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THE OMBUDSMAN INSTITUTION OF THE REPUBLIC OF TÜRKİYE

Case Study

In the Decision dated 15/04/2019 of the Ombudsman Institution on the application
no. 2018/13984, the applicant stated that the road in the vicinity of Varandiko in
Taflancık Neighbourhood in Hayrat District in Trabzon Province was a single-lane
road and as the road was rough, vehicles could not be sent for the transfer of fresh tea
leaves in the storehouse of General Directorate of Tea Enterprises (ÇAYKUR) during
the evening hours, and the fact that ambulance could not arrive at the scene in the
emergency situations caused serious problems, 2-3 kilometre-long part of the road must
be immediately treated and as the Municipality of Hayrat was financially limited, it
could not launch roadworks, and requested the relief of this victimisation.

As a result of the examination conducted by the Ombudsman Institution, it was
found out that the date when the construction of the road would be commenced was
evaluated based on the effective use of public resources and discretionary power of the
administration; however, the postponement of the works for an indefinite time period
even without setting a time frame or deadline for the roadworks was contrary to the
principles of accountability, predictability and clarity and it was concluded that the
administration, while providing public services, must act in line with such principles
as “accountability”, “predictability” and “clarity” and in accordance with a specific plan
and programme.
PROTECTION OF VESTED RIGHTS

Protection of vested rights refers to the obligation to protect the rights, which have been
vested lawfully in accordance with the legislation in effect, even if the rule is amended
or abolished later. Therefore, based on the situations in compliance with the law, vested
rights yield both retroactive and prospective rights for those concerned.

As for the compliance with the fair expectation, there is no right in question which
has been vested in accordance with the legislation in effect. However, those concerned
have a prediction or an expectation that they will be granted with the rights based
on the provisions in effect. Accordingly, compliance with the fair expectation refers
to the protection of those who hope to reach a conclusion in favour of themselves
relying on the regulatory procedures, commitments, or long-established practices of
the administration.
The principles of protection of vested rights and compliance with the fair expectation
stipulate the following:
• Protection of rights originating in conformity with the legislation in effect both
prospectively and retroactively;

• Not taking retroactive measures except in legally justified circumstances and not
interfering with vested rights through subsequent amendments.

54 2019 ANNUAL REPORT