Stay of Execution Decision in Administrative Judiciary in Turkish Law
When an administrative lawsuit is filed, the execution of the contested administrative act does not automatically stop. However, when it is claimed that the act is unlawful and therefore its effects should be temporarily halted, a stay of execution is requested. This request can be made when filing the lawsuit, during the lawsuit process, or with additional petitions. However, a separate fee must be paid for the request for a stay of execution, and these conditions constitute the prerequisites for the request.
Administrative Lawsuit and Request for Stay of Execution
The request for a stay of execution depends on the conditions of filing an administrative lawsuit, the lawsuit being related to the administrative act, making the request, and paying the relevant fee. In administrative lawsuits, a stay of execution cannot be requested unless the purpose is to annul the act.
In tax lawsuits, however, lawsuits filed against tax assessments and penalties can request a stay of execution. However, in tax courts, the tax collection procedures automatically stop when a lawsuit is filed.
Stay of Execution in Tax Lawsuits
In tax lawsuits, a stay of execution can be requested under certain conditions. These include lawsuits restarted due to the inability to deliver notifications, procedures related to declarations made with a reservation, and lawsuits filed against collection procedures.
Stay of Execution Decision: Conditions and Practices
Legal Conditions and Compliance with Constitutional Principles
According to the second paragraph of Article 27 of the Administrative Procedure Act, for the Council of State or administrative courts to issue a stay of execution decision, two conditions must be met: irreparable or impossible damages must occur if the administrative act is implemented, and the act must be clearly unlawful. These conditions are also included in Article 125 of the Constitution.
Determining Unlawfulness and Damage
Determining that the act is clearly unlawful occurs during the examination of the lawsuit petition or defense, or at any stage of the lawsuit process. This condition must be met for the request to be accepted. Additionally, it must be determined that irreparable or impossible damages will occur if the act is implemented. These damages can include situations such as demolition of buildings, closure of workplaces, or loss of personal rights.
Review Process
In practice, some judicial bodies may issue a stay of execution decision if irreparable damage exists without seeking the condition of clear unlawfulness at the first stage, while others require the presence of both conditions at every stage. However, in cases where the act is unlawful but damage determination is required, some judicial bodies may adopt a flexible approach and issue a short-term stay of execution decision.
In conclusion, it is important to consider both the legal conditions and the flexibility in practice, as well as compliance with constitutional principles, for the issuance of a stay of execution decision.
Textual Conditions of the Stay of Execution Decision
Legal and Practical Requirements
Stay of execution decisions must include the justifications and guarantee conditions specified in the Constitution and relevant laws.
Requirement for a Reasoned Decision
According to the Constitution and Law No. 2547, the decision must be reasoned. With the changing legal regulations, more flexibility has been granted to judicial bodies. This reduces the artificiality of narrations containing future possibilities and makes the requirement for reasoning more flexible.
Guarantee Requirement and Practice
According to the law, stay of execution decisions can be issued in exchange for a guarantee, but this condition can be flexible. In practice, decisions are usually issued without a guarantee, and no guarantee is required from those benefiting from legal aid. However, if decisions are issued in exchange for a guarantee, the details of the guarantee must be specified in the decision, and disputes over the guarantee are resolved in court.
Request for Stay of Execution and Its Impact on the Judicial Process
There is no specific time limit or restriction for requesting a stay of execution. It is emphasized that the request can be made at any stage and always when filing a lawsuit. Previous rejected requests do not prevent renewed applications.
When the request is made, it should be examined immediately due to the nature of the case. Legally, the notification and response times can be shortened, which helps expedite the processes and prevent delays.
Objection to Decisions on the Request for Stay of Execution
During the judicial process, there is a method and time for objection to decisions on the request for stay of execution. The objection period is within 7 days following the notification of the decision. According to the notifications from each party, the objection period starts separately.
Limit and Finality of the Objection
An objection can only be made once to decisions on the request for stay of execution. This limitation ensures the finality of the decision given as a result of the objection. The decisions given as a result of the objection are final and cannot be appealed further.
Places to Appeal the Stay of Execution Decision
The places to appeal the stay of execution decision are determined according to the rules specified in Law No. 2577. The places where an appeal can be made against the decision are:
- If issued by the chambers of the Council of State, to the relevant General Assemblies of the Administrative and Tax Law Chambers,
- Against decisions of the Regional Administrative Court, to the nearest regional administrative court,
- Against decisions issued by administrative and tax courts and single judges, to the regional administrative court,
- To the on-duty courts where appeals can be made against decisions issued by administrative and tax courts or to the on-duty courts where the judge who issued the decision did not participate. The potential delay between the appeal locations and decisions is generally related to regional administrative courts. However, these courts do not have the authority to review cases in the first instance. Therefore, the right to appeal stay of execution decisions in regional administrative courts is limited by the rules specified in the law.
Situations Where a Stay of Execution Decision Cannot Be Issued
Laws specify certain situations where a stay of execution decision cannot be issued. For example, in the old law, the Land Distribution Law for Farmers No. 4753, it is stated that a stay of execution decision cannot be issued. Similarly, the Law on Prevention of Encroachments on Immovable Property No. 3091 also states that a stay of execution is not possible in administrative judiciary applications.
The Constitution may limit the stay of execution in extraordinary circumstances and under certain conditions. These circumstances can include reasons such as national security, public order, and general health. However, these restrictions have been lifted by the 27th article of Law No. 2577.
It is important for the legal order to keep the judicial path open for all kinds of administrative actions and procedures. Therefore, not limiting the stay of execution route is in line with the nature of a system closely tied to annulment lawsuits. Through the stay of execution, unlawful actions are suspended, protecting the legal order.
Expiration of the Stay of Execution Decision
Stay of execution decisions expire in certain situations. These situations are:
- If one of the parties dies or there is a change in personality, and the lawsuit is not renewed, the file is closed.
- If the plaintiff’s address cannot be notified, the file is closed and waits until a new address is provided.
- When the decision is annulled by the appeal place.
- When a decision is made on the merits.
Special Situations Regarding Stay of Execution
A controversial issue regarding the stay of execution is the status of negative actions, and it is argued that some negative actions cannot be subject to a stay of execution decision. However, especially in matters such as passport or health, stay of execution decisions are issued for negative actions.
An important issue is that requests for participation by third parties in the lawsuit cause the examination of requests for stay of execution to be delayed. In this case, the judiciary examines the requests for participation in the lawsuit and then examines the requests for stay of execution.
Objection to Jurisdiction and Stay of Execution Decision
When an objection to jurisdiction is made in administrative judiciary, some judicial bodies do not issue a stay of execution decision and wait to clarify the situation. However, there is no legal obstacle to issuing a stay of execution decision in this situation, and a decision can be made.
If a stay of execution decision is not issued based on the participation requests and objections to jurisdiction, unnecessary requests may be brought up. However, it should be noted that even if the Dispute Resolution Court is appealed, stay of execution decisions will remain valid until the decision of this court.
Suspension of Execution of Judicial Decisions
Suspension of the execution of judicial decisions does not occur when an appeal or objection is made against the final decisions of administrative and tax courts. However, the parties may request suspension of execution in exchange for a guarantee during the appeal or objection examination.
There is no legal condition foreseen for the suspension of court decisions. The appeal or objection place will examine the issues requiring the annulment of the decision during the suspension of execution. If a stay of execution is requested during the legal appeal process, these requests will be examined according to the decision of the judicial body.
When court decisions are annulled in appeal or objection places, the execution of the decisions will automatically stop. When annulment decisions are annulled, a new request will be required for the previously issued stay of execution decision to continue by the relevant court.
The main problem is how the annulment decision, after the suspension of the execution of the rejected lawsuit decision, will function in the subsequent process. A permanent solution is for the Council of State to develop jurisprudence that stay of execution decisions regarding the action will remain valid until the lower court reconsiders the file based on the annulment decision, or for the issue to be addressed in the law.
Example Council of State Decision on Stay of Execution in Administrative Judiciary
Summary of the Request: The request is for the annulment and stay of execution of the decision numbered 125111, dated 30/11/2016, rejecting the request of the plaintiff, who is a teacher at Trabzon Family and Social Policies Provincial Directorate, to be appointed to Ankara due to spouse’s status, and the annulment of the first sentence of the first paragraph of Article 18 of the Family and Social Policies Ministry Appointment and Relocation Regulation, which was the basis for this decision.
Council of State Rapporteur’s Opinion: It is thought that the request for a stay of execution should be rejected.
IN THE NAME OF THE TURKISH NATION
The Second Chamber of the Council of State, having seen that the first defense of the defendant administration has been received and reconsidered the nature of the dispute and the status of the case:
Considering the nature of the dispute and the status of the case, it was decided by majority vote on 06.03.2017 that the request for a stay of execution should be rejected because the conditions specified in the second paragraph of Article 27 of the Administrative Procedure Act No. 2577, amended by Law No. 6352, were not met, with the right to appeal to the Council of State Administrative Lawsuits Board within seven days following the notification.
(X) DISSENTING OPINION:
The case was filed for the annulment and stay of execution of the decision rejecting the request of the plaintiff, who is a teacher at Trabzon Family and Social Policies Provincial Directorate, to be appointed to Ankara due to spouse’s status, and the annulment of the first sentence of the first paragraph of Article 18 of the Family and Social Policies Ministry Appointment and Relocation Regulation, which states that “Personnel appointed as a result of a promotion or title change exam must work at the appointed place for at least three years.”
According to the second paragraph of Article 27 of the Administrative Procedure Act No. 2577, amended by Law No. 6352, the Council of State or administrative courts can decide to stay the execution of an administrative act if the implementation of the administrative act would cause irreparable or impossible damages and the administrative act is clearly unlawful.
In the Regulation on Appointment and Relocation of Civil Servants, published in the Official Gazette No. 18088 on 25/06/1983, it is stated in the amended Article 12 titled “Relocations that can be made at the request of the officer” that if the civil servant documents the excuse of family unity, they can be appointed by relocation without completing the mandatory service periods in the service regions and/or service areas; in the amended Article 14 titled “Relocation due to Family Unity Excuse,” it is stated that the relocation due to family unity excuse will be fulfilled by ensuring the necessary coordination between institutions if the spouses work in different institutions, by appointing them to the place where both institutions have a priority service need; and in Article 28 titled “Special Regulations,” it is stated that the special regulations to be issued by the institutions cannot contain provisions contrary to this regulation.
Upon examination of the file, it is understood that the plaintiff, who was working as a child educator at Ankara Family and Social Policies Provincial Directorate, took the promotion and title change exam held on 19/03/2016, and was appointed as a teacher at Trabzon Family and Social Policies Provincial Directorate on 25/10/2016 as a result of passing the exam, and filed this lawsuit upon the rejection of their request to be appointed to Ankara due to their spouse working as a candidate judge at the Ankara Regional Administrative Court with the decision dated 30/11/2016, which is the subject of the lawsuit.
The provision of the first sentence of the first paragraph of Article 18 of the Family and Social Policies Ministry Appointment and Relocation Regulation, which states that personnel appointed as a result of a promotion or title change exam must work at the appointed place for at least three years, has not been deemed lawful due to setting a rule contrary to the Regulation on Appointment and Relocation of Civil Servants.
Additionally, the provision of the regulation, which prevents the request for appointment based on various excuses for three years from the date of appointment as a result of a promotion or title change exam, aims to ensure that the service provided by the personnel at the appointed place is not disrupted, as stated by the defendant administration.
Considering the nature and characteristics of the service provided by the Ministry of Family and Social Policies and that each appointed personnel is selected from those with the most suitable abilities for the need, it is obvious that the absence of personnel in certain positions would disrupt the service. However, trying to remedy this disruption by completely preventing the right to request an appointment based on excuses for a certain period would result in the personnel being unable to exercise their rights arising from the Constitution and laws, which is incompatible with the principle of the rule of law.
Regarding the request for a stay of execution of the decision dated 30/11/2016, numbered 12511:
It is clear that the request of the plaintiff to be appointed to Ankara due to their spouse being in Ankara was rejected on the grounds that they did not meet the condition of working for at least three years at the appointed place. Considering that the provision requiring a mandatory three-year service period is unlawful, the request of the plaintiff, based on their spouse working as a candidate judge under the provisions of the Law No. 2802 on Judges and Prosecutors, should have been evaluated according to Article 14 titled “Appointment due to Spouse’s Excuse” of the Family and Social Policies Ministry Appointment and Relocation Regulation. Therefore, the decision dated 30/11/2016, which was made by ignoring this issue, is also unlawful.
For the reasons stated above, we do not agree with the majority decision, as the conditions specified in the amended second paragraph of Article 27 of Law No. 2577 have been met, and a decision should have been made to stay the execution of the first sentence of the first paragraph of Article 18 of the Family and Social Policies Ministry Appointment and Relocation Regulation and the decision dated 30/11/2016.
2D, Case: 2016/16089, Decision: 2016/16089, Date: 06.03.2017
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Stay of Execution Decision in Administrative Judiciary in Turkish Law