Case for cancellation of administrative proceeding
Cases filed to resolve legal disputes arising from the transactions and actions taken by the administration due to its administrative activities are administrative cases. Types of administrative cases in Article 2 of the Administrative Procedure Law No. 2577;
•Cancellation Cases
•Full Jurisdiction Cases
•Lawsuits Arising from Administrative Contracts
It is organized as follows.
Article 125 of the Constitution stipulates that judicial remedies are available against all kinds of actions and transactions of the administration and that it is obliged to compensate for the damages arising from its own actions and transactions. These expressions in the Constitution aim to ensure that the administration stays away from unlawful and arbitrary behavior in all its transactions and actions while carrying out public activities. In addition, this provision of the Constitution constitutes the legal basis for annulment cases filed demanding the annulment of all actions and transactions of the administration deemed unlawful, and full jurisdiction cases filed demanding compensation for the damage suffered due to these actions and transactions.
The first type of administrative lawsuit, the annulment of administrative transactions, and all the details about annulment cases constitute the subject of this article.
Annulment cases under Article 2/1.a of the Administrative Procedure Law; It is defined as "Lawsuits filed by those whose interests have been violated for the annulment of administrative transactions because they are unlawful in one of the aspects of authority, form, reason, subject and purpose..." From this point of view, annulment cases, which we can define as cases filed by those whose interests have been violated for annulment of administrative transactions in the administrative judiciary because they are unlawful in terms of authority, form, reason, subject and purpose, are one of the important ways for the administration to act in accordance with the law and as required by the principle of the rule of law.
Cancellation cases; It is a type of objective case in which the legality of administrative transactions and actions is checked, but no appropriateness control is carried out, only examining whether there is any unlawfulness in the administrative action.
CHARACTERISTICS OF THE CANCELLATION CASE
1. AUTHORITY OF THE ADMINISTRATIVE JUDICIARY
Article 2/2 of the Administrative Procedure Law. In the article; It has been regulated that the administrative jurisdiction is limited to the control of the legality of administrative actions and transactions, administrative courts cannot control the propriety, and judicial decisions cannot be given in a way that would restrict the execution of the executive duty in accordance with the forms and principles specified in the law, in the nature of an administrative action or transaction, or in a way that would remove the discretionary power of the administration.
SUBJECT OF THE 2ND CANCELLATION CASE
The subject of the annulment case; It constitutes executive transactions established by unilateral will, based on the public power possessed by administrative authorities due to the public activities they carry out. İYUK's 14/3-d. Pursuant to the article, whether the transaction in question is a final and necessary transaction that will be subject to an administrative lawsuit is considered by the court during the initial examination. After the first examination, if it is determined that the transaction in question is unlawful, that is, it is not executive, Article 15/b of the İYUK. The case is rejected in accordance with the article.
3. CANCELLATION OF THE ADMINISTRATIVE PROCEEDING MAY BE REQUESTED IN A CANCELLATION CASE
In an annulment lawsuit filed due to the illegality of an administrative transaction or action, only the annulment of the administrative transaction in question can be requested. Therefore, IYUK's 2/b. In accordance with the article, those whose personal rights have been directly damaged due to administrative actions and transactions may request compensation for the damage by filing a full jurisdiction lawsuit.
4. THE PRINCIPLE OF DEPENDENCE ON DEMAND IS VALID
In order for the legality of an administrative action to be checked by the administrative judicial authorities, it must be subject to an annulment lawsuit by those whose interests have been violated due to the said action. Administrative judicial authorities do not have the authority to annul a transaction that is not the subject of a lawsuit. In accordance with the principle of "commitment upon request", which is one of the most basic principles of procedural law and established jurisprudence of Administrative Law, in cases filed in Administrative Judicial authorities; It is clear that the Administrative Courts are bound by the plaintiff's request and that decisions cannot be made in a way that will expand or narrow the request.
5. VIOLATION OF INTEREST REQUIREMENT REQUIRED
In order to file an annulment lawsuit, the plaintiff must have objective litigation capacity (having capacity to act according to the Civil Procedure Code and the Turkish Civil Code) as well as the "Violation of Interest" condition, which is described as subjective litigation capacity. Based on various decisions of the Council of State; The existence of the condition is accepted if there is a personal, current and legitimate interest. In an annulment case, determining that the transaction in question violates the interests of the plaintiff is a prerequisite for examining the merits of the case.
About the condition of violation of interest in a decision of the 8th Chamber of the Council of State, numbered 2020/3616 K. and dated 17.9.20;
"In order to request the annulment of the administrative action, the plaintiff's interest must be violated. In judicial decisions and doctrine, "interest" refers to the bond and interest between the plaintiff and the administrative action that he wants to annul. In this regard, if there is a legitimate, current, serious material and/or moral relationship between the administrative action and the person filing the lawsuit, it should be accepted that there is a bond of interest in the case.
In order to prevent the administration from being constantly threatened with lawsuits and to prevent the functioning of the administration from being negatively affected as a result of lawsuits filed by people who are not related to the administrative proceedings, the "violation of interest" condition required for the capacity to sue should be examined on a case-by-case basis, and the fact that the action in question has affected the plaintiff should be deemed sufficient for the existence of a violation of interest in the administrative judiciary. "In every incident and case, the determination of whether a violation of interest has occurred or not is left to the judicial authorities." The provision was made as follows.
6. CANCELLATION DECISIONS ARE EFFECTIVE IN THE PAST
Administrative procedures that are annulled by a lawsuit filed within the time limit at the administrative court are erased from the legal world, together with all their consequences, starting from the date they were established (carried out). Therefore, cancellation decisions are retroactive and effective. This situation was expressed as follows in a decision of the Council of State:
"Annulment decisions made about administrative actions that are found to be contrary to law eliminate administrative actions that continue their existence by benefiting from the presumption of legality, retroactively to the date they were established. Therefore, other transactions related to the administrative action in question are also eliminated. This feature of the annulment decision arises from the need to ensure the legal situation before the administrative act in question. In other words, annulment decisions make the canceled administrative action never born in the legal world." (Council of State 13D. 2015/3513 e.)
7. CANCELLATION DECISIONS ARE GENERALLY EFFECTIVE
In an annulment case, an administrative action that is annulled as unlawful is annulled with retroactive effect to the date on which it was established. In other words, a canceled administrative action is considered never to have occurred in the legal world. However, since the annulment decisions given as a result of objective annulment cases have a general effect, everyone, not just the plaintiff, benefits.
8. EXACT INVESTIGATION PRINCIPLE IS VALID IN CANCELLATION CASES
Based on the ex officio investigative authority determined by Article 20 of the Administrative Procedure Law No. 2577, administrative judicial authorities have full authority to make the legal qualification of the incident in dispute, to determine the legal rule to be applied and to ultimately reach a legal solution, as well as to conduct all kinds of examinations and research on their own in terms of determining the material aspect of the incident, and they may tend to investigate events and material elements that the parties have never mentioned.
In order to determine the true nature of the material event put forward in the claims and defenses, the administrative judicial authorities are obliged to freely investigate whether the parties' claims and defenses are true or not, and to collect material evidence and findings and to exhaust all means of examination, information and research necessary for the resolution of the dispute. (25/04/2019 T. E. 2018/1165, K. 2019/3043 of the 7th Chamber of the Council of State)
9. HOSTILITY
To whom the hostility will be directed in cases filed in administrative jurisdictions is indicated in the Administrative Procedure Law No. 2577, and in accordance with the regulations in the said law, only the relevant administrative institution can be sued in administrative jurisdictions. Since lawsuits against natural persons cannot be filed in administrative courts, cases against real persons are heard in the judicial jurisdiction, not in the administrative jurisdiction. In annulment cases, the hostility is usually the administration that established the transaction in question. İYUK's 15/1-c. According to the article, "in case the lawsuit is filed without naming an adversary or with the wrong opponent, it is decided that the petition will be notified to the real opponent to be determined."
SUBJECT OF THE CANCELLATION CASE
The subject of an annulment case may be executive administrative transactions and some administrative contracts. We have stated above that whether the subject of an annulment suit is of an executive nature or not is one of the issues addressed in the first examination in accordance with Article 14/3-d of the IYUK, and that annulment suits whose subject is not of an executive nature will be rejected without examination in accordance with Article 15/1-b of Law No. 2577.
So, what should be understood from the obligation that the administrative action must be of an executive nature?
The administrative action to be subject to an annulment case must be a final and mandatory action. An administrative action can be considered final and mandatory; In order for it to exist in the legal order, it depends on its ability to bring about changes in the legal order without needing the approval of another administrative authority. Transactions that have an impact on the legal status of the relevant parties, create new legal situations for the relevant parties, change or eliminate the existing legal status of the relevant parties, are transactions of an executive nature. Transactions that do not affect the legal status of their addressees, such as transactions in which the administration expresses its opinions on certain issues, are not executive transactions.
Administrative transactions that cannot be subject to an annulment lawsuit:
According to this statement, transactions that are preparatory to administrative action (tax inspection report, appraisal commission reports, etc.), informative-explanatory transactions, opinions and suggestions received from institutions before the final decision, and transactions regarding the internal functioning of the administration cannot be subject to an annulment lawsuit since they do not make a change in the legal order of the relevant parties, that is, they do not have an executive nature.
In its decision numbered 2020/8413 K. and dated 30.9.20, the 6th Chamber of the Council of State stated that a decision of the Uşak Municipal Council, which is a preparatory process, cannot be subject to an administrative lawsuit;
"It is understood that the decision of the Uşak Municipal Council dated 17/11/2014, numbered 2014/750, which is the subject of the case, is a preliminary decision of the defendant Uşak Municipality regarding requesting risky area detection from the Ministry within the scope of Article 5 of the Implementation Regulation of the Law on the Transformation of Areas Under Disaster Risk, and that, considering the legal and actual consequences it will cause, it is not an executive action that can be subject to an administrative lawsuit and is not final and executable.
In this case; "Since it has been concluded that the transaction in question is not a final and necessary transaction that can be subject to an administrative lawsuit, that makes a change in the legal order, that affects the law of those concerned, the Administrative Court should have given a rejection decision without being examined, but there was no legal accuracy in deciding on the merits of the matter." He ruled as follows.
INTEREST CONDITION IN CANCELLATION CASE
In annulment cases, capacity is one of the conditions of the case that the court will examine ex officio. Natural and legal persons who want to file an administrative lawsuit in person or through an attorney must first have the capacity to act within the scope of the HMK and TMK. Natural and legal persons with legal capacity to act have the capacity to file a lawsuit, that is, they have the objective capacity to sue. Real persons have the capacity to act; They must meet the conditions of having the power of discrimination, being an adult and not being restricted, and legal entities must have the capacity to act; It depends on the existence of authorized bodies according to the law or regulation.
In order to file an annulment lawsuit, in addition to the objective capacity to sue as explained above, the condition of violation of interest, that is, the subjective capacity to sue, is also required.
2/1-a of the Administrative Procedure Law. As can be understood from the provision in the article, "Annulment lawsuits filed by those whose interests have been violated for the annulment of administrative transactions because they are unlawful in one of the aspects of authority, form, reason, subject and purpose..."; In order to file a lawsuit for annulment, the plaintiff must have the capacity to exercise civil rights and must also violate the interest of the administrative action sought to be annulled; This interest must also be legitimate, current and personal. In Administrative Procedure Law, it is not possible to file an annulment lawsuit without a violation of interest, which is accepted as a condition of the capacity to be a party to the case. In order for the merits of the annulment case to be examined, the driver's license condition must be fully met. Annulment cases filed by those whose interests have not been violated due to the administrative action in question will be rejected in accordance with Article 15 of the IYUK.
In a decision of the 8th Chamber of the Council of State, numbered 2016/6235 E. and dated 17.9.20, the following provision was made regarding the "condition of violation of interest";
Annulment cases, defined in the administrative judiciary as "cases filed by those whose interests have been violated for the annulment of administrative acts because they are against the law in terms of authority, form, reason, subject and purpose", are one of the important ways to realize the rule of law by ensuring that the administration acts in accordance with the law. In order to request the annulment of the administrative act, the interests of the plaintiff must be violated. In judicial decisions and doctrine "Interest" refers to the bond and interest between the plaintiff and the administrative action that he/she wants to annul. In this respect, if there is a legitimate, current, serious material and/or moral relationship between the administrative action and the person filing the lawsuit, it should be accepted that there is a bond of interest in the case.
In order to prevent the administration from being constantly threatened with lawsuits and to prevent the functioning of the administration from being negatively affected as a result of lawsuits filed by people who are not related to the administrative proceedings, the "violation of interest" condition required for the capacity to sue should be examined on a case-by-case basis and the fact that the transaction in question has affected the plaintiff should be considered sufficient for the existence of a violation of interest in the administrative judiciary. In every incident and case, the determination of whether a violation of interest has occurred or not is left to the judicial authorities."
REASONS FOR OPENING A CANCELLATION CASE
In order to file a lawsuit for the annulment of an administrative action, the administrative action in question must be unlawful, along with other conditions stipulated by the law. If the administrative action is against the law; It may come to the agenda in terms of authority, form, reason, subject and purpose. In the annulment case to be filed in the administrative court, the legality of the administrative action is checked in terms of these five elements, and if unlawfulness is detected in terms of any of them, the action in question is decided to be annulled. We will briefly explain in the light of the decisions of the Council of State, in which cases an administrative action may be unlawful and how legality control is carried out in cases of annulment.
1- AUTHORITY ELEMENT OF ADMINISTRATIVE ACTION
Administrative action is the unilateral declaration of will of the administration based on public power, aimed at producing legal consequences. Persons, boards or bodies that have the authority to declare their will on behalf of the administration receive their authority to take administrative actions from the law. Since administrative actions carried out with authority not based on law will be against the law, they may be subject to an annulment lawsuit. Although authority is the most important element of an administrative action, since it is directly related to public order, it can be claimed by the parties at every stage of the case or is taken into account by the court ex officio.
In Administrative Law, the concept of "authority" refers to the decision-making power granted to the administration by the Constitution and laws. In this respect, "authority", which constitutes the most basic element of administrative action, can only be exercised by the authority given by law. In Administrative Law, "lack of authority is the rule, authority is the exception". This exception is that the authority is exercised only in cases specified by law and by administrative authorities specified by law. (D.15.D. 25.01.2016 T.E.2013/13091, K.2016/214 K.)
In accordance with the principle of parallelism in procedure and authority, which is one of the general principles of administrative law, the administrative authority authorized to carry out a transaction is also authorized to change, withdraw or remove that transaction, unless there is a contrary provision in the law. If an unauthorized authority carries out an action that is within the duty and authority of an administrative authority, it should be subject to an annulment lawsuit, as it would be unlawful in terms of authority. Regarding this issue, the 10th Chamber of the Council of State made a decision dated 21.5.2019;
"The business opening and working license signed by the mayor or the person he/she assigns must be canceled (withdrawn) by the mayor or an official appointed by him in accordance with the principle of parallelism in authority. In addition, it is stated in the Regulation that a decision should not be taken by the council or council on this issue. In this case, since the action taken by the municipal council to cancel the license contrary to the Regulation and the principle of parallelism in authority is not legal in terms of the element of authority, the Administration rejects the case." "There is no legal accuracy in the court's decision." He ruled as follows.
In annulment cases, the illegality of the administrative action in terms of jurisdiction may arise in different ways. Namely;
a-INABILITY PER PERSON
It refers to the illegality of an administrative action because it is not carried out by a person authorized by law. If the administrative action taken by an unauthorized person or board is subsequently accepted by the competent authority, this will not eliminate the unlawfulness of the action in question. Administrative actions that are invalid in terms of authority are annulled by an annulment lawsuit filed within the prescribed period.
"… It is clear that the authority to decide on the number of public transportation vehicles and taxis, the routes of these vehicles and their operating conditions, and the granting of permits and operating licenses belongs to the Transportation Coordination Center.
In the incident, since there is no information or document in the file indicating that the plaintiff's application was forwarded to the Transportation Coordination Center, which has the authority to decide on the plaintiff's request, and since the application was evaluated by the Transportation Department, the application in question should have been forwarded to the Transportation Coordination Center, which has the authority to make a decision on this issue, but the legality of the action taken by the defendant administration without complying with this issue and the legal accuracy in this part of the Court's decision regarding the rejection of the case. "There is no (D.8.D. 8.10.2020 T.E.2016/148, K.2020/4160 K.)
b- LACK OF AUTHORITY IN TERMS OF SUBJECT
The issue on which an administrative authority is authorized to make decisions is determined in advance by law. The competent administrative authority can only make decisions on matters of duty specified in the law and within the specified legal limits. An administrative action may be subject to an annulment lawsuit as a result of an administrative authority or public official taking action on a matter that falls within the jurisdiction of another administrative authority or public official.
c- LACK OF AUTHORITY IN TERMS OF LOCATION
The authority of an administrative authority to make decisions within a certain geographical border is explained as "local authority". For example, the municipal council's preparation of a zoning plan for areas within the borders of another town or the appointment of a civil servant in the Ankara-Sincan district, which is outside the jurisdiction of the Ankara-Keçiören district governor, are unlawful transactions due to lack of authority due to location.
d-INABILITY IN TERMS OF TIME:
The time period within which an administrative authority can exercise its powers and take administrative action on matters within its field of duty is explained as "authority in terms of time". It should be understood from the limited time period in which he can exercise his authority; It is the time period between when an administrative authority takes office in accordance with the law and procedure and until it leaves office in the same way.
Again, in some laws, the authority to impose disciplinary punishment is limited to a certain time period. For example; In Article 19 of the Disciplinary Regulation for Administrators, Academic Staff and Civil Servants of Higher Education Institutions and in Article 127 of the Civil Servants Law No. 657;
"If the disciplinary penalty is not finally imposed within two years from the date of the acts and situations that require disciplinary punishment, the authority to impose penalties expires." It is stated as follows. It is possible that disciplinary penalties given after this period have expired may be subject to a lawsuit on the grounds that they are against the law due to the statute of limitations on the authority to impose penalties, and the decision in question may be annulled.
2- FORM ELEMENT OF ADMINISTRATIVE PROCEEDING
One of the reasons for the cancellation of administrative transactions is that the administrative transaction is against the law in terms of formality. "Form", also referred to as "procedure" and "format", is an important element that must be taken into consideration in controlling the legality of administrative transactions. When establishing administrative procedures, it is a legal obligation to comply with the formal rules stipulated in the legislation. Failure to comply with the formal requirements stipulated in the law will render the established transaction unlawful. For example, when the Ministry of Agriculture and Forestry is required to obtain the opinion of the Ministry of Health as a form requirement in issuing a regulation, failure to do so requires the cancellation of that regulation in terms of form.
Again, the fact that an administrative action that should be made in writing is made verbally requires the cancellation of the action in terms of formality. Although the obligation to carry out administrative actions in writing is not clearly regulated in the law, its legal basis is in Article 125 of the Constitution, "The period for lawsuits to be filed against administrative actions starts from the date of written notification." We can say that he gets it from his expression.
The "form" element in the administrative trial procedure is related to public order. For this reason, whether the transaction or regulation in question complies with the formal rules stipulated by the legislation is an issue that must be investigated ex officio by the administrative courts at every stage of the case, including legal remedies, even if it is not put forward by the plaintiff. This investigation is an important responsibility given to administrative jurisdictions in terms of determining the legality of the transaction or regulation in question. If the dispute is resolved before this responsibility is fulfilled, it is inevitable that the decision in question will be overturned by the courts that carry out the legal remedy review, as it will not be possible to talk about the legality of this decision made by the administrative court upon incomplete examination and research. (IDDGK., 3.2.20202 t. 2018/1157 E. 2020/182 K.)
3-REASON ELEMENT OF ADMINISTRATIVE ACTION
One of the reasons for the cancellation of administrative actions is that the administrative action is against the law in terms of the reason element. Since there can be no arbitrary action in administrative law, every administrative action must have a real and legal reason. In annulment cases, when the legality control is carried out in terms of the reason element, the administration should be able to put forward a concrete, factual, sufficient and valid reason for the establishment of the transaction as the basis of the administrative action. Otherwise, it may be decided to cancel the administrative action.
- "The reason element for which the legality audit must be carried out is defined in the administrative judiciary as the motive that pushes the administration to carry out the action. The administration must base the action it has established on real and lawful reasons. The fact that the reason is real means that its existence has been demonstrated by determinations made in accordance with the law; and the fact that it is in accordance with the law means that the reason on which the administration bases the action is among the reasons that are foreseen to be relied upon for its establishment in the law." (D.3.D. 4.2.2021 T.2019/6827 E.)
- "In the incident in dispute, it has been observed that the defendant administration, in its defense submitted to the file, only stated that the plaintiff's security investigation resulted negatively, did not explain the reason for the negative outcome of the security investigation, and that no information or documents regarding the issue were submitted to the file as an annex to the defense petition. Based on the interim decisions given by the Administrative Court and the Chamber of the Council of State, which conducted the appeal review, it was understood that the information and documents regarding the subject were submitted to the file with a report by the administration, but were returned together with the report after the review. In this case, "It is clear that the defendant administration could not fully explain the reason for the transaction and could not base the reason for the transaction on concrete information and documents that it could submit to the file. Since the administration's establishment of a transaction based on a reason that it could not clearly state would render the said transaction unlawful in terms of the reason element, it has been concluded that there is no legality in the transactions subject to the lawsuit and the decision of the Administrative Court to reject the case." (diddgk. 2.10.2019 t. 2017/1635 e.)
4- SUBJECT ELEMENT OF THE ADMINISTRATIVE PROCEEDING
According to Article 2 of Law No. 2577, one of the reasons for cancellation is unlawfulness in the "subject" element. If an administrative action is unlawful in terms of its subject matter, it requires the cancellation of the administrative action in question. The subject of an administrative action can be expressed as the change it creates in the legal world. For example, the subject of the administration's expropriation processis the transfer of ownership of privately owned immovable property to the administration. The subject of the transaction established by the administration should not be impossible, it should be legitimate.
5- PURPOSE ELEMENT OF THE ADMINISTRATIVE PROCESS
The concept of purpose (purpose) refers to the final result that the administration wants to achieve with the process it has established. Administrative actions can be established not for personal purposes, but only for the purpose of realizing the public interest and in accordance with the specific purpose of the law. For this reason, administrative transactions that are unlawful in terms of purpose can be annulled by being subject to a lawsuit for the annulment of administrative action.
"It is undisputed that all administrative actions must have the purpose of public interest. When establishing an action, the administration should not aim to benefit personal, political or third parties, should not deviate from authority for the purpose of gaining financial benefit, and should also take into account the "superior public interest" in case of conflict of more than one public interest. Therefore, the judicial review of the administrative action in terms of purpose should be carried out by taking into account all the benefits provided by the transaction and all the drawbacks caused by the transaction. In addition, if a special purpose is determined in the Law, the transaction must be carried out by taking into account the "superior public interest". There is no doubt that it should be suitable for this purpose." (diddk. 25.12.2008 t. 2008/770 e.)
DIVERSION OF AUTHORITY: The use of the authority given to the administration by the law for another purpose, going beyond the purpose foreseen in the law, is called "diversion of authority" in the doctrine of administrative law.
PROCEDURE (METHOD) DIVERSION: Procedural deviation is the administration's use of the procedure prescribed by law for a certain purpose for another purpose. In cases where there is a procedural deviation, it will result in the administrative action being unlawful in terms of its purpose element.
"... In the dispute: from the evaluation of the information and documents in the file, the disciplinary, appointment, temporary assignment and registry procedures established against the plaintiff after 2006, the judicial decisions given in the cases filed against these transactions, the personal lawsuits between the plaintiff and the public officials who initiated proceedings against the plaintiff, and the non-pecuniary damages provisions as a whole, it is concluded that the plaintiff's claim that he was subjected to psychological harassment (mobbing) is real and the disciplinary penalty in question is a part of the practice in question. to his opinion,
Since it is not legally possible to abuse disciplinary procedures for personal reasons, going beyond the purpose of ensuring the internal discipline of the institution for the good functioning of the public service, such practices will be contrary to the above-mentioned article 2 of the Civil Code, as well as defined as "perversion of authority" in the Administrative Law Doctrine ( Giritli, İsmet: Perversion of the Authority of the Administration According to the Jurisprudence of the Turkish State Council, İsmail Akgün Printing House, Istanbul 1957, p. 14) and since it will result in the unlawfulness of the administrative action in terms of the purpose element, it is clear that it will constitute a reason for annulment of such transactions.
In this case, as stated above, the plaintiff did not have an act requiring disciplinary punishment regulated in Article 125/C-a of Law No. 657, and since it was understood that the action subject to the case was not in compliance with the law, which was understood to have been taken by the defendant administration by violating the rule of good faith in Article 2 of the Civil Code, by diversion of authority, it is thought that the decision of the Administrative Court to cancel the transaction subject to the case and reject the request for non-pecuniary damages should be reversed by accepting the plaintiff's appeal request. (Council of State 12th Chamber, 27.12.2013 t. 2011/5197 e.)
DURATION IN CANCELLATION CASES
Those who want to file a lawsuit for the annulment of an administrative action should pay close attention to the general lawsuit filing period stipulated by the law and the specific lawsuit filing deadlines stipulated in some laws. Because in administrative jurisdiction, "timeout" is one of the issues that are discussed and examined in the first examination according to Article 14/3-e of the IYUK. And again, according to Article 15/1-b of the law, in cases where there is a statute of limitations, it is decided to reject the annulment case. For this reason, the rejected case can be appealed or appealed depending on the subject of the case. If the law does not clearly stipulate the period for filing a special lawsuit regarding an administrative action, the general deadlines for filing a lawsuit are valid.
The general period for filing a lawsuit in the administrative judiciary is 7/1 of the İYUK. As stipulated in the article, "The period for filing a lawsuit is sixty (60) days in the Council of State and administrative courts, and thirty (30) days in the tax courts, in cases where no separate period is specified in special laws."
Article 125 of the Constitution states, "The period for lawsuits to be filed against administrative actions starts from the date of written notification." As stated in İYUK's 7/2-a. In the article "In administrative disputes; As can be understood from the expression "written notification has been made", the period for filing an annulment lawsuit will not legally start until the individual transactions are notified to the relevant party in writing by the competent authority.
İYUK's 7/2-b. According to the article; In disputes arising from taxes, duties and charges and similar financial obligations and their increases and penalties: Collection of taxes whose accrual depends on collection; Notification in cases where notification is made or in transactions that replace notification; payment to beneficiaries in taxes collected through withholding; In the case of taxes subject to registration, registration has been made and the decision of the relevant authority or commission has been received by the administration in matters where the administration needs to file a lawsuit; It starts from the day following the date.
Points to consider when calculating duration: Holidays are included in the periods. However, if the last day of the period coincides with a holiday, the period is extended until the end of the working day following the holiday.
APPLICATION TO HIGHER AUTHORITIES (iyuk art. 11): Before filing an administrative lawsuit by the relevant parties, the removal, reversal, modification or carrying out of a new action of the administrative action may be requested from the higher authority, or if there is no higher authority, from the authority that carried out the action, within the period of filing an administrative lawsuit. This application stops the administrative lawsuit filing period that has already started.
If no response is given within "Thirty (30)" days, the request will be deemed rejected.
If the request is rejected or deemed rejected, the period for filing a lawsuit starts again and the time passed until the application date is also taken into account.
THE COURT IN CHARGE AND AUTHORITY FOR CANCELLATION CASES
DUTY: In accordance with Article 5 of the Law No. 2576 on the Establishment and Duties of Regional Administrative Courts, Administrative Courts and Tax Courts;
"Administrative courts shall resolve a) Cancellation cases, excluding those that fall under the jurisdiction of tax courts and those that will be resolved in the first instance by the Council of State."
To hear cancellation cases that fall within the jurisdiction of the administrative judiciary; Except for those to be resolved in the tax courts and the Council of State, administrative courts have jurisdiction.
AUTHORITY: In cases of annulment, the court has general jurisdiction. As stated in Article 32 of the IYUK; "If the competent administrative court is not specified in this Law or special laws, the competent administrative court is the administrative court in the place where the administrative authority that carried out the administrative action that is the subject of the case is located."
As can be understood from the article of the law, in cases where special authority rules are not provided for in this law or other laws, the general authority rule will apply.
As an example of the special authority rule, some special authority rules regarding public officials regulated in Article 33 of the same law can be given. According to the article;
DECISION ON SUSPENSION OF EXECUTION IN CANCELLATION CASES
The stay of execution decision is an institution that can be put forward together with the annulment of the administrative action, is a measure specific to the administrative judiciary, and suspends the execution of the administrative action in question until the end of the case.
According to Article 27 of the Administrative Procedure Law No. 2577, "The Council of State or administrative courts may decide to suspend the execution if the implementation of the administrative action causes irreparable or impossible damages and the administrative action is clearly against the law."
For detailed information about stay of execution, you can review our article titled "What is the Decision on Stay of Execution?".
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