Losses that may arise from the acts and actions of the administration are safeguarded by administrative law; those whose interests or personal rights are impaired by such an act or action are afforded the possibility of bringing an action. Indeed, Article 125 of the Constitution provides that recourse to the courts is open against every action and act of the administration. Where property or money belonging to a person passes to the administration unlawfully, an action for restitution may be brought seeking its recovery.
Below we first touch briefly on the types of action that may be brought against the administration, and then examine the legal nature of the action for restitution, the conditions required, the courts with subject-matter and territorial jurisdiction, the time limits and the regime of prior application to the administration.
Types of Action That May Be Brought Against the Administration
The actions that may be brought against the administration before the administrative courts are limited in number and fall under two headings.
An action for annulment is brought in order to have an administrative act set aside on the ground that it is unlawful in respect of any one of its elements of competence, form, cause, subject matter or purpose. The possibility of bringing this action is afforded to persons whose interests are infringed by the act. The subject is examined in detail in our note entitled Action for the Annulment of Administrative Acts.
A full remedy action, by contrast, is brought in order to make good the loss arising as a result of the actions or acts of the administration. Those who may bring this action are persons whose personal rights are infringed by the act or action in question. The scope of the full remedy action covers actions for damages, tax actions, actions arising from administrative contracts and actions for restitution. For further detail, reference may be made to our note entitled The Action for Damages (Full Remedy Action) to Be Brought Following an Action for the Annulment of an Administrative Act.
Legal Nature of the Action for Restitution
An action for restitution brought against the administration is in essence a full remedy action. In this action, the return to its true owner of property or money that has passed into the ownership of the administration as a result of an administrative act or action without justified cause is sought.
For example, a person compelled to pay an administrative fine of which he is not the debtor may have recourse to this avenue in order to obtain the return of the sum paid. In the same way, an action brought in order to recover a tax overpaid by reason of a tax error is likewise in the nature of an action for restitution.
The judgment of the 10th Chamber of the Council of State dated 11.12.2009, Merits No. 2007/5446 and Decision No. 2009/10321, is instructive on this point:
"Although there is no type of action in the administrative jurisdiction in the form of an action for restitution, it is beyond dispute that, even where no action has been brought seeking the annulment of the administrative act relating to the demand for a public receivable from individuals, following payment of that public receivable to the administration an application may be made to the administration within sixty days from the date of payment seeking the return of the amount alleged to have been paid unduly, and that, upon rejection of the request, an action may be brought seeking a decision for the return of the amount alleged to have been paid unduly. Actions brought with this request must be accepted as being in the nature of a full remedy action."
Conditions Required for Bringing the Action
Both in the action for restitution and in full remedy actions generally, the precondition for bringing an action is the existence of an infringement of a personal right. As regards restitution, this infringement takes the form of the administration transferring property or money into its own ownership without any statutory basis and thereby impairing the person’s right of property. The infringement in question must have occurred directly and must take its source from an action or an act of the administration. Accordingly, the first matter required is the existence of an administrative act or action.
Where the infringement of the right arises from an action, application to the administration is mandatory before a full remedy action is brought; this rule also applies to the action for restitution, which forms the subject of this note. A person whose right is infringed by reason of an action of the administration must apply to the administration concerned within 1 year from the date on which he learned of that action by written notification or by other means. The right of application is in any event limited to 5 years from the date of the action; once that period has elapsed, it is not possible to make a claim against the administration even if a loss of right has arisen.
In the application to be made, the person whose right has been infringed by reason of the administrative action must expressly request that his rights be satisfied.
Court With Subject-Matter Jurisdiction
Where the act or action forming the subject of the restitution claim is of the kind enumerated in Article 24 of the Council of State Act, the action is heard before the Council of State sitting as a court of first instance. In disputes falling outside this, the judicial forum with general subject-matter jurisdiction is the administrative courts.
Indeed, in its judgment dated 23.6.2010, Merits No. 2010/9-314 and Decision No. 2010/342 concerning the restitution of an administrative fine unlawfully assessed, the Assembly of Civil Chambers of the Court of Cassation likewise reached the conclusion that the administrative jurisdiction had subject-matter jurisdiction.
There are, however, exceptions. For example, administrative fines imposed by the Turkish Employment Agency are collected in accordance with the general rules pursuant to the Turkish Employment Agency Act. For this reason, in actions for restitution brought seeking the recovery of an administrative fine paid to that institution, subject-matter jurisdiction belongs to the ordinary courts and the action must be brought before the civil court of first instance.
In the same way, actions for restitution brought against the Energy Market Regulatory Authority on the allegation that the loss and illicit-use charge has been collected unlawfully are also heard before the civil court of first instance.
Court With Territorial Jurisdiction
Territorial jurisdiction in the action for restitution is determined in accordance with Article 36 of the Administrative Procedure Act No. 2577. In full remedy actions other than those arising from administrative contracts, the court with territorial jurisdiction is determined, in order, as follows:
- the administrative court with jurisdiction to resolve the administrative dispute giving rise to the loss,
- where the loss originates in a service such as public works or transport, or in any action of the administration, the administrative court of the place where the service was performed or the action took place,
- in cases falling outside these, the court of the place where the claimant is domiciled.
Time Limit for Bringing the Action
The general time limit for bringing an action before the administrative courts is 60 days as regards the Council of State and the administrative courts, and 30 days as regards the tax courts. In administrative disputes, time begins to run from the day following the date on which written notification is made.
In actions for restitution that take their source from an administrative act, there is no obligation to apply to the administration before bringing the action; whether or not that avenue is used is left to the choice of the person concerned.
In actions for restitution based on an administrative action, by contrast, application to the administration is mandatory. Where the application is rejected in whole or in part, the action may be brought within the general time limit for bringing an action, running from the day following notification of the decision of rejection; where no reply whatsoever is given to the application within 30 days, that time limit runs from the expiry of that period.
Is It Necessary to Seek Annulment of the Act Before Bringing the Action?
In order to bring an action for restitution, it is not required that the annulment of the administrative act forming the subject of the recovery claim should previously have been sought.
Even where no action at all has been brought for the annulment of the act giving rise to the loss, the entitled person’s right of objection and of action continues after payment of the sum in question to the administration. Put another way, within sixty days from the date on which the sum whose recovery is sought was paid, an application may be made to the administration seeking the return of the amount alleged to have been paid unduly. Upon rejection of that claim, it is possible to bring a full remedy action seeking a decision for the return of that sum. In such actions, even where the administrative act relating to the demand for the public receivable has not been made the subject of the action, the administrative court may examine whether that act is unlawful and may carry out a review of its lawfulness.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Turkish law, with a few exceptions, allows parties to defend and represent themselves in person; representation by counsel before the court is as a rule not made mandatory. Nor is representation by an administrative law lawyer required as regards the administrative courts.
However, the complex structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, give rise to errors of both form and substance that are difficult to remedy. In order to avoid a loss of rights in administrative proceedings governed by detailed rules, it is appropriate to obtain the support of a lawyer practising in the field of administrative law before any step is taken.
What does an action for restitution concern?
These are actions seeking the recovery of movable or immovable property, or money, that has passed into the assets of the administration without justified cause.
Are there other types of full remedy action?
Yes. The full remedy actions heard before the administrative courts have certain principal forms: actions for damages, tax actions, actions arising from an administrative contract, and the actions for restitution that form the subject of this note.
Who may bring this action?
Persons whose personal rights have been directly infringed by reason of the actions and acts of the administration have the right to bring the action.
Within what period must the action be brought?
The action must be brought within 60 days before the Council of State and the administrative courts, and within 30 days before the tax courts, running from the day following the date on which written notification was made in the administrative dispute.
Must the administration always be applied to beforehand?
No. In actions for restitution arising from an administrative act, application to the administration before bringing the action is not mandatory. Where, by contrast, the restitution claim originates in an administrative action, the administration must be applied to before the action is brought.
Independent Legal Assessment
The problem most frequently encountered in restitution disputes is that the branch of jurisdiction before which the file is to be heard is wrongly identified from the outset. Although as a rule the administrative jurisdiction has subject-matter jurisdiction, the civil courts of first instance come into play as regards receivables for which collection in accordance with the general rules is prescribed in their own special legislation. Since proceedings ending in a decision of lack of subject-matter jurisdiction may give rise to serious risk as regards preclusive periods, the special legislation forming the basis of the collection must be examined before the avenue of action is chosen.
The second decisive matter is the correct determination of the date of payment. In a restitution claim, time is tied not to the moment at which the act was established, but to the moment at which the sum was paid to the administration. In files involving partial payments or payment by instalments, a separate assessment may need to be made in respect of each payment.
The matters to be attended to in a specific file are the following:
- examining the special legislation forming the basis of the collection and identifying the branch of jurisdiction with subject-matter jurisdiction
- establishing whether the claim arises from an administrative act or from an administrative action, and assessing the requirement of prior application accordingly
- not missing the one-year and five-year application periods in claims originating in an action
- collecting in full the receipts, bank slips and assessment documents evidencing the date and amount of payment
- correctly calculating the date of tacit rejection where no reply is given within 30 days to the application made to the administration
- expressly raising the claim for interest, together with the claim for recovery, in the statement of claim
Independent Legal provides advisory services and conducts litigation in disputes concerning the recovery of sums unlawfully collected by the administration, from the stage of the administrative application through to the conclusion of the full remedy action.