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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
10 May 1868: Establishment of the Council of State
23 December 1876: Establishment of the Constitution and its effect (First and the only Constitution of Ottoman Empire)
4 November 1922: Termination of its activities as the duties and authorities were vested to the Grand National Assembly of Turkey
20 January 1921: Principal Law of Organisation (The first Constitution of emerging Turkish State)
20 April 1924: Principal Law of Organisation
7 December 1925: Effect of the Law no: 669 on the Council of State
30 December 1938: Effect of the Law no: 3546 on the Council of State
20 July 1961: Establishment of the Constitution of the Republic of Turkey
31 December 1964: Effect of the Law no: 521 on the Council of State
9 November 1982: Establishment of the Constitution of the Republic of Turkey
20 January 1982: Effect of the Law no: 2575 on the Council of State
20 July 2016: Enactment of the appeal method before Regional Administrative Courts
- 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 bylaws 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
The term “administrative authority” includes the public institutions and organizations authorized to perform administrative transactions and person or persons authorized to make decisions on behalf of the administration, and also private legal entities in cases authorized by legislation.
- 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.
Administrative courts are the courts of first instance with general jurisdiction except those to be settled in the Council of State in the first instance and the cases that fall under the duties of the tax courts. The regional administrative courts are in charge of examining and concluding the requests for appeal, resolving disputes regarding duties and jurisdiction between the administrative and tax courts within their jurisdictions and performing other duties assigned by laws.
The Council of State is the highest administrative court. It examines and concludes the decisions taken by administrative courts and tax courts and the requests of appeal brought against the decisions related to the actions heard in the Council of State as the court of first instance. The duty of the Council of State as the authority of appeal is limited to inspecting the contradictions to the law arising in the form of non-application or misapplication of a rule of law. It concludes the administrative cases written in the Act no.2575, as the court of first and last instance. It presents its opinion about the concession agreement and contracts related to the public services and fulfills other duties assigned by laws.
- B. RULES GOVERNING THE COMPETENT BODIES
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- 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. The judge reporters and public prosecutors of the Council of State shall be appointed by the Supreme Council of Judges and Public Prosecutors among administrative justice judges who have served for five years and have a positive employment record. All of them are appointed, supervised and promoted by the Council of Judges and Public Prosecutors like members of ordinary courts.
The members of Council of State are elected by the Council of Judges and Public Prosecutors from judges and public prosecutors who serve in administrative justice and by the President of the Republic from other positions. Council of State members are elected for twelve years and it is not possible to be elected twice as a member of the Council of State. The President, Chief Public Prosecutor, Vice-Presidents of the Council of the State and the Presidents and Members of the Chambers, as members of a high judicial organ, shall serve with security of tenure provided by the Constitution of Turkish Republic and the law.
- 12. Recruitment of judges in charge of review of administrative acts
Candidates, graduated from law faculties or faculties of political science, administrative sciences, economics and finance (including sufficient legal knowledge in curriculums), who succeed in competitive written and oral examinations held by the Ministry of Justice must then go through a 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 Council of Judges and Public Prosecutors decide on their acceptance to the profession. Members of the Council of State are elected by the Council of Judges and Public Prosecutors amongst senior administrative judges and by the President of Republic amongst high level civil servants.
- 13. Professional training of judges
Pre-service training of candidate judges and prosecutors is performed by the Justice Academy of Turkey, an institution with scientific, administrative and financial autonomy. On the other hand, Council of Judges and Public Prosecutors has been performing the task to provide in-service training of judges and prosecutors, mainly in cooperation with the the Justice Academy of Turkey.
- 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, compliance with ECtHR decisions 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 Council of Judges and Public Prosecutors. No assessment procedure is available for members of the Council of State.
- 15. Professional mobility of judges
Pursuant to Act on Judges and Prosecutors (No.2802), judges and prosecutors shall be appointed to the equal or higher posts with their acquired rights, salaries and degrees by change of location pursuant to the By-law on Appointment and Transfer issued by the Council of Judges and Prosecutors. The places where ordinary and administrative judiciary organizations exist are classified as regions according to their geographic, economic conditions and social, health and cultural opportunities and deficiencies, transportation and other facilities. The term of office in each region shall be determined accordingly.
- 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: Actions for annulment are filed by those whose interests have been violated by the administrative procedures to repeal such procedures based on their illegality due to one of its aspects such as competence, form, reason, subject and purpose. Full remedy actions are filed by those whose personal rights have been directly violated due to the administrative actions and procedures. The concerned persons can directly file a full remedy action to the Council of State, administrative and tax courts due to an administrative procedure that violates their rights or file the actions of annulment and the full remedy actions together. They can also file the action of annulment first, and, upon the resolution of the action for annulment, bring the full remedy action as of the notification of the decision on this matter or from the notification of the decision to be taken if an action against this decision is filed. A full remedy action can also be filed due to damages arising from the performance of a procedure, within the time limit for the action starting from the date of performance. The third type of administrative actions are the actions regarding disputes arising between the parties due to any kind of administrative contracts made for the performance of a public service except for disputes arising from the concession agreements and contracts for which arbitration is stipulated.
The administrative jurisdiction is limited to the supervision of the compliance of the administrative actions and procedures with the law. The administrative courts cannot review the expediency of an action. No ruling can be made that has the characteristic of an administrative action and procedure, which restricts the performance of the executive function in accordance with the forms and principles prescribed by the laws and the decree laws of the Presidency of the Republic, or in a manner that will remove discretionary powers
- 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 court hearing a case finds that the law or the presidential decree to be applied is unconstitutional, or if convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall postpone the consideration of the case until the Constitutional Court decides on the issue. If the trial court is not convinced of the seriousness of the claim of unconstitutionality, such a claim, together with the court judgment, shall be decided upon by the competent authority of appeal. The Constitutional Court shall decide on the matter and declare its judgment within five months of receiving the contention. If no decision is reached within this period, the trial court shall conclude the case under legal provisions in force. However, if the trial court receives the decision of the Constitutional Court until the judgment on the merits of the case is final, the trial court is obliged to comply with it. No claim of unconstitutionality shall be made with regard to the same legal provision until ten years elapse after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits.
- 18. Advisory functions of the competent bodies
The Council of State is the consultation and examination authority of the Supreme Administrative Court assigned by the Constitution of the Republic of Turkey. It is entrusted to give its opinion on the conditions and the contracts concerning public services 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
If a difference or conflict arises between the decisions of law Divisions or the Plenary Sessions of the Administrative and Tax Law Divisions, either given by the same organ or by the different ones, or when it is deemed necessary to modify a previous decision on the unification of conflicting judgments, upon the reference of the issue by the President of the Council of State, receiving the opinion of the Chief Public Prosecutor, the Assembly on the Unification of Conflicting Judgments shall examine the matter and decide on the unification of the conflicting judgments or modification of its previous decision if it deems it necessary. The unification of the conflicting judgments or the modification of the previous unification decision may be requested by the President of the Council of State, relevant Divisions, Plenary Sessions of the Administrative and Tax Law Divisions or the Chief Public Prosecutor. Those who are affected by the conflicting decisions may apply to the Council of State with the request of unification. The Divisions and organs of the Council of State, administrative courts and the administration must comply with these decisions.
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
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 article 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 concept of a violation of interest is broadly interpreted in cases related to issues the public interest, such as the protection of the environment, historical and cultural values. 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 for filing an action is sixty days in the Council of State and at the administrative courts and thirty days at the tax courts, unless otherwise specified by the special laws. 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
Pursuant to the article 125 of the Constitution, recourse to judicial review shall be available against all actions and acts of administration. However, there are some exceptions: In concession, conditions and contracts concerning public services and national or international arbitration may be suggested to settle the disputes arising from them. Only those disputes involving an element of foreignness may be submitted to international arbitration. Recourse to judicial review shall be available against all decisions taken by the Supreme Military Council regarding expulsion from the armed forces except acts regarding promotion and retiring due to lack of tenure. The decisions of the Council of Judges and Prosecutors, other than dismissal from the profession, shall not be subject to judicial review. The decisions of sport federations relating to administration and discipline of sportive activities may be challenged only through compulsory arbitration. The decisions of Board of Arbitration are final and shall not be appealed to any judicial authority. No appeal shall be made to any authority against the decisions of the Supreme Board of Election.
- 26. Screening procedures
Petitions shall be examined by one investigating judge to be assigned by the president of chamber in the Council of State, and the president of the court or a member to be assigned by the president of the court at the administrative and tax courts. The petitions are examined to see if they comply with the rules stated in the Procedure of Administrative Justice Act. The examination shall be finalised within no later than fifteen days from the date of receipt of the petition. 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. A hearing is not involved at this stage. A brief statement of the reasons will be sufficient. An appellate or appeal request, as the case may be, can be made against a decision taken by the Council of State or the courts, upon the initial examination, except for those written in the Act.
- 27. Form of application
The suits are filed with signed petitions addressed to the presidency of the Council of State, administrative or tax 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
UYAP is an e-justice system as a part of the e-government, which has been developed in order to ensure fast, reliable, soundly operated and accurate judicial system including all courts and judicial institutions in Turkey. Citizens can reach and examine their case information via Internet and learn the day fixed for the trial without going courts. By using their electronic or mobile sign they can examine their files through internet. SMS messages can also be sent to people who need to be warned when to attend court. In addition, lawyers can pay their case fee from their office and/or on Network in Bars rooms through internet banking and UYAP. They can litigate an online claim or dispute to courts and review their cases by electronics means. They can also submit their petition online via UYAP.
- 29. Court fees
When administrative suits are filed, postage and 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.
Persons who have no ability to partially or totally afford necessary litigation or enforcement costs without putting livelihood of himself or his family in a significantly difficult position, may apply for legal aid in his claims and pleas on the condition that his claims explicitly have no legal ground. Public benefit associations and foundations also may apply for legal aid under some conditions. Legal aid application can be made to bar associations or courts in every stage of the proceedings. If the request for legal aid is rejected by Bar Association, the requestor may apply to the president of the bar association. The decision will be final. Against the court’s decision of rejection on legal aid application, it is possible to appeal the decision to the relevant court. The decision is final after the appeal examination.
- 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
A hearing shall be held upon the request of either party in actions for annulment and full remedy actions (exceeding a certain limit of money stated in the Act), which are filed in the Council of State, administrative and tax courts. A hearing can be held in the appellates and appeals, depending on the request of the parties and based on the decision of the Council of State or the relevant regional administrative court. The Council of State, the court and the judge can decide to hold a hearing on their own motion regardless of the above-mentioned conditions. 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 Public Prosecutor in the hearings held at the Council of State is compulsory. After the prosecutor disclose his/her written opinion, 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 hostility 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"
In actions that are tried in the Council of State in the capacity of the court of first instance, the written opinion of the public prosecutor on the justification shall be notified to the parties. The parties can submit their opinions in writing within ten days as of the notification. It is mandatory for the prosecutor to be present in the hearings of the cases held in the Council of State. After the parties are heard, public prosecutor shall disclose his/her written opinion. Afterwards, the parties shall be asked for their last words and the hearing shall be ended. In cases including a hearing, if the public prosecutor requests that an inspection, expert examination or evidence assessment is made or the procedure file is brought, and if these requests are not accepted by the competent chamber or board, he/she shall present his/her opinion on the merits separately in writing. Among decisions finally taken by the administrative and tax courts and the regional administrative courts, and those that are finalised without any appellate or appeal examination, the decisions whose nature is in contradiction with the law in force can be appealed against by the Chief Public Prosecutor upon the request of the concerned ministries or of its own motion, for the sake of law.
- 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
In the Council of State the judge-rapporteurs examine the case files and prepare a report on the facts and relevant law for each case and present their own opinions and comments orally and in writing. 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 chamber directs the deliberations and determines the subjects that will put on vote. The president and four members cast their votes; decisions shall be taken by majority, dissenting opinions are placed in the judgment.
In the regional administrative courts, administrative and tax courts, a president and two members take part in the deliberations. The president of the court/chamber directs the deliberations. The decisions shall be taken by majority, dissenting opinions are placed in the judgment.
- C. JUDGMENT
- 44. Grounds for the judgment
The Constitution and the Procedure of Administrative Justice Act set out general rules regarding the justification of decisions. Article 141 of the Constitution states that "all decisions of all courts are written with justification", while the article 24 (e) of the Procedure of Administrative Justice Act provides that judgments shall contain, the legal basis of the judgment, statement of the justification and conclusion. In order to guarantee a fair trial, Constitutional Court precedents set out that the courts must evaluate claims on the merits of a case and evidence in this regard; and show the reasonable grounds of a decision. While the courts are independent and free to make their decisions, it must be accepted that they are obliged to state adequately the grounds on which their decisions are based. The justification of court decisions must be sufficient, clear and understandable to ensure that a cause-and-effect relationship has been established.
- 45. Applicable national and international legal norms
Main reference norms are the Constitution, other legislation and jurisprudence. Furthermore, in accordance with article 90 of the Constitution of the Republic of Turkey, international agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.
- 46. Criteria and methods of judicial review
It is stated in the Article 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. No ruling can be made that has the characteristic of an administrative action and procedure, which restricts the performance of the executive function in accordance with the forms and principles prescribed by the laws and the decree laws of the Presidency of the Republic, or in a manner that will remove discretionary powers. 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.
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)
The Act on the Establishment and Duties of Regional Administrative Courts, Administrative Courts and Tax Courts (Act No: 2576) 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 brought before 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 the article 25 of the Procedure of Administrative Justice Act, a copy of the judgment, certified by the seal of the court and the signature of the president or the judge, head of the chamber or the board or a member to be assigned in the Council of State shall be sent to the parties; judgment are not delivered orally.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
As stated by the Procedure of Administrative Justice Act, the administration must establish a procedure or take an action, without delay, as required by the judgments and stay of execution decisions of the Council of State, regional administrative courts and administrative and tax courts. Burden of execution is imposed on the administrative body, which enacted the contested act. This period may not exceed thirty days starting from the notification of the decision to the administration under any circumstance. Decisions of annulment related to regulatory acts and decisions on the unification of conflicting judgments of the Council of State both have erga omnes character. Decisions on individual acts produce effects for the parties ; settled case- law is applied as stare decisis by the judiciary and can be relied upon by the parties.
- 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
In compliance with the article 138 of the Constitution, legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution. Pursuant to the Act No.2577, the administration must establish a procedure or take an action, without delay, as required by the judgments and stay of execution decisions of the Council of State, regional administrative courts and administrative and tax courts. This period may not exceed thirty days starting from the notification of the decision to the administration under any circumstance. In cases where no procedure is established or no action is taken in accordance with the decisions of the Council of State, regional administrative courts and administrative and tax courts, an action for pecuniary and non-pecuniary compensation can be filed in the Council of State and at the relevant administrative court against the administration. If the judgments of the court are not fulfilled by the public officials within the given period of time, an action for compensation can be filed only against the relevant administration.
- 54. Recent efforts to reduce the length of court proceedings
By the initiation of “Target Time in Judiciary”, an internal time management was kicked-off in judiciary and maximum periods were determined in accordance with each type of action in order to follow up the reasons of delays and bottlenecks in the system to increase the efficiency of the courts and to ensure that the parties can anticipate the time when their actions will be finalized. The number of judges and the number of first instance courts were increased in order to strengthen the right to be tried within a reasonable time. An increase in the number of auxiliary personnel working in justice services was also enabled. Regional Administrative Courts were put into operation as appeal courts in administrative justice . The numbers of files received by the Council of State has decreased considerably following the Regional Administrative Courts’ appeal examination introduced. Human Rights Compensation Commission was established. Individual applications pending in the Constitutional Court and applications before the ECHR, concerning the trials that could not be finalized within a reasonable time included in the jurisdiction of the Commission. An individual application before the Constitutional Court is also possible.
As the EU negotiation process continues in order to ensure harmonisation of the EU acquis, the new Judicial Reform Strategy was unveiled on May 30, 2019, which aims to strengthen the independent, transparent, objective and accountable features of the judiciary. In the document, ‘observing the right to trial within a reasonable time’is listed among the principles of Judicial Vision 2023. Besides, ‘effective implementation of the institution of peace in disputes concerning public law’ is targeted through the aims of spreading of alternative dispute resolution methods.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
The Council of State is the highest court for reviewing decisions and judgments given by administrative and tax courts not referred by law to other administrative courts. It is also the first and last instance court for dealing with specific cases prescribed by law and an advisory authority to specific topics. The regional administrative courts are in charge of reviewing and deciding on appeals against decisions made by administrative courts and tax courts and resolving the jurisdictional conflicts between the administrative and tax courts. Administrative courts are the general courts dealing with cases, other than those to be settled in the Council of State in the first instance and the cases that fall under the duties of the tax courts. In general, the tax courts are responsible for resolving cases concerning the application of the Law No. 6183 on the Collection of Public Receivables on cases related to taxes, duties and charges and similar financial obligations and their increases and penalties and tariffs.
- 56. Recourse against judgments
In accordance with the Procedure of Administrative Justice Act, an appellate request can be made within thirty days as of the notification of the decision to the regional administrative court within the judicial locality where the court is located against decisions of administrative and tax courts even if a different legal remedy is stipulated in other laws. However, the decisions taken by administrative and tax courts about tax actions, full remedy actions and the actions of annulment filed against administrative procedures that does not exceed a certain amount of Turkish Liras shall be final and no appellate request can be made against these decisions. The final decisions of the law chambers of the Council of State and the decisions taken by the regional administrative courts about the actions listed in the Act can be appealed within thirty days as of the date of notification of the decision in the Council of State, even if otherwise provided for in other law
At the end of the appeal examination, the Council of State shall reverse the examined decision for the following reasons; a)the court lacked competence or jurisdiction over the case, b) the decision was taken against the law, c) there are errors and shortcomings that might affect the decision in the implementation of the procedural provisions. The appellate in Regional administrative courts is subject to the form and procedures of the appeal. If the regional administrative court considers, at the end of its examination, that the decision of the court of first instance is in compliance with the law, it shall decide to dismiss the appellate request. If it is possible to correct the material mistakes in the decision, it shall take the same decision by making necessary corrections.
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- 57. Existence of emergency and/or summary proceedings
Pursuant to the article 20/A of Procedure of Administrative Justice Act, summary procedure shall be applied to the disputes arising from the proceedings listed and to the article 20/B of the Act, there exists a jurisdiction procedure for central and common exams. These are exceptional and accelerated procedures and aimed to shorten the periods according to the general judicial procedure in cases of urgency. There are also special arrangements for these procedures, especially in terms of shortening the periods during the appeal stage.
The Council of State or administrative courts may also 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
Pursuant to article 20/A of Procedure of Administrative Justice Act, summary procedure shall be applied to the disputes arising from i) Procurement proceedings except for the decisions for prohibition from procurement, ii) Urgent expropriation proceedings, iii) Decisions of the High Council for Privatisation, iv) Sale, allocation and lease of transactions carried out pursuant to the Tourism Incentive Law no. 2634, v)Decisions taken as a result of the environmental impact assessment pursuant to the Environmental Law no. 2872, except for the administrative sanction decisions, vi) Decisions of the President of the Republic taken pursuant to the Law no. 6306 on Transformation of the Areas Under Disaster Risk.
A procedure is also stated in the article 20/B of the Act, which shall be applied to the actions filed about the central and common exams held by the Ministry of National Education and the Centre for Assessment, Selection and Placement , the proceedings and acts regarding these exams and the exam result.
In the procedures set out above-mentioned articles, the time limit for filing an action, the period for initial examination, the conclusion period of the actions as of the completion of the file, the time limit for an appeal request shall be shorter than usual. No objection can be made against the decisions to be taken with respect to the request for the stay of execution.
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
Regulatory and Supervisory Public Authorities (independent administrative authorities authorized to make executive decisions in the name of the State with respect to regulation and supervision duties relating to sensitive areas of public life such as Capital market, competition, energy, tenders, radio and television broadcasting and banking Services, eg. Radio and Television Supreme Council, Capital Market Board etc.) are authorized to settle the disputes arising with respect to their area of activity through administrative decision without such disputed being referred to law courts. The decisîons made by such authorities are not judicial decisîons but rather administrative decisîons and are subject to judicial review. Ombudsman Institution has been established with the Act no. 6328. The Ombudsman Institution which is attached to the Turkish Grand National Assembly, has legal personality and a separate budget. The purpose of the Institution is to establish an independent and efficient complaint mechanism regarding the delivery of public services and investigate, research and make recommendations about the conformity of all kinds of actions, acts, attitudes and behaviours of the administration with law and fairness under the respect for human rights. The Human Rights and Equality Institution of Turkey, affiliated to the Ministry of Justice, with public legal entity status and administrative and financial autonomy, established by law No. 6701. It has the right to examine the allegations of violation of the right to equal treatment, discrimination or torture and ill-treatment on the basis of the application.
However, these agencies do not provide an alternative solution to administrative justice.
- 62. Alternative dispute resolution
Amendments made to the Articles 47, 125 and 155 of the Constitution provides for applications to arbitration with respect to disputes arising from concession agreements. Accordingly, concession contracts and agreements relating to public Services may provide for the resolution of disputes arising from those at national or international arbitration and only disputes containing a foreign element may be referred to international arbitration.
The Statutory Decree No 659 On Performance of Legal Services at Public Administrations Under General Budget and Administrations Under Private Budget published in the Official Gazette dated 02.11.2011 provides for resolution of administrative disputes through non-judicial procedures. Non- judiciary settlement is provided for administrations under general and private budgets. Those who claim that their rights are violated by an administrative action/act may apply to the administration for the compensation of the damage in an amicable way within the time limit for filing an action. The report signed upon amicable settlement constitutes a court writ. No judicial action may be filed with respect to the subject matter and amount of the settlement.
In general, alternative procedures constitute certain administrative remedies provided for in separate laws (Customs Law No.4458, Expropriation Law No.2942, Procedural Tax Law No.213 etc.) associable with alternative dispute resolution procedures, rather than conventional procedures (such as mediation, reconciliation, ete.).
- 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 2018 and 2019 respectively 14.479.813.000,00 Turkish Liras (1.71 % of the State Budget) and 18.960.710.000 Turkish Liras (1,84 % of the State Budget) were allocated to the administration of justice of Turkey (including the Constitutional Court, the Court of Cassation, the Council of State, the Ministry of Justice, the Council of Judges and Prosecutors and the Justice Academy of Turkey). It is not possible to state the amount of the budget for administrative justice within the general budget, but the budget of Council of State is 148.972.000 Turkish Liras for 2018 and 182.320.000 Turkish Liras for 2019.
- 64. Total number of magistrates and judges
|Reference Years ||Member of the CoS ||Public Prosecutor of CoS ||Judge Rapporteur of the CoS ||Judge of the Regional Ad. C., Ad. and Tax Courts ||Total |
|2018 ||113 ||22 ||474 ||1.703 ||2.312 |
|2019 ||110 ||28 ||448 ||1.702 ||2.288 |
- 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 16.7% in 2018 and 15.8% in 2019.
- 66. Number of assistants of judges
In the Judicial Reform Strategy of May 2019, creating cadres for assistant judge and public prosecutor is also adopted as a strategic approach. Graduates of law schools who pass the entrance exam for legal professions and those who have exercised attorneyship for a certain period will be able to apply for the exam to qualify as an assisting judge and public prosecutor. It is stipulated for the assistant judges to conduct the following duties: to examine the submitted file and document and present it to the judge, to be helpful to the judge during the trial and survey and after the trial, to check the document prepared by the private secretary before its submission to the judge, to prepare the drafts for the grounded decision in accordance with the view of the judge, to make researches on doctrine and case-laws, to implement the duties prescribed in the legislation and to conduct similar duties vested to him/her by the judge.
- 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 an Information System (IT) since 1994. Initially, the use of computers and the main database was very limited, and the system was used only for writing and storing decisions. Later, the use of the Council of State Information System was expanded. Currently all judicial personnel, including members, prosecutors and judges-rapporteurs and all employees in editorial and administrative duties, have been given PCs for decision writing and access to court decisions. All judicial personnel have internet access. All files are recorded electronically. The lawsuits can be followed by the concerned parties from the website of Council of State (www.danistay.gov.tr).
- 69. Websites of courts and other competent bodies
Ministry of Justice, the Council of State and other High 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 23.400 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 two different languages: Turkish and English. 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 |
|2018 ||96.346 ||137.430 ||164.946 ||571 days |
|2019 ||106.804 ||132.447 ||139.323 ||458 days |
Council of State (Administrative Chamber of the CoS)
|Reference year ||Cases lodged ||Cases disposed of ||Cases pending ||Average time to judgment |
|2018 ||2.586 ||2.599 ||67 ||10 days |
|2019 ||2.100 ||2.156 ||11 ||7 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 |
|2018 ||221.961 ||218.187 ||44.339 ||69 days |
|2019 ||221.407 ||207.300 ||58.429 ||86 days |
Administrative Courts of First Instance
|Reference year ||Cases lodged ||Cases disposed of ||Cases pending ||Average time to judgment |
|2018 ||211.455 ||207.237 ||119.556 ||179 days |
|2019 ||237.805 ||225.611 ||147.535 ||201 days |
Tax Courts of First Instance
|Reference year ||Cases lodged ||Cases disposed of ||Cases pending ||Average time to judgment |
|2018 ||90.973 ||116.042 ||31.448 ||135 days |
|2019 ||101.804 ||101.411 ||39.538 ||121 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 |
|2018 ||326.793 ||55.328 ||7.786 |
|2019 ||373.146 ||58.737 ||6.687 |
Tax Courts of First Instance
|Reference Year ||Total Cases ||Annulment ||Partial Annulment |
|2018 ||147.490 ||50.717 ||7.145 |
|2019 ||140.949 ||50.126 ||6.563 |
- 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