Administrative acts adopted on the basis of public power and by unilateral will are subject to review by the administrative courts as to their lawfulness. Where, at the end of that review, the act is found to be unjustified or unlawful, the court gives judgment annulling it. This outcome, which appears straightforward on paper, does not always operate with the same clarity in practice; instances in which the relevant units fail to give effect to an annulment judgment are frequently encountered. The Administrative Procedure Act No. 2577 has laid down a detailed regime of liability in respect of administrations and public officials who fail to give effect to a decision.
The frustration of a judgment does not arise in a single form. In some files the administration takes no step at all, in others only part of the judgment is satisfied, and in others what is required is done not in time but months later. Alongside these there are the practice of apparently complying and then, shortly afterwards, adopting a new act producing the same result, and situations of impossibility arising from legal or factual obstacles. In the resulting picture, the rights holder suffers pecuniary and non-pecuniary loss despite holding a judgment in his or her favour. In such situations legal remedies may be pursued against the administration that has failed to give effect to the decision or against the public official who has refrained from implementing it.
In this briefing note we assess together the consequences produced by an annulment decision, the types of failure to implement, the principles governing the liability of the administration and of the public official, the actions for damages that may be brought, the courts with jurisdiction and the limitation periods.
Consequences of an Annulment Judgment
An annulment decision given by the administrative courts invalidates the act under review not merely prospectively but retroactively, back to the moment at which it was adopted. In that respect an annulment judgment differs from annulment decisions given in the other branches of the judiciary. From the moment the decision becomes final, connected acts adopted on the basis of the act set aside also leave the legal order. As a natural consequence, the administration is under an obligation to restore the person and the matter concerned to the position they would be in had the act never been adopted.
Situations in Which the Decision Is Not Implemented
The failure to give effect to an annulment judgment takes six distinct forms in practice. Some of these consist in remaining entirely passive, others in apparently complying while frustrating the outcome.
- Leaving the decision wholly unanswered: the administration gives no response whatever to the judgment; it neither adopts an act nor takes any action.
- Implementing part of the judgment: only some of the acts required by the annulment decision are completed while the others are left in suspense.
- Failing to act in conformity with what is required: the administration does not remain wholly silent, but the steps it takes do not meet the content required by the decision.
- Late implementation: Article 28 of the Administrative Procedure Act No. 2577 expressly requires the administration to implement judicial decisions without delay and to adopt the necessary acts. The case law of the higher courts has given concrete shape to that obligation through the criterion of a "reasonable time" and has accepted that the period may not exceed thirty (30) days from the moment the decision is served on the administration. Where decisions are not given effect within that period, liability for loss arising from the delay rests with the administration.
- Apparent compliance: in some files the administration first gives full effect to the annulment judgment, but shortly afterwards renders the judgment effectively fruitless by withdrawing the acts it has adopted to that end or by re-adopting an act similar to the one annulled. The fact that the acts carried out remain formal in nature does not remove the administration’s liability.
- Impossibility of implementing the judgment: another rule of law may prevent effect being given to the decision (legal impossibility), or implementation may become factually impracticable. Even in such situations of impossibility, the administration’s liability for pecuniary and non-pecuniary loss continues.
Liability of the Administration for Failing to Implement the Decision
Article 28 of the Administrative Procedure Act No. 2577 governs the liability of the administration and that of the authorities responsible for giving effect to the decision separately, where the requirements of an annulment judgment are not carried out.
Administrative Procedure Act No. 2577, Art. 28
"In cases where no act is adopted or no action is taken in accordance with the decisions of the Council of State, the regional administrative courts and the administrative and tax courts, an action for pecuniary and non-pecuniary damages may be brought against the administration before the Council of State and the relevant administrative court.
Where court decisions are intentionally not carried out by public officials within thirty days, the person concerned may bring an action against the administration, and an action for damages may also be brought against the public official who has failed to carry out the decision."
The higher courts regard the complete failure to implement an annulment judgment, or delay in implementing it, as amounting to gross service fault. In such situations, since the fault arising from the operation of the service and the fault attributable to the person of the public official are intertwined, our legislation opens the way to a claim for damages directed both against the administration and against the official.
Although the Act treats both subjects as liable, naming the two together as respondents in a single action is not accepted in practice. The person who has suffered loss must therefore choose either the administration or the public official who has refrained from giving effect to the decision as respondent. In actions directed against the administration, where the official is also liable, the administration may have recourse against him or her for the damages it has paid.
Distinguishing Service Fault from Personal Fault
Where a public official fails to perform properly, in the course of his or her duties, an administrative act connected with those duties, this is regarded as service fault. The fault here is not one that can be imputed or attributed to the person of the administration; it denotes a type of fault that gives rise to the administration being held indirectly liable.
By contrast, fault arising from conduct of the official that cannot be connected with the service he or she carries out is characterised as personal fault. Where the fault is regarded as personal, the official’s own legal liability arises. It should also be added that the fact that the official has acted with personal fault does not remove the existence of service fault.
Liability of the Public Official for Failing to Implement the Decision
For a public official to be held legally liable, he or she must hold a position of competence and must have acted intentionally. The failure to give effect to a decision is regarded as sufficient as to the existence of intent. Alongside intent and personal fault, it is also a required element that loss arising from that fault has occurred in the particular case.
An action may be brought directly against an official who is at personal fault; that choice constitutes no obstacle to an action for damages being brought separately against the administration.
Where the official is at personal fault, the indirect liability of the administration arises even if no direct link can be established between the administrative acts and the loss that has occurred. Moreover, acting in conformity with judicial decisions is a duty specifically imposed on all public officials. Where the complete non-performance of the duty, or negligence in its performance, causes loss to individuals, criminal liability may arise alongside legal liability.
In criminal terms, the official incurs liability in respect of the offence of "misconduct in office" set out in Article 257 et seq. of the Turkish Penal Code No. 5237. A criminal complaint may be lodged with the public prosecutor’s office against an official who fails to give effect to a decision. Subject-matter jurisdiction in proceedings concerning that offence lies with the Criminal Courts of First Instance.
Actions for Damages That May Be Brought Against the Administration and the Public Official
A person who suffers loss as a result of the failure to implement a decision may bring an action before the administrative courts against the administration in respect of his or her pecuniary and non-pecuniary loss; a claim for pecuniary and non-pecuniary damages directed against the public official within the authority responsible for giving effect to the decision is, by contrast, raised before the ordinary courts. The legal remedies available in respect of loss suffered because the administration has not duly given effect to the annulled act are addressed in detail in our study entitled Actions for Damages (Full Remedy Actions) Against the Administration.
As to the procedure governing, and the limits of, claims for non-pecuniary damages directed against the administration, our article entitled Claims for Non-Pecuniary Damages Before the Administrative Courts and Increasing the Claim may be consulted.
Courts with Jurisdiction in Actions for Damages
In actions for damages to be brought against an administration that has failed to give effect to an annulment judgment, subject-matter and territorial jurisdiction lie with the court that gave the annulment decision.
In actions for damages directed against the person of the public official, the court with subject-matter jurisdiction is the Civil Court of First Instance.
Limitation Periods in Actions for Damages
In actions brought against the administration the statute of limitations has been set at 10 years. Under the case law of the higher courts, that period begins to run at the latest thirty days after the decision is served on the administration. In actions directed against the public official personally, the period applied is 1 year, and in any event 10 years, from the date on which the loss and the person responsible became known. In actions that concern the official’s criminal liability alongside his or her legal liability, it is provided that, where the Turkish Penal Code No. 5237 lays down a longer limitation period, that period is to be taken as the basis pursuant to the said article.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Under Turkish law the parties may as a rule defend and represent themselves in person before the court; save for a limited number of exceptions, there is no requirement of representation by counsel. In that framework, there is no requirement to be represented by an administrative law lawyer before the administrative courts either. That said, the layered structure of administrative law legislation and the short and strict nature of the time limits laid down 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 procedure and substance that are subsequently difficult to remedy. In order to avoid the loss of rights in a procedural regime containing detailed rules, it is appropriate to obtain assistance from lawyers practising in the field of administrative law before any step is taken.
Within what period must the administration give effect to a decision?
Under Article 28(1) of the Administrative Procedure Act No. 2577, the administration is under an obligation to act within thirty days in accordance with the requirements of decisions of the administrative courts on the merits.
What are the consequences where a decision is intentionally not carried out within thirty days?
Where the requirements of a judgment are knowingly not carried out by a public official within thirty days, the person concerned may bring an action against the administration. In addition, an action for damages may be brought against the official who has failed to give effect to the decision.
Can criminal proceedings be taken against an official who does not implement a decision?
The criminal liability of a public official who fails to perform his or her duty may arise. A criminal complaint for the offence of "misconduct in office" may be lodged against an official who fails to give effect to a decision.
What does service fault mean?
It is the holding liable of an official carrying out a public service for shortcomings arising in the establishment, operation or organisation of that service. One of the conditions required here is that the service carried out falls within the subject-matter of the administrative courts. Where the administration is not under an obligation to provide that service, there can be no question of service fault.
In which situations is the administration accepted to be at service fault?
Where a person has suffered pecuniary or non-pecuniary loss as a result of a public service not being provided at all, not being carried out as it should be, or being performed unlawfully, the existence of service fault on the part of the administration is accepted.
What is the period laid down for bringing an action?
For such an action to be brought, there is a 60-day preclusive period running from the date on which the loss became known.
Can an action be brought against the public official personally?
An action may be directed against the official personally on account of his or her personal faults. Where personal fault exists, the indirect liability of the administration arises even if no direct link can be established between the administration and the loss that has occurred. It is therefore also possible for the action to be brought against the administration.
Independent Legal Assessment
The failure to give effect to an annulment decision most often stems not from a single omission but from uncertainty in the distribution of competences and in the workflow within the administrative unit. For that reason the first task at the outset of a dispute is to establish, on the basis of documents, on which authority and on what date the decision was served and when the thirty-day period expired. Where the start of the period is not correctly identified, both the calculation of the limitation period and the establishment of intent are weakened.
Secondly, the choice whether to direct the claim against the administration or against the official must be clarified from the outset; that choice alters, all at once, the branch of the judiciary with jurisdiction, the applicable time limit and the burden of proof. When a road map is being drawn up in a particular file, the following points should be prioritised:
- Documenting the date of service of the decision and the steps taken by the administration in chronological order
- Characterising which type the failure to implement falls into (complete non-implementation, partial implementation, late implementation, formal implementation, impossibility)
- Determining the identity of the respondent by drawing the distinction between service fault and personal fault
- Scheduling the time limits that run separately before the administrative courts and before the ordinary courts
- Conducting the criminal complaint for the offence of misconduct in office in coordination with the damages proceedings
- Setting out the loss under concrete heads and establishing the distinction between the pecuniary and non-pecuniary claims
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from the failure to implement decisions of the administrative courts, from the preparation of claims for damages to the conduct of criminal complaints.