In this article, we will try to provide a summary of the nature, conditions, legal meaning and consequences, and appeal routes of the stay of execution decision, which is an interim decision in annulment lawsuits.
A stay of execution decision is a type of urgent measure, in the form of an interim decision, that suspends the consequences of an administrative action, along with all its legal consequences, until the end of the administrative lawsuit. It is likened to a precautionary measure decision given in private law cases.
As known, administrative actions benefit from the presumption of legality. According to Article 27 of the Administrative Jurisdiction Procedure Law, “Filing a lawsuit in the Council of State or administrative courts does not stop the execution of the contested administrative action.” This provision enshrines the presumption of legality of administrative actions. In other words, a decision or action taken by the administration is considered legal and continues to be implemented until it is annulled by the administrative court.
The fact that the plaintiff’s application to judicial authorities does not automatically suspend the administrative action and to prevent the administration from becoming inoperative due to unfounded lawsuits, the rule “applying to the judiciary does not suspend the execution of the administrative action” has been established. However, the possibility of issuing a stay of execution decision when necessary serves as a corrective measure to this rule and as a remedy for any harm that may arise from this rule, thus being extremely important. When it is determined that the administrative action is unlawful and annulled as a result of the trial, this annulment decision should have retroactive effect, meaning the outcome should be as if the action had never been taken. For this reason, the Council of State and Administrative Courts are granted the authority to suspend the execution of the action to prevent the harm that may be caused by the contested action.
Is the Stay of Execution Request Made with a Separate Lawsuit?
The stay of execution request aims to prevent the expected ultimate benefit from the court from being lost until the court ends due to the long-lasting trials and the fact that the execution of the action does not automatically stop with the filing of the lawsuit.
There is no separate type of lawsuit called a stay of execution lawsuit.
The stay of execution decision is requested along with the annulment lawsuit. A lawsuit cannot be filed solely with a stay of execution request. Stay of execution decisions, which can be defined as the temporary suspension of the presumption of legality in administrative actions, do not mean the annulment of the administrative action. It means the suspension of the presumption of legality of the action and its implementation retroactively during the trial.
Conditions for Issuing a Stay of Execution Decision
As we previously mentioned, our preliminary condition is that an annulment lawsuit must have been filed. The two basic conditions determined by the legislator are detailed in Article 27 of the Administrative Jurisdiction Procedure Law No. 2577, which states that for the courts to issue a stay of execution decision, "The Council of State or administrative courts may decide to stay the execution, with justification, if the execution of the administrative action would cause irreparable or impossible damages and the administrative action is clearly unlawful, after obtaining the defense of the defendant administration or after the defense period has passed.” Similarly, Article 125/5 of the Constitution also states that “If the execution of the administrative action would cause irreparable or impossible damages and the administrative action is clearly unlawful, a stay of execution decision can be given with justification.” Accordingly:
The execution of the administrative action would cause irreparable and impossible damages,
The administrative action is clearly unlawful.
These two fundamental conditions for a stay of execution must occur together. Whether these two conditions are met will vary according to each specific case. Therefore, the courts will need to use their discretion by evaluating the specific case.
In addition to the basic conditions that will be considered when issuing a stay of execution decision, some special conditions are also listed below, and we will explain those we deem necessary below.
Fee for the stay of execution request (704.50 ₺ for 2024)
Obtaining the defense of the defendant administration or the defense period passing,
Providing justification,
Security (if deemed necessary)
Can a Stay of Execution Decision Be Given Without Obtaining the Administration's Defense?
We mentioned that there are some special conditions in addition to the two basic conditions required for issuing a stay of execution decision. The first of these special conditions is that the action must be in the category of actions that will lose their effect when implemented for a stay of execution decision to be given without obtaining the administration's defense. As a rule, a stay of execution decision is given after obtaining the defense of the defendant administration or after the defense period has passed. However, the exception to this is “administrative actions that will lose their effect when implemented.” For administrative actions that will lose their effect when implemented, the court may decide to stay the execution without obtaining the defense of the administration and may reconsider and decide after the defense is obtained.
Can a Stay of Execution Decision Be Given Without Security?
In the case of financial actions, the subject of annulment lawsuits against administrative actions, a security condition is sought for issuing a stay of execution decision as the financial action's guarantee. The requirement for security is rare except for financial matters. Since the financial actions of the administration serve the public interest, the legislator has sought a security condition to prevent loss of rights if a stay of execution decision is given. However, in practice, a stay of execution decision is often given without requiring security in a large proportion of annulment lawsuits.
Also, no security is required from those benefiting from administration and legal aid.
Decisions on the Stay of Execution Request
If, after examining the defense of the defendant administration, it is concluded that the execution of the contested administrative action would cause irreparable or impossible damages and that the administrative action is clearly unlawful, the administrative court will decide to accept the stay of execution request.
For administrative actions that will lose their effect when implemented, the court may decide to accept the stay of execution request to be reconsidered after obtaining the defense.
The court may also decide to reject the stay of execution request and continue to hear the case on its merits. An appeal can be made against this rejection decision. If the stay of execution request is rejected and an appeal is made, it should be explained that the conditions for the stay of execution have been met, the grounds for the unlawfulness of the administrative action should be stated, and what kind of irreparable damages would occur if it is implemented should be explained concretely.
Stay of execution decisions should be reasoned, just like annulment decisions.
Implementation of the Stay of Execution Decision
The stay of execution decision and annulment decisions have the same effect and result. However, the annulment decision is a final decision, while the stay of execution decision is an interim decision.
As with all judicial decisions, the administration must comply with the stay of execution decision, and this decision is binding. When the court issues a stay of execution decision, the administration that performed the action must revert the contested action to the state before it was executed. However, in practice, it can be said that the administration stops the action as soon as the stay of execution decision is made.
The Council of State, Regional Administrative Courts, and administrative and tax courts are required by law to take action and act without delay regarding stay of execution decisions. The maximum period for the administration to take action and comply with the decision is 30 days from the notification of the decision to the administration. (Article 28/1 of the Administrative Jurisdiction Procedure Law)
Appeal Against the Stay of Execution Decision
The court may either accept or reject the stay of execution request, and both decisions are subject to appeal by the concerned parties. The appeal period is 7 days from the day following the notification of the decision regarding the stay of execution request. The authority to which the appeal will be made varies according to the court that made the decision.
Appeals against decisions made by administrative and tax courts are made to the Regional Administrative Court,
Appeals against decisions made by the Regional Administrative Court are made to the nearest Regional Administrative Court,
Appeals against decisions made by the Council of State chambers are made to the Administrative or Tax Law Chambers Committee, depending on the subject,
Appeals against decisions made by administrative and tax courts during judicial recess are made to the nearest on-duty administrative or tax court.
Stay of execution decisions are written and signed within 15 days. The appeal authority must make a decision within 7 days of receiving the file. (Article 27/7 of the Administrative Jurisdiction Procedure Law) An appeal can only be made once. Decisions made on appeal are final. (Article 27/7 of the Administrative Jurisdiction Procedure Law) There is no possibility of applying to another authority or legal remedy against these decisions.
The appeal petition should be addressed to the court that made the decision to be sent to the court that will review the appeal.
Administrative authorities are obliged to comply with the requirements of the stay of execution decision, and failure to comply with the court decision is unlawful.
Frequently Asked Questions
Can a Stay of Execution Be Requested in Full Jurisdiction Cases?
Full jurisdiction cases are a type of administrative lawsuit filed by those whose personal rights have been violated due to administrative actions or omissions, seeking compensation for their damages. Therefore, in these cases, since only the compensation for the damage is the subject, a stay of execution cannot be requested. A stay of execution can only be requested in annulment lawsuits.
Can a Stay of Execution Be Requested in Tax Cases?
Tax cases may differ in this respect from other cases in administrative law. With the filing of an annulment lawsuit regarding tax disputes, except for exceptional cases, the execution of the administrative action is automatically suspended, and there is no need for the court to issue a separate stay of execution decision.
Can a Stay of Execution Decision Be Given Without Security in Tax Cases?
The regulation that foresaw that a stay of execution decision could not be given without security in tax cases was annulled by the decision of the Constitutional Court dated 1/6/2022 and numbered E:2022/14, K:2022/70, published in the Official Gazette dated 7/7/2022.
What Should Be Done If the Stay of Execution Decision Is Not Implemented?
If the stay of execution decision is not implemented, although the administration has no discretion regarding the implementation of judicial decisions, a criminal complaint can be filed against the relevant administration and public officials, and a lawsuit for pecuniary and non-pecuniary damages can also be filed.
Can a Stay of Execution Decision Be Requested at the Appeal and Cassation Stages?
Yes, it can be requested. There is no regulation regarding the time limit in Article 52 of the Administrative Jurisdiction Procedure Law. Therefore, a stay of execution can be requested until a decision is made on the merits of the case during the appeal and cassation review. Applying to the legal remedy alone does not suspend the execution of the decision made by the first-instance court. In addition, decisions made by the higher courts on stay of execution requests cannot be appealed.
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