Turkey: Principle Of Administrative Stability In Administrative Procedure Law

A. Introduction

The general and fundamental principles of law are a set of rules that systematize the rules of law, forming the basis for many of them and regulating them to serve the healthier conduct of social relations. The general and fundamental principles of law, which are a projection of the rule of law, provide guidance to ensure that all activities of the organs constituting the state are carried out in accordance with the law and to prevent damage to individual rights.

In administrative law, universal principles of law have an indispensable importance. Therefore, these principles not only aid in safeguarding individuals against administrative actions, but also contribute to the stable functioning of administrative processes.

In this regard, the principle of administrative stability is one of the general principles frequently applied in the resolving various disputes arising because of the actions in which the administration exercises its discretionary power. This principle, by ensuring the continuity of administrative acts and actions, enables the administrative functioning to be (i) certain, (ii) predictable, (iii) orderly and (iv) in accordance with the law. This article, will examine the meaning and function of the principle of administrative stability in Administrative Law and its implications in administrative trial law will be examined.

B. Functions of the Principle of Administrative Stability in Administrative Law

The principle of administrative stability aims to ensure the continuity of the established practices of the administration and to protect the material and legal facts that arise because of the acts or actions of the administration and constitutes the basis of such acts and actions. In this respect, the principle of administrative stability serves the purpose of ensuring the continuity of the acts and actions of the administration, rather than protecting the existing gains of individuals. In this context, the principle of administrative stability plays crucial role in various topics, especially on the following issues;

• Regular and continuous execution of public services,
• Enabling individuals to benefit from and act within the framework of the administration's consistent procedures by analogy and increasing predictability,
• Preventing administrative procedures and actions from becoming personalized,
• Placing administrative acts and actions on the basis of compliance with the law,
• Protection of the legal situation arising because of administrative acts and actions

Another important issue regarding the principle of administrative stability is the issue of revocation and annulment of administrative acts.

As it is known, the administrative action taken by the administration will have legal consequences only for the subject of the administrative action. As a result of these legal consequences, the subject of the transaction, who claims that his/her interests have been violated and that the transaction is unlawful, may request the annulment of the transaction within the framework of Article 125 of the Constitution by filing a lawsuit for the annulment of the administrative transaction or may apply to the relevant administration for the revocation of the transaction, which is an alternative way to the lawsuit for the annulment of the administrative transaction.

In this context, the principle of administrative stability is also very important in terms of the new procedures allocated for the revocation of the relevant transaction and the annulment decisions. As a matter of fact, since the principle of administrative stability is also defined as "a general principle of administrative law aimed at ensuring trust and continuity in the relations between individuals or with the administration, which prevents the reversal of an unlawful administrative act after a long period of time", this principle mainly aims to protect the legal consequences created by the administrative act and to ensure the regular and continuous execution of public services.

C. The Relationship of the Principle of Administrative Stability with the Decision on Suspension of Execution

As is known, the institution of the stay of execution essentially aims to protect the subject of the transaction from the unfair, unlawful, and irreparable or impossible damages of the administration, and this decision ensures that the effects of an annulment decision on the administrative transaction are fully and effectively implemented.

With the stay of execution decision, the existence of the administrative act that is the subject of the lawsuit does not disappear, but the implementation of the act stops and the subject of the act is protected from the negative damages of the act. The stay of execution, which is of great importance for annulment cases, has become an indispensable tool to protect the rights of the party whose interests are violated.

In this respect, the stay of execution decision provides the administration with the opportunity to reconsider and correct the unlawful act, prevents the administration from facing large compensation claims that may arise due to irreparable damages, and enables the protection of individual rights and freedoms within the framework of public interest.

In this sense, since the stay of execution decision serves the purpose of protecting the law and public order, it is also very important in terms of ensuring administrative stability. According to the Constitutional Court dated 02.10.2014 and numbered 2014/149 and decision numbered 2014/151;

"(...) the institution of stay of execution has been envisaged in order to protect persons from the negative effects of the unlawful administrative action until the annulment case is concluded, to prevent situations that are impossible or difficult to eliminate or correct in the future, to save the administration from a possible compensation burden and to ensure the continuation of the rule of law without interruption by ensuring that it remains within the boundaries of law. The stay of execution is a part of the right to sue as a tool to increase the effectiveness of the judiciary's supervision, as well as ensuring public interest and public order. With the stay of execution decision, the situation before the transaction subject to the lawsuit is restored and persons are protected from the negative effects of this transaction until the lawsuit is concluded."

It is emphasized that the institution of stay of execution is very important in order to protect the stability of the rule of law. Therefore, it can be said that the institution of stay of execution in its fundamental sense provides the opportunity for the following issues in terms of preserving administrative stability.

• Preventing the emerge of large compensation claims arising from irreparable or impossible damages that may arise due to unlawfulness.

• Enabling the administration to review its action and to carry out its actions in accordance with the legal order.

• To prevent the administration from being subjected to complaints due to the transactions in question

In this context, although the institution of stay of execution has a strong relationship with the principle of administrative stability, it is also a requirement of the principle of administrative stability to decide on the stay of execution of the administrative action within the scope of annulment cases on the grounds that the administrative action is contrary to the law and may cause irreparable or impossible damages.

In this context, it can be said that the institution of stay of execution, as it is mostly accepted in the doctrine and judicial decisions, has a very important position in terms of the principle of administrative stability regarding the following issues. Both protecting the rights of individuals and ensuring administrative stability;

1. Helping to prevent injustice by temporarily halting the execution of acts, while at the same time protecting the efficiency of the administration and observing the principle of legality,
2. Thereby clarifying the legal consequences of administrative acts and contributing to the protection of public order,
3. Preventing administrative actions from being under constant threat of litigation and thus maintaining the stability of administrative functioning

D. Filing Period and the Principle of Administrative Stability

As it is known, the time limit for filing an administrative lawsuit refers to the limitation of legal relations within the administrative jurisdiction in terms of time. This period requires that the claims of the parties must be asserted within a certain period of time in order to be taken into consideration by the administrative jurisdiction. Otherwise, the expiration of the time limit for filing a lawsuit will cause the lawsuit to be dismissed and therefore the lawsuit will not be heard.

The time limit for filing a lawsuit in administrative jurisdiction also plays a critical role in ensuring the principle of administrative stability. In fact, the case law of the Council of State and the doctrine emphasize that the time limit for filing administrative lawsuits is the guarantee of administrative stability and that the administration should not be under the constant threat of litigation, andanother reason for setting the time limit for filing lawsuits is to ensure that administrative proceedings are concluded quickly and maintaining administrative stability .

As a matter of fact, the fact that administrative acts are constantly under the threat of being sued and resulting long-term disputes may disrupt the functioning of public services. Therefore, in administrative jurisdiction, the time limit for filing a lawsuit is regulated as a measure arising from public order in order to quickly determine the legal consequences of administrative acts and to maintain administrative stability.

In this context, in terms of the principle of administrative stability, administrative actions can only be revoked within the legal period in which the lawsuit for the annulment of the administrative action can be filed, and this rule will only apply to transactions that have consequences in favor of those concerned.

As a matter of fact, the rule in question is based on the necessity to apply the limited right granted to those whose interests are damaged in the name of the cancellation of the transaction to the administration that established the transaction and is authorized to revoke it, and it is argued that while those concerned lose their right to file an action for annulment as a result of the expiration of the legal period granted to them for the cancellation of the transaction, this right should not be kept constant for the administration that established the transaction.

Therefore, the administration will be able to take back the transactions it has established, except for those who have favorable results, only within the legal period of the annulment lawsuit that can be substituted for the cancellation of the transaction it has established. The administrationwill be obliged to bear the legal consequences of the transaction established with the expiration of this period. As a matter of fact, in the decision of the Supreme Court of Appeals Case Law Unification Board dated 27.01.1973 and numbered 1972/6 and decision numbered 1973/2;

"(...) in the cases for the recovery of the excess money paid due to the revocation of a wrong disposition by the administration, it is necessary to accept the period of the annulment action as the most fair and legal, which will reconcile the public interest with the personal interest, will not shake the public and legal order, on the contrary, will provide confidence and continuity in them, and to accept the limit for the revocation of the wrong disposition in a retroactive manner, and to conclude that after this period has passed, the disposition can only be revoked in a way that will be effective for the future, or rather, it can be changed for the future. Even if the administration reverses the wrong disposition after the specified periods have elapsed, since the past situations will now be in the nature of vested status, it will not be possible to claim that the payments made on the basis of the wrong transaction are unjustified and it will not be possible to claim them back."

It is clearly stated that the administrative act can only be reversed within the annulment action period.This is deemed necessary to enhance confidence in the public and legal order and to ensure continuity.

In addition, in order to ensure administrative stability, the legal order has also regulated administrative acts that can be revoked at any time;

1. The act is null and void,
2. there is a manifest error in the transaction; or
3. In case of fraud by the addressee of the transaction, the administration will always be able to revoke the unlawful action without being bound by a time limit.

In this context, although an important reflection of the principle of administrative stability is its effects on the time limitation to be applied in terms of the revocation of administrative acts, the administrative act can always be revoked in the presence of various conditions required by this principle.

Conclusion

The principle of administrative stability ensures the continuity of the administration's actions and activities, while at the same time contributing to the regular and continuous execution of public services. Considering the reflections of this principle in the administrative judiciary, it should be kept in mind that it is a very important principle in terms of the time period for filing a lawsuit and the institution of stay of execution. Indeed, the principle of administrative stability is important in terms of the regular and continuous execution of public services. It enchancethe predictability of administrative acts and actions by placing them on a lawful basis and preventing the deterioration of administrative stability by enabling the protection of the legal situation arising as a result of these acts and actions, as well as protecting both the rights of individuals and public order thanks to this principle, which contributes to the effective functioning of the administration without being under the constant threat of litigation.

In this respect, the annulment lawsuits to be filed and the applications to be made to the relevant administration for the withdrawal of the relevant transaction or action should be evaluated within the framework of the principle of administrative stability, and the relationship between the time limits for filing a lawsuit and the institution of suspension of execution with the principle of administrative stability should be taken into consideration within the scope of the lawsuit and/or application processes in question.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.