The legal consequences of stay of execution decisions

In order for an administrative act that has come into effect to be annulled due to its illegality, a lawsuit must be filed in administrative court; however, filing a lawsuit does not stay the execution of the act. Ezgi Öğredenler writes about stay of execution decisions.

The article by Öğredenler is as follows:

The administration relies on public power while performing public duties and is equipped with superior and privileged powers while carrying out public services based on this power. For these reasons, it is possible for the administration to establish administrative acts unilaterally without obtaining the consent of the concerned parties. These acts are presumed to be lawful until they are annulled. Therefore, in order for an administrative act that has come into effect to be annulled due to its illegality, a lawsuit must be filed in administrative court; however, filing a lawsuit does not stay the execution of the act. With the intention of eliminating the drawbacks arising from this situation, the institution of stay of execution was adopted in Article 27 of the Administrative Procedure Law No. 2577. Accordingly, a stay of execution may be decided if the implementation of the administrative act would result in damages that are difficult or impossible to compensate and if the administrative act is clearly unlawful. Thus, the administrative act is prevented from producing legal consequences until the case is concluded.

The issue briefly explained here is essentially that annulment cases in administrative jurisdiction and the institution of stay of execution are closely linked.

In our country, judicial review of the administration is carried out by the Council of State (Danıştay), regional administrative courts, administrative courts, and tax courts. Cases arising from administrative actions, acts, and administrative contracts are resolved in these courts. Through these courts, individuals file annulment cases to eliminate unlawful acts of the administration and file full remedy cases to be compensated for material and moral damages they have suffered due to the administration's actions.

In order for readers to better grasp the stay of execution decision, which is the subject of this article, I believe it would be useful to provide a brief explanation regarding annulment cases, which are closely linked to the stay of execution decision, as I have mentioned above.

One of the types of cases heard in administrative courts is the annulment case. Annulment cases are lawsuits filed by those whose interests have been violated for the annulment of administrative acts in cases where they are unlawful in terms of authority, form, reason, subject, or purpose. It should be emphasized here that in annulment cases, the violation of interest is considered sufficient, and the existence of a violation of rights is not sought as it is in full remedy cases. We must state that annulment cases are the most fundamental and common type of lawsuit filed against administrative acts. In the event of the illegality of an administrative act, the annulment of this act may be requested. Thanks to annulment cases, the unlawful acts of the administration are annulled, and the protection of individuals' rights is ensured.

Although annulment cases are a type of lawsuit unique to administrative jurisdiction, they can only be filed in cases of illegality of administrative acts. This means that it is absolutely impossible to file an annulment case for a lawful administrative act.

An annulment case filed in administrative courts for the relevant administrative act does not directly stay the execution of the administrative act. In order for a decision to stay the execution of the administrative act to be made, a request must also be made to the administrative court. As a result of the evaluation to be made by the administrative court, if it is concluded that the conditions in Article 27 of the Administrative Procedure Law (İYUK) are met, a stay of execution decision will be issued.

As a result of an annulment case; when a decision is made to annul the administrative act subject to the lawsuit, the annulment decision will have retroactive effect. In other words, the relevant act will be considered as if it had never been performed and will be eliminated with all its consequences. This situation, namely that the annulment of an administrative act will have retroactive effect, has also been emphasized in the decisions of the Council of State.

In the decision of the 8th Chamber of the Council of State dated 16.03.2021, with Case No. 2016/5917 and Decision No. 2021/1583;

'In administrative jurisdiction, annulment decisions rendered in cases filed with the request for the annulment of an administrative act have retroactive effect until the moment the defect in the act subject to the lawsuit emerged, eliminate the defective act, and erase the administrative act subject to the lawsuit from the legal sphere with all its effects and consequences.' was expressed as such.

While we are at it, we should mention the presumption of lawfulness regarding our administrative law, which I touched upon at the beginning of the study. According to this presumption, acts performed by the administration are accepted as lawful until proven otherwise. Administrative acts benefit from the presumption of lawfulness; that is, until the illegality of administrative acts is determined by judicial authorities, administrative acts benefit from this presumption and continue to produce effects in the legal sphere without any second will. However, there are some situations where it is highly probable that damages that are difficult or impossible to compensate will arise if the act is implemented. The justification of the individual, in other words, the fact that the act is unlawful, will be understood at the end of the trial.

If waiting for the result of the trial makes the compensation of the damage that will arise difficult or impossible, then serious grievances will be experienced. Let's say the municipality issued a demolition order, and you filed a lawsuit for the annulment of this decision, i.e., the administrative act. The administration will not stop just because a lawsuit has been filed, and the municipality will carry out the demolition. If a decision is made that you are right one year after your house in question is demolished and you are left on the street with your family, can you talk about justice? It does not seem possible to say yes to this question. That is why it is very important to use the stay of execution decision, which is an institution unique to administrative jurisdiction, in a timely and effective manner to prevent your grievance.

In this context, although it will be detailed further in terms of scope, we can say that in annulment cases, a stay of execution decision is a precautionary measure given by the court if the implementation of the administrative act causes damages that are difficult or impossible to compensate before the decision that can be given at the end of the lawsuit.

First of all, as we have stated above, administrative acts benefit from the presumption of lawfulness, and filing a lawsuit against the act does not stay the execution of the administrative act. With the concern and thought that the fundamental rights and freedoms of individuals could easily be endangered as a result of the administration's unlawful acts continuing their validity even if they have been subject to a lawsuit and the lawsuits filed taking a very long time, 'stay of execution', an institution unique to administrative law, has been adopted for annulment cases.

It would be correct to define stay of execution decisions in administrative jurisdiction as the postponement of the implementation of an administrative act or judicial decision by the judicial authority upon the request of the plaintiff in an administrative case until the end of the lawsuit. A stay of execution decision is a temporary measure that postpones the implementation of an administrative act.

Stay of execution, which is a temporary legal protection measure envisaged to prevent the emergence of situations that are difficult to compensate or impossible to remedy in terms of individual rights and freedoms in cases where the final decision will take time due to judicial processes, suspends the ex officio enforceable nature of the administrative act and the obligation of everyone to comply with it due to the presumption of lawfulness until the end of the lawsuit. The basic logic of stay of execution is to ensure that the unlawful interference with rights and freedoms is remedied as early as possible, in addition to increasing the possibility of fully implementing the decision to be given at the end of the lawsuit. We must say that the basic logic and purpose of this institution are stated in this way in relevant doctrinal studies.

In terms of the Turkish Administrative Judiciary System, Article 125 of the Constitution and Article 27 of the Administrative Procedure Law No. 2577, which we are examining, regulate the conditions necessary for a stay of execution decision to be issued, stating that a stay of execution decision can be issued by the court if the conditions that the administrative act is clearly unlawful and that it is of a nature to cause damages that are difficult or impossible to compensate if implemented are met together. In this context, it can be said that both conditions we mentioned must exist at the same time for a stay of execution decision to be issued. That is, there may be irreparable damage, but if the act is not clearly unlawful, then a stay of execution decision cannot be issued.

While we are on the subject of the conditions for stay of execution, I would like to touch upon a critical point at this exact stage. While the determination by the court that it is unlawful is considered sufficient for the administrative act to be annulled and removed from the legal sphere, the requirement of clear illegality for the stay of execution, which is a precautionary decision, is also, according to Metin Günday, one of the doyens of administrative law, incompatible with the purpose of this institution.

The fact that the legislator requires the condition of clear illegality is an indication that it tends to make the issuance of a stay of execution decision difficult in itself. Moreover, the issue of whether the act is unlawful is a situation that can only be understood after the case file is completed and the necessary examination and research are carried out in accordance with the principle of ex officio investigation.

It is difficult to say that the regulations regarding the stay of execution included in Article 27 of the Administrative Procedure Law No. 2577 are compatible with universal principles and norms. The condition that the administrative act must be clearly unlawful and of a nature to cause damages that are difficult or impossible to compensate if implemented, which is required for a stay of execution decision to be issued, makes it difficult to issue a stay of execution decision in many cases, and this situation is criticized on the grounds that it is contrary to the principle of effective judicial protection. Because it is not always possible to determine that the act is clearly unlawful without the examinations required by the principle of ex officio investigation being carried out by the court at the moment the dispute is brought. However, for some types of cases, suspending the administrative act without this determination is a necessity of the nature of the work.

Although the general trend in contemporary, democratic legal systems regarding the stay of execution of administrative acts is towards strengthening the hands of the courts, the changes made regarding the stay of execution in the Turkish administrative judiciary system over time have not been in the direction of facilitating the conditions, but in the direction of envisaging new conditions. The changes made have limited the decision-making powers of the administrative judicial authorities that perform the legality review of administrative acts. Limiting the power of stay of execution both shows a lack of trust in the judiciary and leads to an administrative act, even if it is unlawful, continuing to be executed and causing damages until the lawsuit is concluded.

Viewed from these aspects, it would be very difficult to say that limiting the judge's power to issue a stay of execution decision is in accordance with the Constitution and universal legal norms, given that the stay of execution decision is an integral part of judicial power and an indispensable tool of judicial review.

The Council of State, which clarifies the effect of the stay of execution decision on the act subject to the lawsuit, is of the opinion that the legal situation prior to the act subject to the lawsuit returns with the issuance of the stay of execution decision. The situation of the stay of execution decision suspending the validity of the administrative act occurs by ensuring the validity of the legal situation prior to the establishment and execution of the administrative act. Thus, the consequences of the stay of execution decision take effect from the date the act subject to the lawsuit was performed, and all acts performed before or after are stopped with the decision. In summary, it can be said that stay of execution decisions are an institution that suspends the administrative act until a decision is made on the merits, loses its effect with the decision on the merits of the case, and serves to eliminate the difficulties that the plaintiff may experience together with the annulment decision.

The filing of an administrative lawsuit does not end their executive nature and does not stay the implementation of the act. That is, with the stay of execution decision, the implementation of the act is suspended, and its execution is, in a way, stayed. Stay of execution decisions do not suspend the administrative act itself, but have an effect that suspends its executability (enforceability). In this way, they prevent the administrative act in question from producing legal consequences and ensure the continuation of the previous legal situation.

The judiciary taking such a decision does not mean that the administration is controlled by the judiciary. Here, only the execution of the unlawful act and the changes made in the legal order are suspended for a while.

It would not be wrong at all to say that the stay of execution decision, in line with all the explanations we have made so far, is an important tool for eliminating the illegality of administrative acts and, in essence, suspending them. Because, thanks to the stay of execution decision, the implementation of administrative acts can be stopped, and the occurrence of damages that are difficult or impossible to compensate can be prevented. The stay of execution decision is also an important tool in terms of protecting individuals' rights when we think about it on the basis of the universal legal norms we tried to explain above. Stopping the implementation of administrative acts helps to prevent the violation of individuals' rights.

Also, while we are at it, just as the damages that concretely arise must be explained and the reasons for the illegality of the act subject to the lawsuit must be clearly stated when requesting a stay of execution—that is, the act should not be performed without providing a justification—we must state that the stay of execution decision to be given by the court here must also be reasoned, as should be the case in every court decision. Because the right to a reasoned decision is, first and foremost, an extension of the right to a fair trial protected under Article 36 of the Constitution and Article 6 of the ECHR. Just as the actions and acts of the administration must be subject to judicial review to ensure the principle of the rule of law, the review of the judicial organ is also possible through the court decisions being reasoned. With a sufficient and satisfactory justification, information is obtained about the legal reasons for the judge's conviction. The justification written in the way envisaged by the legislator prevents arbitrariness, ensures that the parties trust the judicial organ, and helps in the formation of unity of jurisprudence. However, it is seen that stay of execution decisions, which are judicial decisions, are sometimes given with insufficient justification and sometimes by using standard expressions in the law. It is obvious that this problem, which arises regarding the issue of justification for every type of trial in practice, is of a nature that will harm the freedom to seek rights and the right to a fair trial, which are extensions of the rule of law. Finally, it should be stated that writing a reasoned decision is a legal obligation envisaged to ensure the rule of law and the impartiality of the court.

A stay of execution decision can be given for all kinds of administrative acts in case they are unlawful. However, due to their nature, we see that stay of execution decisions are given in cases regarding some specific types and specifically in the following areas:

Tender decisions: Tender decisions have an important function in the performance of public services. For this reason, a stay of execution decision can often be requested for administrative acts related to tender decisions.

Zoning plans and licenses: Zoning plans and licenses are also administrative acts that significantly affect individuals' assets in particular. A zoning plan is a regulatory administrative act. In accordance with the Administrative Procedure Law (İYUK), those whose interests are violated as a result of these administrative acts, such as zoning plans, zoning plan changes, and parceling operations, will be able to file annulment cases against them. A stay of execution decision can also be frequently requested for these types of acts. Because the effect of staying the validity of a zoning plan by a court decision on constructions and licenses is undeniable.

Penalties imposed by administrative authorities: Penalties imposed by administrative authorities can significantly interfere with individuals' assets and freedom. For this reason, a stay of execution decision can often be requested for administrative acts related to penalties imposed by administrative authorities.

Civil servant appointment and reassignment decisions: The appointment and reassignment of civil servants is one of the important powers of the administration. Similarly, a stay of execution decision can often be requested for administrative acts related to appointment and reassignment decisions.

The stay of execution decision is an important tool for eliminating the illegality of administrative acts and protecting individuals' rights.

After briefly touching upon a few of the administrative acts for which a stay of execution decision is frequently given in practice, if we were to express the situations where a stay of execution decision cannot be given; a stay of execution decision cannot be given for acts that cannot be the subject of an annulment case, acts related to the administration's own internal order, explanatory, guiding, informative acts, preparatory acts, acts expressing an opinion, acts void ab initio, acts kept outside judicial review, and disputes falling within the jurisdiction of the judicial courts.

Article 138/last of the Constitution states that legislative and executive organs and the administration are obliged to comply with court decisions, and that these organs and the administration cannot change court decisions in any way and cannot delay their fulfillment.

According to Article 28 of the Administrative Procedure Law (İYUK), 'The administration is obliged to perform an act or take action without delay in accordance with the requirements of the decisions of the Council of State, Regional Administrative Courts, Administrative and Tax Courts regarding the merits and stay of execution. This period shall in no case exceed thirty days starting from the notification of the decision to the administration.' At this point, as can be seen from the transferred provisions, fulfilling court decisions in a state of law is an obligation for the administration.

A stay of execution decision must also be fulfilled without delay within 30 days. In case this obligation is not fulfilled properly, the defendant administration has direct financial responsibility, and the public official who is the personnel of the defendant administration has indirect financial responsibility through the operation of the recourse institution. The administration's failure to comply with this obligation causes a serious service fault. The administration is obliged to compensate for the material and moral damages arising from this behavior. In addition, compensation lawsuits to be filed in case judicial decisions are not fulfilled by public officials can only be filed against the relevant administration. As a result, the administration will also have recourse to the public official who is at fault in the non-fulfillment of the decision to the extent of the public official's fault.

Finally, it should be stated regarding the subject that, according to the expression of Article 125/7 of the Constitution, “The administration is obliged to pay the damage arising from its own actions and acts.” Accordingly, the existence of the administration's financial responsibility is guaranteed for individuals. In accordance with the clear provision of the Constitution, if damage has occurred as a result of an act established or an action taken by the administration, the administration is obliged to remedy these damages.

News Source: 12punto