An administrative act is a unilateral, executive, ex officio executable, written, presumably legal until canceled, subject to judicial review, performed by the administration using its authority and public power.
The administrative process should be in accordance with the law in terms of the authority, form, reason, subject and purpose aspects. It is possible to cancel an administrative transaction that is contrary to the law with one of these aspects. But the administrative jurisdiction cannot decide in a way that is contrary to the prohibition of review of expediency and in a way that removes the discretion of the administration.
Administrative jurisdiction is limited to the supervision of the compliance of administrative actions and transactions with the law. Administrative courts cannot carry out review of expediency, cannot make judicial decisions that restrict the execution of executive duties in accordance with the forms and principles shown in the laws, in the nature of administrative actions and actions or in a way that removes the discretion of the administration (administrative judicial procedure Law No. 2577 m.2/2).With the action for anment, the compliance of the administrative process with the law is ensured.
Term of Litigation
The general term of litigation for annulment of administrative proceedings is 60 days in cases to be filed in the Council of State and Administrative Court, and 30 days in Tax Courts. If there is no special regulation in the law, the term of litigation begins with the notification of the transaction in writing to the relevant person.
Transactions That İs Subject To Action For Anment
The transaction must be made by the public.
It must be carried out with the purpose of carrying out public service.
It must be final and executed.
Capacity To Sue
In order to file an action for annulment, the person must have a legally protected or wort to protected interest between the administrative process, affect the legal status of the person and be up to date.
In addition, if the administrative process concerns the entire community, the requirement to violate the interest of the capacity to sue is interpreted more broadly. It has the ability to prosecute a wider audience on matters of public interest. It has become the established case law of the Council of State that professional organizations, Chambers, Bar Associations and similar organizations, as well as persons whose interests have been violated in matters related to all or certain segments of society, also have the right to sue for cancellation.
In collective administrative proceedings, the remaining members who are dissenting can file an action for annulment, provided that they are passed to the minutes.
Elements Of The Petition
Administrative cases are filed with signed petitions addressed to the presidencies of the Council of State, the Administrative Court and the Tax Court. In petitions should be given that the parties or their proxies and representatives, if any, of the names or addresses of real people with names and surnames of the Republic of Turkey ID number, the subject matter of the case and the reasons underlying the evidence, the case which is the subject of the written notification of the date of the administrative action, taxes, fees, duties, financial obligations, and raise them in the case for full judicial proceedings and penalties, the amount in dispute tax in the case of which the relevant tax or tax penalty case, and the kind of year you want to be notified of the date and the notice number, and taxpayer account number.
A lawsuit is filed against each administrative process separately. However, a lawsuit may also be filed with a petition against more than one transaction, between which there is a material or legal commitment or cause-and-effect relationship.
Refusal From The Point Of Competence
In case of refusal from the point of competence of cases filed in judicial jurisdictions, although the resolution falls under the competence of the Council of State, Administrative and Tax courts; the case may be filed in the competence court within 30 days from the day after the finalization of the decisions on this issue. The date of application to the judicial authority without competence is considered as the date of application to the Council of State, Administrative and Tax Courts.
Stay Of Execution
Filing a lawsuit in the Council of State or Administrative Courts does not stop the execution of the administrative process being sued. The Council of State or administrative courts may decide to discontinue the execution (stay of execution) after the defendant has received the defense of the administration or after the period of defense has passed, if the administrative process has been implemented, if the circumstances of irreparable or impossible damages have occurred and the administrative process is clearly unlawful.
Administrative actions related to appointments, transfer appointments, changes in duties and titles, temporary or permanent assignments established about public officials are not considered administrative actions that shall be exhausted by implementation.
In decisions to stay of execution, it is necessary to indicate on what grounds the administrative process is clearly illegal and what are the hard or impossible damages that may arise if the transaction is implemented. A decision to stay of the execution cannot be made only on the grounds that the relevant law or Presidential Decree has been applied to the Constitutional Court with a request for the cancellation of the provision.
If decisions on requests for stay of execution have been made by the State Council's Judicial Chambers, they may be appealed to the General Assemblies of Administrative or Tax Judicial Chambers,or to the nearest District Administrative Court against decisions of the district Administrative Court, to the District Administrative Court against decisions made by the Administrative and Tax Courts and to the District Administrative Court against decisions made by a single judge according to their subject, once within seven days from the day after the notification of the decision.
Council of State Tax Judicial Chambers board no: 2019/254 Decision No: 2019/323
On individual applications filed with the allegation of violation of the property right due to the rejection of the lawsuits against tax assessments and penalties on the sanctioned writings of the tax offices regarding the correction of the declarations without examining the merits, The Constitutional Court decided that with its decision dated 27/02/2019 and numbered B. No:2015/15100; They did not have the opportunity to audit the taxation transactions that interfered with the property rights of the applicants through the judiciary, therefore; the interpretation of the rule of law regulated in paragraph 2 of Article 378 of the Law no.213 as that putting a reservation in the rectification declaration does not give the right to file a lawsuit, leads to the conclusion that the applicants cannot effectively present their claims and objections that the intervention is unlawful, Accordingly, in the concrete case, due to the failure to provide the procedural safeguards stipulated by the property right, the intervention imposes an excessive burden on the applicants personally, it is concluded that the fair balance, which should be between the protection of the property right and the purpose of the intervention in the public interest, has been disrupted against the applicants, and the Constitution is That the right to property guaranteed in Article 35 has been violated, to send a copy of the decision to the tax court for a retrial in order to eliminate the consequences of the violation.
In the case, the court's assessment that the appeal put into the rectification declarations given by the plaintiff based on the sanctioned letters of the defendant administration regarding the correction of their declarations will give the right to file a lawsuit is in accordance with the principles set forth in the above-mentioned Constitutional Court decision.
For this reason, the insistence provision that the decision subject to appeal can be sued against the value added taxes accrued upon declaration with reservation, the calculated delay interest and the tax loss penalties was deemed appropriate by the Board, and the claims made in the petition were not deemed to require the decision to be reversed in this respect. Since the decision of the tax court was reversed on the grounds that the reservation of the reservation placed in the correction declarations cannot be accepted as a reservation that allows filing a case against the tax accrued on the return submitted after its due date, the provision clause on the abolition of the accrued taxes, the calculated delay interest and the tax loss penalties an appeal review has not been made, and this review must be carried out not by our Board, but by the tax lawsuit office charged with appealing the decisions made by the first instance jurisdiction.
DECISION RESULT:
For the reasons explained;
1- REFUSES the defendant administration's appeal request in terms of the persistence provision,
2- The provision clause of the Istanbul 6th Tax Court's decision dated 23/10/2018 and numbered E: 2018/1364, K: 2018/2523 on the abolition of accrued taxes, calculated delay interest and tax loss penalties is to be examined by the Council of State for appeal. It was unanimously resolved on 17/04/2019, in accordance with the 1st paragraph of Article 54 of the Law no.2577 (which is continued to be applied in accordance with the Provisional Article 8), within fifteen days following the date of notification of this decision, with the option of rectification.
COUNCİL OF STATE SECOND SECTION Case No: 2018/4275 Decision No: 2019/2258
The revocation of the decisions made by the Regional Administrative Courts by appeal is possible in the presence of one of the reasons specified in Article 49 of the Administrative Jurisdiction Procedure Law No. 2577. The issues put forward by the plaintiff were not deemed to necessitate the reversal of the part of the Regional Administrative Court's decision regarding the dismissal of the plaintiff from his office as head of department.
Regarding the part of the decision of the Regional Administrative Court regarding the annulment of the procedure regarding the appointment of the plaintiff to the position of inspector:
In Article 128 of the Constitution, the state, state economic enterprises and other public legal entities are obliged to carry out the essential and permanent duties of public services required by the general administrative principles, civil servants and other the qualifications, appointments, duties and powers, rights and obligations, salaries and allowances and other personal affairs of civil servants and other public officials shall be regulated by law, without prejudice to the provisions of the collective agreement on financial and social rights, the training procedures and It is stipulated that the principles shall be specially regulated by law.
As a rule, the appointment, duties and powers, salaries and allowances of civil servants and other personal affairs are regulated in Law No. 657. This Law is a general legal regulation for all civil servants. On the other hand, in the Annex 18 of the Decree Law No. 375, a detailed regulation has been made regarding which position or position the public officials who were dismissed or whose term of office shall be appointed while they were working in the managerial staff or position, and The staff of the central organization listed in sub-clause (11) of paragraph (A) of the "Common Provisions" section of Article 36 of the Law no.657 and their recruitment, training and qualifications belong to the central organization with the same or similar qualifications. Those who have worked for at least three years in managerial positions or positions of which the additional index is determined as 3600 (included) to 6400 (excluded) among those who are not in staff or positions, are stipulated to be appointed to these positions.
In this context, with the aforementioned Statutory Law, it is stipulated that those who have worked as a manager for a total of at least three years in managerial positions or positions with an additional index of 3600 (included) to 6400 (excluded) are to be appointed to career professional positions of the institution. It is clear that by the career professions in the provision, it is not the assistant positions, which are a stage in the entry into these professions and are available for a certain period, but the cadres appointed at the end of the assistant period.
On the other hand, the revocation of the decisions taken by subjecting to a special competition examination and given by a certain training Regional Administrative Courts by appeal is possible in the presence of one of the reasons stated in Article 49 of the Administrative Jurisdiction Procedure Law No. 2577. The issues put forward by the plaintiff were not deemed to necessitate the reversal of the part of the Regional Administrative Court's decision regarding the dismissal of the plaintiff from his office as head of department.
As for the part of the decision of the Regional Administrative Court regarding the annulment of the procedure regarding the appointment of the plaintiff to the inspector position: In Article 128 of the Constitution, the essential and permanent duties required by the public services that the State, state economic enterprises and other public legal entities are obliged to carry out in accordance with the principles of general administration, are civil servants and the qualifications, appointments, duties and powers, rights and obligations, salaries and allowances of civil servants and other public officials and other personal affairs shall be regulated by law, without prejudice to the provisions of the collective agreement on financial and social rights, It is stipulated that the principles shall be specially regulated by law. As a rule, the appointment, duties and powers, salaries and allowances of civil servants and other personal affairs are regulated in Law No. 657. This Law is a general legal regulation for all civil servants.
On the other hand, in the Annex 18 of the Statutory Decree No. 375, a detailed regulation has been made regarding which position or position the public officials who were dismissed or whose term of office shall be appointed while they were working in the managerial staff or position, and (2) of paragraph (c) of the aforementioned article, the staff belonging to the central organization listed in paragraph (11) of paragraph (A) of the "Common Provisions" section of the 36th article of the Law numbered 657, and their employment, training and qualifications It is stipulated that those who have worked in managerial positions or positions with an additional index of 3600 (included) to 6400 (excluded), who are not in the staff or positions belonging to the central organization with the same or similar qualifications, shall be appointed to these positions.
In this context, with the aforementioned Decree Law, it is stipulated that those who have worked as a manager for a total of at least three years in managerial positions or positions with an additional index of 3600 (included) to 6400 (excluded) are to be appointed to career professional positions of the institution. It is clear that by the career professions in the provision, it is not the assistant positions, which are a stage in the entry into these professions and are available for a certain period, but the cadres appointed at the end of the assistant period.
On the other hand, assistant positions in career professions that are entered through a special competition examination and are subjected to a qualification test after a certain training program, are the positions that are available until they are appointed to the main career professions who work for a minimum of three years in order to train those who will be taken to career professions for the first time and prepare for the profession.
At the end of this training period, the personnel who have the right to be appointed to the main positions in accordance with the relevant legislation, to the inspectors and expertise positions; The personnel who fail to do so are assigned to civil servants. In this case, those who have worked for at least three years in managerial staff or positions with an additional index of 3600 (included) to 6400 (excluded) are appointed to assistant positions following their dismissal or expiration of their term of office. contrary to the supervisory provision stating that institutions can assign their officers with their earned right monthly degrees to other positions equal to or above their cadre degrees, they may be required to be appointed to civil servant positions.
Within the framework of the provisions and explanations given above, personnel who were dismissed after serving at least three years in the managerial positions within the scope of the article and who were not previously in the positions specified in the relevant paragraphs of Article 36 of Law No. 657, should be appointed to inspector or expert positions.
In this case, in accordance with the special legal regulation, the plaintiff, who worked in the position of the defendant administration for more than three years in the position of 3600, has not been found to be illegal in the process of being appointed to the inspector staff, and the decision of the Regional Administrative Court for the cancellation of the action subject to the case has not been found legally.
For the reasons explained;
PARTLY DISCLAIMER OF THE PLAYER'S APPEAL
TO APPROVE the part of the decision of the 1st Administrative Law Department of the Ankara Regional Administrative Court, dated 03/10/2018, numbered E: 2018/1512, K: 2018/1366, regarding the dismissal of the plaintiff from his office,
PARTIALLY ACCEPTANCE OF THE PLAYER'S APPEAL
The part of the aforementioned decision regarding the annulment of the process regarding the plaintiff's appointment to the inspector staff is REVOLVED in accordance with Article 49 of the Administrative Jurisdiction Procedure Law No. 2577, as amended by Law No. 6545, paragraph 2 / b,
Submission of the file to the 1st Administrative Law Department of the Ankara Regional Administrative Court in order to make a new decision about the quashed part in accordance with the second paragraph of Article 50 of the Administrative Trial Procedure Law No. 2577, as amended by Law No. 6545, and taking into account the above-mentioned issues,
It was unanimously resolved on 22/04/2019, provided that the correction of the decision is not possible in accordance with the Provisional Article 8, which was added to the Administrative Trial Procedure Law number 2577 with article 27 of the Law numbered 6545.