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Administrative Law
General principles belonging to administrative procedures: The written principle is dominant and principle of ex officio examination is applied in this procedure. The equality of arms principle in other words fair hearing principle and the prohibition of widening of the claim should also be taken into account in this procedure. A judge may not make a judgement which is more than the scope of claim. The procedure of acquired rights is respected.
Positive duty conflict: With the reason that it belongs to another judicial order when a court refuses an objection of duty, the Chief Prosecutor request from the Conflict Court to examine the matter of duty in order to protect their area of duty.
Negative duty conflict: Here at least two courts working in different areas such as judicial, military or administrative see themselves as in charge or as not in charge in a case which has the same parties, topic and reasons and therefore a conflict occurs. In order to refer a negative conflict, the decisions have to be definite (from the beginning) or become definite later.
Judgement conflict: It is the situation where there is a conflict between at least two different courts working in different areas which is not about duty but a judgement which has been given as definite or which has become definite and is about the same parties the same topic and same reasons and because of this conflict a right cannot be executed.
Annulment suit: They are administrative suits made for removing as effective to the past administrative procedures which are claimed to be against to the law. The topic of a law suit consists of administrative procedures. Administrative procedures are the procedures made by the administrative authority’s unilateral declaration of intent by depending on the power of the public. An annulment suit is made with the intention of annulling a procedure which is claimed to be against the law. In order to open an annulment suit violation of a benefit is a sufficient reason.
Full remedy action: They are the actions opened by people whose personal rights have been violated by an administrative action or procedure. The goal is to get rid of the damages caused by the administrative procedure or action. The main condition for this action is that an existing damage must be present. A full remedy action is an action with a subjective character which detects if a personal right has been violated or not. In order to open this case along with the violation of benefit personal rights must be violated as well.
Time periods in the administrative law: The time for opening a law suit at the Council of State or administrative court is 60 days whereas opening a law suit at a tax court is limited to 30 days.
These periods began from after the notification day for individual transactions whereas for regulative procedures it begins on the day after the notice was published. The holidays are included to this period as well. However if the last day turns out to be a day of holiday then the time period finishes at the end of the next work day which comes after that day. When the period ends on a judiciary recess term then it is extended for 7 days after the recess has ended.
Situations which stop the time period: If an application has been made to a higher administrative court then this application stops the time period for opening a suit. If the application is rejected then the time period which had stopped continues. If by any chance there is no higher authority in judicial place which gave the decision then the application made to this authority also stops the time period to open a law suit.
Implicit refusal: In applications made to administrations, the administration must give their answers in 60 days. If in this time they do not give an answer then it is accepted that they have given a negative response. After the implicit refusal a law suit must be opened in the period of opening a law suit. In 60 days if the administrations answer is not definite then the related person may accept it as a refusal of their application and open a law suit or may wait for a maximum of 6 months for a definite answer. If the administration gives an answer after the 60 day implicit refusal period has ended then the period to open a law suit begins from the day this written answer was given.
The obligation to make a pre-decision for administrative actions: People whose rights have been violated by an administrative action must first apply to the related administration so that their rights are brought into action in 1 year after the action was notified to them or in every case in 5 years before opening a law suit. When this request is partially or fully refused then starting from the day that this action is notified to them or if no answer is given in 60 days starting from the end of this period, the time for opening a law suit begins. As an exemption when a full remedy action is opened at a judicial and military court which does not have authority and when this is refused because of authority then for cases which will be opened at administrative courts later on a pre-decision is not made.
Violation of an administrative authority: Before opening a law suit if by law it is acquired to first apply to an administrative place of law then in the case when a law suit is opened before making an application then it may be said that their is a violation of administrative authority.
Opening a law suit against few decisions with only one application is possible if the followings are exist: 1-Between the decisions subjected to the law suit there must be a material and legal tie or a reason-conclusion relationship 2- The decisions which the court will look at should be compelled to the same place of authority 3- The time periods needed to open a law suit must be obeyed 4- The decision must be of the same kind. 5- The defendant party must be the same
Opening of a law suit by few people with one application: Participation to the right and benefit is needed and the same material events and legal reasons which lead to opening the case must be the same.
Suspension of execution: Unless regulated otherwise by law open a suit at the administrative court or applying or an appeal does not suspend the execution of the action subjected to the suit or the decision of the action. However the court may decide to suspend the execution of actions if one of the parties requests it. The administrative action must lead to a hard to repair or un-repairable damage or it must be openly contrary to the law.
Decisions which will be given after the first examination:
- If the law suit is about subjects that goes into the authority of the judicial or military court then the suit is refused.
- Although opened at the administrative court which has authority if it is opened at the one which does not have authority or which is not in charge then it is decided to send the case file to the court which has authority and which is in charge.
- A law suit opened by an incompetent person is refused.
- When a law suit is opened on behalf of a competent person by a representative who is not an attorney then application is refused. In 30 days the lawsuit must be opened by the person or an attorney who has the authority to do so.
- If a case has been opened with only one application when the conditions of opening a lawsuit have not yet been fulfilled or if the application has not been prepared accordingly to procedure then with the purpose of fixing these deficiencies the application is refused.
- If in the case the defendant has not been shown or if the wrong defendant has been shown the application is sent to the defendant which the court has detected.
- If annulment suit is opened when the administrative procedure has not been enforced then the lawsuit is refused.
- If the time period for opening a case has passed then the case is refused.
- If violation of the administrative authority is the subject the court decides to send the applications to the administrative authority which is in charge of looking at it.
Conflicts which are left out of the authority of the administrative courts: c-Conflicts between private law persons, law suits opened against public officials, the law suits opened by administration against persons, law suits relating the land registry, law suits born from the faults of enforcement bankruptcy officers, private law contracts, accidents made by vehicles of the administration, arbitration, build operate transfer.
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