. They can put together
and examine the similar cases by subject and reason. If subject of the complain is
related to Human Rights, fundamental rights and, women and children rights; there can
be on-site examination. Other subjects can be examined if the complaint ask for. It is
important to see the legal basis for binding the institutions to be helpful to ombudsman
on the Regulation.
Investigations will be based on some facts and these facts may be record on
documents or hold by somebody. In order to get needed information for investigation,
the Institution should be able to access everything related to certain cases. For this
reason, the Regulation is giving the competence of accessing to related information and
documents from related administrations. The administration must deliver requested
information to the Institution via e-mail and then deliver the ppaper format in 30 days. If
the administration does not do so without reason or give missing information,
investigation procedure can be started on related institution by the CO or on request of
ombudsman. This competence can be restricted if requested information includes state

40
secret or trade secret. However, the CO or ombudsman can examine state secret
documents on-site, but because this information must be kept as secret, it cannot be
included into the decision.
The CO or Ombudsmen may not be expert on some special or technical issues.
In this case, experts from the lists determined by justice commissions of courts of first
instance of ordinary justice, universities' academic staff, proffesional chamber members
can be given duty if they carry special requirements similar to being ombdusman or
being expert criteria. They also are must take the oath if they did not before for their
own profession by saying:
“I swear on my honor and on my conscience that I will perform my duty
impartially by abiding justice, in compliance with science and reason”
These special experts' duty is to provide report to the Institution on related issue.
They do carry the responsibility to keep the information that they receive during this
duty and use it for their own good.
Other way that the "investigator group" may benefit from during their
examination might be witness hearing. The witness also must take an oath: “I swear on
my honor and on my conscience that I will say the truth”. Witness hearing does not
have to be face to face physically but audio-visual technology can also be used. Witness'
words should be kept in written document and make him/her sign.
e) Decisions and Powers
Following 6 months of receiving the complaint, the Institution must make
decision on the issue. Decisions might be recommendation, refusal or as no ground
exist for decision.
Recommendation power is the strongest competence of Turkish Ombudsman
where there is no power to sanction institutions, stop implementation or correct their
processes or make binding decisions. Recommendation may vary from mediation to
make the administration accept the fault, or pay/correct for the fault to change its
regulation or some other recommendations else than these. Ombudsman may give only
one of these recommendations or more then one at the same time. If the related
institution does not take the given recommendation, then it should inform the
ombudsman about the reason of non-forcing in thirty days. In the Regulation nor in the
Law, there is no further process is indicated that ombudsman institution can go further
but the complainant can resume the suspended litigation, if there is. If somehow
ombudsman's decisions are not accepted or not enforced by institution, or if the
institution accepts the decision but not enforced it in certain time period, then the

41
suspended litigation should resume.
f) Termination of Complains
If the complaint is pulled back the complain, or if the real person dies, the
process will be terminated. In case of legal entity, the case will terminate when the legal
entity is terminated. Also, if the institution fulfills the complainant's demand,
ombudsman's duty will be terminated. On demand of inheritor, the processes may
continue. If the complaint decides to carry the complain to the court, ombudsman might
pause the process or even end. In case of these conditions, the complain will be ended
with the decision of "no ground exists for taking decisions" (Art. 33 of the Regulation).
An important competence was given to the Institution on the issue of Human Rights,
fundamental rights, women rights, children rights or general issues related to public,
even if the case naturally terminated because of given conditions, ombudsmen may keep
examining and researching. The Chief Ombudsman office may re-examine or re-
investigate the case even if the decision is made if there is a new information that can
change the conclusion. The two important power of the ombudsman institution in
Turkey lead an important conclusion: Although the institution does not have power to
investigate ex officio, keep continuing on the cases related to certain topics give it a
kind of ex officio power. It shows how the Institution is decisive on protection of the
core rights related to its duty area.
g) Publicity
The Institution, as it was indicated before, is responsible for publishing reports
and also its decisions. This is related to right to be informed for the public and Turkish
Ombudsman is following it as other examples in the world. Related to this, the
Institution is responsible for informing the complaints about them complain progress
with the communication technologies even with the phone.
In order to improve the Institution, it is given competence by law to be a part of
international organizations, join into projects with them and cooperate. The Institution
should use all possible press and media tools in order to fulfill its public relations duty.
Related to this, Annual Report-2014 gives clue on how Turkish Ombudsman Institution
quickly integrated on media and especially social media tools since it has established.
The Institution employed a social media expert and following that, institutional
Facebook, Twitter, Instagram and YouTube accounts were created. Special e-mail
address acquired in order to communicate with people on their instant messages. The
website was developed and social media tools added on it. Institutional Social Media
Content Policy was accepted. According to this, periodical news and event sharing

42
every work day at 07:00, 11:00, 18:15 and 23:00 is trying to be followed. The report
indicated that evert month Facebook followers of the institutional account increases
1000 approximately. In 2014, Turkish Ombudsman released approximately 229 million
news in different fields related to its duties.
2.7 Evaluation of Turkish Ombudsman Institution
All in all, Turkish Ombudsman has brought many new and different ways for
persons to look for their rights before the state. Turkish ombudsperson Ms. Serpil Çakın
(28.12.2015) summarizes what ombudsman institution has brought to Turkey:
 In addition to the Parliamentary Commission on Human Rights, Turkey
anymore has one more independent board for protection of Human Rights.
 Investigating administration's acts and actions is also new for Turkey.
Before ombudsman, ordinary legal bodies could only investigate whether
what subject to complaint was related to legal documents or not.
Ombudsman in Turkey both investigate legality and fairness of the
administration's acts and actions. This is something new in Turkey.
 Turkish Ombudsman has different powers to make administration correct
their wrong implementation towards the complainant, but at the same time
moral satisfaction of the complainant is ensured by the ombudsman via
logical and right explanations.
 Given power to ombudsman to access all related information and documents
make the institution a kind of information center. Especially via
publications, if there is no restriction on sharing those information and
documents, serve to inform society on different aspects of the administrative
implementations.
 For the first time in Turkey, children have a board for complaint. Children's
relationship with the administration generally appears at schools or
municipalities' services. Turkish Ombudsman has a web site 32 just for
children where they can lodge their complaint accroding to their own age
group and learn what ombudsman is, their rights and more with games or
training videos. Those complaints vary from playing ground services to
sexual abuses. Ombudsman directly contact with the children and solve their
problem. Feedback from their families or relatives show how they are
satisfied with ombudsman's help.

32 Children ombudsman web site: http://www.kdkcocuk.gov.tr/15-18/ accessed 05.03.2016

43
 Turkish Ombudsman organizes “International Ombudsman Symposium”
every year. We become together with ombudsman from different countries
and share information. We also visit different countries' ombudsman as team
and accept ombudsman from different countries in our institution as visitors.
We participate special subject events such as Children Ombudsman
Network. Whenever the Chief ombudsman visit a country, he absolutely
visits Turkish person whose freedom is restricted, if there is. In this way,
Turkish Ombudsman work internationally and collaboratively, and also try
to reach persons abroad.

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 PART III
HUNGARIAN OMBUDSMAN
Although there are judicial and non-judicial government dependent or internal
control institutions, the Constitutional Court of Hungary is the most powerful and the
most independent judicial control mechanism in the country.
3.1 Constitutional Court
Hungarian Constitutional Court passed different level of periods during its short
history. Constitution and Constitutional Court of Hungary was highly related with
Hungary's political situation, in the beginning. A new constitution of Hungary that
hunting for democracy was announced in 1989 October and following November, the
first Constitutional Court of Hungary formed. This Court might be named as an “extra
ordinary court” for Hungarian history because of its position at the transition period.
The transition from dictatorship to democracy based on rule of law brought some
problems and questions, thus, the Court mainly had some duties related to transforming
political problems into legal questions. The Court must make up for forty years lost
during Communist rule (Solyom, 1994, p.228). First, there was some problems related
to restricting the parliament's power which had unlimited sovereignty in the past. The
political traditions were tried to be kept but the Court finally could define its position
and relationship with the Parliament. The Court also effort to take its position front of
political parties and government in order to ensure its authority. Making the ordinary
courts to accept Constitutional Court's position in a way that is reviewing and quashing
their decisions was difficult for them to get use to (Solyom, 1994). In addition, it was
also hard to make the public accept the existence of the Court's authority and its
decisions. For example, the Court held a law establishing the death penalty
unconstitutional, although the vast majority of the Hungarian population view this
punishment as acceptable and necessary (Solyom, 1994, p,227). Finally, the Court
demonstrated its independence and the possibility of separation of powers between
governmental branches and the balance between them.
During the first working years, the Court used abstract judicial review on
legislation of basic rights. The court had to interpret some basic terms such as human
dignity and draws the picture of human rights, because later on everything would be
dependent on those interpretations. Besides its relationship with the Parliament which
has to specified any rules related to basic rights, individuals also got a right to apply for
Constitutional Court for constitutional review of legal documents related to basic rights.

45
 At the end of the first period of the Constitutional Court of Hungary, many basic
problems related to political changes could be solved. The Court finally has enjoyed
relative insulation from
certain political forces, it has been able to develop its own approach to the interpretation
and contextualization of constitutional rights (Solyom, 1994, p.237).
The other period of the Hungarian Constitutional Court was related to accession
to European Union. The Court has faced many questions regarding the constitutionality
of EU legal rules and conflicts between European and national legal norms (Blutman
and Chronowski, 2011, p.329). Also, in order to be a member of the EU, such issues
like ensuring protection of human rights and democratic institutions ensuring rule of law
had to be stabilised. The Court succesfully solved the problems earlier, avoid conflicts
with the EU law and help to ensure the accession criteria.
The Court now has several different competences, given in here briefly:
 Ex ante review of conformity with the fundamental law.
 Ex post review of conformity with the fundamental law.
 Judicial ınitiative for norm control in concrete cases.
 Constitutional complaint (lodged through Ombudsman).
 Examination of conflicts with ınternational treaties.
 Examination of parliamentary resolutions related to ordering referendum.
 Opinion on the dissolution of a local representative body operating contrary
to the fundamental law.
 Opinion on the withdrawal of the acknowledgment of a church operating
contrary to the fundamental law.
 Removal of the president of the republic from office.
 Elimination of conflicts of competenceExamination of local government
decrees, normative decisions and orders, and decisions on the uniform
application of the law.
 Interpretation of provisions of the constitution.
 The elimination of legislative omission.
The Cout is the strongest body for protecting the Fundamental Law and
fundamental rights. It also has an important role on protecting democracy and
democratic state governed by rule of law.
The Court consists of 15 members and elected by Parliament with 2/3rd of
members. Their term of seating is for 12 years. All the judges are ensured to be

46
independent by law. The decisions at the Court are made by plenary sessions or
sometimes as panels.
The relationship between ombudsman and the CC has changed with the
constitutional reform held in 2012.Before 2012, everyone without any legal interest
could turn to Constitutional Court to challenge a piece of legislation. It is now only the
Ombudsman who can turn to CC. Although this is performed very rarely, it is an
important competence for ombudsman to be only person that can turn to the CC in name
of people. First year of the implementation of the Fundamental Law, Ombudsman
received nearly same amount of complaint as the CC was receiving (Lórant, 2016).
Ombudsman may ask some questions related to constitution and constitutional
rights, either upon a complaint or ex-officio. Related department is responsible for
giving an answer to ombudsman about this question. They sometimes collect the answer
in collaboration with all related Ministries, or give the answer directly from the
Fundamental Law. Ombudsman either may satisfy with the answer or keep asking more
or other questions (Mazi, 2016). Ombudsman has power to recommend any institution
under its competence. This shows how the ombudsman may be effective even on the
CC.
3.2 Need for an Ombudsman in Hungary
It is not wrong if we say that ombudsman in Hungary came into a body with the
work of individuals. First, it is important to mention about Majtenyi Laszlo who had
been in Oslo for a study with a scholarship and one day, he visited Scandinavian
Institute of Maritime Law. He met there with a librarian who actually enlarge his view
on ombudsman institution. The librarian recommended him many resources to review
and even some “names” in Norway related to subject of ombudsman works. After he
learn many things, he of course wanted to carry this institution for the sake of his own
country. He and Laszlo Solyom truly believed the need of ombudsman in Hungary.
Solyom brought on the table the subject on protecting personal data and also
environmental protection in Hungary. Tamas Isépy supported the idea of having
ombudsman in Hungary and said that “it should be reason enough for us to support the
idea of adoption if we know that even in Papua New Ginea has such a thing”. It is easy
to see that those personal initiatives affected the structure of the ombudsman system
either (Parliamentary Commissioner’s Office, 2005).
Establishing an ombudsman institution was once brought into the country by
individuals and could have supported either. Finally, the institution of the ombudsman
in Hungary based on political consensus of the National Roundtable that was held to

47
review the constitution of Hungary right after starting to a transition in 1989. There was
a big debate in Hungary and also other transition countries whether to establish an
ombudsman institution which may cause multiplying the protection of fundamental
rights power in the country. That time, politicians claim that there is already
constitutional court to protect people's basic rights so ombudsman would be just useless
(Lórant, 2016).
Hungary could take over doubts and discussion related to having ombudsman
institution in its protection of human rights system. Following this, constitution of
Hungary amended and promulgated in 23 October 1989 referring to the institution for
Parliamentary Commissioner for Citizen's rights with a Commissioner that be appointed
by Parliament to protect constitutional rights of people. In 1993 Ombudsman Act was
initiated to the Parliament. It was expected that after the communist regime to
democracy, ombudsman would play a vital role in the consolidation of democracy and
the rule of law as an important factor of the system change. This was an important
chance for “humanizing day-to-day life and the system of public administration”
(Parliamentary Commissioner’s Office, 2005, p.7).
The Ombudsman Act was presented to the Parliament with the recommendation
of “its adoption may create an important guarantee in Hungary for respecting human
rights and citizens” (Parliamentary Commissioner’s Office, 2005, p.3). First
ombudsman institution in Hungary established in this kind of environment where the
political changes are strongly affecting the country and Hungary's enthusiasm for
establishing a new system that respecting human rights.
3.3 First Ombudsman Institution of Hungary: Parliamentary
Commissioner for Civil Rights
The first ombudsman institution in Hungary was established in 1995. First, two
ombudsmen were elected; Parliamentary Commissioner for the Citizen's Rights and the
Parliamentary Commissioner for Ethnic Minorities' Rights. Later on, the office enlarged
and included two more ombudsmen: Parliamentary Commissioner for Future
Generations and Commissioner for Data Protection and Freedom of Information.
a) Parliamentary Commissioner for Civil Rights: The Commissioner was
like a classic ombudsman, responsible for entirely protection of
constitutional rights of people against maladministration. Besides anyone
else, there was special attention paid on the children's right during its
existence. The Commissioner followed and reviewed children complains or
started many ex-officio investigations related to their rights with the help of

48
 them and their parents. The Commissioner also focused on private law
issues while the general mandate is the public law.
b) Parliamentary Commissioner for the Rights of National and Ethnic
Minorities: (Settled with the amendment) Started working in 1995, all types
of discrimination, bad treatments and difficulties that the ethnic minorities
were handled by this Deputy. Whoever experienced with bad treatment
under detention, or experienced with the discrimination in the labor market
or had difficulties to keep their identity or even to live, could find the way to
make their voice to be heard through this deputy.
During the duty of Dr. Jenö Kaltenbach, the office receives complaints related to
police treatment based on ethnic motivations; social/welfare related decisions by local
governments, or discrimination against Roma population (Parliamentary
Commissioner’s Office, 2005, p.18).
c) Parliamentary Commissioner for Future Generations: The
Commissioner was responsible for investigating all kinds of infringements
related to people's right to have a healthy environment and protect cultural
heritages on a sustainable way.
d) Commissioner for Data Protection and Freedom of Information: The
freedom of information means the requirement of the transparency of the
state while the protection of data means providing protection against state
and others which is an important value of a modern constitutional state
(Parliamentary Commissioner’s Office, 2005, p.25). In order to build
modern constitutional state, Hungary followed this statement and became a
unique example in the former socialist countries which established first
institution within the constitution in name of protection of special or
sensitive and personal data of people. In 1992 the Parliament adopted an Act
on the protection of personal data and the publicity of information of public
interest. After the regime had changed, Hungarian society was "thirst for
information" (Report) so that the Commissioner took the responsibility to
bring to light of public information.
Protection of personal data in Hungarian practice referred to protection of
personality and information rights of the individual concerned. Personal data is
conceptualized as “any data that refers to a living natural person”. This data may
include data on professional life, confidential information or data related to personal

49
life. Special or sensitive data, on the other hand, cover more intimate information such
as health statues, sexual practices, racial origin, political opinion etc.
She or he had competence on both private and public sector which was on
purpose if it is taken into consideration that the private sector has many roles on
keeping, distributing or sharing, as well as infringing the personal data. Investigation
power both upon and complaint and ex-officio, entering places where data is kept and
making recommendation or proposing amendment were his/her competences and
powers. The most different power of the Commissioner was making decision on
blocking, deleting or destruction of data managed without authorization and prohibition
of unauthorized data management. In this case Data Protection Ombudsman was a real
authority which has competence over everybody and can punish institutions.
There is a need for mentioning about Hungarian National Authority for Data
Protection and Freedom of Information in this work. Pulled out from the Ombudsman
Institution in 2011, the Authority is responsible for protection of personal data and
freedom of information in Hungary in scope of both private and state sector and, covers
all data and data processing activities.
The Auhority can investigate any type of infringement related to data protection
both based on complaint or ex officio. If there is founded infringement, the Authority
may use some competences ove the institutions. In this case, the institution subject to
infringment may have to correct the wrong act; delete the personal data from its
database or other recorded surfaces; may pay fne from 100.000 HUF to 10.000.000
HUF. The Authority also may prohibit the illegal control or process of the data, and
transferring the data anywhere. The Authority also serves as standart-maker in order to
ensure high protection and processing of data.
Structure of the First Hungarian Ombudsman
The Commissioners were free to select their own team. They were altogether
responsible for protecting the people's fundamental rights according to Hungarian law
and the EU law after the accession. Their working principle was not based on hierarchy
but on cooperation.
Commissioners were responsible and elected by Parliament for 6 years mandate
with a possibility of re-election once. They were nominated by the President of
Republic. They presented annual reports to the Parliament and shared those reports on
the former ombudsman web site. Reports were discussed in the Parliament and
Commissioners tend to repeatedly submit to Parliament their rejected recommendations.

50
In the end, they could make the Parliament accept some amendments via their
recommendations.
The committees often elicit comments by the Parliamentary Commissioners in
the course of the discussion of substantial comprehensive issues, as well as during the
discussion of drafts (amendments) affected by their recommendations
Their activity, just like the new ombudsman, is based on complaints. In the first 10
years of its duty, 70.000 complaints were received. They also could have ex-officio
investigation.
Parliamentary Commissioners had power to recommend, propose an
amendment, turn to prosecutor and run a criminal procedure, and finally turn to
Constitutional Court or to the Parliament if there is an infringement on large group of
people's right. The Parliamentary Commissioner's most important tools were
professional argument, convincing and publicity (Parliamentary Commissioner's Office,
2005, p.6). With the logic of "low rate of complaints is not necessarily a result of the
lack of circumstances that could give rise to complaints", the Parliamentary
Commissioner had ex-officio investigation power.
This structure was followed until the constitutional reform in Hungary in 2011.
After that, Parliamentary Commissioner went through several changes.
3.4 ACT CXI OF 2011 on the Commissioner for Fundamental Rights
As a legal successor of the Parliamentary Commissioner for Civil Rights, The
Commissioner for Fundamental Rights was established with the Act based on
Fundamental Law of Hungary, Article 30, which is giving power to CFR to protect
fundamental rights on a most comprehensive way in Hungary with its two main
Deputies: The Deputy Commissioner for Fundamental Rights of future generations and
The Deputy Commissioner for Fundamental Rights of the rights of nationalities living
in Hungary. In order to detail how the institution should be, the 5th paragraph of the
Article is mentioning a need for an Act to explain. The Act is consisting six chapters
and fifty sections. The following content is the actual structure of the Act itself.
Organization
Hungarian Commissioner for Fundamental Rights has many departments as it is
represented below:

51
 Chart III. Hungarian Ombudsman Institution Organizational Structure

3.4.1 Competences and Duties

There are many important tasks that were given to Hungarian Ombudsman
related to drafting legal documents, for example, to be able to give an opinion on the
draft legal rules and plans in frame of fundamental rights; propose an amendment or
making legal rules related to its reason for existence. This makes Hungarian
Ombudsman one of the legislative body on making rules and monitoring body to watch
them over. The given competence for the CFR to be able to initiate CC for reviewing or
interpreting of legal rules whether compatible with fundamental law and its
amendments. The CFR can also have role during the preparation of and, monitoring and
evaluation of national reports based on international treaties.
Hungarian Ombudsman has a duty as national preventive mechanism, as it was
indicated in the Optional Protocol of the Convention against Torture and other Inhuman
or Degrading Treatment or Punishment. This duty is something new for the new
ombudsman institution. In order to execute this duty, there are competences given to the
CFR such as examining the treatment of people under detention regularly even if there
is no complaint received; prepare reports and publish them; request and access data and

52
information; and make on-site investigations. During the on-site investigations, besides
accessing places and information without restriction, the CFR can hear witnesses (or
persons) alone, unless the CFR lets somebody else to participate in. During the
execution of a duty as a national preventive mechanism, the CFR may authorize some
member of his/her staff. Also, the CFR should create a special permanent group from
the Office, which is consisting of at least eleven public servants who are expert on this
field at least for five years. Members of this group should be chosen and given duty as
followed: At least one person who has been proposed by the Deputy Commissioner for
Fundamental Rights responsible for the protection of the rights of nationalities living in
Hungary and at least two persons each with a degree in law, medicine and psychology
respectively. Among the authorized public servant staff members, the number of the
representatives of either sex may exceed that of the other by one at the most (Chapter
III/A, Art.4 of the Act). The CFR might create other groups which can work
temporarily.
The CFR must pay special attention on certain areas and should use his/her ex
officio power especially on those areas: children rights, the interests of future
generations, the rights of nationalities living in Hungary, the rights of the most
vulnerable social groups, and rights of persons with disabilities indicated in the
Convention on the Rights of Persons with Disabilities33. These values are actually the
constitutional rights derived form the Fundamental Law and the Convention. The
interests for future generations are related to third generation rights such as natural
resources, lands, forests, water reserves, bio diversities and so on. The Deputy
Commissioner for Fundamental Rights of future generations is carrying out this duty on
name of CFR. Also, protecting the rights of nationalities living in Hungary duty is
carrying out by the Deputy Commissioner for Fundamental Rights. Ex-officio reviews
may be started on any administrative bodies which will be listed later.
The CFR has many responsibilities in order to execute his/her duties to protect
fundamental rights of the people. The CFR may start investigation ex-officio or when
any complaint is received. The CFR is responsible for drawing the picture of current
situation of fundamental rights in Hungary and doing this via surveying and analyzing.
Also, s/he should prepare statistics on infringements in Hungary. Statistical information
may be asked from the National Authority for Data Protection and Freedom of
Information, the Independent Police Complaints Body and the Commissioner for

33
The Convetion is accessible full text: http://www.un.org/disabilities/convention/conventionfull.shtml accessed
20.03.2016

53
Educational Rights and those data must not contain personal data and used only for
generating statistics.
The CFR's competence is restricted on the acts of the Parliament, the President
of the Republic, the Constitutional Court, other courts, the State Audit Office and the
Prosecution Service except from the investigative organs as it was mentioned the
exceptions above.
3.4.2 Election
Anybody who is Hungarian citizen and carrying those criteria can be elected as
CFR or as Deputy. It is the President who can propose person to be elected or can ask
for termination of the duty for the CFR to Parliament. Some experiences in Hungary
showed that the President should be in contact with the Parliament during choosing the
nominates because it was experienced in Hungary, that caused political conflict when
the Parliament did not choose the candidate nominated by the President. That time
President paid great attention of NGO or politicians feedback about the candidate, but
there was a lack of communication between him and the Parliament. (Lorant)
If somebody is proposed as the CFR, the Parliament will give a hearing about
the CFR's duties to this person.
Deputies are elected by Parliament for 6 years upon the proposal of the CFR
among those who has law degree and carrying the same criteria to be parliament
member. Deputy position nominees should be 35 years old at least and have ten years’
experience in the related deputy field. Special case for the nomination for the protection
of the rights of the nationalities living in Hungary deputy is described in the Act; so that
requires for the opinion of the national nationality self-governments. The non-eligibility
criteria to be a Deputy is given related to some professions or fields such as parliament
members, European Parliament member, President of the Republic, Member of the
Government, professional member of the Hungarian Defense Forces and so on34. The
elected CFR is responsible to form his/her own deputies among those who are also
elected by the Parliament. Both the CFR and the Deputies should take an oath before
Parliament when they are elected.
3.4.3 Tenure and Removal

34
Other fields are: State secretary, permanent state secretary, deputy state secretary, member of a local government
body, mayor, deputy mayor, member of a nationality self-government, notary, professional member of the law-
enforcement organs or of organs performing law-enforcement tasks, or the officer or of a political party.

54
 The conditions for termination of ombudsman duty might be listed as35 (Section
16 of the Act):
 upon expiry of the term of their mandate,
 upon their death,
 upon their resignation,
 if the conditions necessary for their election no longer exist,
 upon the declaration of a conflict of interests,
 upon their dismissal, or
 upon removal by the Conflict of Interests Committee36 if they fail to execute
their duties that indicated in the Act; fails to announce the assets or give
wrong data about assets.
Also, when they are on the duty, they can not be elected as Member of
Parliament or Member of the European Parliament. Proposed Deputies, like the CFR,
should be given a hearing to the committee of Parliament.
3.4.4 Deputies
Two Deputies during they are executing their duty, may use the titles
"Ombudsman for Future Generations" and "Ombudsman for the Rights of National
Minorities". The Deputies, in general, responsible for informing the CFR related to their
fields regularly and aware the CFR, public or the institutions about possible
infringement cases. Their relationship with the CFR varies. They can propose the CFR
to start ex-officio investigation or execute his/her competence on turn to the CC. Upon
the proposal, the Deputies are bind to act and inform the Parliament via their annual
report.
It is worth to mention about the Deputies roles more specifically. It is perceived
as it is the State which is responsible for protection and preservation of natural resources
for future generations since 1994 and as an evidence, there was already an ombudsman
for this duty. Ombudsman for Future Generations is renewed in 2011 in order to ensure
protection of natural resources, agricultural land, forests and drinking water supplies,
biodiversity and cultural assets as part of the nation's common heritage. He or she can
review the legal acts, policy developments and proposals which may cause damages to
the rights of future generation. In 2013, Hungarian Ombudsman for Future Generations'

35
These conditions are valid as they are for Deputies. It will not be repeated in the Deputies section.
36
For the removal of Deputies, the CFR also gives an opinion

55
special position in order to protect rights of future generation was especially mentioned
by the UN Secretary General (Ajbh.hu, 2016).
Ombudsman for the Rights of National Minorities also renewed in frame of
2011 constitutional changes. Basically, the ombudsman shares same competences and
powers as the ombudsman for future generations. In addition, Ombudsman for the
Rights of National Minorities specifically reviews the Government's social inclusion
strategy and monitor the implementation of its objectives concerning nationalities living
in Hungary. He or she also may propose the adoption, amendment of legislation on the
rights of nationalities living in Hungary.
3.4.5 Other Staff
The Office of the Fundamental Rights and the Secretary General in the most
important staff after Ombudsman. The Office is an administrative body of the
Hungarian Ombudsman with a separate budget directed and established by the CFR,
managed by the Secretary General. The Secretary General is the most competent body
to ensure employee's rights at the Institution.
3.4.6 The Equal Opportunities Regulation of the Office of the
Commissioner for Fundamental Rights
Regarding to exercise the employee's rights of the Hungarian Ombudsman,
special regulation called The Equal Opportunities Regulation of the Office of the
Commissioner for Fundamental Rights entered into force on 1st March 2012. Basic idea
behind this regulation is, the Institution as the most coherent and effective body to
protect fundamental rights, is creating an example to exercise protection of rights of the
all ombudsman employees who have different conditions as (The Regulation (1)37):
 older than 40 years,
 career-starters,
 Roma people,
 people with disabilities or with chronic illness,
 having small children, several children or raising their child/ren alone,
 raising a permanently ill or disabled child,
 caring for an ill, disabled or old relative, or
 commuting every day from another settlement.

37
Instruction No. 22/2012 (03.01.) of the Secretary General of the Office of the Commissioner for Fundamental
Rights on the Equal Opportunities Regulation of the Office of the Commissioner for Fundamental Rights

56
 The Office with this Regulation declares positive discrimination for the
employees working with these conditions. The Regulation indicates that, the Institution
will not just take appropriate measurements for this group of employees but promote
and support equality, human values, opportunities for professional development and
better working conditions for all. This is something very different than many
ombudsman institutions basically different from Turkish Ombudsman institution.
Employees with the conditions that given above has a right to apply for
conditions that may fit better with their situation, either economic or working
conditions. In order to benefit from this possibility, the employee should fulfill the form
that created for this demand and indicate their situation and demand. The Regulation is
strict on the preservation of given private data and keep them in another database.
Monitoring the implementation of the Regulation, handling the problems and
complains related to employee rights and an authorized body for the regulating of the
Regulation is defined as Workplace Equal Opportunities Committee. It is set up among
those who is responsible for exercising employee right. Especially the given
competence on receiving complaints and taking actions upon it, is the most powerful
aspect of this Committee. Being the most competent body even over itself on employee
rights, the Committee is actually becoming the Ombudsman of the Ombudsman. The
Office now has more than 120 s and this number changes day by day.
3.4.7 Children's Rights
Since there is no independent parliamentary institution for the protection of the
rights of children, the Commissioner also becomes Ombudsperson for children’s rights.
Act on the Protection of Children is giving to the Ombudsman to investigate cases
related to children’s rights. Web site 38 designed for children is informative on their
rights, ombudsman activities and protection possibilities offered by ombudsman.
3.4.8 Financial Issues
The CFR is equal to minister rank in salaries and allowances while the Deputies
are equal to the state secretary. They are holding same immunity as Members of
Parliament during their mandate.
In the Act, it is very important to ensure transparency on the CFR and the Deputies'
financial issues. They should declare their own, their spouse's and child's properties
once when they are elected and then every year until the end of January. Also they must
do the final declaration when their duty is ended at the Institution. If they do not declare

38
The web site: http://gyermekjogok.ajbh.hu/index.php

57
the financial status, they will not be able to perform their duty. Except the family
member's declaration, and in respect to the personal data, all those information is share
with public at the website. Others' data can be accessed only by the Conflict of Interests
Committee of Parliament. It is worth to pay attention, that, anyone has a right to initiate
proceedings related to the CFR's or the Deputies' assets. This proceeding might end with
the removal from the office for them.
3.4.9 Independence
The CFR should be independent and should not be given any advice related to
his/her duties. The CFR and the Deputies' independence is supported in the Act within
the "conflict of interests" section (Section 8 of the Act). According to this, they should
not be in relation with any political party, any other state and any business' high position
executive staff. As it is important point to ensure their financial freedom, they cannot
accept any other income except their own salary and the earnings that they can gain
from their own original academic, scientific or artistic activities. This rules covers both
ombudsman as person and the institution.
3.4.10 Complaints
a) Complaints Application
Anyone who faced with the infringement of his/her fundamental rights has right
to turn to the Office of the Commissioner for Fundamental Rights. There is no
restriction to be able to lodge a complaint such as being Hungarian citizen, in fact it is
repeated couple of times in the Act that 'No one shall suffer a disadvantage for turning
to the CFR'. Complaints can be lodge via e-mail, post or even orally and free of charge.
It can be even lodged on the special form designed on the Hungarian Ombudsman web
site. If the complainant asks for, the identity of him/her will be kept secret. The
advantage of giving a petition letter to the CFR is that the thirty-day administrative limit
to wait for administration to correct the action, is not valid for the CFR proceedings.
The CFR may receive complaints about the administrative bodies which is listed on the
Section 18 of the Act. Hungarian Ombudsman can investigate even non-administrative
bodies if s/he aware of an infringement of fundamental rights of group of people.
b) Evaluation
There are some measures identified in the Act that might cause reason for
rejection of any complain and actually the person who would like to lodge a complain
should know/be aware of it. The certain rejection reasons might be concluded as, if the
petition paper does not have basis for the complain; if the same subject is lodged
without new improvements and if there is uncertainty on the person's identity request on

58
the complain. In addition, related administrations should be a subject for a complaint
that explained above. In some cases, it is up to the CFR to reject the complain or accept
it, for example if the petition paper does not have any information about complaint or if
the case has minor importance. In case of complains that send via e-mail, if there is no
permanent address and postal address is indicated, the complaint might not be handled.
Also, the CFR may not be able to review the complains that was occurred before 23
October 1989; if there is an already running court review or proceeding on the subject
and, if there is already given administrative decision but the complain is lodged after a
year from this decision.
If the institution that is not falling under the competence area of the CFR and
there is a possibility for defining infringement, the CFR should pass the complain to the
related organ and also inform the complaint about the process.
c) Examination and Investigation
Hungarian Commissioner for Fundamental Rights has a right to request all
related data and information during the investigation. Besides the 'well-known' public
administration, public services providers39 and administrative law execution bodies, the
Hungarian Ombudsman can investigate in case of fundamental rights infringement cases
of the Hungarian Defense Forces; investigation organ/authorities of the Prosecution
Service; notary public and the independent or county court bailiff (Section 18 of the
Act). However, there are some restrictions related to investigating those “not ordinarily
open for investigation” bodies40. Even if there is a restriction for investigation it is
important to indicate that if the CFR asks permission from the related minister to access
documents that are restricted, it might be possible for him/her to investigate with the
principle of secrecy. Except those, it is clearly indicated in the Act that no one or no
organ should create an obstacle for the CFR related to on-site investigation issues. In

39
As it is indicated in the same Section, public service providers are: a) organs performing state or local government
tasks and/or participating in the performance thereof,
b) public utility providers,
c) universal providers,
d) organisations participating in the granting or intermediation of state or European Union subsidies,
e) organisations performing activities described in a legal rule as public service, and
f) organisations performing a public service which is prescribed in a legal rule and to be mandatorily availed of.
40
In case of Hungarian Defense Forces, the CFR is not allowed to inspect documents that may contain secret
information, budget information on military spending, related to national defense. In case of Prosecution Services, the
CFR may not have competence to inspect on personal data of witnesses including the ones that are cooperating with
the police, and documents related to intelligence information that the Prosecution Service is holding from. Hungarian
police is inspect-able if there is no request on personal data, 'top secret' information in frame of cooperation between
police and Defense Forces or national security services and other kind of data or information related to security,
international cooperation, personal identification and technical issues. These conditions are valid for the investigation
of National Tax and Administration organs that executes customs duty or related to National Tax and Customs
Administration Directorate General of Criminal Affairs. Tasks of the National Security Authority is also excluded if
there are documents defined in the Act on the Protection of Classified Information.

59
order to be able to make the best decision, the CFR can participate public hearings and
may invite administrative staff of the related authority for carrying the complain. During
the hearings, anybody can refuse to answer the questions related to him or herself, or
their relatives.
During the investigation period, the CFR should be able to gain the cooperation
and information of the institutions and people that is under the subject of a complain.
Due to the fact that all institutions and the people might not be under the competence of
the Hungarian Ombudsman. If these kind of person or the institution refuse to do so, the
CFR should mention about this in his/her report. The CFR has the power to ask for
information that s/he needs during the investigation from them and they are obliged to
cooperate. If the CFR finds infringement case, s/he can initiate proceedings to the
institution and this institution should start this proceeding. This extra situation is called
as "exceptional inquiry" in the Act and put in it to give some competence to CFR to be
effective on others as well.
d) Decisions and Measures
There are many competences given to Hungarian Ombudsman to exercise its
duty and strengthen its position to be accepted their decision and implementation of
them. The CFR as competent body may take some actions if s/he finds an infringement
on the fundamental rights of the people at the end of the investigation of both ex-officio
or based on the complaint. There are five main measurements that the CFR may take in
case of infringement: Recommendation, redress, turning to Prosecutor General,
initiating a criminal proceeding, and propose new law.
 Recommendation: The CFR might give recommendations to the related
supervisory authority or the authority. The authorities should inform the
CFR about its position according to the recommendation and even it might
not accept the measurement. In this case, the CFR may amend and give it as
a new recommendation, maintain or withdraw its position.
 Redress: The related supervisory authority might be initiated redress of the
infringement directly or via phone, orally or by e-mail. The authority might
not accept this initiation and give its opinion on it to the CFR. In this case,
the CFR may modify the recommendation which will be given to the related
authority as a new recommendation. If the related authority does not agree
the redress the Commissioner for Fundamental Rights should inform them of
the maintenance, amendment or withdrawal of his or her recommendation.

60
  Prosecutor General: The CFR might ask for competent prosecutor from
Prosecutor General for supervision of legality if there is an uncovered
impropriety, as prosecutors are the competent body to investigate any legal
issue on administration in Hungary. The CFR may pass a petition to a
competent prosecutor in case of a danger for infringement of a legal rule.
The CFR might take an intervene seat in the judicial review of a decision.
 Criminal Proceeding: If the CFR realize that there is a crime committed
related to fundamental rights of anyone, s/he should initiate criminal
proceedings. This measurement is valid in case of a regulatory of
disciplinary offense. Starting and end of proceedings information should be
given to the CFR.
 New Law Proposal: If the current regulations of the complaint
administrative body is leaving room for a discussion of further
infringements, the CFR might propose for the body to modify or prepare
new legal rules in order to avoid such danger.
In case of infringement of personal data or an obstacle created for access to
public data, the CFR can take an action to report this situation to the National Authority
for Data Protection and Freedom of Information.
If the institution that was subject for infringement does not apply the
recommendation, does not take action or the CFR does not accept the institution's
position, this situation should be reported to the Parliament in the annual report. The
CFR has a power to push the subjects that caused or may cause infringement of large
group of people's rights, without waiting for time for an annual report but still, the
Parliament can decide whether to discuss that subject earlier or not.
The decisions and the results must be shared with the complaint by the CFR. If there is
a rejection decision given on a complain that lodged, the complaint must be informed
about reason of rejection by the CFR.
e) Reports
The CFR should generate annual reports and present it to Parliament every year
until the end of March. This report also should be published on the Office's website.
Parliament's duty on this report is to debate on it during the year. The CFR may create
special or informative reports in case of need. In the Act, it was explained the form and
content of this report, informative reports and special reports is defined detailed. Facts
and findings are the information that should be given on the reports where personal or
classified data, secrets and intelligence information should not be included in it. The

61
reports should be public in frame of principle of transparency and right to be informed,
and there can not be any legal remedy on those reports.
f) Publicity
The Commissioner for Fundamental Rights should carry tasks for protection of
human rights via awareness-raising or informative activities. He/she can fulfill this tasks
in collaboration with media, national institutions or related organizations. According to
Report On the Activities Of The Commissioner For Fundamental Rights Of Hungary In
The Year 2012, right after constitutional changes, Ombudsman activities and its
investigation power was presented highly on media. These presentations were made
highly online. The commissioner also used 248 communications on his activities and on
with wide range of topics. The commissioner issued 38 communications on project
called child friendly justice. Another project, called “Dignity of Labour” was related to
problems related to labour law and other issues was appeared in 21 communication
channels used by the Hungarian Ombudsman. In addition, media also follows
ombudsman activities, for example in 2014, Hungarian Ombudsman Institution was
referred 80 thousand media coverages, articles and reports related to its duties. Those
coverages were mostly online41. Hungarian Ombudsman has web site and Facebook
account.
3.5 EU- Hungary Relationship
Fundamental rights issues more likely to be keep protected at the national level
so Hungarian Ombudsman also follows this. There is no binding directive from EU
bodies to Hungary but they have formal and informal relationships. EU organizations
invite Hungarian Ombudsman for cooperation or to events for learning some practices
from each other; this created an informal link between two bodies. On the other hand,
Hungarian Ombudsman is a member of European Ombudsman Institute which is an
independent nonprofit organization that seeks to promote the ombudsman concept and
the exchange of experience on a national, European and international level. The body
provides scientific support to local, regional, national and international ombudsman
institutions and cooperates with local, regional, national and international institutions
sharing the same or similar goals42, besides other important goals to promote high level
of protection of human rights. Although EOI cannot make any binding decisions, there
is a formal relationship between EU and Hungarian Ombudsman (Lórant, 2016).
3.6 Evaluation of the “New” and “Old” Ombudsman in Hungary

41
Annual reports of the Commissioner for Fundamental Rights and his Deputies for the year 2014
42
European Ombudsman Institute http://www.eoi.at/?Ziele Accessed 07.02.2016

62
 Neither the text of the Fundamental Law nor the ministerial explanatory of its
former drafts reason for the changing the ombudsman in Hungary (Patyi and Rixer,
2014, p.248). There are some points showing that there is no big change on the
ombudsman's functions. Independence, election, competences and powers, as well as
investigation remained exactly same in the new office too. The biggest change is on the
number of the ombudsman and abolishing the office of data protection ombudsman.
Number of ombudsman, parallel with the separation of Commissioner for Data
Protection and Freedom of Information decreased from four to three. Abolishing this
ombudsman brought a new institution called National Authority for Data Protection and
Freedom of Information. Although there is a hope for its level of protection may be
higher than in previous years (Varga, 2015, p.253), huge debates were brought about
this new body, for example claiming that it is not an independent body anymore but a
part of execution. The new situation was even criticized by European Commission and
the case was carried to the European Court of Justice. European Commission filed a
case against Hungary. The Court found Hungary to be failed on fulfilling its obligations
under European Parliament's and Council's Directive 43 and also failed to protect
individuals’ personal data processing and free movement of them. Hungary was
sentenced by the Court. In order to not to have such huge issues, Hungarian decision-
makers would choose to keep Data Protection Ombudsman's ombudsman competences
and powers but create another body that can punish institutions or an authority in this
field and ensure the highest level cooperation between these two bodies.
The new ombudsman does not carry Parliamentary epithet anymore. Since the
election and report address is still carrying by the Parliament, this change is more
formal than substantial (Varga, 2015, p.254).
The new Act defines the position of the ombudsman and also giving
competences in order to protect this position. Position of the ombudsman is specific
with the interests of future generations, rights of minorities living in Hungary and rights
of vulnerable social groups and children (Patyi and Rixer, 2014, p.248). They also kept
their mandate as Deputies and their independence is more visible with the new Act.
The other change what the new Act brought is related to the Deputies' rank from
minister to state secretary for their salary and allowances. The Commissioner's rank
remained same, equal to minister.

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 Regarding to organizational changes, the CFR became the office of the general
ombudsman who is elected by the Parliament and also empowered to make a proposal
on the deputies where the first casw was the Parliament choosed all ombudsman.
3.7 Relationship between Turkish and Hungarian Ombudsman
Hungarian and Turkish Ombudsman do not have any intensive relationship but
they do have diplomatic relationship. Turkish Ombudsman sometimes invited
Hungarian experts and the Commissioner to Turkey but unfortunately they could not
have been there.

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 PART IV
COMPARATIVE ANALYSIS OF
TURKISH AND HUNGARIAN OMBUDSMAN INSTITUTIONS
One of the advisory body of the Council of Europe, European Commission for
Democracy Through Law-Venice Commission works in three areas:
• democratic institutions and fundamental rights
• constitutional justice and ordinary justice
• elections, referendums and political parties.

Duties of the Commission is to provide legal advice especially in field of

democracy, human rights and rule of law; creating standards related to those areas and
sharing the best practices with member states, and ensure forming a common
constitutional heritage.
Located in Strasbourg, 47 Council of Europe members plus 13 others 44 meet four times
in a year in Venice, Italy.
The Commission have been promoting establishment of ombudsman institutions
in member states. Moreover, it gives legal support to have constitution based
independent institutions with wide competences to ensure protection of Human Rights
in some member states. As protection of Human Rights is a national issue, the
Commission supports to have strong ombudsman in member states and targets to reduce
complaints related to this in the European Court of Human Rights at the international
level. This will be possible with the given duties to ombudsman institutions such as
being able to initiate law changes to legislative body, asking from CC to remove
legislation if it is not conformed with the Human Rights issue, assisting to the
administrations to make them practice the law in a right way and raising the public
awareness on Human Rights protection with its activities. The Commission offers its
opinions to ombudsman of the member states if they need any assistance about not just
their mandate but in general scope. It gives the non-binding opinions derived from its
work on comparative and international law.
When the Commission gave legal assistance to member states in order to make

44
CoE Members: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland,
Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Republic of Moldova, Monaco, Montenegro,
Netherlands, Norway, Poland, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Turkey, Ukrain, United Kingdom. 13 others:
Algeria, Brazil, Chile, Israel, Kazakhstan, the Republic of Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru,
Tunisia and the USA. Source: http://www.venice.coe.int/WebForms/pages/?p=01_Presentation

65
them establish ombudsman institution, it put together those assistances in a way that all
other ombudsman institutions can benefit as a source of minimum standard.
Furthermore, not only the assistance but the Commission's own point of view also
reflected in this standard, in order to have strong ombudsman institution. Named as
“Compilation on the Ombudsman Institution”, this standard was taken as source by the
Parliamentary Assembly of CoE in 2013 to strengthen the institution of ombudsman in
Europe. This is one of the reason why Turkey and Hungary are evaluated according to
those standard because as members of the CoE, it is thought that the two countries also
should follow these standards.
4.1 Constitutional guarantee for the institution of the Ombudsman
Venice Commission is foreseeing a constitutional guarantee for Ombudsman
Institution's existence, independence and neutrality.
Turkish and Hungarian Ombudsman is established under the constitution and both
institutions have their own law, regulations, directives etc. Both countries' ombudsman
institution's existence is based on a constitution/fundamental law.
As it was indicated before, Turkish Ombudsman Institution is based on
constitutional change held in 2010 via referendum. The additional articles to the
Constitution related to ombudsman announce the establishment of ombudsman, its link
with the GNAT Presidency, taking action upon complaints related to administration and
election of the Chief Ombudsman in brief. The Constitution is passing all power to the
Ombudsman Institution to make law and other regulations to describe its duties,
competences, powers, working procedure, detail election and all other institutional
issues. As this power is given by Constitution and the Law on Ombudsman is ensuring
independence and neutrality, it might be not very wrong to say that “Turkish
Ombudsman's independence and neutrality is guaranteed indirectly by the
Constitution”.
Hungary's Fundamental Law is describing the main duty of the Commissioner
for Fundamental Rights and the deputies, their election and term of office in brief and
their responsibility to conduct annual report to the National Assembly. Different from
Turkish constitution, Hungarian Fundamental Law is clearly indicating that “The
Commissioner for Fundamental Rights and his or her deputies may not be members of
political parties or engage in political activities.” This might be considered as an
independence element. All other detailed rules were left to the Act.
Still, both countries do not use clear expressions for ensuring ombudsman
institution's independence and neutrality in their constitution/fundamental law.

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 4.2 Criteria for office
a) Candidacy
Although there is no uniform approach among Council of Europe member states
about candidacy, Venice Commission gives some advises for the Ombudsman's
eligibility criteria. These criteria given by the Commission even if there is no uniform
implementation among the Member States because of some reasons: First of all, it is
stressed that the ombudsman should be citizen of the country and should have residence
in that country. These criteria are given because of the nature of protection of Human
Rights requires national protection and for this reason, ombudsman should carry that
nation's characteristics such as language, culture, traditions etc. As far as state structure
highly affected from national characteristics and the ombudsman is a defender of
“persons living in that country”, it is natural that ombudsman should be citizen of that
country and should live in that country. Secondly, ombudsman should have electoral
rights just like all other citizens of the country, in order to not to be excluded from
his/her ombudsman duties and to be chosen democratically. Last, the ombudsman
should have experience in field of Human Rights and certain age in order to be gained
enough knowledge and practice for his/her duty. This surely requires certain minimum
age limit and standard also refers to this limit to be stated.
Venice Commission advises following criteria for being candidate:
 being citizens of the country,
 having residence in the country,
 having electoral rights,
 high morals and experience in the field of Human Rights protection.
 holding university degree but not necessarily law degree.
 advises to specify a minimum age limit for the candidates.
Turkish and Hungarian Ombudsman both have some criteria to be elected. Both
institutions referring to be citizen of the country to be elected as an ombudsman. Both of
them has some restrictions or some clauses for having electoral rights such as not
having criminal offenses, avoid having relationship with certain bodies etc. Hungarian
Ombudsman shows more sensitivity for the election of the Ombudsman for protection
of the rights of the nationalities living in Hungary in a way that asking for national self
governments' advices for them. Both institutions indicate that the candidates should
have experience related to Human Rights protection and require at least ten years’
experience. Until now, two institutions are following the standard in a same way.
They are differing from each other about minimum age limit of ombudsman.

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Turkish Ombudsman requires to be 50 years and for the deputies this age limit is for 40
years old. Hungarian Ombudsman does not follow different age limits for the
Commissioner and Deputies and indicate it as at least 35 years old. Both ombudsman
require to have university degree but Hungarian Ombudsman strictly look for law
degree on candidates. Turkish Ombudsman refers it as "preferably" law degree and
accepting following higher education programs too: political sciences, economic and
administrative sciences, economy or management. Turkish Ombudsman shows more
flexibility for candidates and do not see the ombudsman only among lawyers.
b) Incompatibilities
Ombudsman's function should not be compatible with another function or
profession, public or private, political parties or unions. This incompatibility should not
be applying to their lecture, academic teaching activities.
Turkish and Hungarian rules ban ombudsmen from being a member of political
parties in order to not to leave any chance for breaking incompatibility rule. Hungarian
Ombudsman goes further and if the candidate has political, executive background like
being member of parliament, European Parliament, mayor etc. or part of army, four
years’ precedence of the proposal. Both institution has clause in the ombudsman law
indicating that these prohibitions will not be applying to the work related to academic
activities.
4.3 Election of the Ombudsman
Commission strongly advises for the election of Ombudsman to be carried out
by legislature body. Recommendation may be made by the President of the country.
Adoption of the proposal should base on majority and as large as possible to ensure the
Institution’s strength, impartiality, independence and legitimacy. Two thirds of majority
or qualified majority of all members in Parliament for example, might be preferred.
Turkish and Hungarian ombudsmen are elected in a same way; by their Parliament with
2/3rd of majority. Difference between two institution appears on their candidacy status.
Turkish candidates apply to be candidate, while in Hungary, the President is
recommending the candidates to the Parliament.
4.4 Status of the Ombudsman institution
a) Rank and salary
Venice Commission declares that there is no European standard for the rank of
the ombudsman. However, they indicate that the practices show ombudsman is always
given high rank, status and salary. The rank might be similar to judiciary organs such as
Constitutional Court, Parliament or other institutions functioning similarly. High rank

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and salary will ensure independence and efficiency of the ombudsman.
Turkish and Hungarian Ombudsman is given high ranks and parallel with it,
high salary. Turkish Ombudsman is enjoying with same rank and salary with State
Under secretariat. The other five ombudsmen is given same rank and salary with State
Deputy Undersecretariat. Hungarian Commissioner is equal to the minister rank. The
deputies are sharing same rank and financial possibilities with State Secretary. It is clear
that there is a difference between the head of the institution and deputies in case of rank
and salaries. Turkish Ombudsman further gives high financial and social benefits to all
other staff at the institution. According to this, Secretary General equals to general
directors at Prime Ministry; experts and assistant experts are equal to Prime Minster
assistant and assistant experts and all others are equal to Prime Ministry civil servants,
which is again high position than general. There is no such clause given at the
Hungarian Ombudsman laws and regulations.
b) Immunities
The ombudsperson with his/her deputies and the secretariat should enjoy with
the immunity of their speeches and written acts, and legal processes related to their
authority. Archives, files, communications, property, funds and assets wherever located
and by whomsoever held, shall be inviolable and immune from search, seizure,
requisition, confiscation, expropriation or any other form of interference, whether by
45
executive, administrative, judicial or legislative action» The immunity for
ombudsperson and its staff should even continue when their duty is ended. Procedure
for waiving immunity should be clearly indicated in the ombudsman law. This will be
additional guarantee for independence.
Turkish and Hungarian Ombudsman has difference in case of immunity.
Actually, in Turkish Ombudsman law or regulation, there is no indicator guaranteeing
immunity of ombudsman. This might be missed by Turkish Ombudsman and it might
be needed to indicate to assist him/her to be able to work on more free circumstances.
Hungarian Ombudsman has a whole section in the Act on Commissioner for
Fundamental Rights indicating that the Commissioner and the Deputies shall enjoy the
same immunity as Members of Parliament (Section 14 of the Act).
4.5 Features of the Ombudsman’s term of office
a) Term of office
Commission gave its advice on the mandate of the Ombudsman as five or six

45
UNMIK Regulation 2006/06 on the Ombudsperson Institution in Kosovo

69
years of term, not lower than this and allow them to be re-elected only once but not
more. In frame of independence, it might be choosing for them to serve more years but
then there should not be re-election possibility.
Turkish and Hungarian Ombudsman show different terms of office for
ombudsman. Turkish Ombudsman has four years of mandate where Hungarian has six
years of mandate at the institution. Both of the ombudsman can be re-elected only once.
Turkish Ombudsman terms of office remain lower than the standard, as it is advised
above “five or six years of term, not lower than this...”. Turkish Ombudsman's mandate
might be longer period than this or ombudsman might be given chance to be re-elected
twice, in order to fulfill the standard of six years mandate with possibility to be re-
elected only once.
b) Termination of the Ombudsman’s term of office
Ombudsman's duty might terminate if he/she:
 requests;
 is sentenced for a criminal offense to an unconditional prison term of at least
six months;
 permanently loses the psycho physical capability of carrying out the office
of Ombudsman, which is determined on the basis of documented findings
and the opinion of a competent medical institution;
 fulfills the conditions for retirement;
Removal procedure and initiation should be handle by competent body of the
Parliament. Qualified majority of the Parliament members might be looked for
dismissal. The dismissal should be heard in the public session. After termination of
his/her duty, until the new is elected and start mandate, he/she should continue to work
so there will be always somebody who is on the duty.
Hungarian and Turkish Ombudsman system carry the recommended termination
conditions for the ombudspersons. In addition, both of the systems remove ombudsman
from their offices if they do not carry the criteria for being an ombudsman anymore
even if they were elected. Hungarian system goes further and put following clauses
clearly for removal of ombudsman: if they do not give data or they give wrong data
about their asset or declaration of conflict of interest. Hungarian Ombudsman is paying
more attention for transparent ombudsman system at least it is seen clearly by law.
4.6 Budgetary independence
It should be the Ombudsman Institution as a competence body to decide its own
budget. The institution should submit a proposal as it is included in the national budget

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and this proposal should be accepted without changes by the Parliament. If there is a
need for reduction of the Ombudsman Institution budget, it can be done in relation to
the previous financial year only by a percentage not greater than the percentage the
budget of the Parliament, President and Government is reduced.
Hungarian and Turkish Ombudsman both have a special budget. Neither in the
ombudsman law/act nor regulations show how the budget will be given to the
institution but it is the Parliament that decides the amount of the budget. The expression
of “special budget” is important because it is giving the idea for the institutions to have
more independent system then other institutions. It is taken as more independent body
because only the Parliament that can change the institutions' budget.
4.7 Competences and powers of the Ombudsman
a) Scope of the monitoring competence of the Ombudsman
According to Venice Commission, “ombudsman should not only be responsible
for protection but also monitoring and promotion of Human Rights. In order to ensure
such duties, competences of the ombudsman should be written explicitly in the law for
the effective operation of the institution. Competences should be written as a list in the
law”.
Turkish and Hungarian legal documents on ombudsman institution explicitly
show the competences of the ombudsman are in written format. Both of the institution
have competences not just for protection but for monitoring and promotion of human
rights. For example, in case of promotion of human rights, the institution can
collaborate with media, visit the different public institutions, or release publications.
Turkish Ombudsman released 644 video news and news on official web site. It has web
site for children. Institution uses social media also; there are official accounts at
Twittter, Facebook, Instagram and YouTube platforms. Turkish Ombudsman releases
comprehensive annual reports. 2015 annual report is released in the beginning of March
2016. Although Hungarian Ombudsman is not this much fast for publishing and
creating comprehensive annual reports since 2014, but still 2014 annual report shows
that Hungarian Ombudsman also uses media. In 2014, Hungarian Ombudsman was
mentioned almost 11thousand occasions in 80thousand articles, media coverages and
reports. Although report shows that online media tools are used more then others, the
Institution only has Facebook account. On the other hand, Hungarian Ombudsman is
very active on country-side visits. Both institutions are very active international
cooperation with several hundred visits and couple of projects.
Jurisdiction

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 Ombudsman should have competences on the possible broadest spectrum of
public bodies to fall under its jurisdiction. This might be possible as following:
 Ombudsman should have the power to control acts of the executive and
activities exercised by the President and/or the Presidential administration in
his/her capacity as head of the executive are not out of reach for the
Ombudsman. Activities of the President, unless they are of an exceptional
nature (e.g. declaration of war) or of a political nature (e.g. appointment of
the Prime Minister) should fall within the monitoring competence of the
Ombudsman.
Hungarian Ombudsman does not have any jurisdiction over the activities of the
President of the Republic. Turkish Ombudsman, on the other hand, indicates that the
ombudsman does not have jurisdiction over President's acts that under his or her own
competence and decisions, and orders signed by him/her ex officio. If Turkish President
have any other competences except from these, then ombudsman may have a
jurisdiction over the cases.
 State and local self-governing bodies and their officials can be subject to
the ombudsman jurisdiction.
Turkish and Hungarian Ombudsman have jurisdiction over state and local
governments.
 Only general, “political” decisions of the Government as a whole should
be excluded from the scope of the competence of the ombudsperson;
ministerial and governmental decisions directly affecting individuals should
be open to control by the ombudsperson. The work of Parliament, its
committees and its members should be excluded from the control of the
ombudsperson
Both of the institutions have a competence on investigating administrative tasks
of central government and all other organs performing public services but not more. As
an independent body, it should not be expected from ombudsman institution to have
relationship with state elements. Turkish and Hungarian Ombudsman excluded
activities of Parliament from their duties.
Powers
Ombudsman should have:
 Ex officio investigation power,
One of the biggest difference between Turkish and Hungarian Ombudsman is
that the Turkish Ombudsman do not have a power to investigate ex officio.

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  Right to appeal to the Constitutional Court,
The other big difference between Turkish and Hungarian Ombudsman is that the
Turkish Ombudsman does not have any power to turn to Constitutional Court. In
Turkey, individuals can turn to CC.
 Possibility to continue the investigation of a case if it is related to
general interest, even if the complainant shows lack of interest. In this
situation, the complainant should not be related with this case anymore.
Both ombudsman can work on some cases even if the complainants pull out
themselves from the issue.
 Possibility to meet without delay with all state or representatives and
officials,
Hungarian Ombudsman Act is clearly indicating that the ombudsman “may
invite the head of the authority, the head of its supervisory authority or the head of the
organ otherwise authorized to do so to conduct an inquiry” and can “hear any member
of the personnel of the authority under inquiry as a national preventive mechanism”.
Turkish Ombudsman Law does not refer such power clearly.
 Right to interview officials of administrative authorities
Hungarian Ombudsman has power to interview officials of administrative
authorities where Turkish Ombudsman's power is unclear.
 Free access at any time and anywhere, without need to receive consent
from any agency and without prior warning.
S/he should be guaranteed the opportunity to visit and inspect places in
connection with concrete complaints or on his or her own initiative.
Although Hungarian Ombudsman act clearly indicates that the ombudsman can
access anywhere without restriction and prior notification, Turkish Ombudsman do not
have any competence about it.
 All communication possibilities to communicate with detained person by
using all means of communication tools, without any supervision. S/he
should be able to communicate with them in private. Ombudsman's access to
all places (prisons, police detention centers, military prisons, psychiatric
institutions and other similar sites) related to detention should be guaranteed.
Hungarian Ombudsman has a competence to enter detention places and
communicate with people under detention. This competence derives from its role as
“national prevention mechanism”. Turkish Ombudsman does not have such competence
or do not indicate it in the legal documents.

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  Control power over the administration based principle of good
administration.
For the conceptual framework, European Code of Good Administrative
Behavior of the European Ombudsman can be guide for the institution.
Turkish Ombudsman law and regulation refer to good governance as compliance
with laws, prevention of discrimination, proportionality, abuse of power, equality,
impartiality, honesty, courtesy, transparency, accountability, compliance with the fair
expectation, protection of vested rights, right to be heard, right to defense, right to be
informed, taking decision in a reasonable period, taking reasoned decisions, indicating
remedies against decisions, notifying the decision without delay and protection of
personal data. On the other hand, Hungarian Ombudsman does not refer to this principle
in the legal documents in a way that "good administration" but as "impropriety" which
is larger term for this concept.
 Right to request all necessary information during the investigation from
any state or municipal body and officials and receive them without delay,
Turkish Ombudsman has full power to request all relevant information and
documents related to investigation. He or she may not receive the documents that
carrying secret information as indicated by law but can work on the documents without
any disclosure. Hungarian Ombudsman also has a power to ask for all relevant
documents and information about the case. Restricted documents are indicated in the
law in a very detailed way. This is something that can not be found in the Turkish
legislation. Hungarian Ombudsman has wide explanation on which document cannot be
review by ombudsman for what reason and how ombudsman can be given right to
access those documents.
 The power to “initiate the adoption of laws, other regulations and general
acts for the reason of harmonization with internationally recognized
standards in the area of human rights and freedoms”.
Turkish Ombudsman is given duty only amendments on the Ombudsman Law,
when necessary. Otherwise, Turkish Ombudsman do not have power to initiate any law,
regulation or act related to international standards. Hungarian Ombudsman should give
an opinion on adoption of legal documents related to international treaties, monitor and
evaluate enforcement of them in Hungary. Both institutions do not have a clause on
following international standards by making or initiating legal documents.
 To promote the observance of Human Rights might be expressed in
stronger terms, such as by using those exact words.

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 Both institution's legal documents are stressing on the words in order to promote
observance of Human Rights
b) Power of recommendation / proposition
Ombudsman powers related to recommendation is explained by Venice
Commission as, Ombudsman:
 Should have the right to propose to the legislative body of the country to
adopt or to revise the legislation with the purpose of ensuring the human
rights and freedoms.
Turkish Ombudsman may ask for a review of certain law from the legislative
body via Presidency while Hungarian Ombudsman do so via Ministries. The direct
communication between ombudsman and the Parliament appear only on ombudsman's
annual reports. Both of the institution do not have competence to propose adoption of
law.
 Should propose to the legislative body to announce an amnesty
Turkish and Hungarian Ombudsman do not have power to propose legislative
body to announce amnesty. Actually their relationship with legislative body is not more
than initiating annual reports and election process.
 Should launch initiatives with the Government for the amendment of
laws or other regulations or general acts
Hungarian Ombudsman's relationship with Ministries and Turkish
Ombudsman's relationship Presidency in frame of initiating review of legal documents
might fit into this rule.
 Should recommend for the amendment of laws directed to Parliament.
Likewise, the Parliament should be obliged to consider such
recommendations.
There cannot be a direct obligation to follow these recommendations but the
administrative authority that is subject for infringement claim should react to those
recommendations. It can be either acceptation, redressing or refusal of the
recommendation. The administrative authority should give its reaction in frame of a
time limit. If the situation is not exceptional such as, not including irreparable harm to a
human right of the complainant, then between one or two months can be chosen as time
limit. In case of exceptional issues, this time limit can be even shorter.
c) Relations with courts
Venice Commission referring to the European standards and advices that the
ombudsman should have possibility to apply to Constitutional Court in frame violation

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of rights and freedoms of people, to ask for the assessment of the constitutionality of
laws, regulations and general acts. Ombudsman also should have the possibility to apply
to Constitutional Court for an abstract judgment related to this topic. The ombudsman
should be allowed to express opinions on legislative provisions and the proper
interpretation of ratified treaties if there is a relationship with the complaints or if he/she
is able to stress an opinion.
The other biggest difference between Turkish and Hungarian Ombudsman is
that the Turkish Ombudsman does not have competence to turn Constitutional Court
where Hungarian can. Although it was very rare for the Hungarian Commissioner to
turn to the Constitutional Court, still, he or she can initiate review of rules whether they
are conforming with the Fundamental Law. It is the Commissioner for Fundamental
Rights who can use this competence, and Deputy Commissioners also may propose
him/her to turn to the Constitutional Court.
 Activity of the Ombudsman should not interfere with the judiciary.
Availability of legal remedies should not be an obstacle for the persons to
lodge complaint. Ombudsman must advise to complainant the legal remedies
and already received complaint should not affect the expiry of deadlines for
those remedies. Ombudsman should be able to make general
recommendations about the functioning of the courts system but s/he should
not involve in litigation or intervention in court cases, although it has the
power to give legal assistance.
Turkish and Hungarian Ombudsman both require for the complainant to be
exhausted available administrative remedies. Turkish Ombudsman additionally looks
for time limit which sixty days after the infringement and this time limit is actually
referring to 2577 number Administrative Jurisdiction Procedures Law46.
The reason why behind those clauses might be that both system support solving
the problem first in an administration-person level and give a chance to the related
administrative organ to repair its faults. Also, although there is no hierarchy between
ombudsman institution and other institutions, asking for a help from ombudsman even
after the legal remedies make this institution a bit higher than others.
There are some flexibilities in Turkish Ombudsman to remove the disadvantages
of the time limit. Turkish Ombudsman may accept the applications in cases where it is

46
Section 7 Art. 1 of the related Act indicates that: The time limit to bring an action is sixty days for the actions
brought to the Council of State and administrative courts, thirty days for the actions brought to the tax courts, unless
otherwise stated in the specific Acts. Section 10 Art.2

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likely to have damages which are hard or impossible to compensate, even if
administrative remedies are not exhausted. Turkish Ombudsman also does not look for
exhausting administrative remedies if the complaint is related to attitudes and behaviors
of the administration. The exceptions are right and logical because as it was indicated
before, none of the available complaint body can investigate the behaviors of the
administration but only legality of their action.
Hungarian Ombudsman processes will not be affected by thirty days’
administrative limit.
4.8 Applicants and formalities for application
 According to Venice Commission, any natural or legal person should be
able to lodge complaint to ombudsman institution. Foreigners and stateless
person who lives in country temporarily or permanently and state officials
should have the same rights as all others. Groups of individuals' situation
should be regulated and clarified. In case of death, loss of capability etc. of
the complainant, by the consent, third parties or NGO's should be able to
access to ombudsman by their name.
Turkish and Hungarian Ombudsman institutions are open to everybody who
suffer from inappropriate acts or behaviors by administrative bodies. Turkish
Ombudsman ensures that there is not going to be any discrimination related to
complainant's religion and sect, language, nation, sex and political view. Groups of
individuals' issues are not indicated on the Turkish Ombudsman regulations. Hungarian
Act indicates separately the issues related to groups of individuals several times. Both
institutions are open for continuing the complaints by third parties if complainant die or
the legal body terminates.
 Complaints might be submitted written or oral and free of charge. It
should be delivered in form and if needed an ombudsman should help to the
complainant to fulfill this form. There should be signature of the
complainant. It might include personal data, facts and evidences and
circumstances that complainant found but they should be given the
possibility to request those to be kept confidential. Complaint document
should contain the related institution or persons that the complainant refers
to. If the complainant looked for legal remedies, s/he should mention about
them also.

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 Lodging a complaint47 to Turkish or Hungarian Ombudsman is free of charge
and possible to use nearly all communication channels. Both institutions indicate some
needed information related to complainant and the case. Giving the personal data to
Hungarian Ombudsman is not mandatory while it is vice versa for Turkish Ombudsman.
Also there is a special surface is design for lodging a complaint to Turkish Ombudsman
and persons cannot access it if they do not log in with their registered e-mail address.
Registration to the surface acquires many personal data such as Turkish identity
number, birth date, name, surname and etc. Turkish Ombudsman, in this case, is not
flexible for electronic complaint delivery.
Turkish Ombudsman law indicates the possibility of accepting complaint to be
lodged orally by helping the complainant in filling out the form, if the complainant
gives justified reason. Hungarian Ombudsman does not indicate such possibility but it
also does not strictly stick to forms neither.
Institutions ask for all related documents and information, if there is. If the
complainant asks for the complaint document and his/her data to be keep secret, both
ombudsman ensure to keep it as confidential as it is indicated clearly in the law.
 Ombudsman must advise to complainant the legal remedies and lodging
a complaint to ombudsman should not affect the expiry of deadlines for
those remedies.
Turkish Ombudsman may advise to complainant that the remedies or authorities
to apply to related to the subject matter of the complaint. Hungarian Act is not referring
such specification but this might be because Hungarian Ombudsman is actually
powerful enough to carry the cases to related legal bodies (Prosecutors, criminal courts
etc.).
 Rejection of anonymous complaints should not prevent the
ombudsperson to investigate it ex officio.
When Turkish Ombudsman rejects the complaint, there is no way to keep
investigating that case ex officio because it does not have ex officio power. However, in
certain cases about human rights, fundamental rights and freedoms, women rights,
children rights and general matters concerning public, Turkish Ombudsman can
continue to carry the investigation even if the complainant is withdrawn. Hungarian
Ombudsman already has ex officio investigation power. Although it is not directly
47
Hungarian electronic complain surface: http://www.ajbh.hu/en/web/ajbh-en/lodge-a-complaint
Turkish electronic complaint surface (only Turkish interface is accessible, English web page is under construction) :
http://ebasvuru.ombudsman.gov.tr/Giris.aspx Accessed in 03.03.2016

78
indicated that the Commissioner may investigate ex officio if the complaint is rejected,
there is a given duty to him or her to investigate cases especially related to rights of
children, rights of future generations, rights of nationalities living in Hungary, rights of
the most vulnerable social groups and rights of persons with disability.
 Ombudsman should inform the complainant about the procedure and
results and do it without delay.
Both institutions must inform the complainant about their complaint status and
the result of it by law.
4.9 Organization of the Ombudsman institution
Venice Commission is giving clues about how the institution might be formed in
different countries. It underlines that there is no relationship between the number of
deputies and level of protection of the rights of the citizens48. Moreover, Commission
gives "margin of appreciation" for such institutional arrangements. It is advised that the
deputies might be specialized according to subjects such as people belonging to
minorities, the rights of the child, gender equality etc. to allow deputies work on more
efficiently on certain areas.
As long as there is no standard for the ombudsman organization, there can be
found some clarification for the Hungarian Ombudsman reformation for decreased
number of ombudsman from five to three. As it is indicated by Venice Commission, the
number of ombudsman and the level of protection is not correlated, so it is once more
approved by Venice Commission that arguments on this topic is reasonless. Turkish
Ombudsman established in a way that there are five ombudsman working at the
different fields. This formation is about sharing the duties and creating areas that
ombudsman can work as specialist. For example, according to the Ombudsman Law,
there should be an ombudsman, given duty for women and children rights. Hungarian
Commissioner for Fundamental Rights is given duty to pay special attention on the
rights of children, future generations, nationalities in Hungary and the most vulnerable
social groups by proceeding ex officio investigation.
Commission advices that according to size and population of the country,

48
This opinion was given on a case of Hungarian regulation on the lowering the number of existed deputies from five
to two. It continues as: "Moreover, one single ombudsperson or multiple ombudspersons may be more appropriate at
different stages of the democratic evolution of states. This being said, it considers it important that the above-
mentioned re-organisation does not entail a lowering of the existing level of guarantees for the protection and
promotion of rights in the fields of national minority protection, personal information protection and transparency of
publicly relevant information. More generally, it deems important to ensure that the decrease in the number of
independent institutions does not have an negative impact on the Hungarian system of check and balances and its
efficiency." CDL-AD(2011)016 – Opinion on the new Constitution of Hungary adopted by the Venice Commission
at its 87th Plenary Session (Venice, 17-18 June 2011), paragraph 115.

79
there may be offices at the regional or local offices and actually it says that this
arrangement is preferred in many countries. It would strengthen the territorial
organization and protection.
It seems enough for Hungary to have one ombudsman office at the center of the
country which is also the capital, Budapest. Also, many Hungarian Ombudsman reports
show that ombudsman visits the local governments quite a lot of times and get together
with the society there. However, it would be better for Turkish Ombudsman institution
to have some offices at the different parts of Turkey. Parallel with this, Turkish
Ombudsman established an office in İstanbul where the population equals to 19%49 of
all population in Turkey. Having an office in such place is totally positive
implementation and open for further developments. In this case, rising amount of
minorities related to migration in such as Syrian immigrants or Kurdish population
living in Turkey would need an ombudsman who can understand their problems and
languages and help them.
Ombudsman office should be a fighter for anti-discrimination and fully
given power for this aim. These powers might be assistance to victims, investigations
powers, right to initiate and participate in courts proceedings in both public and private
sphere. The office should be supported for necessary human resources, finance and
special trainings to reach this target.
Ombudsman by its nature is an institution established for equal access to Human
Rights. Turkish and Hungarian Ombudsman can choose to assist victims or investigate
the issues but none of them has a power to participate in any court. Moreover,
Hungarian Ombudsman may initiate proceedings to the Constitutional Court while
Turkish Ombudsman does not have a power to do so. Hungarian Ombudsman
Institution has an important application internally at the Office. “The Equal
Opportunities Regulation of the Office of the Commissioner for Fundamental Rights” is
the regulation that ensures equality between the office staff who has some disadvantages
and all staff. By this way, Hungarian Ombudsman Office becomes an example for other
institutions to support equality also within the office.
Commission draws the attention on keeping all the data and information
confidential, making all decision and recommendations public if the complainant did
not request contrary. While complainants are protected, other persons and witnesses

49
According to Turkish Statistical Institute, Turkey's population is 78.741.053 and Istanbul's population is
14.657.434 Related database is accessible at: https://biruni.tuik.gov.tr/medas/?kn=95&locale=tr

80
who are related to cases should be protected too.
Both ombudsman institutions are very sensitive on data protection of the
complainant. If the complainant asks for his or her data to be keep secret, they accept
this demand and this situation is written both institution's law.
5.CONCLUSIONS
Hungarian and Turkish Ombudsman Institutions are more or less following
Venice Commission standards. Both institution is compatible with the standard in areas
such as:
1. Constitutional guarantee for the institutions establishment, independence and
neutrality;
2. Candidacy criteria and incompatibility clauses;
3. Election procedure;
4. High rank status and salary;
5. Term of office;
6. Institutional budget;
7. Competences are written clearly in law, and some of these were given to the
both institutions as the standard advises;
8. Reports and publicity activities;
9. Application formalities and being open for everybody’s complaints for free,
rejecting anonymous applications if needed;
10. Duty division between ombudsman at the institutional level;
11. Sensitivity on information, keeping them secret if it is required
Turkish and Hungarian Ombudsman is different than each other in some cases.
These are:
1. The first and one of the biggest difference between two institutions is that
Turkish Ombudsman does not have ex-officio investigation power.
Although, reasons were already indicated in Turkish literature, it would be
better if Turkish Ombudsman may have this competence immediately. This
is what the Venice Commission standards refer, too.
2. Hungarian Ombudsman is the only body in the country that can appeal such
complaints to Constitutional Court in name of people. This competence is
excersized with the help of complaints and also results of ex-officio
investigations. In Turkey, individuals can lodge complaints to the CC. In
order to empower ombudsman institution in Turkey and give more legal
power to it, this example from Hungary may be taken.

81
3. Hungarian Ombudsman has a power to initiate amendment on legal
documents. Turkish Ombudsman does not have such power. This power
should be given to Turkish Ombudsman, too. Because, in couple of years,
Turkish Ombudsman will become a centre of “dissatisfactions” with may be
similar cases. Ombudsman may be a source of corrections and empower
Turkish administrative structures with help of initiations to the Parliament to
amend some legislations based on complaints that is directly coming from
people. Also, Turkish Ombudsman does not have any power to give
recommendation or opinion on the law that is related to human rights. As
only non-judicial body for prorection of human rights in Turkey, this power
should be given to the institution. At least, Ombudsman’s opinions should be
ask related to human rights issues.
4. Turkish Ombudsman should have an immunity clause in the Law in order to
ensure more indepence, like Hungarian Ombudsman do have.
5. Turkish Ombudsman powers and competences are a bit restricted, in
comparison with Hungarian Ombudsman powers and competences. Also,
competences and powers are not mentioned in detail in legal sources of
Turkish Ombudsman Institution. For example, Turkish Ombudsman cannot
ask for prosecutors to invstigate issues that fall under their competences.
Hungarian Ombudsman even can have a seat at the judicial review ıf the
case that started by prosecutor with his or her initiative. Also, it is not clear
what Turlish Ombudsman may do if he or she realizes that the investigation
includes criminal elements. These issues should be re-think by the Turkish
Ombudsman and might be included into the related Law.
6. Hungarian Ombudsman is very sensitive for what information and
documents can be accessible by ombudsman. What type of information and
documents cannot be exercised by ombudsman is cleary indicated in the Act
of Hungarian Ombudsman very detailed way. Turkish Ombudsman also
should have such regulation in order to ensure the widest access to related
information and documents. Otherwise, institutions under ombudsman
competence will be flexier to “hide” information and documents from
Turkish Ombudsman, if they do not really want to share.
7. Hungarian Ombudsman act clearly indicated that the ombudsman can meet
whenever is required, investigate and invite head of the authority or organ
and also others related to certain investigation. Also, Hungarian Ombudsman

82
 can access anywhere without any restriction. Turkish Ombudsman’s acts are
a bit restricted or not clearly indicated in the Law in this case. In addition, it
is not known what Turkish Ombudsman can do if institutions do not let the
Ombudsman to access some place or document without valid reason.
Turkish Ombudsman’s power to enter and interview people under detention
is not given clearly. These issues might be regulated clearly and separately
like Hungarian Ombudsman do.
8. Both institutions cannot have any power to initiate amnesty. It is a question
actually, why the Commission asks for such competence from Ombudsman
Institutions.
9. Hungarian Ombudsman candidates must have law degree in order to be
announce as candidate. Venice Commission standard is advising not to
follow such rule but exactly opposite. Hungarian Ombudsman may take
Turkish Ombudsman example in this case such as “candidates should have
preferably law degree” but open for other professional candidates too. Also,
it might be better for Hungarian Ombudsman candidates to apply for the
position themselves but not announce by the President. In the past, there
were already problems practiced related to this issue and in this case, future
problems might be prevented.
10. Hungarian Ombudsman’s annual reports may be prepared more detailed in
other languages as well. 2014 Annual Report is not giving comprehensive
information, for example related to institutional structure, technical
equipment, staff etc. 2015 Annual Reports in Hungarian and in English is
not same detailed. Moreover, some part of the report might be prepared more
multiligual, especially the part that related to national minority rights.

83
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