The activities of the state and public institutions (administration) are full of decisions and actions that directly affect the lives of individuals. Administrative actions such as the appointment of an official, the granting of a licence, a change in a zoning plan, a tax fine or a demolition decision are unilaterally established on the basis of public power and have legal consequences. However, these actions of the administration may not always be in accordance with the law. Article 125 of the Constitution guarantees that the judicial remedy is open against all acts and actions of the administration. At this point, the “action for the cancellation of the administrative action” comes into play in order to eliminate the administrative actions that are claimed to be unlawful. This action is one of the most fundamental and most frequently used types of action in administrative law and enables individuals to protect their rights against the administration.
Legal Framework: Definition of Administrative Action and Cancellation Case
The cancellation of an administrative action is regulated by the Administrative Procedure Law No. 2577 (İYUK). Subparagraph (a) of paragraph 1 of Article 2 of the İYUK defines cancellation actions as follows: “Lawsuits filed by those whose interests are violated for the cancellation of administrative actions due to their violation of the law in terms of authority, form, reason, subject matter and purpose.”
As can be understood from this definition, in order for a transaction to be subject to an action for annulment, it must first be an “administrative act”. An administrative act is an act of the administration, based on public power, which has legal consequences through a unilateral declaration of will. For example, a demolition decision of a municipality, a disciplinary penalty imposed on a student by a university or an appointment decision made by a ministry are administrative acts. Transactions of the administration in the field of private law (for example, a public institution’s execution of a lease agreement) or administrative actions (for example, damage caused during a road construction work) cannot be subject to an action for annulment; different types of lawsuits (full judicial action) must be filed for these.
Reasons for filing an action for cancellation: Unlawfulness in the Elements of the Administrative Action
In order to file an action for annulment on the grounds that an administrative act is unlawful, at least one of the following elements must be unlawful: authority, form, reason, subject matter or purpose. These elements are the basic criteria that the administrative judiciary examines when reviewing an administrative act:
- Unlawfulness in terms of Authority: It is the situation where the authority performing the administrative act exceeds the authority granted to it by law or the act is performed by an unauthorised authority. In administrative law, the principle of “lack of authorisation is the main, authorisation is the exception” applies. In other words, the administration cannot take an action that is not expressly authorised by the law. For example, a district director making an appointment decision at the ministerial level is unlawful due to lack of authorisation.
- Unlawfulness in terms of form: It is the failure to comply with the procedural and formal rules stipulated in the laws while establishing administrative procedures. For example, taking an action orally when it should be in writing, taking a decision by a single person when it should be taken with the decision of a certain board, or imposing a disciplinary penalty without granting the right of defence creates a lack of form.
- Unlawfulness in terms of Reason: The material facts or legal grounds on which the administrative action is based are untrue, misjudged or unlawful. The administration has to rely on a certain reason when establishing an action and this reason must be in accordance with the law. For example, the dismissal of a civil servant due to an unfounded denunciation is unlawful in terms of the element of reason.
- Unlawfulness in terms of Subject Matter: The legal result of an administrative action is contrary to the law or general principles of law. The subject matter of the action must be legally possible and lawful. For example, granting a licence on a subject that is not legally possible or unlawfully restricting a right that a person has by law is unlawful in terms of subject matter.
- Unlawfulness in terms of Objective (Purpose): It is when an administrative action is taken for a personal or political interest other than the public interest. The main purpose of administrative actions must be to realise the public interest. For example, the amendment of a zoning plan for the benefit of a certain developer instead of the public interest is unlawful in terms of the objective element.
Conditions and Process of Filing an Action for Cancellation
In order to file an action for cancellation, certain conditions must be met:
- Violation of Interest: In order to file an action for annulment, the plaintiff’s “interest must have been violated” by the administrative action subject to the lawsuit. This is a broader concept than the “violation of rights” required in full remedy cases. It is sufficient that there is a serious, reasonable, legitimate, actual and personal connection between the plaintiff and the administrative action. For example, anyone who lives or has a workplace in that area may file a lawsuit against a zoning plan amendment due to a violation of interest.
- Completion and Finality of the Administrative Action: The administrative act that will be the subject of an action for annulment must have passed through all the stages stipulated in the law and gained a quality that can have legal consequences (completed) and the administration must have definitively demonstrated its will regarding this act (final and executory). Preparatory procedures or preliminary decisions cannot be subject to cancellation proceedings.
- Period for filing a lawsuit: The time limits for filing a lawsuit in the administrative judiciary are forfeitory and the right to file a lawsuit is lost if these periods are missed.
- General Period for Filing a Lawsuit: 60 days in the Council of State and Administrative Courts and 30 days in Tax Courts. These periods start from the day following the date on which the administrative action is notified to the relevant person.
- Special Periods for Filing a Lawsuit: In some special laws, special periods different from the general time limits for filing a lawsuit may be stipulated for certain administrative acts. In this case, special periods shall apply.
- Suspension of the Time Limit in Case of Application to the Administration: Before filing an administrative lawsuit, the relevant persons may apply to the higher authority (if there is no higher authority, to the authority that took the action) for the abolition, revocation, modification or a new administrative action within the period for filing an administrative lawsuit. This application stops the administrative action filing period that has started to run. If the administration does not respond within 60 days, the request is deemed rejected (implied rejection).
Steps of the Litigation Process:
- Preparation of the Petition: A petition containing the elements specified in Article 3 of the İYUK must be prepared. In the petition; the information of the plaintiff and the defendant, the subject of the case (which administrative action is requested to be cancelled), legal grounds, summary of the event, evidence and the result of the request should be clearly stated. In particular, it is important to clearly and unambiguously specify the administrative act to be cancelled.
- Request for Stay of Execution: If irreparable or impossible damages will arise if the administrative action is implemented and if it is considered that the action is clearly contrary to the law, a “stay of execution” may be requested in the petition. A stay of execution decision temporarily stops the implementation of the administrative action without waiting for the outcome of the lawsuit.
- Competent and Competent Court: The competent courts in cancellation cases are Administrative Courts and Tax Courts. The general competent court is the court in the location of the administrative authority that has taken the administrative action.
- Filing a Lawsuit and Fees: The lawsuit petition and its annexes are submitted to the dispatch office of the competent and assigned court. When filing a lawsuit, court fees and advance on expenses are paid.
- Trial Process and Decision: Administrative proceedings are generally conducted through the file (petitions and annexes). The court examines the legality of the administrative act in terms of authority, form, reason, subject matter and purpose. The court cannot make a decision by replacing the administration or conduct a subsidiarity check.
- Consequences of the Cancellation Decision: If the court decides to annul an administrative act as a result of an annulment action, this decision is retroactive (ex tunc). In other words, the administrative act is cancelled with all its consequences as if it had never been carried out. Cancellation decisions are effective not only for the plaintiff, but also for everyone (objective nature).
The cancellation of administrative action is a constitutional guarantee to protect the rights of individuals against the administration and to ensure that unlawful administrative actions are removed from the realm of law. In order to file a lawsuit, it is of vital importance to comply with the 60 or 30-day limitation period for filing a lawsuit, in addition to the conditions such as violation of interest, completion and finality of the action. The proper preparation of the petition, the correct formulation of the request for stay of execution and the correct determination of the competent court are critical factors for the success of the case. Due to the specific rules and technical details of the administrative proceedings, it is essential for those who are considering filing a lawsuit for the cancellation of an administrative action to seek professional legal support from an administrative law attorney in order to prevent loss of rights and to manage the process in the most effective way.