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  | - INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
As a result of reform process started by Sultan Mahmud II, the Supreme Council for Judicial Regulations was set up in 1837. Noble Edict of the Rose Garden of 1839 lay down that this body was to exercise supervisory and quasi-legislative function. In April 1868, the Supreme Council was reorganized, and two new bodies created from it, a Board of Judicial Regulations and a Council of State. The former was a revised version of the earlier Council, with quasi- legislative and some judicial functions. The latter modelled on the French Conseil d’État was in effect a high court of appeal in administrative cases and an advisory and an examining body. All the judgements of the Council of State were subjected to the approval of the Sultan and only after his approval, they could be implemented (Justice retenue).
Following the proclamation of republic on 29th October 1923, the Council of State went through a reorganisation and started working again in 1927. Justice retenue was abolished, however category of acte de gouvernement continued to be excluded from judicial review until the Constitution of 1961. Constitution of 1961 brought out the principle that all acts and actions of the administration are subject to judicial review, a principle that is preserved by the Constitution of 1982, now in force, as well. - 2. Purpose of the review of administrative acts
The Constitution in Article 2 describes the Turkish Republic as a state of law that is a state obedient to the rule of law. The basis of the review by the courts of administrative acts and actions are stated in Article 125 of the Constitution. Recourse to judicial review is available against all actions and acts of administration and the administration is liable to compensate for damages resulting from its actions and acts. However, same article draws the limits of judicial review: Judicial power is limited to the verification of the conformity of the actions and acts of the administration with law. No judicial ruling shall be passed which restricts the exercise of the executive function in accordance with the forms and principles prescribed by law, which has the quality of an administrative action and act, or which removes discretionary powers.
According to the Council of State, all actions and functions of the administration must be in conformity with law and the constitution. In a state bound by the principle of the rule of law, the law absolutely prevails over all institutions of the State. An action for annulment is the principal remedy against illegal administrative acts, regulations by-laws and best option to force the administration to obey the rule of law. Although it is not an actio popularis, even the breach of a personal interest not a right, is sufficient to bring such a suit with the court. On the other hand, in order to commence a full remedy action (a compensation case) the plaintiff should have a standing to sue, which now means the existence of concrete, personal, actual and direct damage arising from the act and action of the Administration, the Council of State still considers these cases as a tool for implementing rule of law and thus differs them from individual compensation cases dealt by the ordinary judiciary.
According to the Council of State it is illegal to establish any administrative act even if by authority deduced from the law, if it is to restraint any right or freedom to the extent of making it impossible to be exercised. - 3. Definition of an administrative authority
There is a not a single legal definition of administrative authority. Ministries, consultative agencies in the centre and governors, sub-governors, provincial organisation of central administration; local administration such as municipalities and villages; functionally decentralized organisations such as Turkish Radio and Television Agency, Board of Radio and Television and state universities are deemed administrative authority. Public economic enterprises are subject to private law in their activities; however, foundation of these public corporate bodies, formation of their organs, the status of the civil servants employed, tariffs, by-laws and pricing decisions fall within the domain of administrative law. Private legal entities, such as private universities might be deemed public authority when they exercise public authority. - 4. Classification of administrative acts
Administrative acts are classified by the case-law of the Council of State. Unilateral acts are composed of individual acts which make changes in the legal status of one individual or general normative acts, regulations, by- laws, general orders etc. which affect the status of several persons. An administrative contract is the only bilateral act of the administration, but the administrative authority is still in a dominating position.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
- A. COMPETENT BODIES
- 5. Non-judicial bodies competent to review administrative acts
The administration’s control is ensured by independent administrative courts. Internal review by the administrative authorities is limited and ad hoc, but then these agencies’ decisions themselves are subject to judicial control. - 6. Organization of the court system and courts competent to hear disputes concerning acts of administration
In the Turkish system all administrative cases governed by administrative law fall within the competence of the administrative courts, except a very limited number of cases referred by law to the ordinary courts.
The Council of State is, in its judicial capacity, the highest administrative court, mainly with appellate jurisdiction. It reviews administrative cases as a court of first instance, however, when it is required to do so by law. The Courts founded at the regions are: administrative courts and tax courts, both of which are courts of first instance with general jurisdiction; and the regional administrative courts. The administrative courts review all administrative cases which are not within the jurisdiction of the Council of State as a court of first instance. The same principle applies to tax courts which review only tax cases. Judgments rendered by single-judge court are only reviewed by the regional administrative courts. These courts also function as courts of conflicts at the regional level and solve problems of competence, venue and matters of conjunction. The Constitutional Court is not competent to hear administrative cases.
- B. RULES GOVERNING THE COMPETENT BODIES
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- 9. Internal organization of the ordinary courts competent to review administrative acts
The ordinary courts include the civil courts and the penal courts. Also, there are specialized civil courts and penal courts in large cities. They are composed of one or three judges. - 10. Internal organization of the administrative courts
Both administrative courts and tax courts are composed of three judges and decide by majority. Some minor cases prescribed in the Law No: 2576, however, are reviewed by a single judge. Regional administrative courts are composed of one chief judge and two judges and they decide by majority. The Council of State consists of twelve judicial chambers, one plenary session of members of the chambers is held for administrative cases, another is held for tax cases and the general assembly meets for the unification of judgments. Each chamber convenes with five justices and renders its judgments by majority.
- D. JUDGES
- 11. Status of judges who review administrative acts
The members of the administrative courts have the same status reserved for the members of the judicial order. They are appointed, supervised and promoted by the Supreme Council of Judges and Public Prosecutors like members of ordinary courts. - 12. Recruitment of judges in charge of review of administrative acts
Candidates who succeed in competitive written and oral examinations held by the Ministry of Justice must then go through a two years period of training at the Justice Academy and at the courts. Candidates with PhD degree take only oral exam. After the training period and a final exam, the Supreme Council of Judges and Public Prosecutors decide on their acceptance to the profession. High Judges of the Council of State are elected by the Supreme Council amongst senior administrative judges and by the President of Republic amongst high level civil servants. - 13. Professional training of judges
The Justice Academy provides initial and in-service training for members of courts. Council of State also supports its members by training programmes. - 14. Promotion of judges
The rules for promotion of judges are based not only exclusively on seniority but also on the consequences of assessments performed about them. Assessment procedure evaluates professional skills such as accuracy in the judgments and rapidity in finalizing a case. It is closely related to the rules of promotion. Appraisal files of judicial inspectors are also taken into account for promotion. Final promotion is determined by the Supreme Council of Judges and Public Prosecutors. No assessment procedure is available for high judges. - 15. Professional mobility of judges
The Supreme Council of Judges and Public Prosecutors, administers any change of function or place of assignment, the initiation of disciplinary proceedings, and any subsequent disciplinary actions taken against them.
- E. ROLE OF THE COMPETENT BODIES
- 16. Available kinds of recourse against administrative acts
Pursuant to Procedure of Administrative Justice Act, there are three types of administrative actions: Annulment actions, full remedy actions and actions relating to disputes arising from administrative contracts to carry out public services.
Annulment actions ensure annulment of illegal individual or regulatory acts by administrative justice. These suits can be filed by those whose interests have been violated due to any legal error in one of the elements of competence, form, reason, subject and aim of individual or regulatory administrative acts. Courts can adjudicate on complete or partial annulment of the contested act. However, they can neither replace their own evaluation of policy for that of administration or give a verdict in the character of administrative act nor can they give a verdict that will restrict the exercise of administrative function.
Full remedy actions are brought by those whose rights have been violated by administrative acts or actions, for restitution or compensation. Full remedy actions can be filed directly, along with an annulment action or after a decision is rendered on annulment action. Compensation can be awarded under the principles of fault based liability, objective liability or social risk.
Annulment or full remedy actions relating to the disputes arising from administrative contracts to carry out public services shall be dealt with administrative judiciary, with the exception of disputes for which arbitration is envisaged. - 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty
If a judge finds that the law or the decree having the force of law to be applied in a case under consideration unconstitutional or if he/she is convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, consideration of the case shall be postponed until the Constitutional Court decide on the issue. If the waiting period exceeds five months after the Constitutional Court receives the contention, the judge shall conclude the case under law or the decree having the force of law in effect. However, if the Constitutional Court decides on the matter, before any decision is reached on the merits of the case, the judge is obliged to comply with it. - 18. Advisory functions of the competent bodies
The Council of State is not only a supreme administrative court but also an advisory body. The Council is entrusted to give opinions on draft legislation submitted by the Prime Minister or the Council of Ministers, to give opinions on the conditions and the contracts under which concessions are granted. - 19. Organization of the judicial and advisory functions of the competent bodies
Administrative duties and disputes relating to administrative matters are examined by the First Section and the Board of Administartive Affairs. First Section of Council of State does not have any judicial power besides its administrative and advisory function. Judges who are assigned to work at the administrative decision-making organs of the Council do not deal with cases which may arise as a result of decisions taken by them in their consultative or administrative capacity.
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- 20. Role of the supreme courts in ensuring the uniform application and interpretation of law
The Assembly on the Unification of Conflicting Judgments shall make a decision on the unification of conflicting judgments when a difference or conflict arises between the decisions of Law Sections or the Plenary Sessions of the Administrative and Tax Law Sections, upon requests by the President, Chief Advocate-General, relevant sessions or concerning parties. Its decisions are binding.
Decisions of the regional courts, administrative and tax courts which have become final without appellate revision and whose nature is in contradiction with law may be appealed against by the Chief Advocate-General upon request or of his/her own motion, for the public benefit.
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
Section 11 of the Procedure of Administrative Justice Act states that before bringing an action, the person concerned may request the abolishment, withdrawal, alteration of the administrative act or implementation of a new act from the superior authority, if there is no superior authority, from the authority that implements the act. This application shall suspend the time limit that has started to run. If no response is given within sixty days, the request shall be deemed to be dismissed. When the application is dismissed or deemed to be dismissed, the time limit shall rerun and the period passed until the application date shall be taken into account. This provision has general application and is not compulsory. On the other hand, the persons whose rights have been violated by an administrative action must apply to the relevant administrative authority for the rectification of the situation within one year from the notification or the date they learn the action by another way and in any case within five years from the action, before bringing an action, according to section 13 of the said law. - 22. Right to bring a case before the court
According to Procedure of Administrative Justice Act, the plaintiff, as well as being a real person, can also be a legal entity or a public body. However, as a rule, the plaintiffs’ interests must have been violated or their personal rights have been damaged by the administrative procedure. The administrative units within the hierarchical authority cannot bring lawsuits against one another or against the superior authorities as plaintiffs. Nonetheless, the local administrations, in particular, may bring administrative actions against the superior authority, under certain conditions. - 23. Admissibility conditions
Plaintiffs have to demonstrate an interest in the annulment of the contested act. The interest violated, as well as being a common interest, can also be a right protected by the law. The violated right does not need to be of financial or economic nature. Access to judicial review is available to associations as well as other bodies empowered to protect collective or community interests. - 24. Time limits to apply to the courts
According to Procedure of Administrative Justice Act, the time limits to bring an action are fixed. These time limits run on the date of written notification and from the date following the promulgation date of statutory instruments whose promulgation is required. If the last day of the time limit coincides with a holiday, the last day of the time limit extends to the end of the working day following the holiday. In addition, if the last day of the time limit coincides with the judicial holiday, then these periods will be deemed to be extended for seven days starting from the date following the last day of the holiday. Under the case-law of the Council of State time limit runs from the date of acknowledgement when there is no formal notification. - 25. Administrative acts excluded from judicial review
As a rule, judicial remedy is possible against all types of administrative actions. However, according to Section 2/3 of Procedure of Administrative Justice Act, the acts implemented by the President of the Republic in his/her own motion are outside the scope of judicial review. Decisions of the Supreme Military Council and the Supreme Council of Judges and Public Prosecutors are also not subject to judicial control. - 26. Screening procedures
The petitions are examined to see if they comply with the rules stated in the Procedure of Administrative Justice Act. These examinations are carried out by the president or a member assigned by the president in the administrative courts and by a judge rapporteur assigned by the president of the Section in the Council of State. If the petitions are found to be unsuitable to the conditions stated in the said Act, they shall be rejected by the judge or committee of judges that has the power for adjudication. An extra period of 30 days is given for renewal of these petitions. Preliminary examination shall be finalized within fifteen days from the receipt of the petition. A hearing is not involved at this stage. A brief statement of the reasons will be sufficient. This procedure has been examined by the national courts. - 27. Form of application
The suits are filed with signed petitions addressed to the presidency of the Council of State or administrative courts. In the petitions, names, surnames and addresses of the parties and their counsels, if they have any, subject and reasons of the case, written notification date of the administrative act, disputed amount in full remedy actions and tax cases, are indicated. - 28. Possibility of bringing proceedings via information technologies
Yes, in regional administrative, administrative and tax courts, as they being a part of UYAP (National Judiciary Informatics System). - 29. Court fees
When administrative suits are filed, duty and postal fees are charged. Amounts of these charges are stated in the law. - 30. Compulsory representation
In administrative suits, it is not compulsory to ask for an advice of a lawyer or a counsel. On this issue, there are no discrepancies between the lower level courts and the Council of State. - 31. Legal aid
It is stated in the Procedure of Administrative Justice Act that as far as the legal aid is concerned, the provisions of the Civil Procedure Act shall apply. Legal aid is granted where the financial conditions of the applicant are fulfilled and the substance of the case is not manifestly unfounded. Only courts are empowered to grant legal aid. Refusal to grant legal aid can be challenged together with judgment on merits. - 32. Fine for abusive or unjustified applications
There are no penalties foreseen for abusive or unjustified applications.
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
Procedure of Administrative Justice Act states that hearings are open to the public; in cases where public morality or public security requires, all or part of the hearings are held in closed sessions, by the decision of the court. Each of the parties is given two chances to present their oral arguments. The presence of the Advocate General in the hearings held at the Council of State is compulsory. After this presentation, the last words of the parties are asked. The decision is rendered within fifteen days from the hearing. The right to inter partes proceedings, the rights of defense, the balance of written and oral elements in the proceedings is respected. - 34. Judicial impartiality
The impartiality of judges is guaranteed by the Constitution. The constitution states that, everyone has the right of litigation either as plaintiff or defendant, the right to a “fair trial” before the courts through lawful means and procedures, no one may be tried by any judicial authority other than the legally designated court, judges are independent in the discharge of their duties, no organ, authority or individual may give orders or instructions or make recommendations or suggestions to judges relating to the exercise of judicial power and the administration is obliged to comply with court decisions.
In the Civil Procedure Act on the other hand, the conditions for which a judge cannot try a suit, are clearly stated. Also in the Procedure of Administrative Justice Act, it is stated that if the parties have any suspicions on the impartiality of the judges, they have the right to challenge the judge. Main reasons which prevent judges from hearing a case are cases directly or indirectly related to them or their relatives, cases in which they advised one of the parties or declared their opinion if not legally required, where they have rivalry against one of the parties, etc… - 35. Possibility to rely on the new legal arguments in the course of proceedings
After the suit is filed, plaintiffs cannot expand the demands. Parties cannot claim any right depending on the defense plea submitted after the “time limit”. However courts carry out all examinations about the cases before them, of their own motion. - 36. Persons allowed to intervene during the main hearing
Third party intervention is possible by those who consider that their interests or rights might be affected by the outcome of the case. - 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
There is no representative of the state in administrative courts. - 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
The advocates-general examine case files on behalf of the Chief Advocate General and give their written and reasoned opinions. Presence of advocate- general in hearings held at the Council of State is compulsory. The advocates- general may request the relevant authorities to submit any kind of information and ask from administrative organs to provide files related to the case. If it is deemed necessary by the sections or plenary sessions, the advocates- general shall also present their opinions orally. - 39. Termination of court proceedings before the final judgment
If a modification occurs in the personality or status of the parties due to death or any other reason, until the person who has the right to pursue the action applies; in case of decease of the plaintiff, until the administration renews its pursuit against the heirs of the deceased, the relevant Court decides to suspend the action. Admission on the part of the defendant and waiver also finalizes the case. - 40. Role of the court registry in serving procedural documents
The courts registry is responsible from notification the petitions and pleas to the parties or demanding documents that might be required by the judges from the parties and other persons. - 41. Duty to provide evidence
The courts shall carry out all examinations of their own motion. The parties themselves may also present evidences. The courts may ask the parties or any other persons and authorities to send documents and to present all kind of information. - 42. Form of the hearing
Under the Procedure of Administrative Justice Act hearings are open to public; in cases where public morality or public security requires, all or part of the hearings are held in closed sessions, by the decision of the court. The representatives of the defendant administration and the plaintiffs themselves or their legal representatives can take part in the hearing. Each of the parties is given two chances to present their oral arguments. Written presentation is also possible. The presence of the advocate-general in the hearings held at the Council of State is compulsory. - 43. Judicial deliberation
The judge-rapporteurs examine the case files and prepare a report on the facts and law for each case and present their opinion, orally. Once the matters have been clarified, the problems relating to competence and procedure, if any, and the issues in merits are decided upon, in sequence. The president of the section directs the deliberations and determines the subjects that will put on vote. The president and the members cast their votes; dissenting opinions are placed in the judgment.
- C. JUDGMENT
- 44. Grounds for the judgment
Section 24 paragraph (e) of the Procedure of Administrative Justice Act provides that judgments shall contain, inter alia, the legal basis of the judgment, statement of the justification and conclusion. Therefore, actual and legal grounds must be placed in the judgment. Since, judgments produce effects not only with their conclusions but also with their reasoning; specific and express response shall be given to points raised by the parties if the outcome of the case requires so. On the other hand, the administration is left no choice but to execute court judgments pursuant to its grounds, statement of reasons is indicated with sufficient clarity to enable the parties to understate the meaning and scope of the decision. - 45. Applicable national and international legal norms
Main reference norms are the Constitution, law and jurisprudence. ccording to the practice of the Council,international agreements and treaties duly put into effect become part of national law , and as their constituonality cannot be questioned before the Constitutional Court under Article 90 of the Constitution, they take presedence over national law in case of conflict.Likewise, acts of international organisations which are reinforced by a national act, international customary rules and the general principles of international law are part of domestic law; accordingly the administrative courts can take into account them by their own accord. The Convention for the Protection of Human Rights and Fundamental Freedoms has been cited and relied upon by the Council,in many occasions ; reference to the acquis is raising. - 46. Criteria and methods of judicial review
It is stated in Section 2 paragraph 2 of the Procedure of Administrative Justice Act that the power of administrative justice is limited to verification of the conformity of administrative acts with law; courts cannot review the appropriateness of an act and action. It is generally recognised that an administrative authority cannot be compelled to exercise a power which is purely discretionary and judicial control of administrative acts involving the exercise of discretionary powers is inevitably less stringent than in the case of those act which involve measures which obligatory for the administrative authorities. Nevertheless, judicial control over the exercise of discretionary power ensures that, when an administrative authority exercises a discretionary power, it does so within the limits and purposes for which, under the law, it enjoys discretion. The courts, therefore, tries to find more favourable solutions to the citizens’ rights.
Review by lower level courts is not different from the review by the Council, in this respect. - 47. Distribution of legal costs
Legal costs shall be borne by the party/parties whose case is dismissed. In case of partial dismissal of a case, legal cost shall be apportioned amongst the parties taking into account of their rightfulness. The parties taking advantages of legal aid shall not be asked to pay costs, initially. Some administrative bodies are exempted, by law, from paying certain type of legal costs. Courts are not empowered to exempt a party from paying costs. Compulsory interveners may be exempted. - 48. Composition of the court (single judge or a panel)
Law on the Organisation of District Administrative, Administrative and Tax Courts provides that actions of annulment and full remedy actions the disputed amount of which does not exceed certain limit of money shall be reviewed by a single judge. All disputes at the Council of State are dealt with by a committee of judges. - 49. Dissenting opinions
Section 24 of the Procedure of Administrative Justice Act states that judgments shall indicate, inter alia, whether it is rendered unanimously or by a majority vote and shall contain dissenting opinions, if there are any. There is no difference between lower and higher jurisdictions. - 50. Public pronouncement and notification of the judgment
According to Section 25 of the Procedure of Administrative Justice Act, a copy of the judgment certified by the Court’s seal and the signature of the president or judge shall be posted to the parties, without delay; judgment are not delivered orally.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
Burden of execution is imposed on the administrative body, which enacted the contested act. Decisions of annulment related to regulatory acts and judgments of unification of the Council both have erga omnes character. Decisions on individual acts produce effects for the parties ; settled case-law are applied as stare decisis by the judiciary and can be relied upon by the parties.Annulment decisions are res judicata. - 52. Powers of the court in limiting the effects of judgment in time
Neither the Council of State nor the administrative courts can limit the effects of the judgment in time. - 53. Right to the execution of judgment
Under the Constitution and law, the legislative, executive and administrative organs shall comply with court decisions; these organs shall neither amend them nor delay their execution.Implementation period cannot exceed thirty days. An action of compensation can be brought for pecuniary and non- pecuniary damages caused by the failure of the administration to implement acts and to take actions required by the decisions.If public officials deliberately fail to fulfill the requirements of the decisions, a compensation action can also be brought against them ; they may be held liable in disciplinary and criminal proceedings,as well.No procedure for execution by private persons, but decisions rendered in full remedy actions are executed and enforced pursuant to the general provisions.Administrative courts have no power of injunction. - 54. Recent efforts to reduce the length of court proceedings
Reform in justice is one of the fundamental priorities of the Accession Partnership and National Plan for the Adoption of the Acquis. Accordingly, a “Judicial Reform Strategy” has been prepared in order to strengthen, inter alia, the efficiency of the judiciary. Strategy includes measures for alternative and preventive ways of dispute resolution and measures to accelerate and shorten trial process by establishing Ombudsman, introducing a General Administrative Procedure Law and amending the Procedure of Administrative Justice Act. A new cadre of “Judicial Service Expert” will be set up between judges and judicial staff in order to reduce the administrative burden of judges. District Administrative Courts will be transformed to Administrative Courts of Appeal. No specific provision for compensation for loss caused by delays.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
Regional administrative courts, administrative courts, and tax courts have general jurisdiction on administrative disputes. Actions the disputed amount of which does not exceed a certain limit are resolved by a single judge. The regional administrative courts review and rule on the decision rendered by a single judge. On the other hand, the Council of State is the supreme administrative court and also and advisory body. The Council reviews the appeals brought against the judgments given by administrative and tax courts and judgments rendered in cases which have been examined by the Council of State as a first instance court. As a first instance court, the Council of State deals with the annulment and full remedy actions brought against the decisions of the Council of Ministers or statutory instruments of the ministries, and reviews the applications concerning the loss of status of elected organs of the municipalities and provinces. In its advisory capacity the Council presents its opinion on draft legislation submitted by the Prime Ministry or the Council of Ministers, examines draft regulations, presents its opinion on the conditions and the contracts concerning public services under which concessions are granted, presents its opinion on the other matters submitted by the Presidency of the Republic and the Prime Ministry. - 56. Recourse against judgments
Procedure of Administrative Justice Act states that “Even if there is a provision contrary to the present section in other acts, an appeal might be brought to the Council of State against the judgments of the judicial divisions of the Council of State and administrative and tax courts”. As a result of appellate review, the Council of State sets aside the decision examined because of the following reasons:
- the court lacked jurisdiction,
- the decision is against the law,
- procedural provisions were not complied with.
The Regional administrative courts, on the other hand, can give judgments on the merit if they conclude that the information obtained about the facts is sufficient or if the appeal concerns merely points of law or if the errors in fact can be rectified.
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- 57. Existence of emergency and/or summary proceedings
The Council of State or administrative courts may decide to stay the execution of the act, if the implementation of the contested administrative act shall result in damages that are difficult or impossible to compensate for, and if the act is manifestly unlawful. Decisions on the stay of execution are taken by the Council of State, the court or the judges hearing the main proceedings. - 58. Requests eligible for the emergency and/or summary proceedings
Stay orders are protective and precautionary decisions that suspend the enforceability of the contested act, nevertheless without prejudicing its legal existence. As regards the context of their effects, on the other hand, stay of execution decisions are similar to decisions of annulment: Stay orders provide the situation as it was prior to the execution of the act just like the annulment decisions. Administrative authorities are obliged to submit all documents which might be asked by courts. - 59. Kinds of summary proceedings
The proceedings for a decision to stay of execution are the same for all cases.
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- 60. Role of administrative authorities in the settlement of administrative disputes
Before bringing an action, abolishment, withdrawal, alteration of the administrative acts or the implementation of an act may be requested from the superior authority, if there is no superior authority, from the authority that implements the act. After the application, the administrative authority can abolish, withdraw, alternate the act or implement a new act. On the other hand, all administrative authorities are under an obligation to receive the applications and respect the right to petition. - 61. Role of independent non-judicial bodies in the settlement of administrative disputes
Independent regulatory agencies that are autonomous from the government settle some administrative disputes. However, these agencies do not provide an alternative solution to administrative justice. Draft legislation relating to non-judicial means including ombdusman is under consideration. - 62. Alternative dispute resolution
Alternative dispute solutions are not very developed in this field. Since there is no unified general law on administrative procedures, alternative ways are sectoral or ad hoc and can be found in such as Code of Labour, Code of Consumer Protection, Code of Notary, Code of Tax Procedure and Code of Lawyers. According to Procedure of Administrative Justice Act, disputes arising from conditions and contracts under which concessions are granted and for which arbitration is envisaged cannot be held by administrative courts.
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA
- A. FINANCIAL RESOURCES MADE AVAILABLE FOR THE REVIEW OF ADMINISTRATIVE ACTS
- 63. Proportion of the State budget allocated to the administration of justice
In 2006 and 2007 respectively 1.846.033.000 New Turkish Liras (1.01% of the State Budget) and 2.925.153.870, New Turkish Liras (1,36% of the State Budget) were allocated to the administration of justice in Turkey. It is not possible to distinguish administrative justice as a whole, but the Council of State has a separate budget, which is 21.954.000 NTL for 2006 and 36.426.870 NTL for 2007. - 64. Total number of magistrates and judges
| Reference Years | Member of the CoS | Prosecutor (Advocate General) | Judge Rapporteur of the CoS | Judge of the Regional Ad. C., Ad. and Tax Courts | Total | | 2006 | 86 | 43 | 223 | 690 | 1.042 | | 2007 | 90 | 52 | 244 | 889 | 1.275 | - 65. Percentage of judges assigned to the review of administrative acts
The percentage of judges who are assigned to the review of administrative authorities (corps of the administrative judiciary including members of the Council of State) was 13.5% in 2006 and 16.9% in 2007. - 66. Number of assistants of judges
Judges-rapporteur who must be university graduate present their own opinions in both writing and orally, write draft decisions and prepare minutes. In this manner, they help to the members of the Council of State. Every section has 15- 20 judges-rapporteur. Judges of the regional administrative courts, administrative courts and tax courts are not helped by assistants. - 67. Documentary resources
The Library of the Council of State was established in 1927. It houses only books and periodicals. It is a specialised library on administrative law, however it also includes books and journals on different branches of both Turkish and foreign law. The Library attempts to acquire and retain for the permanent collections the following types of important legal publications: Official gazettes, Minutes of the Parliament, Codes, Administrative rules and regulations, Commentaries and indexes to laws, rules and regulations, decisions and reports of the other Supreme Courts. Collection also includes the legal sources and important publishing of the Ottoman Period. The library open to all researchers, but only staff working at the Council of State can borrow materials. All documents in the Library are listed books and journals are listed on-line catalogue. - 68. Access to information technologies
The Council of State has owned its network system since 1994. At first the use of computers and main data bank was very restricted and the system has been used only for typing and storage of the decisions. However, the usage of the system has been widened and in the time being all judiciary personnel including members, judges-rapporteur, attorneys of the court and civil servants working at the clerk’s offices are equipped with PC’s for writing decisions and accessing judgements of the Court. Judiciary personnel have also internet access. Civil servants working mainly at administrative positions have been given computers according to the necessities of their task. All cases are recorded electronically and proceedings might be followed up by concerned people via website of the Council of State (www.danistay.gov.tr). - 69. Websites of courts and other competent bodies
Ministry of Justice, the Council of State and other Supreme Courts have their own websites. Some subordinate courts have also created their own web sites and share information on their work with the public. Council of State’s databank, which consists of approximately 23.000 precedent judgements are open to public on the website. Information on the Council of State (its history, organization and functions; texts of the main laws concerning administrative judiciary) can also be found on the website in three different languages: Turkish, English and French. Besides every important judgement of the Court which may require public attention is also published on the web.
- B. OTHER STATISTICS
- 70. Number of new applications registered every year
Council of State (Judicial Chambers of the CoS)
| Reference year | Cases lodged | Cases disposed of | Cases pending | Average time to judgment | | 2006 | 86.878 | 71.786 | 94.454 | 404 days | | 2007 | 110.535 | 86.703 | 118.286 | 384 days |
Council of State (Administrative Chamber of the CoS)
| Reference year | Cases lodged | Cases disposed of | Cases pending | Average time to judgment | | 2006 | 1.318 | 1.337 | 175 | 50 days | | 2007 | 1.537 | 1.575 | 137 | 36 days |
Regional Administrative Courts (Cases lodged includes cases from last year and new cases)
| Reference year | Cases lodged | Cases disposed of | Cases pending | Average time to judgment | | 2006 | 69.578 | 67.294 | 15.464 | 75 days | | 2007 | 78.960 | 80.301 | 14.123 | 67 days |
Administrative Courts of First Instance
| Reference year | Cases lodged | Cases disposed of | Cases pending | Average time to judgment | | 2006 | 169.591 | 174.506 | 99.936 | 202 days | | 2007 | 144.784 | 167.351 | 88.030 | 210 days |
Tax Courts of First Instance
| Reference year | Cases lodged | Cases disposed of | Cases pending | Average time to judgment | | 2006 | 74.327 | 71.674 | 40.434 | 179 days | | 2007 | 82.623 | 79.174 | 49.360 | 193 days | - 71. Number of cases heard every year by the courts or other competent bodies
- 72. Number of pending cases
- 73. Average time taken between the lodging of a claim and a judgment
- 74. Percentage and rate of the annulment of administrative acts decisions by the lower courts
Administrative Courts of First Instance
| Reference Year | Total Cases | Annulment | Partial Annulment
Partial Dismissal | | 2006 | 174.506 | 44.732 (25,6%) | 13.336 (7,6%) | | 2007 | 167.351 | 46.022 (27,5%) | 11.365 (4,22%) |
Tax Courts of First Instance
| Reference Year | Total Cases | Annulment | Partial Annulment
Partial Dismissal | | 2006 | 71.674 | 32.446 (45,3%) | 12.621 (17,6%) | | 2007 | 79.174 | 34.122 (43,1%) | 10.252 (12.9%) | - 75. The volume of litigation per field
Admistrative Courts of First Instance
| Reference Year | Legislation concerning Civil Servants | Villages, Municipalities and Special Administrations | Students and Education | Urban Planning | Full Remedy Action | Others | | 2006 | 51,2% | 4,4% | 2,1% | 6,7% | 14,6% | 21% | | 2007 | 40,2% | 5% | 3,1% | 9,4% | 14% | 28,3% |
- C. ECONOMICS OF ADMINISTRATIVE JUSTICE
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