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Manual On Good Administration Principles

Case Studies

In the Decision dated 07/02/2008 and numbered 2005/38 E., 2008/53 K. of
the Constitutional Court, it was stated that the principle of the protection
of vested rights was among the general principles of the law, that this right
referred to the protection of the subjective rights vested in the individuals
arising from the objective rules of the law eligible for granting rights
generally in the field of private law and public law, that a right shall be
vested only if acquired with all its consequences de facto in accordance
with the rules in effect as per the previous law, and it was ruled that a
vested right was a right arisen from the status of the person, finalised by his
party and transformed into a right of personal nature.
On the other hand, in the Decision of the Constitutional Court dated
04/05/2017 and numbered 2015/41 E., 2017/98 K., it was stated that if
an unpredictable amendment in a law, which was in favour of and relied
on by the persons, was made and if this situation caused a situation
expected objectively by every person to remain inconclusive, the principle
of the protection of fair expectation would come to the fore; however,
the mentioned conditions were not sufficient in order to protect a fair
expectation by law. It was also added that there should not be a public
benefit that hindered the protection of this expectation, i.e., when the
public benefits and personal benefits are both in question and in conflict,
only in the absence of an important public benefit, the fair expectation may
be deemed to be protected.

Case 1: In the Decision dated 22/02/2017 and numbered 2014/11209 E.,
2017/962 K. of the 14th Chamber of the Council of State, it was stated
that the action was brought before the court to request the annulment of
provisional article 3 of the Implementing Regulation of the Law no. 6306,
which entered into force by being published in the Official Gazette dated
25/07/2014 and numbered 29071.
With the amendment in the regulation, which the subject of the dispute,
a condition of participating in the training sessions to be organised by the
Ministry and succeeding in the examination to be held thereafter was set for
the engineers who would take office in the identification of risky structures
with a view to making the licensed institutions and organisations more
qualified and based on the Provisional Article 3, those who had already
had certificates were not excluded from the exam. As per the legislation in
effect before the Regulation in question took effect, those who participated
in the training sessions organised by the Ministry and received a certificate
of participation had a vested right in taking charge in the identification of
risky structures.

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