Page 51 - iyi-yonetim-ilkleri

Manual On Good Administration Principles

Legal Basis

The principle of proportionality has been laid down in Article 13 of the
Constitution in the context of the regime of restricting the fundamental
rights and freedoms. The article explicitly stipulates that “Fundamental
rights and freedoms may be restricted only by law and in conformity with
the reasons mentioned in the relevant articles of the Constitution without
infringing upon their essence. These restrictions shall not be contrary
to the letter and spirit of the Constitution and the requirements of the
democratic order of the society and the secular republic and the principle
of proportionality.” Therefore, it has been ensured that administrations
cannot act in contradiction with the principle of proportionality in the
restriction of fundamental rights and freedoms.
Article 5 of the “Law on Good Administration” attached to the
Recommendation CM/Rec(2007)7 of the Committee of Ministers to
Member States on Good Administration stipulates that “Public authorities
shall act in accordance with the principle of proportionality.

They shall impose measures affecting the rights or interests of private
persons only where necessary and to the extent required to achieve the
aim pursued.

When exercising their discretion, they shall maintain a proper balance
between any adverse effects which their decision has on the rights or
interests of private persons and the purpose they pursue. Any measures
taken by them shall not be excessive.”

Furthermore, Article 6 titled “Proportionality” of the “European Code of
Good Administrative Behaviour” states that “When taking decisions, the
official shall ensure that the measures taken are proportional to the aim
pursued. The official shall in particular avoid restricting the rights of the
citizens or imposing charges on them, when those restrictions or charges
are not in a reasonable relation with the purpose of the action pursued.
When taking decisions, the official shall respect the fair balance between
the interests of private persons and the general public interest.” This
expression touches on the fact that the principle of proportionality is about
making a decision that is proportional to the aim and establishing a balance
between the general public interest and personal interest.

50