Liability for Failure to Comply with Court Decisions

This article examines the liability for failing to comply with court decisions, considering in turn non-compliance by the administration, by public officials and by private persons.

Liability of the administration

The starting point is the Constitution. Under the fourth paragraph of Article 138, headed “Independence of the courts”, the legislative and executive organs and the administration must comply with court decisions; they may not in any way alter those decisions or delay their enforcement.

This provision, at the apex of the hierarchy of norms, establishes that all decisions of independent and impartial courts — which under Article 9 of the Constitution exercise judicial power on behalf of the Turkish Nation — may not be altered by the legislature, the executive or the administration, that their enforcement may not be delayed, and that all three must comply, without distinction between the ordinary and administrative jurisdictions.

The administration’s obligation to comply with decisions of the administrative courts is also governed by the Code of Administrative Procedure. Article 28 of Law No. 2577, headed “Effects of decisions”, provides that decisions of courts within the administrative judicial organisation, on the merits or on a stay of execution, must be enforced by the administration without delay, and that the period for doing so may not exceed thirty days from service of the decision on the relevant administrative body.

Paragraphs 3 and 4 of that Article provide that where an administrative court decision is not enforced, an action for pecuniary and non-pecuniary damages may be brought against the administration, and that even where it is a public official who has failed to give effect to the decision, the action must be brought against the administration rather than against the official.

The obligation to comply with judicial decisions is therefore secured both by the Constitution and by the Code of Administrative Procedure, without distinction between the ordinary and administrative jurisdictions. Equally, under the rule-of-law principle in the Constitution, judicial review is available against all acts and actions of the administration, so individuals have the means to assert their rights in any dispute that arises.

Because compliance by the administration, and acting in accordance with the requirements of those decisions, is a requirement of the rule-of-law principle in Article 2 of the Constitution, the administration has no option other than to apply court decisions exactly and without delay.

Liability of public officials

Where a public official fails to comply, both the general constitutional provision and criminal liability under the Turkish Penal Code may be engaged.

Alongside the administration’s liability in damages, criminal liability may arise for the official who failed to give effect to the decision. Where an administrative court decision is not enforced within the period set out in Article 28/4 of the Code of Administrative Procedure, the offence of misconduct in public office under Article 257 of the Turkish Penal Code (Law No. 5237) may be engaged.

Under Article 257, a public official who, acting contrary to the requirements of their duty, causes loss to individuals or to the public, or secures an unjust benefit for others, is punished with imprisonment from six months to two years, save where the conduct is separately defined as an offence. Where the official causes such loss or benefit through neglect or delay in performing the requirements of their duty, the penalty is imprisonment from three months to one year.

Misconduct in public office may be committed by act or by omission. The first paragraph of Article 257 addresses the offence committed by act, the second by omission. Where an administrative court decision is not applied within the period laid down in the Code of Administrative Procedure, the offence is committed by omission. Where the decision is applied within the period but further administrative acts are then adopted, without valid justification, which deprive it of effect, the offence is committed by act.

Liability of private persons

For private persons, the Misdemeanours Act (Law No. 5326) is relevant. Under Article 32 of that Act, acting contrary to an order lawfully given by the competent authorities on account of judicial proceedings, or for the protection of public safety, public order or public health, constitutes a misdemeanour.

Examined within that framework, non-compliance by private persons is treated as a misdemeanour and is subject to an administrative fine.

In conclusion, failure to comply with judicial decisions is regulated under different statutes for the administration, for public officials and for private persons, and specific sanctions are prescribed for each.

The information on this page is general in nature and does not constitute legal advice. Please contact our office for an assessment of your specific matter.

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