Stay of Execution — Conditions and Practice in Administrative Proceedings

A stay of execution is a judicial measure temporarily suspending the implementation of an administrative decision. Learn about the conditions of irreparable harm and manifest unlawfulness, the application procedure and the objection process under İYUK Art. 27.

A stay of execution is an interim order temporarily suspending the implementation of the administrative decision challenged in proceedings before the administrative courts. Governed by Article 27 of the Administrative Procedure Law No. 2577 (İYUK), it aims to prevent harm that is difficult or impossible to remedy and that may arise because administrative decisions continue to be implemented during proceedings. In administrative proceedings a stay of execution plays a vital role in providing individuals with effective protection against unlawful administrative decisions. This article deals in detail with the conditions for a stay of execution, the application procedure, the period for the defence, routes of objection, the consequences of an order and the problems in practice.

The Concept and Legal Nature of a Stay of Execution

A stay of execution is an interim order temporarily suspending the implementation of an enforceable administrative decision until the conclusion of the proceedings. It may be sought in an action for annulment and in a full remedy claim connected with a decision; in a pure full remedy action seeking only monetary compensation there may be no enforceable decision to suspend. Bringing an action does not as a rule of itself suspend the implementation of the decision.

Conditions for a Stay of Execution

Under Constitution Art. 125 and İYUK Art. 27 two conditions must be met together: the decision challenged must be manifestly unlawful, and its implementation must cause harm that is difficult or impossible to remedy. Neither an allegation of unlawfulness alone nor a possibility of harm alone is sufficient. The court assesses these conditions with specific reasons on the basis of the decision, the defence and the evidence on the file.

The type of decision — dismissal from office, revocation of a licence, demolition, a decision concerning a student, or environmental impact — may be significant as to the nature of the harm; but none of them of itself requires a stay of execution. The order is given after an examination specific to the manner of implementation of the decision and the claimant's situation.

Making a Request for a Stay of Execution

A request for a stay of execution may be made in the statement of claim or by a separate petition after the action has been brought. The request must be expressly stated in the petition; otherwise the court will give no decision on a stay. The request may be made at any stage of the proceedings.

The petition requesting a stay of execution must set out: what the administrative decision challenged is; what harm difficult or impossible to remedy would arise from its implementation; why the decision is manifestly unlawful; and the grounds for the request. Basing the request on concrete facts and legal grounds increases the likelihood of an order being made.

A fee must be paid when requesting a stay of execution. Under Fees Law No. 492 a separate fee is charged for requests for a stay of execution. This fee must be paid when the action is brought or when the request is made.

Even where a request for a stay of execution is refused, a fresh request may be made on new grounds or because of changed circumstances. For example, where a document that could not be produced with the first request is subsequently obtained, or where new harm has arisen from implementation of the decision, a second request may be made.

The Period for the Defence and the Procedure for Examination

The court as a rule decides after receiving the administration's defence or after the period for the defence has expired. For decisions whose effect will be exhausted upon implementation, a temporary suspension order may be made without the defence being received; a fresh decision is then given after the defence is received. There is no unlimited power to decide “without a defence in every case regarded as urgent”. The reasoned decision must show how manifest unlawfulness and harm difficult or impossible to remedy arise together.

Objection to a Stay of Execution Decision

An objection lies against the decision of a first-instance administrative or tax court to the regional administrative court; where the regional administrative court has decided at first instance, to the nearest regional administrative court; and against a first-instance decision of a Council of State chamber, to the Administrative or Tax Case Chambers Council according to the subject matter. An objection may be made once, within seven days of service, and the forum decides within seven days. This is not an ordinary appeal against the judgment on the merits.

Consequences of a Stay of Execution Order

The order temporarily suspends implementation of the decision; the administration must comply without delay and at the latest within thirty days, under İYUK Art. 28. An action for damages may be brought against the administration for loss caused by non-compliance. Liability of a public official under TCK Art. 257 is not automatic; the intent and the other elements of the offence must also be made out.

Cases in Which a Stay of Execution Cannot Be Ordered

Under Constitution Art. 125, in a state of emergency and in time of war the making of a stay of execution order may be restricted by statute on grounds of national security, public order and public health. The concept of “martial law” was removed from the text by the 2017 constitutional amendment. A statute may prescribe a special procedure or restriction for certain decisions; no interpretation may be adopted that removes judicial review entirely.

The Special Position of Stays of Execution in Tax Cases

Bringing an action arising from a tax dispute before the tax court as a rule suspends the collection of the tax, duty, charge and similar fiscal obligation in issue, together with any surcharges and penalties. Collection may not be suspended automatically where a return has been filed with a reservation, where a file struck off is renewed, where an action is brought against a payment order, and in the other cases listed in the statute; a stay of execution must then be separately requested. It should not be said that “only the principal tax is suspended” or that “all tax cases are automatically suspended”.

The Security Requirement

A stay of execution may as a rule be ordered against security; the court may dispense with security according to the requirements of the situation. No security is taken from the administration or from those receiving legal aid. There is no fixed rate or amount; the type and amount of security are fixed in proportion to the specific risk of harm.

Council of State Case Law on Stays of Execution

Examination of a request for a stay of execution does not rest on a list producing automatic results by abstract type of decision. The court establishes concretely, from the decision, the defence and the evidence on the file, whether manifest unlawfulness and harm difficult or impossible to remedy exist together. Decisions such as dismissal from public office, decisions concerning students, revocation of a licence or demolition may indicate the gravity of the harm; but none of itself guarantees a favourable order.

Whether favourable or unfavourable, the decision must be reasoned and must show the assessment made in respect of the two statutory conditions. The administration's obligation to comply arises from İYUK Art. 28. Non-compliance may give rise to the administration's liability in damages; a public official's criminal liability does not arise unless intent and all the elements of the relevant offence are separately proved.

Problems Encountered in Practice

Various problems arise in the application of the stay of execution. They relate both to the judicial process and to the attitude of the administration.

First is the problem of delay in making stay of execution orders. Because of the courts' workload, requests may not be decided in time. Where the implementation of the decision has already been completed by the time the order is made, the delay may render the stay meaningless.

Second is the problem of the administration failing to implement, or implementing late, stay of execution orders. Despite their constitutional and statutory obligation, some administrations may be reluctant to comply. This reduces the effectiveness of judicial decisions and undermines the rule of law.

Third is the problem that the security requirement restricts the freedom to seek justice in some cases. The difficulty of providing security, particularly for those of limited means, may prevent them from benefiting from the institution.

Fourth is the problem of restrictions on stay of execution orders in extraordinary periods. Such restrictions may leave individuals unprotected against unlawful administrative decisions. The European Court of Human Rights assesses restrictions on stays of execution within the scope of the right to an effective remedy (ECHR Art. 13).

These problems must be addressed both by legislation and by case law. Prompt decisions on stay requests, ensuring that the administration complies with orders, and applying the security requirement within reasonable limits are of considerable importance in increasing the effectiveness of this institution.

This content is for general information purposes and does not constitute legal advice. In specific disputes it is recommended that professional legal support be obtained from an attorney.

Frequently Asked Questions

What are the two fundamental conditions?

That the decision be manifestly unlawful and that its implementation cause harm difficult or impossible to remedy.

What is the period for objection?

Seven days from service; only once.

Within what period must the administration comply?

Without delay and at the latest within thirty days.

Does a tax action always suspend collection?

No. There are exceptions in İYUK Art. 27/4.