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
Pursuant to the Article 155 of the Constitution of the Republic of Turkey and the Law no : 2575 on the Council of State, it is either an organ assisting the executive power for the review, consultancy and decision or a higher judicial institution having crucial and important missions for the supervision of the administration through the judiciary.
The separation of the judiciary is adopted in the Turkish legal system, so four separate branches of the judiciary (Constitutional Judiciary, Civil and Criminal Judiciary, Administrative Judiciary, Jurisdictional Judiciary) are accepted.
There are 3 level and 3 authority systems in the administrative judiciary that is an independent branch of the judiciary.
The first level, provincial court of appeal and appeal reviews are performed respectively by a) administrative and tax courts, b) regional administrative courts, c) the Council of State, as a rule.
In this respect, the Council of State is the final and the highest court in the administrative judiciary.
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: 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 TGNA
20 January 1921: Principal Law of Organisation (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 provincial courts of appeal
1.3. Criteria of competence of the administrative jurisdiction
Pursuant to the Article 2 of the Law no : 2577 on the Procedure of Administrative Judiciary, the kinds of the administrative cases and the borders of the administrative judiciary are as below:
a) Nullity cases to be filed by those whose interests are violated as the decision is the violation of the law in terms of authority, form, reason, subject and/or purpose regarding administrative proceedings,
b) Full remedy action to be brought directly by those whose personal rights are probably violated by administrative actions and proceedings,
c) Any dispute between the parties arising out of any administrative agreements for the execution of one of the public services, except for concession conditions and agreements provided for in the arbitration procedure.
Administrative jurisdiction is limited to the supervision of administrative actions and proceedings in compliance with the law. The administrative courts cannot control their place of jurisdiction, they cannot make a judicial decision in such a way as to restrict the fulfilment of the executive duty in accordance with the forms and principles laid down in the laws and presidential decrees, or to abolish the discretion of the administration in the form of administrative action or procedure.
2.1. Key founding texts
The article 155 of the Constitution of the Republic of Turkey with no: 2709
The Law no: 2575 on the Council of State
2.2. Organisation and competence of the administrative jurisdiction
2.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
In the Turkish administrative judiciary, there is a 3-level and 3-authority structure. As a rule, administrative and tax courts conduct the first degree examination, the provincial administrative courts perform the regional appeals and the Council of State performs the appeal examination.
There are no specialised courts in respect of first instance judicial authorities. However, some issues, among other disputes, may only be subject to proceedings in predetermined courts. For example, the judicial review of the deportation decisions given in accordance with the International Law on Foreigners and Protection of Foreigners No. 6458, in the case of more than one administrative court in that place, pursuant to the Article 111 of the same Law, the court with the number of 1 in the jurisdiction has the authority. In this way, these courts are specialised in specific matters, but they continue to look at other disputes in addition to these cases. In addition, in the 4th clause of the Article 2 of the Law no: 2576, the division of works between the first and second level courts are defined by the High Council of Judges and Prosecutors, so the observance of the specialisation can be performed by using said authority.
The regional appeals and appeals are carried out by specialized units. For example, construction disputes are examined both at the level of regional appeal and at the level of appeal by specialised units in this field.
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
Administrative courts (administrative courts and tax courts) have a single structure and there is no department or unit. As stated in the answer to question 2.2.1, there is no specialization in courts in respect of first level jurisdiction.
Pursuant to the Article 4 of the Law No. 2576, a president and a sufficient number of members are present in administrative courts and decisions are taken by the board to be formed by the participation of a president and two members, as a rule. According to the Article 7 of the same law, cases in which the amount of the dispute is less than a certain amount (TL 36,000) are resolved by one of the judges in administrative court (single-judge cases).
2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
No. In the Turkish administrative judiciary, this authority belongs only to the Presidency of the Council of State.
The duties of the Council of State as a consultative and investigative authority are as follows:
2.2.4. Tools and documentary resources available to judges
Technological tools: Administrative judges can examine the files in electronic media using the National Judicial Network integrated with judicial and administrative judicial authorities of all levels, look for precedents and also access the identification data of the parties of the case through the databases defined in the system in question.
Legal instruments: The Article 1 of the Law No: 2577 on Procedural Administrative Jurisdiction defines the procedure of written trials in administrative courts according to the provisions of the Article and the examination is carried out through the document. For this reason, the evidence that administrative judges can use to resolve the dispute must be written, as a rule.
In addition, the Article 20 of the Law No: 2577 on Procedural Administrative Jurisdiction, administrative courts are obliged to examine every point of disagreement if necessary. Therefore, 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
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
Pursuant to the clause (ı) of the Artcile 8 of the Law No: 2802 on Judges and Prosecutors, entrance exam to the admnistrative judiciary as the administrative judge is performed on the basis of written examination and the passers sit for the interviews. The scope and content of the written and oral examinations are determined in detail in Article 9/A of the same law. Those who succeed according to the written and oral exams are placed in line with the success levels and those who remain within the quota (number of requirements) announced by the Ministry of Justice will be assigned to the administrative judicial judge and will begin the internship. Individuals having the degree of the doctor of philosophy are only interviewed.
Constitution of the Republic of Turkey, No. 2709;
The Article 138 “Independence of the courts” stipulates that “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.
The Article 139 “Security of tenure of judges and public prosecutors” states that “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 ill health, or those determined as unsuitable to remain in the profession, are reserved.
The Article 140 “Judges and public prosecutors” defines that “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.
Therefore, the independence and individual rights of judges are guaranteed by the Constitution.
3.1. Types of plea
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
As it was replied in the question 1.3, the administrative courtrs consider the cases of nullity, full remedy actions and the disputes emerging from the administrative agreements, contracts.
Pursuant to the Article 2 of the Law no : 2577 on the Procedure of Administrative Judiciary, the kinds of the administrative cases are as below:
a) Nullity cases to be filed by those whose interests are violated as the decision is the violation of the law in terms of authority, form, reason, subject and/or purpose regarding administrative proceedings,
b) Full remedy action to be brought directly by those whose personal rights are probably violated by administrative actions and proceedings,
c) Any dispute between the parties arising out of any administrative agreements for the execution of one of the public services, except for concession conditions and agreements provided for in the arbitration procedure.
3.2. Emergency procedures
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
In administrative courts, there is an “emergency trial procedure” and “judicial procedure related to central and joint examinations” which are exceptional and accelerated procedures, and it is regulated in articles 20/A and 20/B of the Administrative Procedure Law No. 2577. It is aimed to shorten the periods according to the general judicial procedure in cases of urgency in which these courts are applied and to finalize the cases quickly in accordance with the nature of the cases by closing the way for the application of the law on appeal against the decision (the way of appeal is open). In both special cases, appeals can be appealed to the Council of State, which is the highest authority directly against the decisions made in the first levle c ourt. However, there are special arrangements for these procedures, especially in terms of shortening the periods during the appeal stage.
Article 20/A of the law no 2577 shall apply to the emergency procedure of the cae in the court as follows:
According to Article 20/B of the Law No. 2577, the disputes in which the procedure for the trial of the central and joint examinations shall be applied are as follows:
The cases to be brought against the central and joint examinations conducted by the Ministry of National Education and the Selection and Placement Center, the work and procedures related to these examinations and the results of the examinations.
3.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The rights granted to the parties to the proceedings are guaranteed by the Constitutional Court.
The Constitution of the Republic of Turkey, No. 2709;
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 Turkey, 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. Since the research principle is valid, the administrative judge is obliged to resolve the disagreement by asking the person/institution concerned about all the information and documents about the subject that s/he considers to be true. With the exception of special conditions, requests for information and documents must be fulfilled in the event that the requested information or documents are not related to the security of the state or to the high interest of the state or to foreign states with the security and the high interest of the state. However, in the case of exceptional circumstances, the decision cannot be taken according to the defence which is put forward based on the documents that are not presented.
Again, according to the Article 31 of the Law No: 2577, in certain cases where there is no provision in this law (the rectification of the hearing, etc..) the relevant provisions of the Law on Legal Proceedings are applied.
3.4. Reference standards for the control exercised by administrative judges
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
Administrative judges supervise the administrative proceedings in question in accordance with all regulations (Constitution, laws, regulations, international conventions) which have been duly put into force.
Principles of the rule of law and the hierarchy of norms and the Article 11 of the Constitution are the basic legal rules that bind legislative, executive and judicial organs, administrative authorities and other institutions and persons. The laws cannot be unconstitutional and the Article 90 (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.), it is not possible to implement sub-regulations, including the law against international conventions on the Constitution and fundamental rights and freedoms.
For this reason, administrative judges should perform the compliance audit in question and file to the Constitutional Court in case of unconstitutionality, and in case of violation of international agreements, they should apply the provisions of the International Convention directly.
3.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
The Article 125 of our Constitution includes the rule “Recourse to judicial review shall be available against all actions and acts of administration.”
In this respect, as a rule, all kinds of administrative procedures and actions are subject to the supervision of administrative courts. However:
1 - National or international arbitration in disputes arising out of concession conditions and contracts related to public services and having a foreign nature can be reached.
2 – The recourse against the retirement decisions of the High Military Council on the basis of the non-presence of available cadre are closed.
3 - Only compulsory arbitration may be applied against decisions regarding the management and discipline of sports activities of sports federations. No judicial authority can be applied against the decisions of the arbitration board.
4 - No judicial proceeding against decisions of the Supreme Election Board can be exercised.
5 - The decision of the Judges and Prosecutors Board cannot be appealed unless it is regarding the dismissal of the profession.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
Pursuant to our Constitution, judges decide according to their conscience, the constitution, the law and the legislation.
According to the Law No. 2577, administrative jurisdiction is limited by the supervision of the compliance of administrative actions and proceedings with the law. The administrative courts cannot control the convenience of the action, they cannot make a judicial decision in such a way as to restrict the fulfilment of the executive duty in accordance with the forms and principles laid down in the laws and presidential decrees, or to abolish the discretion of the administration in the form of administrative action or procedure.
Accordingly, in cases where the administration has discretion instead of the authority, judicial review is carried out in a more limited manner. The discretion of the administration has been determined as “public interest” and “service requirements” with the judicial case. Unless these two criteria are observed, it is decided to cancel the transaction on the grounds that the discretion is not used in accordance with the law or to compensate the damage suffered due to the action.
3.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
Without any exception in the Article 24 of the Law no: 2577, the matters to be included in the decisions are defined as the president and the members of the court who made the decision "whether the decision was made by majority or unanimously", if there is any dissenting opinion, this opinion with the justification, names and surnames of the court president and members".
Therefore, it is possible for judges who do not participate in the majority decision to vote and write their opinion on the minority. In fact, the lack of votes and justification has been accepted as part of the decision.
3.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
There is not a single legal arrangement in our administrative procedure and administrative judgment system that compiles alternative dispute resolution methods. There are various provisions in many regulations.
For example, according to the Decree No. 659, those who claim that their rights have been violated due to administrative proceedings may apply to the administration and ask for the correction of the losses they have suffered within the time of filing a lawsuit. For administrative actions, the same demand can be made in accordance with the principles of the Administrative Procedure Law No. 2577. In both cases, except for a specific subject and a concrete request, the magistrates' applications are forwarded to the judicial dispute evaluation commission, consisting of at least three members, including the head of the legal unit and the head of the department of legal affairs, established by the executive director within that administration, and examined there.
In the Law No. 5233 on the compensation of damages arising from the fight against terror and terrorism, similarly, a preliminary decision is applied and this application is examined by a commission established by the administration and it is possible to resolve the dispute through peace.
On the other hand, legislative work on alternative dispute resolution methods in administrative jurisdiction is continuing.
3.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
The parties can also present their claims and documents electronically using the National Judicial Network integrated by administrative judicial authorities of all levels.
4.1. Powers of administrative judges
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
Pursuant to the Article 2 of the Law No. 2577 on Administrative Procedure, there are 3 types of administrative cases, including annulment proceedings, full remedy actions and administrative contracts.
In accordance with the same provision, administrative jurisdiction is limited to the supervision of administrative action and the legality of those actions. The administrative courts cannot control the convenience of the action, they cannot make a judicial decision in such a way as to restrict the fulfilment of the executive duty in accordance with the forms and principles laid down in the laws and presidential decrees, or to abolish the discretion of the administration in the form of administrative action or procedure.
Therefore, when the Turkish administrative judges determine that an administrative action is against the law, they shall decide to stop and/or cancel the execution of the action and to specify the legal conditions required for the administration to establish an administrative action in accordance with the law on the grounds of their decisions. The administration does not have the authority to replace it and establish a new action.
The application of annulment provision is a constitutional obligation (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.") the decision made by the administrative judge including the reason as the part of the whole decision, indirectly forces the administration to act in a certain way. However, it is not possible for the administrative judge to give orders and judgments directly to the administration in certain directions.
4.2. Impact and authority of administrative judgements
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
Decisions made in disputes regarding with individual actions are of concern to and bind the parties to the dispute. However, there are opinions that the exact effect of the decision on the cancellation of the action is not the same as the exact effect of the decision on the rejection of the case. In this view, it is argued that if the cause of the case is not the same (the case and the claims), even if the subject and the parties of the case are the same, the decision on the rejection of the case will not constitute a material absolute judgment, and it will only form a definitive judgment. There is no debate as to whether cancellation decisions constitute a final decision in terms of both material and form sides of the case.
It is accepted that the decisions made in the disputes relating to regulatory actions constitute a definitive provision not only for the parties of the case, but also for everyone in terms of both material and form.
Therefore, the main criterion in determining the persons to which the decisions will be applied and which will be binding is whether the action is individual or regulatory.
4.3. Appeals
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
In the Turkish administrative judiciary, there is a 3-level and 3-authority structure. As a rule, the decisions of the first level court (administrative and tax courts) are subject to appeal examination before the regional administrative courts and the decisions of the regional administrative courts are subject to appeal examination before the Council of State.
As a rule, the duration of regional appeal and appeal is 30 days. In the case of an emergency trial procedure and the procedure for the central and joint examinations, there is no investigation of the appeal and the appeal periods are 15 and 5 days, respectively.
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