Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order
Turkish justice system, which is a part of the Continental Law System, consists of many courts, institutions and organizations which are based on independence and impartiality principles, are differentiated in terms of structure and organization, and their duties and jurisdictions are regulated by special laws.
According to Article 9 of the Constitution of the Republic of Türkiye, the jurisdiction is exercised by independent courts on behalf of the Turkish Nation and the judiciary is one of the three powers besides the legislative and executive powers based on the separation of powers.
The Turkish judicial system is divided into ordinary (Public Prosecution, first instance courts, regional courts of appeal and Court of Cassation), administrative jurisdiction (first instance courts, regional administrative courts and the Council of State), constitutional jurisdiction (Constitutional Court) and dispute jurisdiction (Jurisdictional Dispute Court). In addition to these, the election judiciary (Supreme Election Council) and the account judiciary (Court of Accounts) are also included in the judiciary system.
Administrative jurisdiction is the judicial branch where the compliance with laws of administrative acts and proceedings are reviewed.
ADMINISTRATIVE JUDICIARY
| Council of State | |
| Regional Administrative Courts | |
| Administrative Courts | Tax Courts |
1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts
10 May 1868 : Establishment of the Council of State
23 December 1876 : The Constitution and its effect
(First and the only Constitution of Ottoman Empire)
4 November 1922 : The Council of State's duties and authorities ended when all central institutions in Istanbul were transferred to the Grand National Assembly of Türkiye
20 January 1921 : Principal Law of Organisation (The first Constitution of emerging Turkish State)
20 April 1924 : Principal Law of Organisation
7 December 1925 : The Council of State was re-established with Law No. 669
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 Türkiye
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 Türkiye
20 January 1982 : Effect of the Law no: 2575 on the Council of State
20 July 2016 : Enactment of the appeal system before Regional Administrative Courts
1.3. Criteria of competence of the administrative jurisdiction
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; eg. concession, conditions and contracts concerning public services and national or international arbitration may be suggested to settle the disputes arising from them, etc.
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
2.1. Key founding texts
The Constitution of Republic of Türkiye
The Council of State Act-Law No: 2575;
Act On The Establishment and Duties of Regional Administrative Courts, Administrative Courts and Tax Courts-Law No: 2576;
Procedure of Administrative Justice Act-Law No: 2577
2.2. Organisation and competence of the administrative jurisdiction
2.2.1. General organisation of the administrative jurisdictional order
The courts of first instance in the administrative judiciary are consist of administrative and tax courts.
Administrative courts are in charge of adjudicating annulment case of administrative actions and full remedy actions brought for the compensation for damages arising from administrative acts and proceedings.
Tax Courts are in charge of adjudicating the cases related to taxes, duties and fees and similar financial obligations and the implementation of the Law on the Procedure for the Collection of Public Receivables in these matters.
In addition to examining and adjudicating the appeals and objections against the decisions made by the administrative and tax courts, Regional Administrative Courts are also responsible for finalizing the jurisdictional conflicts that arise between the administrative and tax courts.
The Council of State, which is included as a high court in the Constitution, responsible for rendering decisions on appeals against rulings issued by administrative and tax courts, as well as decisions related to cases heard by the Council of State as a court of first instance. Additionally, it is tasked with adjudicating administrative cases specified in the Council of State Act No. 2575 as a court of first and last instance, providing opinions on concession agreements and conditions related to public services, and fulfilling other duties assigned by this Act and other laws.
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Administrative and Tax Courts in principle work in panels consisting of a presiding judge and two member judges. However, in monetary disputes below a certain amount, they can also decide with a single judge.
Regional Administrative Courts work in panels consisting of a presiding judge and two member judges.
Council of State of Türkiye consists of 12 Chambers. Panels at the Chambers consist of a presiding judge and four member judges.
fore, the information and documents regarding every issue deemed to be confidential by the Administrative Court may be requested from the relevant person/institution and, with certain exceptions, these information-document requests must be met.
2.3. Status of administrative judges
Pursuant to the Constitution of the Republic of Türkiye, judges serve in accordance with the principles below:
Independence of the courts
ARTICLE 138- Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming to the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial. 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.
Security of tenure of judges and public prosecutors
ARTICLE 139- Judges and public prosecutors shall not be dismissed, or unless they request, shall not be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post.
Exceptions indicated in law relating to those convicted for an offence requiring dismissal from the profession, those who are definitely established as unable to perform their duties because of illhealth, or those determined as unsuitable to remain in the profession, are reserved.
Judges and public prosecutors
ARTICLE 140- Judges and public prosecutors shall serve as judges and public prosecutors of civil and administrative judiciary. These duties shall be carried out by professional judges and public prosecutors.
Judges shall discharge their duties in accordance with the principles of the independence of the courts and the security of the tenure of judges.
The qualifications, appointment, rights and duties, salaries and allowances of judges and public prosecutors, their promotion, temporary or permanent change in their posts or place of duties, the initiation of disciplinary proceedings against them and the imposition of disciplinary penalties, the conduct of investigation concerning them and the subsequent decision to prosecute them on account of offences committed in connection with, or in the course of, their duties, the conviction for offences or instances of incompetence requiring their dismissal from the profession, their in-service training, and other matters relating to their personnel status shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges.
Judges and public prosecutors shall serve until they are over the age of sixty-five. The mandatory retirement age, promotion and retirement of military judges shall be prescribed by law.
Judges and public prosecutors shall not assume any official or private occupation other than those prescribed by law.
Judges and public prosecutors shall be attached to the Ministry of Justice with respect to their administrative functions.
Those judges and public prosecutors working in administrative posts of judicial services shall be subject to the same provisions as other judges and public prosecutors. Their categories and grades shall be determined according to the principles applying to judges and public prosecutors, and they shall enjoy all the rights accorded to judges and public prosecutors.
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.
3.1. Types of plea
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.
3.2. Emergency procedures
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.
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.
3.3. Procedural principles before administrative courts
The principles below are guaranteed by the Constitution of the Republic of Türkiye :
Pursuant to the Article 36 “Freedom to claim rights”, everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.
Pursuant to the Article 37 “Principle of natural judge”, no one may be tried by any judicial authority other than the legally designated court. Extraordinary tribunals with jurisdiction that would in effect remove a person from the jurisdiction of his legally designated court shall not be established.
Pursuant to the Article 141, it is the duty of the judiciary to conclude trials as quickly as possible and at minimum cost.
Pursuant to the Article 142, the formation, duties and powers, functioning and trial procedures of the courts shall be regulated by law.
Furthermore, the Republic of Türkiye, which is a member of the Council of Europe, is a party to the European Convention on Human Rights (ECHR) that guarantees the fair trial (ECHR, Article 6) within the framework of international commitments.
When it comes to judicial procedures and principles;
The Administrative Procedure Law No. 2577 contains rules for the examination of administrative cases. Accordingly, the written trial procedure is applied in administrative courts and the examination is done on the document. For this reason, the hearing is an exceptional procedure and is performed once in respect of cases that have fulfilled certain conditions. The parties submit their claims and defences and their deductions in writing to the court and the administrative judge shall examine the file on the basis of the document.
Pursuant to the judge's ex officio investigation principle, administrative judges may resolve the disputes by requesting the person/institution concerned about all the information and documents about the subject that s/he considers to be necessary.
3.4. Reference standards for the control exercised by administrative judges
The administrative judges review administrative actions and procedures in accordance with the principle of the rule of law and the hierarchy of norms, ensuring compliance with legislation (Constitution, laws, regulations, and international treaties).
According to Article 11 of the Constitution, the provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals and laws shall not be contrary to the Constitution.
Under Article 90 of the Constitution, international treaties that have been duly enacted are equivalent to laws. The constitutionality of these treaties cannot be challenged before the Constitutional Court. In cases of conflicts between international treaties regarding fundamental rights and freedoms and national laws on the same matter, the provisions of the international treaties shall prevail.
3.5. Scope and nature of administrative 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; eg. concession, conditions and contracts concerning public services and national or international arbitration may be suggested to settle the disputes arising from them, etc.
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
3.6. Dissident opinions
Pursuant to Article 24 of Law No. 2577,the judgment must include, inter alia, the name and surname of the court president and members who made the decision, their signatures and any dissenting votes, and "whether the decision was made unanimously or by majority vote".
3.7. Alternative methods of 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.).
3.8. Digitised procedures
UYAP is an e-justice system as a part of the e-government and it has been developed in order to ensure fast, reliable, soundly operated and accurate judicial system among all courts and judicial institutions in Türkiye. 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.
4.1. Powers of administrative judges
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 and actions with law; administrative 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.
4.2. Impact and authority of administrative judgements
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 only for the parties.
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.
4.3. Appeals
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.
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