WHAT ARE ADMINISTRATIVE LAWSUITS? HOW ARE ADMINISTRATIVE LAWSUITS FILED?
A. INTRODUCTION
Have you been the victim of an unfair administrative action? Or have you suffered material or immaterial damage arising from the actions, transactions or contracts of the administration? If you are considering filing an administrative lawsuit to protect your legal rights and seek legal remedies, this article will guide you.
Before learning how administrative lawsuits are filed in Turkiye, we will briefly discuss what an administrative lawsuit is and the types of administrative lawsuits.
An administrative lawsuit is an application made to administrative judicial bodies in order to control the conformity of administrative acts and actions to the law. Administrative actions are unilateral and definitive declarations of will by public administrations. Administrative actions are the actual actions of administrations.
What are the Types of Administrative Lawsuits?
The types of lawsuits to be filed in Turkish administrative jurisdiction are divided into two main groups.
(Tam Yargı Davaları) Full judgment lawsuits: It is a lawsuit filed to claim compensation for those who suffer material or moral damages due to the actions, administrative contracts or actions of the administration.
Annulment lawsuits: It is a lawsuit filed for the annulment of unlawful administrative acts.
B. HOW TO PREPARE AN ADMINISTRATIVE LAWSUIT?
In order to file a lawsuit, a petition must be prepared and submitted to the relevant court. Administrative lawsuit petitions are addressed to the Council of State, administrative courts or tax courts according to their subject matter. There are elements that an administrative lawsuit petition must contain. Article 3/f.2 of the Administrative Procedure Law sets out the elements that must be included in an administrative lawsuit petition.
Pursuant to Article 3/f.2 of the Administrative Procedure Law: "In the petitions;
a) The names and surnames or titles and addresses of the parties and their attorneys or representatives, if any, and the Republic of Turkey identification number of real persons,
b) The subject matter and grounds of the case and the evidence on which it is based,
c) Date of written notification of the administrative action subject to the lawsuit
d) The amount in dispute in cases related to taxes, duties, fees, similar financial obligations and their increases and penalties, and in full judicial proceedings,
e) In tax cases, the type and year of the tax or tax penalty to which the case is related, the date and number of the notice served and the taxpayer account number, if any, shall be shown."
A petition is an official document submitted to the court to initiate a lawsuit. In this petition, the facts, evidence and legal grounds on which the case is based must be clearly stated. The statement of claim is very important for the proper conduct of the case. If the petition fails to state the necessary matters, the case will not be dismissed, but the petition will be rejected. In this case, the court will give the plaintiff a deadline to remedy the deficiencies.
1.Parties to the Case
If the plaintiff fails to correct the deficiencies within the given period of time or makes the same mistakes again, the lawsuit may be dismissed.
The name and surname of the plaintiff must be written completely and correctly in the statement of claim. The notification address of the plaintiff must also be included correctly, as all notifications related to the case will be made to this address.
Due to the complexity of the administrative organization, it may be difficult to identify the defendant. Although it is not mandatory to identify the defendant, it will help the case to proceed faster. If the defendant is missing or incorrectly identified, the court will rectify this issue ex officio. It is advisable to seek legal advice from a lawyer in order to avoid any loss of rights or loss of time, especially due to the difficulty of identifying the defendant administration.
If the case will be conducted by a lawyer, the petition will be prepared by the lawyer. The lawyer will make the necessary legal characterizations in the petition. The petition shall be signed by the lawyer on behalf of his/her client.
2. The Subject and Grounds of the Lawsuit and the Evidence
One of the most important elements of the petition in an administrative case is the clear and precise specification of the subject matter of the case. This ensures that the court both understands what the case is about and evaluates the plaintiff's claims. The subject of the lawsuit should be understood from the content of the petition and the conclusion of the claim.
In Annulment Cases:
It must be clearly stated what the action sought to be annulled is.
The reason and grounds for the annulment must be presented.
It must be explained which interests the action violates.
In Full Judgment Cases:
It must be stated which administrative action or transaction caused the damage.
The amount of the damage and evidence must be presented.
If the subject matter is not clearly stated in the petition, the petition may be rejected. Therefore, it is important to prepare the petition meticulously in this regard.
Presenting Evidence The plaintiff must present all the evidence in his/her possession in order for the case to be concluded faster. The evidence will form the basis of the lawsuit. Lack of evidence may cause the case to be dismissed.
3. Date of Written Notification of the Administrative Action Subject to the Lawsuit
One of the most important elements of administrative lawsuits is the time limit for filing a lawsuit. This period starts from the date of written notification of the administrative action. So, should the date of notification be included in the petition? What is the effect of the administrative application?
Date of Notification: The date of the written notification of the administrative action is the element that starts the period for filing a lawsuit.
The date of notification must be included in the petition. The date of notification is not binding for the court. The court will investigate the date of notification ex officio. If there is no written notification, the lawsuit may be filed ex officio from the date of learning. In this case, the date of learning is stated in the petition.
Administrative Application: Application to the administration is mandatory before filing a full remedy action. The date of application and the date of refusal/implied refusal must be included in the petition. If the application is not made, the case is procedurally rejected.
4. Amount in Dispute in Tax Cases and Full Judgment Cases
In monetary disputes, the value of the claim must be clearly stated in the petition. This is important both for the basis of the court's decision and for the calculation of the litigation fee.
The value of the claim sets the framework for the court's decision. The plaintiff must determine the amount of compensation requested in the statement of claim according to the value of the case.
While the fee is fixed in annulment cases, it is determined proportionally in full judgment cases. The proportional fee is calculated according to the value of the case. The amount stated in the lawsuit petition must be in Turkish Lira.
If damages are requested along with the annulment of the administrative action, the amount of damage arising from the transaction should also be included in this petition and the fee should be paid over the amount based on the lawsuit.
In the event that the value of the case is not specified in the petition or is incompletely specified, the petition shall be notified to correct the deficiency. The value of the lawsuit may be changed during the course of the lawsuit, and an expert examination may be conducted to determine the value of the lawsuit.
In money-related disputes, it is advisable to consult a lawyer before filing a lawsuit. Your lawyer will assist you in correctly determining the value of the case and drafting the statement of claim.
C. WHERE TO FILE THE ADMINISTRATIVE LAWSUIT PETITION?
The petition is submitted to the judicial unit where the case will be heard. It is important to determine the jurisdiction and competence correctly so that the case is not rejected procedurally.
Lawsuits against the administration are filed before administrative courts or tax courts. In the presence of some special circumstances, a lawsuit can also be filed before the Council of State.
The petition is written to the presidency of the court where the case will be heard and submitted to the relevant courthouse.If the relevant courthouse is located in another city, the petition may be requested to be sent from a nearby courthouse to the relevant courthouse.
In determining the relevant courthouse and court, legal advice must be obtained from a lawyer. Otherwise, the lawsuit will be filed in the wrong place and court, and the proceedings will be prolonged.
D. WHAT ARE THE PROCEDURES TO BE TAKEN UPON THE ADMINISTRATIVE LAWSUIT PETITION?
When administrative lawsuit petitions are submitted to the relevant court, fees and postage are charged. The lawsuit is deemed to have been filed at the time the petition is filed and registered.
It is mandatory to pay the fees and postage in order for your petition to be processed. In case of missing or late payment, your case may be deemed not filed. The fees and postage are paid to the relevant court together with the lawsuit petition. The court will ask for the missing fees and postage to be made up by the court. If the deficiencies are not corrected on time, your case will be deemed not filed.
E. CAN A TERTIARY ACTION BE FILED IN ADMINISTRATIVE JURISDICTION?
1. What is a Duplicate Action?
A tertiary lawsuit is a lawsuit filed by the plaintiff asserting more than one claim against the same defendant in the same petition by establishing a relationship of primacy-ferentiality.
2. Characteristics of a Secondary Action:
More than one claim
Principality-fertility relationship
Same lawsuit petition
Same defendant
3. Advantages of a Tertiary Action:
Multiple claims with a single lawsuit
Saving time and costs
It is not possible to file administrative lawsuits in installments. If the administrative lawsuits are filed in a staggered manner, the lawsuit will be rejected. Especially in the subject matter of the lawsuit, there should not be any statements that the lawsuit is filed in installments, otherwise it will cause loss of rights.
F. WHAT IS FILING AN ADMINISTRATIVE LAWSUIT WITH THE SAME PETITION?
Filing more than one lawsuit with a single petition saves time and costs and provides procedural economy. In this article, we will examine in detail the conditions for filing a lawsuit with the same petition.
Pursuant to Article 5 of the Administrative Procedure Law: "1. Each administrative action shall be sued separately. However, a lawsuit may also be filed against more than one administrative act, which are materially or legally connected or have a cause and effect relationship between them, with one petition. 2. In order for more than one person to file a lawsuit with a joint petition, there must be a commonality in the rights or interests of the plaintiffs and the material event or legal reasons giving rise to the lawsuit must be the same."
If there is a problem in filing a lawsuit with the same petition, the court will give a period of time to correct this in the first examination. If the inconsistency is not corrected, the petition will be dismissed.
Subordination in Administrative Actions and the Possibility of Filing a Single Lawsuit
In administrative proceedings, it is possible to file a single lawsuit against more than one administrative act. However, some conditions are required for this situation. One of these conditions is that there must be a connection between the administrative acts. Subordination is divided into two:
Legal and Substantive Subordination.
1. Substantive Subordination:
There is a material dependence between administrative acts arising from the same material event. For example, a construction license and a demolition decision regarding the construction based on the license are materially connected.
2. Legal Subordination:
There is legal subordination between other administrative acts that depend on the existence or absence of an administrative act. For example, there is a legal dependency between a disciplinary penalty imposed on a civil servant and the termination of his/her pension.
Possibility of Filing a Single Lawsuit: If there is both substantive and legal dependency between administrative actions, a person may file a single lawsuit against these actions. This saves both time and costs.
Points to Consider:
The existence of dependency is evaluated separately for each concrete case.If there is any doubt about the existence of dependency, it is safer to file a separate lawsuit.
If a single lawsuit is to be filed, all administrative actions and the dependency relationship should be clearly stated in the petition.
Substantive and Legal Subordination:
The cases must be subject to the same jurisdiction and the same legal remedy. The cases must be materially or legally connected. Cases with a cause-and-effect relationship can be filed with a single petition.
Duration of Lawsuits:
If a lawsuit is to be filed against more than one administrative action, the time limit for filing a lawsuit must not have expired. An administrative act for which the time for filing a lawsuit has expired cannot be sued together with an act for which the time for filing a lawsuit has not expired.
Qualification:
If the plaintiff is going to file a lawsuit against more than one administrative act, he/she must have the capacity to file a lawsuit against these acts.
CONCLUSION
Administrative lawsuits are a remedy granted to individuals against unlawful acts of the administration. These lawsuits can be filed for the annulment of administrative acts and for claims for monetary compensation.
Administrative lawsuits may involve complex legal procedures. For this reason, it is advisable for individuals considering filing an administrative lawsuit to consult a lawyer. A lawyer can help you at all stages, from the filing of the case to its conclusion.
It is important to consult a lawyer to protect your legal rights and get the best possible outcome for your case.
Attorney Sinem EPTURAN