Because administrative acts enjoy a presumption of lawfulness, they remain valid until a court makes an order annulling them. In certain circumstances, however, the continued effect of the act in dispute may produce consequences and losses which cannot be made good so far as the person concerned is aware. In such situations an order for a stay of execution may be made in respect of the act whose annulment is sought, effective for the duration of the proceedings. By virtue of that order of the administrative court concerned, the application of the unlawful act is prevented until final judgment.
The institution is regulated in Article 27 of the Administrative Procedure Act, with the aim of forestalling the losses which are difficult or impossible to make good and which may arise in the period leading up to the annulment of unlawful acts. The making of an order depends on the presence of two conditions at the same time: that the application of the act will give rise to losses which are difficult or impossible to make good, and that the act is manifestly unlawful.
One misunderstanding should be dispelled at the outset: there is no such type of action in our legislation as an “action for a stay of execution”. A stay of execution is a request made within an action brought for the annulment of an administrative act. The court first examines whether the conditions for that request are present; following its assessment it may allow the request and stay the execution of the act for the duration of the proceedings, but it is equally possible for it to refuse the request.
Definition and Function of the Concept
By virtue of the presumption of lawfulness, an administrative act is regarded as lawful unless its unlawfulness has been established by a court decision. The removal of an act made by the administration from the legal order can therefore be achieved only through its annulment by judicial decision; the act continues to exist in law until it is annulled. In practical terms this means that the bringing of an action before the Council of State or an administrative court does not of itself stay the execution of the act in dispute or prevent its application. While the proceedings continue, the act goes on being applied in the same way.
On the other hand, it may be that at the end of the proceedings the act is found to be unlawful and is annulled. In that event the act, unlawful from the outset, may have produced highly unjust consequences and created hardship for those to whom it was addressed up to the moment of its annulment. It is precisely in order to prevent that state of affairs that the legislation provides that, where certain conditions are met, an order may be made preventing the application of the act in dispute while the proceedings are pending.
Accordingly, an order made by a court suspending the application of an administrative act for the duration of the pending proceedings is termed an order for a stay of execution. By way of example, where a civil servant compulsorily retired of the administration’s own motion brings an action for annulment against that act together with a request for a stay of execution, and the request is allowed, the civil servant will be able to return to his or her post while the proceedings continue.
Conditions for Making an Order
Before the administrative courts may order a stay of execution, an action for annulment must first of all have been brought.
Alongside that preliminary condition, Administrative Procedure Act No. 2577 lays down two separate criteria in respect of orders for a stay of execution: that the application of the act will give rise to losses which are difficult or impossible to make good, and that the act is manifestly unlawful. The court may make an order staying execution only where those two criteria are met together.
Whether losses which are difficult or impossible to make good will arise varies according to the circumstances of each dispute and depends on the court’s discretion and interpretation. To explain by reference to the most common example in practice, the administrative courts accept that the application of demolition orders gives rise to losses of that character. The criterion of manifest unlawfulness, for its part, does not mean that the act must be established as definitively unlawful; what is required here is that the act should carry unlawfulness on its face.
Under the express terms of the Act, the fact that an application has been made to the Constitutional Court seeking the annulment of the underlying provision does not of itself constitute a sufficient ground for an order staying execution.
Actions for annulment are actions in which the removal of an administrative act is sought on the ground of its unlawfulness; the general framework of such actions is addressed in a separate note examining objections to administrative acts and the action for annulment.
Can an Order Be Made Without the Administration’s Defence Being Taken?
As a rule, a stay of execution is ordered after the defence of the respondent administration has been taken or after the period for the defence has expired. Nonetheless, in the case of acts whose effect is exhausted once they are applied, the court may make an order staying execution with a view to reassessing the matter and giving a decision after the administration’s defence has been taken. An order made in this way is not final; it is open to the court to alter its decision once the defence has been taken.
The statutory provisions place certain measures relating to public officials outside this category: changes of title, changes of duty, transfers and appointments are not regarded as acts whose effect is exhausted once they are applied. In the same way, settled case law has established that acts relating to temporary or permanent assignments do not fall within this scope either. For that reason, in the acts listed an order staying execution may be made only after the administration’s defence has been taken or the period for the defence has expired.
Demolition orders made by the administration, by contrast, may be treated as acts whose effect is exhausted once they are applied. Once the demolition has been carried out, the claimant will retain no interest in the annulment of the act and will, following the annulment decision, be able to claim compensation for the loss only by way of a full remedy action.
The details of full remedy actions, the vehicle for claims for damages in administrative law, fall within the scope of a separate note addressing the action for damages against the administration.
Procedure for Objecting to the Decision
An objection may be lodged against orders on a stay of execution made by the administrative court hearing the action. The court may allow the request or refuse it; an objection may be lodged against a decision in either direction. The authorities before which an objection is lodged have been determined as follows:
- For decisions of the litigation chambers of the Council of State, the Assembly of Administrative Chambers or the Assembly of Tax Chambers
- For decisions of the administrative courts and the tax courts, the Regional Administrative Courts
- For decisions of the Regional Administrative Courts, the nearest Regional Administrative Court
As a rule, an objection must be lodged within 7 days of the date on which the decision was served. Decisions given on an objection are final; no further legal remedy remains available against them.
Giving effect to an order staying execution is an obligation on the part of the administrative authorities; a failure to implement a court decision constitutes unlawfulness. In such a situation compensation for the resulting loss may be sought from the administration. The details of the subject are considered in a separate note examining the failure to implement decisions of the administrative courts.
Can the Execution of Court Judgments Be Stayed?
Although orders for a stay of execution are as a rule made in respect of administrative acts, a stay of execution of a court judgment may also be sought from the appellate courts on appeal or on appeal on points of law.
For example, if the court has dismissed an action for annulment, the first-instance decision may be taken on appeal and made subject to review for lawfulness. In the course of the appeal, a stay of execution may also be requested so that the first-instance decision is not implemented.
In that event the court hearing the appeal or the appeal on points of law assesses whether the decision is manifestly unlawful and whether its implementation would give rise to losses which are difficult or impossible to make good. If that assessment is favourable, the implementation of the first-instance judgment may be prevented at least until the review on the legal remedy is concluded. It is equally possible for the court to find the request unwarranted and refuse it.
The Different Regime in Tax Cases
Having addressed the general conditions applying before the Council of State and the administrative courts, it is necessary to consider the position before the tax courts, which carries certain differences.
The acts which may form the subject matter of a tax case are taxes, tax penalties and the decisions of the amendment and appraisal commissions.
Where assessed taxes, duties and charges and similar fiscal obligations, together with the surcharges and penalties attaching to them, are made the subject of a tax case, collection is suspended in respect of the part challenged. In other words, whereas the bringing of an action for annulment before the administrative courts does not of itself stay the execution of the act, the position before the tax courts is different: for the acts listed, the bringing of an action stays execution automatically, without any need for a separate order.
There are exceptions to that rule. Where a taxpayer has filed a return with a reservation, the mere bringing of an action against the assessment made on the basis of that return does not stay execution. The same consequence applies in disputes arising from collection procedures and in actions directed at the comparable value determined by the appraisal commission at the taxpayer’s request. In these exceptional cases the court must assess separately whether the conditions for a stay are present and give a decision on the stay of execution.
The subject matter and scope of tax cases, and the procedure to be followed in the judicial resolution of tax disputes, are addressed in separate notes devoted to those subjects.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Turkish law allows parties to defend and represent themselves in person before the courts; save for certain exceptions, representation by counsel is not mandatory. Nor is there any obligation to instruct a lawyer practising in the field of administrative law for the purposes of the administrative courts. However, the complex structure of administrative law legislation and the strict and short nature of the periods under the Administrative Procedure Act may, where the process is conducted by persons who are not lawyers, give rise to errors of procedure and of substance that are difficult to remedy. In order to avoid a loss of rights in administrative proceedings, which contain detailed rules, it is advisable to seek the support of lawyers practising in the field of administrative law before any step is taken.
What is the legal character of an order for a stay of execution?
Since such an order ensures that the existing situation is maintained until judgment is given on the merits, a stay of execution is regarded in law as an interlocutory order. The natural consequence of its interlocutory character is that only an objection may be lodged against it.
Does bringing an action for annulment stay execution automatically?
An action for annulment brought against an act before the administrative court does not directly stay the execution of that act. For an order staying execution to be made, a separate request must be made to the court. If, on the assessment it carries out, the court concludes that the conditions in Art. 27 of the Administrative Procedure Act are met, it will order a stay of execution.
What can be done if the request is refused?
If the request is refused by the administrative court, an objection may be lodged with the Regional Administrative Court within 7 days of service of that interlocutory order on the parties. Recourse to the objection procedure is available only once. The authority examining the objection must give its decision within 7 days of the file reaching it.
Within what period must the administration implement the order?
Orders for a stay of execution must be implemented by the administration within 30 days at the latest. Where the administration concerned fails to give effect to the order within that statutory period, an action for pecuniary and non-pecuniary damages may be brought against it before the Council of State or the administrative courts.
What is the position in tax cases?
In certain tax cases the bringing of the action stays the execution of the act in dispute automatically. Where assessed taxes, duties and charges and similar fiscal obligations, together with the surcharges and penalties relating to them, are made the subject of an action, the collection of the part challenged is suspended without any need for a separate order. For acts other than these, however, it is important that a stay of execution be requested when the action is brought.
The Independent Legal Assessment
A stay of execution is often a more decisive stage in administrative proceedings than the judgment on the merits. Where the act continues to be applied throughout lengthy proceedings, the outcome may be rendered meaningless even if a decision annulling the act is obtained. For that reason it is not enough merely to make the request when the statement of claim is drawn up; the allegation of loss which is difficult to make good must be established by concrete evidence, and the manifest unlawfulness of the act must be set out in a way that can be seen at first sight.
The second point calling for attention is timing. The seven-day period for objecting to decisions on a request for a stay is short, and recourse to the objection procedure is available on one occasion only. The obligation on the administration to give effect to the order within thirty days, by contrast, may prove ineffective in practice where it is not monitored.
In a given file we recommend that the following points be considered:
- Making the request expressly and with reasons in the statement of claim
- Assessing at the outset whether the act exhausts its effect once applied and, where appropriate, asking for an order to be made without waiting for the defence
- Supporting the loss which is difficult or impossible to make good with documents, expert evidence or concrete records
- Diarising the seven-day period for objecting to a refusal and taking into account that it may be used only once
- Establishing in advance, in tax disputes, whether the action produces an automatic stay
- Building a body of evidence for the purposes of a claim for damages in case the order is not implemented within thirty days
Independent Legal provides advisory services and conducts litigation in the preparation and pursuit of requests for a stay of execution in actions for annulment brought against administrative acts, and in claims for damages arising from the failure to implement such orders.