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THE OMBUDSMAN INSTITUTION OF THE REPUBLIC OF TÜRKİYE

In the first paragraph of Article 5 titled “Duties of the Institution” of the Law No.
6328 on the Ombudsman Institution, it is stipulated that the Institution is responsible
for examining, investigating and issuing recommendations to the administration
upon complaints regarding the functioning, all kinds of act and actions, attitudes and
behaviors of the administration, in terms of compliance with law and equity, within the
understanding of justice based on human rights, and to issue recommendations to the
administration. In the second paragraph of the aforementioned article, the application
subjects that are outside the mandate of the Institution are listed, and in this context,
it is stipulated in subparagraph (c) that “Decisions regarding the exercise of judicial
power” are outside the mandate of the Institution. In subparagraph (e) of Article 3 titled
“Definitions” of the same Law “Administration” shall refer to “public administrations
under central government and social security institutions, local administrations,
subordinate administrations of local administrations, local administration unions,
revolving fund institutions, funds established by law, institutions with public legal
personality, state economic enterprises, institutions with more than fifty percent of
their capital owned by the public and their affiliated partnerships and establishments,
professional organizations in the nature of public institutions, private law legal entities
providing public services”.

A similar regulation is also included in the second paragraph of Article 4 of the
Regulation on Procedures and Principles Concerning the Implementation of Law on
the Ombudsman Institution published in the Official Gazette dated 28.03.2013 and
numbered 28601. In Article 19, titled “Performing the preliminary examination”,
it is stated that complaints shall be subjected to a preliminary examination prior to
the examination and investigation phase, and in the preliminary examination, the
complaint shall be examined in terms of whether it falls within the scope of duty of
the Institution. In the first paragraph of Article 20 titled “Actions and decisions to
be taken upon preliminary examination”, it is stipulated that in the event that the
complaint does not fulfill the conditions stated in Article 19, apart from the condition
of ‘exhaustion of administrative remedies’, decision of inadmissibility shall be taken.
In this context, in some applications lodged to the Ombudsman Institution regarding
the exchange of custody of the child, the attitude subjected to the complaint belongs
to the spouse who has custody of the child. Since the spouse in question is a natural
person who does not fall under the definition of “administration”, it is not possible to
examine the application that does not fall within the scope of duty of the Institution.
In addition, since the judicial organs are authorized in accordance with the above-
mentioned provisions, regarding the requests for the reassessment of the personal
relationship with the child or the re-evaluation of the custody, if any, according to
the changing circumstances, it is not possible for the Ombudsman Institution to

98 2022 ANNUAL REPORT