- INTRODUCTION
Among the main objectives of the public administration are to create an environment that will serve its citizens in the best conditions, to act justly and to provide the services in the best way by using its powers within the limits of law and equity. However, the ever-growing and complex structure of the public administration may cause difficulties in the provision of services, both structurally and functionally, to the public. These difficulties reduce the effectiveness and efficiency of the service, and the mistakes caused by public administrators cause misperceptions about the state in the eyes of the public. In order to find and eliminate the reasons that reduce the effectiveness and efficiency of the services offered to the public in public administration, it is necessary to audit the public administration effectively.
Auditing the public administration is basically in the form of judicial review, political audit, administrative control, public and media audit, and international audit. Apart from all these audit methods, ombudsman, which is a contemporary method, is a form of audit especially seen in Western countries. Administrative control, the boundaries of which are determined by legal regulations, are implemented as “Hierarchical Control”, “Guardianship Control” and “Special Control” within the internal control mechanisms of the public administration, while political control is implemented as “Parliamentary Control” and “Appealing to the Parliament” (Gözübüyük, 2007: 361-369; Eryılmaz, 2008: 310-323).
Ombudsman audit differs among other legal control methods due to its unique structure and features. It takes its legal feature from the fact that it is regulated in the constitutions and laws of the countries. The ombudsman system, which finds a wide application area in Western countries such as parliament, human rights, bank, energy, university, insurance, environment, worker, consumer, press, local government, university and armed forces ombudsman came to the agenda of the Turkish public administration for the first time during the preparation of the 1982 Constitution (Abdioğlu, 2007: 90; Birdişli, 2011:116, 117; Özden, 2010: 52-69).
The spread of ombudsman practices seen in Western countries in Turkey and the presence of ombudsmen in a wider area instead of a single ombudsman will be effective in solving the problems of citizens in the face of the complex structure of public administration. The Turkish Armed Forces, while providing a public service with the gendarmerie units within its body, in addition to the duty of defense of the country, the relationship between the personnel and the gendarmerie organization, which creates its own internal structure, increases both the personnel problems within its internal structure and the Ombudsman in Contemporary Public Administration (Ombudsman) problems with the citizens. Therefore, considering both the relations of the employees of the armed forces with each other and their superiors, as well as the problems experienced in relations with the citizens, the establishment of a military ombudsman is of great importance so that these problems can be resolved by an impartial mediator before they are submitted to the judiciary.
In this article, after mentioning the ombudsman institution, which has been studied extensively in academic studies, it is aimed to explain the necessity of establishing a military ombudsman system for Turkey by discussing the reasons, benefits and drawbacks of the establishment of the ombudsman institution in the armed forces.
- DEFINITION AND HISTORY OF OMBUDSMAN
The word Ombudsman is of Swedish origin and means “Deputy”, “Representative”. The Ombudsman is a civil servant who investigates and writes reports on complaints about government officials (Odyakmaz, 2011: 98; Özden, 2010: 24; Ombudsman, 2010). While the word Ombudsman is used as “Le Mediateur” in France, it is used as “Kamu Denetçisi” in Turkish. There are close definitions for the Ombudsman. Mıhçıoğlu defined the concept of ombudsman as “an independent person who helps the public in order to solve the problems they encounter in their relations with the administration, has the authority to open investigations, is appointed by the parliament, and has the authority to make recommendations to public administrators as a result of the investigations made on the subject of the complaint” (Mıhçıoğlu, 1987: 169). While the American Bar Association defines the concept of ombudsman as “an independent civil servant who finds a solution to complaints between government agencies or state-related institutions and the public”, it states that he can mediate in relations with institutions that are somehow connected with the state, apart from the public administration (American Bar Association, 2011). Eryılmaz defines the concept of ombudsman as “the person who examines the complaints of the people against the public administration and reveals the faulty, dysfunctional and flawed aspects of the administration, and presents the conclusions to the parliament and the public” (Eryılmaz, 2008: 318).
The ombudsmanship is an institution that aims to protect the public in case the public administration does not respond to the needs of the people with its complex structure and cumbersome bureaucracy. It acts as a mediator between state institutions and citizens. In the first place, the ombudsman institution is seen as the place to find a solution to the disputes that arise against the citizen as a result of the relationship between the state and the citizen. The Ombudsman does not act as a mediator in private relations and disputes between individuals.
Although the application of the Ombudsman was first in Sweden, it is now applied in most of the Western countries and the Turkish Republic of Northern Cyprus. While the implementation principles of the Ombudsman are basically the same in every country, there are differences in cases such as the way of appointment, powers, and practice areas. However, in all academic studies, the concept of the Swedish ombudsman office, which is the exit center of the system in primary education, is explained first and then examples of other countries are given. The Ombudsman system was implemented by the Charles XII the King of Sweden. Charles XII appointed the first ombudsman in 1713 to supervise the rulers in his country. Although there is official historical data that the ombudsman started with the initiative of the King of Sweden, it is known that there were institutions that did the work of the ombudsman both in the Ottoman state and in Rome and China before (Özden,2010: 27). Many opinions are put forward that Charles XII was inspired by the Ottomans and implemented the ombudsman system in his country. Among these, there are studies stating that he was influenced by the institutions called Kazasker, Ahi community, Palace of Justice and Supreme Court (Court of Injustices). However, the Ahi community is an institution that consists of artisans and craftsmen among the Turks who lived in Anatolia, the Balkans and the Crimea in the period from the first half of the 13th century to the second half of the 19th century, and ensures that its members grow up in the field of art and profession and develop morally. In Ahi community, we see that instead of regulating the relations of individuals with the state, they are effective in the private relations between the members of the institution (Cezar ve Sertoğlu, 1957: 377, 378; Şanal ve Güçlü, 2007: 380-383; Ahilik, 2011). The Supreme Court is a high-ranking state body that served as a high judicial and supervisory institution in the central organization of Muslim states before the Ottomans (Akyüz, 1995: 24-42). In the Umayyad, Abbasid, Mamluk and Seljuk states, Palace of Justice and Supreme Court are institutions that listen to the complaints of the people against the government and try to resolve the conflicts between the people and the administration (Ünal, 2008: 108). Although the King of Sweden was influenced by institutions such as the Ahi community, Supreme Court and Palace of Justice, it can be said that he was mainly influenced by the helping and socializing qualities of the Ahi community. The Ombudsman institution was established in Finland in 1919 after Sweden. In Finland, the ombudsman is given the power to prosecute ministers in addition to the powers of the Swedish ombudsman. Denmark in 1955, West Germany in 1959, Norway and New Zealand in 1962, England in 1967, Israel in 1971, France in 1973, Portugal in 1976, the Netherlands and Spain in 1981 implemented the ombudsman system. While it was first seen as an institution unique to Northern European countries, it entered the Anglo-Saxon legal system together with England and New Zealand. The institution of Ombudsman in Contemporary Public Administration, which has developed rapidly in Europe, has started to be implemented in Asian countries such as India, Japan, South Korea and Thailand, as well as in Latin American countries such as Argentina and Guatemala. In Africa, the ombudsman institution was established in Botswana in 1995 (Özden, 2010: 30-34; Erhürman, 1998: 90; Köseoğlu, 2010: 32). The Ombudsman was established in Norway in 1952 on military matters, and the first civilian ombudsman was elected by the parliament in 1962 (Kuruüzüm, 2008: 141).
- FEATURES AND AUTHORITIES OF OMBUDSMAN
The characteristics and powers of the Ombudsman differ from country to country. Despite different practices, it is possible to generalize about the duties and powers of the Ombudsman. Since the main reason for the existence of the ombudsman is to find solutions to the problems and complaints of the people arising from the relationship of the people with the public institutions and to mediate, the ombudsman should be independent from the public administration. In order to find solutions to the complaints and mediate, they should be able to talk to the public institution that is the subject of the complaint, without any restrictions or hindrance, and to examine the relevant documents. The Ombudsman is required to convey the conclusions he has reached as a result of his examination to the parties to the problem and act as a mediator between them. In order for the Ombudsman to be a person who is trusted and respected by the public, in order to be able to act as a mediator and examine the problem on a healthy basis between the parties, it is necessary to know the public administration and the legal system of the country, especially the way it works and the universal legal rules.
When the ombudsman practices in the world are examined, we see that the ombudsman is chosen by the legislature in order to keep it away from the influence of public administrators. There is no doubt that the ombudsman, elected by the legislature and reporting on its work to the legislature, has moved away from the influence of the executive power. However, doubts arise about the fact that the ombudsman, which has the majority in the legislature and will elect the political party that is in power, stays away from the influence of the public administration, which is the extension of the government. In such a case, the election procedure and term of office of the ombudsman gains importance. While the Ombudsman is elected by the parliament in Sweden by secret ballot, in France it is determined by the decision of the council of ministers. Ombudsmen are appointed by the Queen on the advice of the British government (Özden, 2010: 74-85).
Although the election of the Ombudsman by secret ballot by the parliament seems to be a fair election at first, it is not possible for the deputies to go beyond the party group decisions due to party discipline. Therefore, in order for the ombudsman to be the common candidate of all the parties forming the legislature, or at least to be elected with a certain consensus, it would be a more democratic practice to take the qualified majority as the decision quorum in the election of the ombudsman.
In order for the ombudsman to remain impartial to the political authority, the election procedures should be regulated, as well as preventing the ombudsman from being elected a second time at the end of his mandate. Because, in order to be elected once again, the probability of acting according to the wishes of the political will may be high. This situation can be seen more in cases where there is a majority power in the parliament and the ombudsman is elected by a simple majority. We can list the features of the Ombudsman institution as follows: (Odyakmaz, 2011: 100; Özden, 2007: 400).
Primarily, the ombudsman is elected by the legislature, but must have limited responsibility to the legislature. While performing his duties, the Ombudsman should be able to act outside the influence of the executive power, with the assurance provided by the constitution and laws. Ombudsman should have the right to examine the documents he wants in public institutions and to have comfortable and unlimited access to archives, with the authority he receives from the constitution and laws. Ombudsman should make a decision after a meticulous examination and should not lose the trust and respect of the parties. It should be an institution that is easily accessible to the public. Ombudsman should be appointed for a specific term and not be dismissed before the term expires.
The Ombudsman will carry out the duties entrusted to him in line with the above-mentioned characteristics. However, with what powers will the ombudsman fulfill its function of mediating between the parties and suggesting solutions to problems? What will be the boundaries of the control area? Will the solution proposal be taken into account by public administrations, will any legal action be taken against public institutions and managers who do not take into account the recommendations of the ombudsman? So, we are faced with the questions of whether the ombudsman, executive or legislative power will take legal action against public institutions and personnel who do not fulfill the ombudsman's recommendation.
First of all, the powers of the ombudsman must be clearly stated in the constitution and laws, as we have stated in its characteristics. While Sweden has the authority to supervise the concept of ombudsman, central and local institutions and their officials and employees, members of parliament, ministers, municipal councilors and the Swedish National Bank are outside the scope of control (Parliamentary Ombudsmen, 2011). The control area of the French Mediator includes central and local government institutions, public institutions and organizations, and their officers and employees (Mediateur-Republique, 2011). In contrast to the uniqueness of the parliamentary ombudsman in Sweden and France, apart from the general supervision of the public institutions by the parliamentary ombudsman in England; There are ombudsmen operating in various fields such as “local government ombudsman, judicial services, Ombudsman in Contemporary Public Administration, insurance ombudsman, health services ombudsman, retirees ombudsman” (Özden, 2010: 85).
The British parliamentary ombudsman examines complaints from individuals who claim they have been wronged as a result of the mismanagement of central government agencies, their staff and other institutions acting on their behalf. The area of duty has been established by determining the areas that the parliamentary commissioner cannot examine (Arslan, 1986: 159: Legislation, 2011). In addition to the parliamentary ombudsman in England, there are three more ombudsmen: “Health Services Ombudsman”, “Judicial Services Ombudsman” and “Local Government Ombudsman” (Erdoğmuş, 2006: 51). The Ombudsman has no enforcement power. It does not have the authority to take any binding decision about public institutions and their personnel, to cancel administrative procedures, or to give orders to public institutions. Therefore, the decisions of the ombudsman do not have penal or administrative sanctions on public institutions. In this case, the ombudsman uses his authority to notify the relevant public institutions to the parliament, which gives him the power to investigate.
At the end of each year, the Ombudsman presents his views on the relevant institutions in the report he submits to the parliament. However, public institutions that do not take into account the recommendations of the ombudsman must notify the parliament with interim reports in order to be warned without delay. Apart from this, the ombudsman's public disclosure of the institution that it has determined to be unfair will put pressure on the relevant institutions (Ünal, 2008: 123). Therefore, public institutions and personnel, who do not want to feel the political pressure and public pressure that will arise as a result of an early report to the parliament, will choose the way to eliminate the unfair practice by taking into account the suggestions of the ombudsman.
- OMBUDSMANSHIP PRACTICES
Apart from the parliamentary ombudsmanship, the ombudsmanship has been implemented in different areas according to the structure of the countries. It is possible to examine the ombudsmanship, which includes different practices in general, in three categories as “Classic ombudsman”, “Legal ombudsman” and “Corporate ombudsman” (Özden, 2010: 50, 51). The Classic ombudsman is the most common practice compared to other ombudsman systems. They are interested in solving problems between public institutions and citizens. In the Legal ombudsmanship, one of the parties does not have to be a public institution. The main aim is to solve the problems between citizens. The point where it differs from the classic ombudsman is that the public institution is not a party. The Corporate ombudsman deals with resolving internal issues within a private institution or between citizens and private institutions (Özden, 2010: 52). In some cases, it is not possible to make a clear distinction regarding the ombudsman. For example, the children's ombudsman can be seen as both a classic ombudsman and a legal ombudsman due to its function. While solving the problems of the children of divorced families is within the scope of the legal ombudsman, solving the school-related problems of the children studying in public schools falls within the scope of the classic ombudsman. Likewise, the consumer ombudsman is within the scope of the corporate ombudsman and the legal ombudsman, both in the context of solving the problems with the citizens who feel dissatisfaction with the goods produced by private companies, and the solution of the problems arising from the trade between the two private companies. The existence of different ombudsman practices is due to the need for an ombudsman in the relevant field. Narrowing the scale of the ombudsman from general to specific is important in terms of facilitating the daily lives of citizens, in order to solve the problems that may arise due to the relations of the relevant institution with the citizen, as well as the solution of the problems of the personnel working within their own internal bodies of private or public institutions.
The fact that the ombudsman is a mechanism to be resorted to before applying to the judiciary and that it aims to alleviate the burden of the judiciary with this feature makes it inevitable to apply ombudsman in the areas where there are problems. In addition, the importance and attention given to these issues by the countries with the ombudsman application comes to the fore. While the Ombudsman is practiced in a single area in France, Denmark, Costa Rica, Poland and Pakistan, it is applied in a very wide area in the United States, England and South Africa. It is practiced in more than one area in Sweden, Israel, Germany, Canada, Norway and Hungary (Özden, 2010: 70, 71).
- OMBUDSMANSHIP IN TURKEY
The first studies on ombudsmanship in Turkey were conducted in the 1970s. Balta worked on the ombudsmanship and talked about the ombudsmanship for the first time (Balta, 1970: 210). Baylan examined the ombudsman institutions in various countries in 1978 and expressed his opinion on its practicability in Turkey (Erdengi, 2009: 180, 181). Academic studies carried out in the 1970s came to the fore for the first time in the political field after the 1980 revolution, and the first legal study on the ombudsman in Turkey was seen in the preparations for the 1982 Constitution.
Article 114/a of the Reasoned Constitutional Proposal; After stating that “the necessity of giving reasons in all administrative transactions and stating the remedies against these transactions, the information and documents under the control of the management are open to the public unless otherwise stipulated by law, and that confidentiality cannot be imposed to limit the freedom to seek rights”; with the article 114/b, the structure of the "Board of Ombudsmen" has been regulated (Abdioğlu, 2007: 90). However, the chart showing the ombudsman practices by country in the accepted constitutional text: (Özden, 2010: 70). It is seen that there is no such regulation in the Ombudsman in Contemporary Public Administration. Although there is no regulation regarding the Ombudsman Board, Article 74 of the Constitution; Citizens are constitutionally given the right to complain on the article of “Citizens and foreigners residing in Turkey, on the condition of reciprocity, have the right to apply in writing to the competent authorities and the Turkish Grand National Assembly regarding their wishes and complaints regarding themselves or the public” (Arslan ve Kayançiçek, 2010: Art. 74).
Although the "Human Rights Investigation Commission Law" numbered 3686, enacted in 1990, does not fully meet the ombudsman in Turkey, it can be considered the beginning of the implementation of the human rights ombudsman in countries such as Portugal, Spain, El Salvador and Mexico (Özden, 2010: 54, 55). Article 4 of the Human Rights Investigation Commission Law No. 3686, paragraphs “e”, “f”, “g” arranged as; “to examine the applications regarding the alleged violations of human rights and to forward them to the relevant authorities when deemed necessary, investigating human rights violations abroad where necessary and bringing these violations to the attention of the parliamentarians of that country directly or through existing parliamentary forums, to prepare a report every year covering the work done, the results achieved, the respect and practices of human rights at home and abroad.” (Commission Law, 1990: Art.4).
The duties assigned to the commission by the legal regulation overlap with the powers and duties of the ombudsman. Again, the formation of the commission by the parliament shows similarities with the ombudsman. However, the election of a person from outside the parliament as the ombudsman and being the only one constitutes the aspects of the ombudsman that differ from the commission.
A part of the "Public Administration Research" report, which was prepared by the Middle East Public Administration Institute (TODAIE) in 1991 and known as the “KAYA” report in the public, was reserved for the audit of the public administration, and in the recommendations it was stated that the State Supervisory Council should undertake functions such as ombudsman (KAYA, 1991: 41, 42). The efforts to establish the Ombudsman system began to be included in government programs and five-year development plans, and the establishment of this board in the seventh and eighth five-year development plans and the 57th government's program came to the fore (Özden, 2010: 149). As a result of the studies carried out on harmonization with the European Union acquis, it was recommended to establish an ombudsman system under the heading "Short Term Priorities" of the Participation Partnership Document prepared by the European Union Council in 2006. In addition, the phrase "Foreigners residing in Turkey on condition of reciprocity" was added on 03.10.2001 with Article 26 of the Law No. 4709 (Arslan ve Kayançiçek, 2010: 98). In the progress reports, there are evaluations about the arrangements made and not made regarding the ombudsman (Erdengi, 2009: 195-200).
The law on the Ombudsman was prepared in 2006, but it was vetoed by the then President, then it was suspended by the Constitutional Court in 2006, and in 2008 the entire law was annulled unanimously (Birdişli, 2011: 117). The ombudsman, who did not come to the fore until the referendum held on September 12, 2010, after the repeal of the law, its establishment was finalized with the constitutional amendment made as a result of the plebiscite, and it came to Turkey's agenda again with the draft law adopted by the Constitutional Commission of the Turkish Grand National Assembly on January 26, 2011 (Odyakmaz, 2011: 106). The purpose of the Draft Law on the Ombudsman Institution; It is expressed as “inspecting and researching the aspects of respect for human rights, compliance with law and fairness, and making suggestions to the administration, with a sense of justice, of all kinds of actions and transactions and attitudes and behaviors of the real and legal persons, as specified in the constitution” (Draft Law, 2011: Art. 1). While the scope of duty of the institution covers the entire administration, "The actions taken by the President alone, the decisions and orders signed ex officio, and the transactions related to the exercise of legislative and judicial power" are excluded from the scope (Draft Law, 2011: Art. 5). It is understood that the activities in the General Assembly of the Turkish Grand National Assembly mean the use of legislative power. Otherwise, the issues that may arise as a result of the relations established by the civil servants and employees working in the Turkish Grand National Assembly with the public while carrying out the daily work of the Assembly cannot be kept within the scope of the law. What is meant by the use of judicial power is that the subject of the complaint, which has been submitted to the judiciary, does not fall within the working area of the ombudsman in terms of its content. Apart from this, the consequences of the behavior of the judicial staff and the court items against the parties to the case, and in cases where the legal services are prevented from being seen and the cases take a long time; It should not be thought that the authority to examine procedural matters without going into the content of the subject of judgment does not fall within the scope of duty of the ombudsman.
- TURKISH ARMED FORCES AND NECESSITY OF MILITARY OMBUDSMANSHIP
The armed forces in Turkey have an important place in the Turkish society because of the fact that they are the most important element that carried out the war of independence and established the state, and the military characteristics of the Turkish nation from history. The armed forces have always been the starting point of the modernization movements of Ombudsman in Contemporary Public Administration since the Ottoman period, and the reforms have developed in line with the studies on the army.
Students and officers sent to Western countries differed in terms of the education they received and their relations with Western peoples, opening of modern military schools and the education given in these schools caused the soldiers to think separately from society, to gain strength in oppositional ideas, and to see Westernization as a way out (Aksakal, 2010: 249). Again, in the last periods of the empire, against the ready-to-compromise attitudes of the Ottoman social classes with the imperialist states, the anti-imperialist struggles of the soldiers carried them to a process that would wage the war of liberation, and then they had a say in the formation of modern Turkey (Yerasimos, 1989: 23, 24).
There are representatives from all segments of society in the Turkish Grand National Assembly, which gave political legitimacy to the establishment of the new Turkish state after the Ottoman state. Despite this, the fact that the leaders of the War of Independence consisted of officers and that the officers served as both commanders and civil administrators in order to ensure the realization of reforms in the first years of the Republic shows their contribution to Turkish modernization (Cook, 2008:233-235).
The need for the armed forces arises from the functional necessity, which aims to eliminate the threats to the security of the society, and the social necessity caused by the social forces, ideologies and institutions. While social necessity is seen as the role it takes in terms of military-civilian relationship, functional necessity is seen as the role the soldier takes against threats to national security (Huntington, 2004: 5). The issue valid for all societies and the role assigned to the armed forces is the realization of the defense of the country. When the interests of the country are threatened in the international arena or within the country, the armed forces must be constantly trained and ready to fulfill the duties assigned to them as a result of the decision of the political will.
Likewise, it should be organized in a way that can withstand all kinds of threats, starting from the time of peace. Within this context, the organizational structure of the Turkish Armed Forces consists of the Land, Naval and Air Forces Command and the Gendarmerie General Command. The armed forces have 612,900 active troops, making it the seventh largest army after China, the United States, India, Russia, North Korea, South Korea and Pakistan (GFP, 2011). The three force commands, which are in this power and force structure, are related to the citizens through the military branches, and this relationship is only with their families during the recruitment of soldiers and during their military service. However, the fact that the gendarmerie organization performs public order and judicial services in a very large part of the country's geography necessitates the organization to have more relations with the citizens. The duty of the Turkish Armed Forces has been determined as “to react appropriately to new security problems and crises, to be ready for uncertainties, to ensure the security of the country against internal and external threats and risks”. Also, “formation of multi-role elastic units, having advanced technology weapons and systems instead of numerical redundancy, having force multipliers such as command-control, early warning, electronic warfare, advanced ammunition, operational capability and capability in all weather conditions that will increase the effectiveness of these weapons and systems” are considered necessary in order to perform the duties that can be taken while fulfilling this duty (Chief of the General Staff, 2011).
The armed forces will need a qualified personnel structure that will use the advanced technology weapons and systems they aim to have. Therefore, it has to prioritize the human factor in its organization process. Training and directing the human factor will enable the effective use of advanced technology systems. Directing the human factor effectively and getting the desired efficiency from it is directly proportionate to "job satisfaction". Job satisfaction is very important whether in the private or public sector or in the armed forces. When we consider the feelings that the individual has about the content of the job in job satisfaction, and the feelings that the individual has about the conditions or environment while doing his job, in job dissatisfaction, in addition to the quality of the employees, the work environment and conditions created for him should motivate the employee (Herzberg, 1965: 395).
An institution that undertakes a difficult task such as the defense of the country must motivate its employees to do their task. The main theme of the duty is the defense of the country and, if necessary, sacrificing life to achieve this constitutes the most important point in the dispatching of the employees of the commanders. In order to motivate the employees in the face of the difficulties of the working conditions and within the strict hierarchy of the military profession, it is necessary to take measures to meet their needs and make their lives easier. The same business needs that employees need in public or private institutions apply to employees of the armed forces. In the first place, it is unthinkable that the solution of the discomforts arising from the disagreements between the armed forces personnel and their relations with the higher authorities is through the ombudsman in an organization such as the Turkish Armed Forces, which has a strict hierarchy and of which boundaries are clearly defined by both the military penal code and the internal service code. Disturbances that occur among the employees themselves are usually resolved by the supervisor to which the staff is affiliated (Internal Service Act, 1961: Art.18).
In general, in the hierarchy consisting of officers, non-commissioned officers, sergeants and privates (each rank is also divided among itself), even if the officer and non-commissioned officer, specialist sergeant and non-commissioned officer or both parties are in the same position, it may not be fair for the superior to resolve the complaint between the parties. Differences in rank in the military personnel structure, Ombudsman in Contemporary Public Administration, may make the superiors take sides and this may prevent fairness. Employees usually express their complaints or applications with their superiors or superiors, verbally or with a written petition, or seek a solution by directly applying to the Supreme Military Administrative Court against the unfair actions of the military administration. If the person who is the subject of the complaint is superior and the supervisor of both is the same person, the complaint is made verbally or in written form to the supervisor (Internal Service Regulation, 1961: Art.42; Supreme Military Administrative Court, 1972: Art. 21) If the complainant is the supervisor, things can get more complicated. The Internal Service Code states that the complaint of the supervisor must be made to the supervisor one degree above. The supervisor who receives the complaint takes action no later than a month and reports the result (Internal Service Code, 1961: Art. 25, 26, 27). Although all these regulations reflect the ideal, in practice, in general terms, the supervisor does not want his or his troops to complain to the supervisors above him. Because the unrest in the military unit is not considered a good point for the supervisor, but it can be a subject of criticism. Apart from this, every superior in the military hierarchy must have a superior, and it is aimed to resolve the complaint within the framework of discipline without going to higher authorities. It is possible to see in the article of the Internal Service Code, which regulates the duties of the subordinate, that the subordinates, or more precisely, the complaining subordinate, can always be the victim in the complaints that are requested to be resolved within the framework of discipline. The duties of the subordinate to the law are as follows: “He is obliged to show full respect to the superior in accordance with general morals and military procedures, to obey his superiors absolutely and to obey his superiors in cases indicated in the laws and regulations. All kinds of manifestations, words, writings, acts and actions that threaten the feeling of obedience are prohibited by criminal sanctions (Internal Service Code, 1961: Art. 14). The complaint can be characterized as an act against “absolute obedience to the superior” and although it is seen as an indication that the discipline is weakened, thoughts and practices can be seen to punish the person who violates the discipline by acting on the basis of “All manifestations, words, writings and acts and actions that threaten the sense of obedience are punished” (Internal Service Act, 1961: Art.14). With the idea that such a situation would impair the motivation of the unit and affect the determination to fight by disrupting the discipline of the unit, it may be concluded that complaints should not be made and that the personnel who activated the complaint mechanism would not be considered kindly. It is the person who has the authority to order the personnel who complain about their superior to continue working with the same supervisor, and the supervisor has the authority to order in terms of the complaining authority and civil service (Internal Service Code, 1961: Art. 9) The term ‘superior’ indicates rank or seniority. (Internal Service Code, 1961: Art. 10) the possibility of using his authority negatively on his subordinate is a behavior that completely prevents the possibility of complaining. Deterioration of discipline is one of the most feared events in the military, and superiors always take measures to ensure discipline. While defining discipline in the Internal Service Code, absolute obedience to laws, regulations and superiors, as well as compliance with the law of subordinates and superiors is required (Internal Service Code, 1961: Art. 13). What kind of practice is it for those who do injustice to their subordinates, while disobeying laws and regulations and superiors is punishable. The manifestation of justice and compliance with the law actually take place at this point. In the event that the subordinate commits a crime, the rules of law are fully implemented, but in cases where the superior commits a crime, different interpretations of the legal rules or not applying them at all do not provide justice and are the beginning of behaviors that violate discipline. The most basic way to ensure discipline is to apply the rules of law to all personnel, including superiors, to the same extent, and to provide justice in accordance with the law by acting objectively to those who make mistakes. The widespread belief that justice is not distributed equally by subordinates or that the law is violated in various ways disrupts the discipline within the unit and makes the legitimacy of the superior questionable even if he is appointed to the post. The most dangerous thing for a military unit is the lack of unity and solidarity as a result of such a disrupted discipline. Because the soldier carries out a duty in unity and solidarity, taking the risk of death if necessary, with a word of his superior-commander. One of the most important issues that the military personnel should contribute to the solution of the problem among themselves, the desire for the “unit to appear disciplined by the higher authorities” may cause the complaint mechanism within the unit to not work properly and the complaints not reach the higher authorities. In fact, if the complaints reach the authorities that can find real solutions to the problems, they can be evaluated and solutions can be produced. Another method for military personnel to express their complaints is to apply directly to the military administrative judiciary as a result of the personnel feeling victimized by the actions of the military administration and thinking that they have been treated unfairly. These are generally issues such as promotion, appointment, objection to registry evaluation (Supreme Military Administrative Court, 1972: Art. 20, 21). The judicial consultancy within the body of each force command should provide an objective opinion and produce solutions to the complaints about the institution, such as promotion, appointment and registration. However, there may be a possibility of choosing the method of expressing an opinion against the personnel who wrote a petition in order to ensure discipline. In fact, before going to the judicial advisory, the complaint subjects go directly to the decision-making unit of the relevant force. The ability of the person in the decision-making unit to interpret laws and regulations in line with their professional knowledge and skills may be effective in answering the petition. If the laws and regulations are not completely clear and the staff does not have enough information, it may be possible to interpret them according to their own opinion and to affect the petitioner positively or negatively with the decision taken. In such a situation as the Ombudsman in Contemporary Public Administration, the knowledge and professional knowledge of the personnel working in the decision-making position becomes questionable, and the personnel who feel victimized with the declared will can be observed. In the event that the decision maker reverts from his/her first decision, the thought that there may be question marks about his/her performance in his/her superiors because he/she made the wrong decision, the objections of the aggrieved personnel often cannot be resolved and the decision made in advance may be resisted. It is unthinkable for the personnel who are ignorant of their subject and who have declared their will only in line with military requirements, to renege on their decision. Because the command has declared its will and done it right. Otherwise, the reputation of the high command on subordinates will be damaged and discipline will be disrupted. Violation of discipline leads to distrust in troops, and in cramped times it loosens up and leads to failure and disaster (Internal Service Regulation, 1961: Art.2) It is out of question for them to misinterpret or evaluate the codes. Therefore, the petitioning personnel who encounter such a situation will either accept their fate or have no choice but to apply to the military administrative jurisdiction. The following are the methods followed in complaints incidents that may occur within the internal structure of the armed forces and the possible problems that may be encountered. These are related to the issue of finding a solution to complaints arising from the internal affairs of an institution.
The issue of finding a solution to the complaints of citizens with public institutions, which is the basis of the Ombudsman, can be seen as inapplicable for the armed forces at first, since the armed forces do not have a direct relationship with the citizens. However, the Gendarmerie General Command, which is subordinate to the General Staff in the military hierarchy, to the Ministry of Interior due to administrative duties, and which fulfills the instructions of judges and prosecutors, who are provincial extensions of the Ministry of Justice due to judicial duties, has a direct relationship with the citizens. Gendarmerie operating in an area of approximately 90% of Turkey's geography; In its areas of responsibility, it carries out the duties of “providing security and public order with public order, protecting, preventing, tracking and investigating smuggling, taking and implementing the necessary measures to prevent crime, external protection of penitentiary institutions and detention houses” (Law on the Duties and Powers of the Gendarmerie, 1983: Art. 7).
In judicial sense, while performing the duties of “carrying out the procedures specified in the laws in relation to the crimes committed and performing the judicial services related to them”, it also fulfills the duties assigned by the chief of the general staff with the duties required by the military laws and regulations due to the fact that he is a soldier (Gendarmerie, 1983: Art. 7). The Gendarmerie is in direct contact with the citizens while performing their civil and judicial duties. It is normal for the gendarmerie to turn into an armed force with the authorities given to it by the laws, to reflect this power to the citizens in the first place in its relationship with the citizen, to ensure security and to catch the criminals (Law on the Duties and Powers of the Gendarmerie, 1983: Art. 3). Exaggerating this feeling and thought and going beyond the rules of law will go beyond the authority and cause the citizen to be a victim. It is certain that the idea of having state power is also in the civil servants working in other public institutions other than the gendarmerie, and this is exaggerated and the citizens are victimized. However, the difference of other public institutions from the gendarmerie is the lack of armed power. While the gendarmerie is performing its civil and judicial duties, it is also used as a preventive force against threats to the internal security of the country (Law on the Duties and Powers of the Gendarmerie, 1983: Art. 7). The Gendarmerie has played a key role in Turkey's internal security struggle throughout history. The fact that the gendarmerie served especially in rural areas caused the people living in villages and towns to have a respect for the gendarmerie together with fear.
The fact that the gendarmerie works independently in a large area does not always allow the control of the personnel (Law on the Duties and Powers of the Gendarmerie, 1983: Art. 10). If the police commanders who are in direct contact with the citizens and who work away from the center and their nature are people who are not adequately trained and lack professional ethics, the powers given to them are likely to be abused. The causes of abuse can be described with various examples ranging from unfriendliness to citizens and obtaining benefits. The main thing here is the violation of human rights. The human rights violations of the gendarmerie personnel were met with hatred, especially among the people living in the East and Southeast (Fuller ve Barkey, 2011: 206). The human rights violations of the gendarmerie personnel were met with hatred, especially among the people living in the East and Southeast. Gendarmerie usually fights against crime and criminals due to its duty. While performing these duties, it is often claimed that they have made unfair practices against the citizens. There are complaints and allegations that universal rules are not followed and human rights violations are committed, especially during the period until the suspects are caught and transferred to the courthouse. There are many complaints about the ill-treatment of detainees or convicts while they are being taken from prisons to the hospital or trial. Of course, an administrative investigation is carried out in relation to these complaints. However, due to the strict regulations specified in the law regarding the trial of the officer, the desired result cannot be achieved in some cases from the administrative investigations. Focusing on education since the early 1990s in order to prevent human rights violations of gendarmerie personnel and teaching “human rights and professional ethics” as a course in gendarmerie schools since 1992 is a positive practice in terms of improving human rights awareness among personnel and preventing violations (Ministry for EU Affairs, 2011). Ombudsman in Contemporary Public Administration, The training given for the prevention of human rights violations has certainly had benefits. However, according to a survey conducted by the liberal thought community in 2003, 30% of the society still considers that the gendarmerie violates human rights, and this value corresponds to a high rate (Dağı ve Toprak, 2003: 24).
- MILITARY OMBUDSMAN IMPLEMENTATION SUGGESTION FOR TURKISH ARMED FORCES
Military ombudsman is currently practiced in Israel, Norway, Australia and Namibia. It was established to resolve disputes between armed forces personnel and to find solutions to problems between army personnel and the army. Among the duties of the military ombudsman in Norway are matters such as permission, assignment, training (Özden, 2010: 59, 60). The draft law on the ombudsman, which was established by the constitutional amendment made as a result of the public vote in 2010 and was approved by the Constitutional Commission of the Turkish Grand National Assembly on January 26, 2011, does not contain any clarity or regulation regarding the military ombudsman. However, the implementation of a military ombudsman in Turkey is extremely necessary and important. Despite the opinions that the ombudsman institution does not have an ombudsman system in the Turkish Armed Forces until it settles in Turkey and that it should be included in the scope gradually (Odyakmaz, 2011: 106), it is beneficial to include and implement the military ombudsman during the legal arrangements regarding the ombudsman.
Regarding the military ombudsman, it is very likely that criticism will come from various parties, especially the military. These criticisms will be in the classical sense of meddling in the internal affairs of the military and being drawn into politics. However, the necessity of ensuring democratization in all institutions is valid for military institutions. Although the issue of democratization in military institutions requires academic work on its own, we should briefly address why it should be democratized. The method of solving the problems experienced by the military in a closed environment may sometimes lead to insolvency, and it causes the development of victimization psychology on personnel who think that they have been wronged. The subject that is thought to have been solved is actually covered in a strict hierarchy order. The concern that he may face financial or moral sanctions causes the personnel to remain silent. This silence is the calm before the storm, and as soon as the personnel gets rid of the strict hierarchy (retirement or leaving), they can reflect the negativities they see and experience about the institution they work for and may cause negative thoughts about the soldier on the society. This also causes the already legally present rank differences between military persons to occur emotionally. The soldiers, who are sent to duty with high morale and motivation, need to be committed to each other and believe and trust in his commander’s justice, especially beyond legal loyalty to his commanders. Otherwise, the feelings of love, respect and trust towards each other will weaken, and in difficult situations, there may be various disintegrations within the barracks. Those who think that they are victims in matters such as appointment, promotion and registration in the armed forces apply to the military high court. The fact that one of the members of the military high court is a non-judge staff officer does not actually prevent the impartiality of the high court. However, due to the establishment and connection of military courts and disciplinary courts, it cannot be considered to be impartial. First of all, it is rare for a judge or prosecutor, who is subject to physical supervision, to act against the will of the commander, who receives a registry from the commander under his command. Case files in military courts are usually the cases that are judged as a result of the investigations opened by the superiors about their subordinates. It is very rare to see a lawsuit filed because of subordinates' complaints about their superiors. Disciplinary courts consist of barracks officers determined by the commander, who do not have complete legal knowledge in terms of their members. In fact, disciplinary courts can replace the ombudsman if they can function impartially. However, the military hierarchy and the current understanding of discipline are obstacles to the efficient conduct of these courts.
We can define the task of the military ombudsman as examining the complaints that may arise within the soldiers' own hierarchies and the complaints that may arise in the relations of the soldiers with the citizens. The duties of the military ombudsman should be in the form of examining the complaints of the parties and following the arbitration, mediation, problem or dispute resolution process.
Ombudsman participates in the dispute or problem as a third party in arbitration and mediation. The parties have the right to choose whether to accept or reject the option proposed by the ombudsman. Arbitration can have beneficial results in resolving problems or disputes that arise in the soldier's relationship with the citizen. However, in solving the problem within the military itself, it is likely that the superiors and higher authorities will resist the application. In mediation and arbitration, the ombudsman balances the power and status inequality between the parties in the military hierarchy and ensures that the problems of the subordinate personnel reach the higher authorities more easily. It prevents thoughts such as not being able to bring the problem to the authorized supervisor due to the fear of disruption of discipline, and the personnel can convey the issues that are not conveyed to the higher authorities within their own hierarchy or that they think cannot be resolved even though they are conveyed to the authorized places through the ombudsman.
Also, disputes arising as a result of the gendarmerie's relationship with the citizen can be resolved through the ombudsman without the matter being forwarded to the judiciary. Because the main problem of the citizen with the gendarmerie, if we exclude the violation of human rights (such as torture), is usually that the gendarmerie does not solve the citizen's problem in a timely manner, makes citizens wait or makes unauthorized Contemporary Public Administration (Ombudsman) actions (Jandarma, 2003: Md. 4,5,6). These issues are actually issues that can be resolved through a mediator. The important thing is to have a reliable and impartial person who can bring the parties together. The person who can do this in the best way is the ombudsman.
Even though violations of human rights are a situation that should be directly referred to the judiciary, the personnel who committed the violation may not be brought to justice by the supervisor due to in-house preventive psychology. In this case, the ombudsman can intervene in the incident and warn the superiors who do not take the necessary action against the violating personnel and can take them into action.
In following the process of resolving the problem or dispute, the ombudsman monitors whether the recommendation or the judicial decision that has been brought to the court is carried out in a timely manner. There may be delays in the implementation of the decision, especially if the administrative court decisions are against the superior, or even if the decision is implemented, there may be intimidation, harassment, pressure (mobbing) activities on the subordinate personnel in favor of whom the decision is made. In order to prevent these situations, the ombudsman follows the process and prevents the personnel from being victimized again. Considering the functions of the military ombudsman, the ombudsman will make a significant contribution to solving the problems that may arise in the armed forces and in the relationship between the soldier and the citizen. Within this context, it is necessary to answer the questions of who will be the military ombudsman who will fulfill all these functions and what the conditions will be. First of all, the military ombudsman must be at least a university graduate. Graduates of universities from the fields of law, public administration, political and social sciences enable them to have knowledge of both the functioning of the administration and legal issues. However, having a university degree may not be enough in today's conditions. In this case, those who have master's or doctorate in related fields should be preferred.
In addition to the reliability and impartiality required of the ombudsman, the military ombudsman should be chosen from people who are tolerant, adopt a culture of compromise, are honest, have knowledge of different issues outside their field, know military law and hierarchy, and have problem-solving skills. The military ombudsman should be chosen from among civilians with the specified qualifications. The first concern that comes to mind is that a civilian does not know the military rules and functioning, and that their practices will harm the military hierarchy and discipline. However, the drawbacks of selecting the military ombudsman among military personnel will be greater.
First of all, there may be different opinions about whether the ombudsman to be elected will be a retired soldier or an active-duty soldier. The place where officers, non-commissioned officers and sergeants grew up and the fact that they have worked in the armed forces for many years cause them to experience the same environment on their retirement days. Retired soldiers do not fail in their respect and reverence when they see their former commanders. They do not break their ties with the military, and their respect for the hierarchy continues, albeit implicitly. Therefore, it is unthinkable for a retired soldier to be an ombudsman in an objective sense. The fact that a regular soldier is an ombudsman makes the personnel more likely to be under the influence of their superiors, as they are still subject to military laws and superior-subordinate relations, and cause inconveniences in making the practice objective.
If a civilian is elected, the military ombudsman will maintain his neutrality towards the military hierarchy. The fact that he does not know the way the military rules work is not a handicap for the ombudsman, but rather the powers and duties assigned to the ombudsman will consist in the fact that the search for rights granted to individuals in a universal sense will also be applied in military matters. Although the application of universal rules for the military profession and personnel will constitute unrest in the armed forces in the short term, it will cause military personnel to internalize these rules and apply them in their own troops in the long run.
The military ombudsman to be elected from among civilians prevents the unfair practices of the superiors, as opposed to the deterioration of military discipline. It prevents the negative thought that the personnel who think that they have been wronged and that their problem cannot be solved within the military hierarchy will carry throughout their entire professional life. The thought that the problem of the personnel who think they have been wronged or have a problem will be resolved by an impartial person other than the military hierarchy, and the solution of the problem increases the love and respect for their profession and their superiors. Due to the organizational structure of the armed forces, primarily the ombudsman of the armed forces and to work under it; having an ombudsman in each force command and gendarmerie is important in terms of solving problems more quickly and effectively. Considering the personnel situation of each force command, it is obvious that a single ombudsman cannot handle the problems and work efficiently. Therefore, in addition to the ombudsman of the armed forces, there should be an ombudsman for the land, naval and air forces and the gendarmerie general command. The ombudsman of the Armed Forces is elected by the Turkish Grand National Assembly among the candidates determined by a committee consisting of the representatives of the Ministry of National Defense, the Ministry of Interior and the General Staff, within the body of the Ministry of National Defense, strengthens the ombudsman in terms of duties and powers. The fact that the General Staff is represented on this board is entirely due to today's practice in Turkey. If the General Staff is affiliated to the Ministry of National Defense, it will be sufficient to have only the representatives of the Ministry of National Defense and the Ministry of Interior in the committee. The Ministry of Interior should be on the committee due to the commitment of the Gendarmerie General Command in the execution of civil duties. The path to becoming a candidate for ombudsman should be kept open to everyone, the age limit of forty should be accepted and those who are forty years of age or older should be able to be candidates. Candidates of the Armed Forces, the ministries of national defense and interior and those who are direct candidates should be determined by the committee and reported to the Turkish Grand National Assembly among the Ombudsman in Contemporary Public Administration. The ombudsmen of each force and gendarmerie organization shall be selected from among candidates who meet the criteria previously specified by the Armed Forces Ombudsman. In the selection of force ombudsmen, the method of determination by the ministry to which they are affiliated can also be applied. However, it goes against the principle of “being independent from the administration”, which constitutes the essence of the ombudsman system. The election of the force ombudsman by the “Armed Forces Ombudsman” determined by the Turkish Grand National Assembly is important in terms of being able to act independently.
The terms of military ombudsman should be determined by law and ombudsman should not be re-elected. If they are elected for the second time, the current ombudsman may be inclined to stay close to the dominant party in the parliament. This behavior may overshadow impartiality. Therefore, it would be democratic practice for military ombudsmen to change after a reasonable period of time to be determined in terms of the effectiveness of the service. It is beneficial to allocate working offices in a separate place from the military units so that the armed forces ombudsman and other military ombudsmen can easily reach both citizens and military personnel without any hesitation.
Military ombudsmen should easily enter the military units and have access to information and documents related to the subject of the complaint. It may be the case here that top secret information is not given by military units. However, there will be no harm in examining other information other than military action plans by the ombudsman. Military ombudsmen must submit their annual reports to the Turkish Grand National Assembly through the ministries they are affiliated with at the end of each year. However, the relevant ministries should activate the General Staff to examine the issues that cannot be resolved by the ombudsman and to take necessary legal and judicial actions against those responsible.
- CONCLUSION
Rapid developments in science and technology affect the dimensions of the relationship between the ruler and the ruled. The governed have begun to raise their voices and hold accountable against the injustices caused by the rulers. Ruled people also make different demands. They want rulers to make their lives easier by using technology, to accept themselves as human beings and act accordingly. They state that the main reason for the existence of the rulers is themselves. They want the rulers to treat the minority and the weak equally rather than the majority and the powerful. The wishes of the ruled have pitted public institutions against citizens over time and in some cases increased the risk of conflict. In order to prevent the problems arising from the administration before they turn into conflicts, public administrations have tended to take measures. Ombudsman has started to be implemented in Western countries as one of these measures, and besides a single legislative ombudsman, ombudsmanship is applied in different fields. There is a need for a mediator or someone who approaches the problem impartially in cases where employees at the corporate level are treated unfairly or feel that way. Military ombudsman, university ombudsman, consumer ombudsman, local government ombudsman are examples of these applications. In these days when there are new approaches to ombudsman in Turkey, its application in different fields will be effective in solving the problem of the ruled by reaching more citizens in a wider area. Despite the fact that the armed forces should head towards the homeland defense mission entrusted to them with high morale and motivation the gendarmerie needs an ombudsman system in order to solve the problems that arise as a result of the personnel relations within its own body and to solve the possible complaints of the citizens as a result of their opposition to the citizens in the performance of their duties to prevent crime and catch criminals through the gendarmerie. The military ombudsman application increases the interdependence of the personnel by eliminating the injustice that may occur within the institution and motivates the personnel to the task better. It resolves the complaints about the gendarmerie that faces the citizens within the framework of fairness, and prevents the organization from being worn out in the eyes of the citizens due to personnel mistakes. For these reasons, the military ombudsman system should start operating within the Turkish Armed Forces.
