Act On The Constitution And Functions Of The District Administrative Courts 2576
Author Topic: Act On The Constitution And Functions Of The District Administrative Courts 2576 (Read 4967 times)
ACT ON THE CONSTITUTION AND FUNCTIONS OF THE DISTRICT ADMINISTRATIVE COURTS, ADMINISTRATIVE COURTS AND TAX COURTS
Act No : 2576
Date of Enactment : 06.01.1982
Date of Promulgation
in Turkish Official Gazette : 20.01.1982 No: 17580
Collection of Acts : 5 Volume: 21, page: 139
Translated into English : Asst. Prof. Dr. Kerem ALTIPARMAK
The district administrative courts, administrative courts and tax courts are independent courts with general jurisdiction, assigned to carry out the functions stated in the present Act.
1. The district administrative courts, administrative courts and tax courts shall be constituted and their jurisdiction as to venue be determined by the Ministry of Justice, considering the geographical position of regions and the workload.
2. The ministries of Internal Affairs, Finance and Customs shall be consulted on the constitution of the district administrative courts, administrative courts and tax courts and the determination of their jurisdiction as to venue.
3. The Supreme Council of Judges and Public Prosecutors, upon the request of the Ministry of Justice and consulting the Ministries of Internal Affairs, Finance and Customs, shall decide on the abolition of these courts and on the change of their jurisdiction as to venue.
4. If there are more than one administrative and tax court at the same judicial district, their division of labor shall be arranged by the Supreme Council of Judges and Public Prosecutors.
5. Decisions on the constitution, abolishment of these courts and decisions with regard to the change of their jurisdiction as to venue shall be promulgated in the Official Gazette.
The Composition of the District Administrative Courts
1. The District Administrative Court shall consist of the president of the district administrative court and two members.
2. (Repealed: 8.6.2000- 4577/s. 1)
3. (Amended: 8.6.2000- 4577/s. 1) The presidents and members of the district administrative courts shall be appointed by the Supreme Council of Judges and Public Prosecutors. When the president is absent due to legal reasons, the office of president shall be assumed by the highest-ranking member, whereas the absence of a member due to the same reasons shall be filled by a judge from an administrative or tax court in the district, following the ranking order. These courts may sit as more than one board, when needed. When the president of the district administrative court does not attend a session, the highest-ranking member shall preside over the session. The composition of these boards and division of labor between them shall be determined by the Supreme Council of Judges and Public Prosecutors.
4. Members of the Council of State, upon their request, may be appointed as the president of the district administrative courts of Ankara, İstanbul and İzmir by the Supreme Council of Judges and Public Prosecutors. Those who are appointed in this way shall keep their title to the membership of the Council of State, as well as degrees, salaries, allowances and all other rights relating to their status. Their allowances and salaries and all other financial and social rights shall continue to be paid from the budget of the Council of State.
Composition of the Administrative and Tax Courts
The administrative and tax courts shall consist of a president and sufficient number of members. The board of the court shall consist of the president and two members. In the absence of the president, the highest-ranking member shall replace the president.
Functions of the Administrative Courts
1. (Amended: 24/2/1988-3410/s. 1) The administrative courts shall resolve the following actions, except the ones falling within the subject-matter jurisdiction of the tax courts and actions that will be reviewed by the Council of State as a first instance court:
a) annulment actions,
b) full remedy actions,
c) (Amended: 8/6/2000-4577/s. 2) actions relating to disputes arising from administrative contracts signed to carry out public services except disputes arising from conditions and contracts under which concessions are granted and for which arbitration has been suggested,
d) functions allocated by the law.
2. The administrative courts shall also review actions that are stated to be in the jurisdiction of the Council of State pursuant to specific Acts which have been allocated to the administrative court by the Procedure of Administrative Justice Act.
Functions of the Tax Courts
Section 6. (Amended: 24/2/1988-3410/s. 2)
The tax courts shall resolve
a) actions relating to the general budget; to the taxes, fees, duties and other similar financial obligations that belong to the provinces, municipalities and villages; to the increases and penalties concerning these obligations as well as actions relating to tariffs,
b) actions relating to the application of the Act on the Procedure of Public Claims' Collection to the subjects stated in paragraph (a),
c) other matters designated by the law.
Actions Resolved by a Single Judge
1. (Amended: 8/6/2000-4577/s. 3)
a) actions brought against administrative acts whose subject contain a certain amount of money,
b) full remedy actions
the disputed amount of which does not exceed one billion Turkish Liras, shall be reviewed by a judge of an administrative court.
2. (Amended: 8/6/2000-4577/s. 3) Actions arising from the disputes stated in paragraph (a) and (b) of Section 6 whose total value does not exceed one billion Turkish Liras shall be reviewed by a judge of the tax court.
3. Principles relating to the distribution of this type of cases to the judges shall be determined by the president of the court beforehand, taking into account the balance of the work.
Functions of the District Administrative Courts
The district administrative courts
a) shall review and decide on the decision rendered by a single judge of administrative and tax court in its judicial district pursuant to the provisions of Section 7, upon an exception made against the decision,
b) shall rule on disputes relating to competence and venue arising between administrative and tax courts within its judicial district,
c) shall carry out other functions designated by the law.
Functions of the President of the District Administrative Courts
1. Presidents of the District Administrative Courts
a) shall direct the deliberations and hearings. They present their views and opinions and cast their vote.
b) They are responsible for the general management of the administrative and tax courts in their judicial district.
c) They shall take necessary measures for the productive and orderly functioning of the courts, consulting the presidents of administrative and tax courts.
d) At the end of each calendar year, the Presidents of the District Administrative Courts shall present a report to the Supreme Council of Judges and Public Prosecutors informing the state of the work in their judicial district and any deficiency in the execution of their functions and reasons for the deficiency. They shall also report the measures that should be taken.
e) They shall carry out other functions designated by the law.
2. Correspondence of the administrative and tax courts with the Ministry of Justice and other official organs shall be made through the presidency of the district administrative court.
Functions of the Presidents of the Courts
Presidents of the Courts
a) shall direct the deliberations and hearings, present their views and opinions and cast their vote. They shall ensure the attendance and orderly functioning of those who serve in the Court, and secure the productive functioning of the Division.
b) At the end of each calendar year, the Presidents of the Courts shall present a report to the President of the District Administrative Court informing the state of the work in their courts and any deficiency in the execution of these functions and reasons for the deficiency. They shall also report the measures that should be taken.
c) They shall carry out other functions designated by the law.
Functions of the Members
The Members, examining the case files assigned to them by the President of the Court which they are a member of, without any delay, shall present the necessary information about the case to the Court, submit their opinions and views, cast their vote, write down the decisions and carry out other duties about the Court designated to them.
Staff of the Courts
There shall be a registry under the direction of the chief reporter in each district administrative court, administrative court and tax court. A sufficient number of clerks and public servants shall be appointed to each court.
Changed Terms
After the tax courts assume their functions, the terms relating to the subject-matter jurisdiction of the tax courts, which are provided in other Acts, shall be understood as follows:
a) Commission of Objections, Tax Appeals Commission, Customs Arbitral Committee shall mean Tax Court,
b) Tax dispute shall mean tax action,
c) Objection shall mean bring an action to tax court.
Administrative affairs of the district administrative courts, administrative courts and tax courts as well as procedure and principles that will be followed in the execution of secretarial works of these courts shall be regulated by a by-law, which will be issued by the Ministry of Justice.
Repealed Functions, Powers and Provisions
1. Functions and powers, falling within the jurisdiction of administrative and tax courts, assigned to the various committees and commissions by the law shall terminate on the date administrative and tax courts assume their functions.
2. Provisions relating to the constitution of the Commission of Tax Objections and the Tax Appeals Commission shall cease to have effect on the day shown in the first paragraph.
Additional Section 1.
(Added: 24.2.1988-3410/s.4) – (Amended: 8.6.2000-4577/s. 4)
The monetary limits concerning actions that will be resolved by a single judge, provided under Section 7 of the present Act, shall increase proportional to the revaluation value determined and announced by the Ministry of Finance each year pursuant to Repeated Section 298 of the Tax Procedure Act, No. 213. The increase shall apply to the monetary limits of the previous year and shall be effective from the beginning of every calendar year. The part of the limits determined following this procedure that does not exceed ten million Turkish Liras shall not be taken into account in the revaluation.
The increase of monetary limits that applies from the beginning of every calendar year, as stated in the paragraph above, shall not apply to actions finalised at the administrative and tax courts before the increase came into force and to the actions retried by the first instance court following the reversal decision of the Council of State.
Provisional Section 1.
1. The Ministry of Justice, consulting the ministries of Internal Affairs, Finance and Customs, shall constitute district administrative courts, administrative courts and tax courts within six months from the entry into force of the present Act. The formation of the courts, their jurisdiction and the day that they assume their functions all over the country shall be promulgated in the Official Gazette.
2. Apart from those will be appointed among administrative justice judge candidates, the following persons may be appointed as presidents and members of administrative courts provided that they have a first degree either in law or in politics, administrative science, economy and finance that includes law modules in its curriculum:
a) Judge rapporteurs and advocates general of the Council of State,
b) Employees of the Ministry of Internal Affairs on the condition that the person concerned has entitled to be a county governor,
c) Members and experts of Supreme Supervisory Council of the Prime Ministry,
d) Director-generals, deputy director-generals and head of sections of government departments financed by the general and subsidiary budgets,
e) Head consultants, consultants, attorney-advisors of the Prime Ministry and other ministries, legal advisors, district and province directors of the department of legal disputes, solicitors of the Treasury and attorney-advisors of the state owned enterprises,
f) Rapporteurs, expert auditors, chief auditors and auditors, prosecutors and assistant prosecutors of the Audit Court.
Those who work in public service may also be appointed provided that they have served in one of the above-mentioned positions previously.
3. Apart from those who will be appointed among administrative justice judge candidates within five years from the entry into force of the present Act; the following persons may be appointed as presidents and members of tax courts provided that they have a first degree either in law or in politics, administrative science, economy and finance that includes law modules in its curriculum:
b) Controllers and general accountants of the Ministry of Finance,
c) Presidents, members, chief rapporteurs and rapporteurs of the Tax Appeals Commission and Permanent Commissions of Tax Objections,
d) General director and deputy general directors of the General Directorate of Revenues of the Ministry of Finance, revenue controllers, chief consultants and consultants of the General Directorate of Revenues,
e) Attorney-advisors of the Ministry of Finance, district and province directors of the department of legal disputes, legal advisors and solicitors of the Treasury,
f) heads of financial departments in provinces and their assistants, and tax office directors,
g) General director, deputy general directors, consultants of the General Directorate of Customs of the Ministry of Customs, directors of customs, general director and deputy general directors of the Customs Control and inspectors of the Ministries.
4. Appointments shall be made by the Supreme Council of Judges and Public Prosecutors, consulting the public institutions and organisations in which the person concerned is employed.
5. Those who will be appointed as president of district administrative court must have worked in public service for ten years, at least three of which must have passed in one of the positions mentioned in the paragraphs above; whereas those who will be appointed as presidents and members of other courts must have worked in public service for five years, at least two of which must have passed in one of the positions mentioned in the paragraphs above. However, five-year period shall not be required for the presidents, members, chief rapporteurs and rapporteurs of the Tax Appeals Commission and Permanent Commissions of Tax Objections.
6. Those who possess the qualifications stated in the second and third paragraph of the present Section may be appointed to the presidency and membership of district administrative courts.
7. Provided that the presidents, members, chief rapporteurs and rapporteurs of the Tax Appeals Commission and Permanent Commissions of Tax Objections possess the qualifications stated in the present Section, they shall be preferred in the appointments to the presidency and membership of the tax courts.
8. In the appointments; matters relating to the employment record of the person concerned, his success in the work, whether he has the character and morals required from a judge shall be examined and decided upon by the Supreme Council of Judges and Public Prosecutors.
9. The procedure and period for the applications, which will be made according to the present section, shall be promulgated by the Ministry of Justice in the Official Gazette. No application conditions shall be required for judge rapporteurs and advocates general of the Council of State.
1. Monthly rank and grades of those who will be appointed to the presidency and membership of the district administrative courts, administrative courts and tax courts, pursuant to provisional section 1 of the present Act, shall be determined according to their ranks and grades acquired as vested right.
2. Until necessary arrangements are made in the Judges Act, provisions relating to the judges of ordinary courts shall apply to salaries, allowances, all financial and social rights of the presidents and members of the district administrative courts, administrative courts and tax courts, as well as to the other rights relating to their status.
a) Provided that those who serve as judge rapporteurs and advocates general of the Council of State on the date the present Act comes into force fulfil the conditions prescribed in the provisions of the Judges Act relating to the promotion to the first category, they shall be subjected to the first category examination, taking into account the period they have served in the mentioned positions. However, those who have been promoted to the grades of the first rank before the present Act comes into force shall be deemed to be classified in the first category from the date they were promoted to the first rank, provided that they do not lose the competency to be appointed as a member of the Council of State.
b) Amongst the persons who will be appointed to the presidency and membership of district administrative courts, administrative courts and tax courts for the first time from positions other than the judge rapporteurs and advocates general of the Council of State; those who are at the grades of the first rank after working one promotion period, those who are at the grades of the second rank after working two promotion periods, those who are at the grades of the third rank after working three promotion periods shall be subjected to the first category examination, without taking into consideration the period condition required for the promotion to the first category in the Judges Act.
c) In the first category examination of those who are appointed to the district administrative courts, administrative courts and tax courts among judge rapporteurs and advocates general of the Council of State, the term of office in the Council of State shall be taken into account.
1. In order to meet the needs of the Courts constituted under the present Act, the list attached to the present Act is added to the sub-section concerning the judges and prosecutors of the section on courts and to the other relevant sections of the provincial staff list of the Ministry of Justice.
2. Until an act on general staff is enacted, all alterations that are required to be made about the personnel shall be made by the Supreme Council of Judges and Public Prosecutors, if the alteration is about judges, and by the Ministry of Finance about the other personnel, provided that the alteration is made within the limits of the attached list.
1. Names of the staff of the Permanent Commissions of Tax Objections and the Tax Appeals Commission, which will become defunct upon the assumption of office of the courts constituted under the present Act, who are appointed to these courts, shall be deleted from the staff list of the Ministry of Finance on the date that the appointment is concluded.
2. Those who have served as a rapporteur at the Permanent Commissions of Tax Objections and the Tax Appeals Commission for two years before the date that the courts constituted under the present Act assume of office may be appointed as administrative judge candidates by the Ministry of Justice.
3. The staff of the Permanent Commissions of Tax Objections and the Tax Appeals Commission that are not appointed to the courts constituted under the present Act shall be appointed to other positions appropriate to their status by the Ministry of Finance, and their position in those commissions shall be deemed to be cancelled on the date that the appointment is concluded.
The failure to comply with the requirements of the profession of those appointed to the presidency and membership according to provisional section 1 shall be determined by the Supreme Council of Judges and Public Prosecutors. The appointment of the persons concerned to another position appropriate to their rank and grade, except the allowances given, in government departments financed by the general and subsidiary budgets shall be secured by the Prime Ministry, upon the notification of the situation to the Prime Ministry by the Council. This provision may be applied for two promotion periods from the date of the appointment.
1. Actions falling within the jurisdiction of the courts constituted under the present Act which were brought to the Council of State on the date that these courts assume their functions shall be finalised at the Council of State.
2. If a decision of the commissions and committees whose judicial authority is abolished by the present Act is overruled by the Council of State, the relevant case file shall be sent to the administrative or tax court assigned to review the case.
1. If no objection has been brought or no action has been filed to the commissions and committees, whose judicial authority is abolished, concerning disputes falling within the jurisdiction of the administrative courts under the provisions of the present Act, and if the period for the objection or action has not been expired before the date that the courts constituted under the present Act assume their functions, an action about the dispute may be brought to the administrative court that has jurisdiction over the case within sixty days from this court assumes its functions.
2. An appeal with regard to the decisions given by the commissions and committees whose judicial authority is abolished, against which the appeal period to the Council of State has not been expired before the date that the courts constituted under the present Act assume their functions, may be brought to the Council of State within sixty days.
1. If no objection has been brought to the Commission of Objections and Customs Arbitral Committee concerning disputes falling within the jurisdiction of the tax courts, and if the period for the objection has not been expired before the date that the courts constituted under the present Act assume their functions, an action about the dispute may be brought to the tax court that has jurisdiction over the case within sixty days.
2. An action relating to the decisions given by the Commission of Objections, against which no appeal has been filed to the Tax Appeals Commission or Council of State, and against which the appeal period has not been expired before the date that the courts constituted under the present Act assume their functions, may be brought to the Council of State within sixty days.
3. An action relating to the decisions given by Tax Appeals Commission and Customs Arbitral Committee, against which the appeal period to the Council of State has not been expired before the date that the courts constituted under the present Act assume their functions, may be brought to the Council of State within sixty days.
Case files that have been brought to the Commission of Objections and Customs Arbitral Committee or to another body whose judicial authority is abolished by the present Act, and about which a decision has not been reached on the date that the district administrative courts, administrative courts and tax courts assume their functions, shall be transferred to the administrative or tax court that has jurisdiction over the case within a month.
Provisional Section 10.
1. The principles concerning the transfer of the files of the commission of objections and Customs Referee Committee to the tax courts shall be prescribed by the Ministries of Justice, Finance and Customs jointly.
2. The principles concerning the transfer of the files of the other bodies, whose judicial authority is abolished by the present Act, to the administrative courts shall be prescribed by the Ministries of Justice and Internal Affairs.
1. Among case files present at the Tax Appeals Commission on the date that the tax courts assume their functions,
a) those that can be resolved by a single judge according to section 7 of the present Act shall be sent to the district administrative court that has jurisdiction over the case,
b) whereas all others shall be sent to the Council of State.
These cases shall be adjudicated by these courts.
2. The following principles shall apply with regard to the files transferred pursuant to the paragraph above:
a) No additional charge or fee shall be imposed for these files.
b) The cost of postage of these files shall be covered from the budget of the Ministry of Finance.
c) The case files that have been finalised at the Tax Appeals Commission pursuant to the provisions of the Tax Procedure Act, shall be deemed finalised without applying the provisions of the Procedure of Administrative Justice Act. Provisions concerning the opinion of the advocate general at the Council of State are reserved.
d) The relevant division or the court shall decide on whether to arrange a hearing for the case.
e) Hearing notifications made by the Tax Appeals Commissions concerning these files shall be void.
f) If the decision of the tax objection commission is overruled upon examination, the final judgment about the case shall be given on the court's own motion.
g) Decisions of the Tax Appeals Commissions on requests concerning stay of execution shall be valid. However, these files shall be given priority.
The case files that have been sent back to the Tax Appeals Commission with the reversal decision of the Council of State and case files sent to the tax objections commission after its decision was overruled by the Tax Appeals Commission following the reversal decision of the Council of State, and which have not been adjudicated by this commission yet, shall be transferred to the tax court which has jurisdiction over the case. These courts shall adjudicate the cases in line with the reversal decision.
Among case files sent to tax objection commission with an interlocutory decision of Tax Appeals Commission, about which the actions required by the decision have been taken, those which can be resolved by a single judge according to Section 7 of the present Act shall be sent to the district administrative court that has jurisdiction over the case, whereas all others shall be sent to the Council of State. Case files about which the actions required by the interlocutory decision have not been taken, after the necessary actions are taken as prescribed by the decision, shall be consigned to the authorised tax court to be transferred to the competent district administrative court or to the Council of State, depending on the relevance of the matter.
Case files that have been decided upon by the objection and appeal commissions, but not notified to the parties before the tax courts assume their functions, shall be consigned to the authorised tax court, within a month from the date that these courts assume their functions, to carry out the notification process. The cost of postage of these files shall be covered from the budget of the Ministry of Finance.
In order to meet the needs of the courts that will be constituted; the Ministry of Finance shall be authorised to make transfers from the relevant series of the budget of the Ministry of the Finance to the present series and series that will be created in the budget of the Ministry of Justice and to carry out other relevant operations.
In the application of this Act, provisions of the Constitutional Order Act, No. 2324, dated 27/10/1980 are reserved.
Provisional Section 17. (Added: 23/6/1983-2856/s. 1)
In the case that the persons who are appointed to the presidency and membership of the district administrative courts, administrative courts and tax courts want to retire within three years from they assume their office, their ranks and grades acquired as vested right, and if the person concerned has received the last grade of the first rank as vested right, their benefits from the additional charts, which they could receive before they were appointed to the judgeship of administrative justice, shall be taken into account in the retirement process. Additional charts belonging to judgeship of administrative justice shall not be taken into account.
Provisional Section 18. (Added: 8/6/2000-4577/s. 10)
Paragraphs 1 and 2 of the amended Section 7 of the present Act shall not apply to the cases about which the final judgment has been given by an administrative or tax court, and to the cases that have been sent back to the first instance court by a reversal decision of the Council of State before the entry into force of this amendment.
The present Act shall become effective upon the date of publication.
The provisions of the present Law shall be exercised by the Council of Ministers.
Provisions that cannot be Inserted to the Main Text of the Act No. 2576, dated 6/1/1982
1- Provisional Section of the Act no 3410, dated 24/2/1988
Provisional Section – A decision of non-jurisdiction cannot be given because of the amendment made to Section 7 of Act No. 2576, dated 6.1.1982.