Municipality Act No. 5393 defines a municipality as a "public legal entity established to meet the local and common needs of the residents of a locality, whose decision-making organ is constituted by election by the electorate, and which possesses administrative and financial autonomy". Municipalities, which are one of the units of local government within the Turkish administrative organisation, are governed through the mayor, the council and the executive committee. Among these organs, the municipal executive committee establishes a large number of acts in its capacity as the decision-making mechanism of the legal entity. Since the acts so established qualify as administrative acts, they are subject to judicial review and an action may be brought before the administrative courts seeking their annulment.
The range of matters on which the executive committee may take decisions is a wide one. For this reason, in every dispute it must first be established which field the decision relates to, and the procedure to be followed must be structured in accordance with that finding.
Below we address the legal position of the executive committee, the grounds on which its decisions may be annulled, the possibility of applying to the administration before bringing an action, the courts with subject-matter and territorial jurisdiction, and the preclusive time limit for bringing an action.
The Legal Position and Sphere of Authority of the Municipal Executive Committee
The municipal executive committee is the second administrative body in the hierarchy after the office of the mayor; it ensures the application of the sanctions provided for by law and is vested with the power to submit opinions to the municipal council. Given this structure, the executive committee may be said to perform an executive and an advisory function at one and the same time.
The duties and powers conferred on the executive committee are enumerated in Article 34 of Municipality Act No. 5393:
Municipality Act No. 5393, Art. 34
"To examine the strategic plan and the annual work programme together with the budget and the final account, and to submit an opinion to the municipal council.
To take and implement expropriation decisions relating to the works included in the annual work programme.
To determine the places of expenditure of the appropriation for unforeseen expenses.
To make transfers between the second levels of the functional classification in the budget.
To impose the penalties provided for in the laws.
To decide on the settlement by agreement of municipal disputes that are the subject of litigation, other than those relating to taxes, duties and charges.
To implement council decisions concerning the sale, exchange and allocation of immovable property; to decide on its lease for a term not exceeding three years.
To determine the opening and closing hours of places open to the public.
To perform the duties assigned to the municipal executive committee by other laws."
Since the decisions issued by the executive committee are final and enforceable, they bring about a direct change in the legal position of those concerned. It is precisely because of these characteristics that an administrative objection may be lodged against such decisions and an action may also be brought seeking the annulment of the act.
Principal Situations Calling for the Annulment of Executive Committee Decisions
The Municipality Act has also charged the executive committee with imposing the penalties provided for in the laws. Where, for example, an administrative fine is imposed under Zoning Act No. 3194 on the owners of a structure who have carried out construction contrary to their building permit, the executive committee decision forming the basis of that sanction may be made the subject of an action for annulment. Decisions rejecting applications for an occupancy permit or a building permit are likewise among the acts amenable to review by way of an action.
Another area of intense dispute is parcelling. The executive committee likewise decides on the approval of the parcelling operation to be carried out within the framework of Article 18 of Zoning Act No. 3194. Since operations of this kind directly concern the right to property of individuals, they give rise to a large number of disputes in practice.
Indeed, in the judgment of the Council of State, 6th Chamber, dated 21.11.2016, docket no. 2015/9906 and decision no. 2016/7478, the executive committee decision was annulled on the ground that a disproportionate interference with the right to property had been made by way of parcelling:
"The action was brought seeking the annulment of the decision of the Municipal Executive Committee concerning the carrying out of parcelling in an area owned by the Treasury, in which the immovables are situated and which was created from a stream. Whereas it was possible, pursuant to the plan notes of the implementation zoning plan forming the basis of the parcelling operation, for the parcels belonging to the claimant Treasury to be preserved as independent parcels in the place where they are situated, they were instead distributed as shares in other parcels, and the executive committee decision at issue was accordingly found not to be in accordance with the law on the ground that the principles and rules of distribution had not been complied with."
In addition, the executive committee is also charged with taking and giving effect to the expropriation decisions relating to the works included in the annual work programme. Since expropriation operations likewise touch directly upon the right to property, disputes frequently arise under this heading as well.
The Possibility of Objecting to the Administration Before Bringing an Action
Executive committee decisions are regarded as administrative acts, since they are established by an administrative authority, for the purpose of performing a public service, on the basis of public power and by a unilateral declaration of will. Because of this character, before having recourse to the courts against the acts established by the executive committee, an application may be made to the administration and an objection lodged within the framework of Article 11 of Administrative Procedure Act No. 2577 (IYUK).
This application to the administration is not a precondition for bringing an action. It nonetheless affords a twofold benefit: on the one hand it suspends the time limit for bringing an action, and on the other, if it results favourably, it resolves the dispute more quickly and at less cost without taking it to court.
The Action for Annulment Against an Executive Committee Decision
As explained above, executive committee decisions are administrative acts. Administrative acts may be made the subject of an action for annulment where they are unlawful in respect of any one or more of the elements of competence, form, cause, subject matter and purpose. The action to be brought is heard within the administrative judicial order.
It should further be emphasised that, if there is a possibility that losses which are difficult or impossible to remedy will arise should the decision be implemented, a stay of execution may also be requested together with the claim for annulment. The court’s ability to grant a decision to that effect depends on certain conditions being present together; it is therefore important that the request be reasoned in the petition.
Courts with Subject-Matter and Territorial Jurisdiction
Since an action seeking the annulment of an executive committee decision falls within the sphere of the administrative judiciary, the application must be made to the administrative courts.
As regards territorial jurisdiction, the general rule — subject to the special cases provided for by law — is that the court of the place where the executive committee that took the decision is situated has jurisdiction. Where, on the other hand, the decision concerns an immovable, the action for annulment must be brought before the court of the place where the immovable is situated.
The Time Limit for Bringing an Action
Under Article 7 of Administrative Procedure Act No. 2577, actions to be brought against executive committee decisions must be instituted within sixty days of notification of the decision. Since this period is preclusive in character, its expiry extinguishes the ability of the person concerned to bring an action.
Where an objection has been lodged with the administration against the executive committee decision before the action and no reply whatsoever is given to the application within thirty days, the request is deemed to have been rejected. An action for annulment may be brought before the administrative courts within the sixty-day period that begins to run from that moment.
In the second scenario, the administration may have expressly rejected the application. In that case too, recourse to the courts must be had within sixty days from the date on which the decision of rejection was notified to the person concerned.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative courts?
Under Turkish law, parties may defend and represent themselves in person before the courts; save for limited exceptions, there is no obligation to appoint a representative. No such obligation is laid down for the administrative courts either. That said, the complexity of administrative law legislation and the shortness and strictness of the time limits in the Administrative Procedure Act may, where the process is conducted by persons who are not lawyers, lead to errors that are difficult to remedy in both procedural and substantive terms. It is therefore advisable to obtain support from lawyers practising in the field of administrative law before any step is taken.
Who may bring an action against an executive committee decision?
Anyone whose interests are affected by an unlawfully taken executive committee decision is entitled to bring an action for annulment against that decision.
May the execution of an executive committee decision be stayed?
If there is a possibility that losses which are difficult or impossible to remedy will arise as a result of the implementation of the decision, the court may be asked to order a stay of execution.
Within what period must the action be brought?
Recourse to the administrative courts must be had within 60 days from the date on which the executive committee decision was notified to the person concerned.
Which court has territorial jurisdiction?
As a rule, the court of the place where the executive committee that took the decision is situated has jurisdiction. This rule applies subject to the special jurisdiction provisions contained in the law. Where, for example, the executive committee decision concerns an immovable, jurisdiction in the action for annulment lies with the court of the place where the immovable is situated.
The Independent Legal Assessment
In disputes concerning executive committee decisions, the decisive point is that the statutory basis on which the decision rests should be correctly identified at the very first stage. Zoning fines, parcelling and expropriation decisions are subject to different legal regimes; an inaccurate legal characterisation in the petition may result in no outcome being obtained without the merits ever being reached. The preclusive character of the sixty-day period means, in turn, that if the objection route is to be used, its timing must be planned with care.
In a specific file, it would be appropriate to bring the following headings to the fore:
- Establishing the date of notification by documentary evidence and calculating the time limit accordingly
- Making strategic use of the objection under Art. 11 IYUK, having regard to its effect of suspending the time limit
- Reviewing the act separately in respect of the elements of competence, form, cause, subject matter and purpose
- Determining the court with territorial jurisdiction correctly from the outset in decisions concerning an immovable
- Advancing the request for a stay of execution with the nature of the loss that would arise set out in concrete terms
Independent Legal provides advisory services and litigation management in the administrative application and annulment action processes to be pursued against municipal executive committee decisions.