Vested Rights in Turkish Administrative Law

1. Introduction: Definition and Importance

Vested rights in administrative law refer to legal situations where an objective and general legal

condition is converted into a specific and personal legal situation through individual administrative

acts. Essentially, a vested right arises when a legal entitlement, obtained lawfully, cannot be

unilaterally revoked or altered by subsequent actions or administrative procedures unless it is

adequately compensated. This concept ensures legal stability and predictability, central to the

principles of a state governed by the rule of law and essential for maintaining public confidence in

administrative actions.

2. Legal Foundations

Although the concept of vested rights is not specifically mentioned in any Turkish constitutional texts, it is naturally incorporated within the constitutional principle of the "rule of law," as stated in Article 2 of the Turkish Constitution. This principle requires the establishment and protection of legal certainty, ensuring that citizens clearly understand their rights and obligations. Since 1963, the Turkish Constitutional Court has interpreted vested rights as a part of legal security, directly derived from the constitutional principle of the rule of law. In its landmark decision dated December 12, 1989 (Case No. 1989/11 E., 1989/48 K.), the Constitutional Court articulated the concept by distinguishing between objective, general regulatory acts and personal, subjective administrative acts, emphasizing that only fully accrued rights, such as salary entitlements, constitute genuine vested rights. (Please see Note #1)

The Council of State (Danıştay) further supports vested rights through two key principles: legal

security arising from the rule of law and administrative stability. According to a notable ruling by the

1st Chamber of the Council of State on December 19, 1988 (Decision No. 355), laws typically govern

future legal situations and cannot retroactively undermine established legal conditions. (Please see Note #2)

3. Elements of Vested Rights

Vested rights are characterized by certain distinctive features, including ambiguity, adaptability, functionality, independence from written legal documents, personal nature, and alignment with public interest. Due to their broad and flexible nature, vested rights often lack precise boundaries, requiring judicial interpretation on a case-by-case basis. Courts strike a balance between public interest and individual rights, interpreting vested rights independently from strict written documentation while considering public interest. Additionally, vested rights are inherently personal and non-transferable, protecting only the original rights holder. In cases of conflict between vested rights and public interest, the latter prevails, with an obligation to compensate the affected individual.

Based on these considerations, the general consensus identifies the following key elements for determining whether a specific entitlement qualifies as a vested right:

• Transformation from Objective and General to Subjective and Personal Legal Situation:

A general and abstract legal norm must become concrete and individual through an administrative act. Administrative regulations alone, without individual application, cannot establish vested rights. For example, the Council of State stated in its decision dated October 23, 2008 (Decision No. E.2005/1988, K.2008/1826), “It is a known principle of administrative law that regulatory acts do not create vested rights and can always be repealed or amended. However, once regulatory acts are individually applied, they create vested rights which must be protected as a consequence of the rule of law.” For instance If conditions for entering a civil service position are eased but later reversed before anyone is appointed, no vested rights arise.

However, it is important to clearly differentiate between situations that create legitimate expectations (rights anticipated but not finalized) and rights that are fully vested and definitively established. This is because, in the event that the rights of persons who are likely to benefit in the future are taken away, it is not an vested right, but a justified expectation. In one of its decisions, the Council of State also stated the difference between the concepts of justified expectation and vested right by stating that “As a rule, rights that have not turned into personal rights, which are expected to be obtained in the future depending on the realization of certain conditions, will not be protected as vested rights”.

• Capability of the Individual Act to Generate Rights:

  
  

Not every administrative act inherently leads to an vested right. Acts considered legally null (void ab initio) due to severe errors or fraud do not establish vested rights. Such acts are inherently void and cannot serve as a basis for protected legal entitlements. Additionally, purely negative administrative responses (rejections) or merely explanatory actions do not generate genuine vested rights. Similarly, temporary administrative acts or those contingent upon certain conditions or future events also fail to establish vested rights unless the specified conditions have been clearly and completely fulfilled. 

• Legitimacy and Lawfulness:

  
  

Vested rights must be lawfully obtained and recognized as worthy of protection. For a right to qualify as vested, both the individual administrative act and its underlying general regulatory norm must be lawful. However, administrative acts that initially violate the law but persist unchallenged for a prolonged period may result in what is termed an "established situation," protected by administrative stability and legal security principles. The Council of State, in a unification of jurisprudence decision, highlighted that although unlawful acts cannot create true vested rights, the personal legal effects resulting from them might be protected under administrative stability. This protection generally depends on a specific duration, typically equal to the statutory limitation for administrative claims (i.e., 60 days for the Council of State and administrative courts, 30 days for tax courts). Nonetheless, administrative actions involving fraud or in exceptional circumstances where there is serious unlawfulness may still be revoked at any time, regardless of the time elapsed.

• Completion and Protection-worthiness:

  
  

For an vested right to exist, it must be finalized and clearly defined within the legal system. Turkish administrative law holds that rights must be explicitly completed and protected within the legal framework to be considered genuinely vested. Turkish administrative law generally holds that beneficial administrative acts are finalized upon signing by the authorized official, while detrimental administrative acts are completed upon their notification to the affected individual.

4. Application Examples of Vested Rights

   
   

The application of the vested rights concept is well illustrated by comparing two significant judicial decisions. In a notable decision by the Turkish Constitutional Court, the Court ruled against the cancellation of a doctoral diploma on the grounds of educational rights infringement, where the individual was found to have acted in good faith, and the error was entirely administrative. Conversely, the Council of State's precedent established that diplomas obtained through fraudulent actions or deceitful practices could legitimately be revoked, as such actions do not confer vested rights. This juxtaposition highlights that in Turkish administrative law, good faith and absence of deceit are critical factors for protecting vested rights, whereas fraudulent conduct clearly excludes such protection.

5. Conclusion

   
   

In conclusion, the concept of vested rights in Turkish administrative law is pivotal in balancing the individual's legal security and the administrative stability required by public interests. It provides a framework for safeguarding legitimate individual entitlements from arbitrary administrative changes while also allowing flexibility in cases of fraud, error, or public necessity. Clearly distinguishing between genuine vested rights, established situations, and legitimate expectations enhances legal predictability and strengthens the rule of law, contributing to a fair and stable administrative system.

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Notes and Sources:

1. “In essence, regulatory acts such as regulations, decrees, and administrative directives issued based on delegated authority from a primary legislative power establish objective and general legal conditions, thereby creating specific legal statuses in the matters they regulate. Individuals can only attain such statuses through specific and personal acts (conditional acts). However, the transformation of an objective and general legal condition into a specific legal status through a conditional act is not sufficient to establish an vested right. For instance, the appointment of an individual to civil service or retirement status does not imply that no changes can ever be made to that status. Regulatory acts can always be amended or annulled by judicial bodies if deemed unconstitutional or unlawful. If the regulatory act is modified or annulled, it will also affect the conditional act relating to the individual in question. In such cases, the concept of an vested right cannot be asserted for the future; instead, the individual must conform to the new status created by the new regulatory act. Vested rights pertain to rights that have fully accrued and become definitive for the individual, such as salary entitlements, which have transformed into a personal receivable.”

2. ‘’As a general rule, laws regulate legal conditions arising after their effective date. In other words, the retroactive application of laws is an exception. Furthermore, the principle of non-retroactivity of administrative acts is based on the notion that subsequently enacted acts should not undermine legal situations established in accordance with the applicable legal rules, as this would conflict with the expectation of legal certainty and contravene the principle of temporal jurisdiction. In other words, it is rooted in the idea of protecting vested rights.’’

3. Council of State Unification of Jurisprudence Assembly, 26 September 1952, Docket No. 52/15, Decision No. 52/244.  

4. Constitutional Court Decision dated 18 October 2023, Application No. 2018/16871

5. Council of State Unification of Jurisprudence Assembly, Docket Nos. 1987-1, 2, 4, Decision No. 1987-2