The Distinctive Nature of Administrative Trial Procedure from Civil Procedure: The Ability of the Intervenor to Apply for Legal Remedy Independently of the Party
Introduction
The concept of intervention has fundamental differences in administrative trial procedure compared to civil procedure. These differences are critically important in terms of the intervenor’s right to seek legal remedies in the administrative trial procedure. As is known, there are two ways to become a plaintiff in an administrative trial procedure. A person may be the plaintiff of an annulment action alleging that an administrative act has violated their interests, or maybe the plaintiff of a full remedy action alleging that an administrative act or action has damaged their personal rights. Although there are certain exceptions, the defendant is always the “administration”. In certain cases, the administrative act subject to the annulment action closely concerns the interests of third parties outside the action, rather than the plaintiff. These administrative acts may sometimes take the form of a “license”, a “permit”, and sometimes a “regulatory-supervisory authority decision”. For instance, it is possible to observe cases in which the plaintiff of an annulment action against the Competition Board’s decision is a competing undertaking that demands the investigation of the other competing undertaking. In such cases, it is crucial for the right to a fair trial and the exercise of the freedom to seek legal remedies that the addressees of the relevant administrative action -in this case, the undertaking against which the complaint was filed- participate in the action[1]. It is observed that this different nature of administrative proceedings from civil proceedings has led the Council of State to develop case law on the concept of intervention[2]. In recent years, one of the issues that has led to a divergence of jurisprudence among the chambers of the Council of State has been the issue of whether the intervenor can apply for legal remedies independently. In this regard, the 6th and 17th Chambers of the Council of State have decided that the intervenor can apply for legal remedies on its own, whereas the 2nd, 8th, and 13th Chambers have decided that the intervenor can act together with the party based on an approach closer to civil procedure. This difference of jurisprudence, which led to discussions in the doctrine, was resolved with the decision of the Council of State Unification of Jurisprudence Board (“Board”) dated 03.02.2023 and numbered 2021/4 E., 2023/1 K. (“Decision”), which ruled that the intervenor may apply for legal remedies individually. Accordingly, in this article, the position of the intervenor in terms of the authority to apply for legal remedies in administrative proceedings and the decision on the unification of conflicting judgments of the Council of State are analyzed.
Divergences of Opinion and Jurisprudence Prior to the Unification Decision
Pursuant to Article 31 of the Procedure of Administrative Justice Act No. 2577 (“Act No. 2577”), the provisions of the Code of Civil Procedure No. 6100 (“CCP”) shall apply to the intervention of third parties in administrative proceedings. According to the CCP, intervention in the action may be realized in two ways: principal intervention or accessory intervention. Pursuant to Article 66 of the CCP, a third party may take part in the lawsuit as an accessory intervenor until the end of the investigation phase of the lawsuit in order to assist the party who has a legal interest in succeeding in the lawsuit. Pursuant to Article 66 of the CCP, principal intervention is the filing of a new lawsuit against the parties to a pending lawsuit by a third party who claims a right over the subject matter of the lawsuit. The procedure of principal intervention in the proceedings, in other words, the procedure of opening a new lawsuit to the parties to the lawsuit, is considered to be inapplicable in administrative proceedings[3]. Since the principal intervention is not accepted in administrative proceedings, this article proceeds to examine the position of the accessory intervenor in terms of the ability to apply for a legal remedy independently.
Decisions and Opinions Regarding the Inability of the Intervenor to Apply for Legal Remedies Individually
Before the Unification Decision, it was stated by some authors in the doctrine that only the parties to the lawsuit can file an appeal application, and that the intervenor, who is not a party to the lawsuit, cannot file an appeal application individually[4]. In a decision of the Council of State Board of Administrative Chambers[5], the issue of whether the intervenor can file an appeal alone is analyzed within the framework of the CCP. In this framework, it was evaluated that the intervenor, for whom no judgment has been rendered in the case, can only apply for legal remedy if the party prefers to apply for legal remedy.
Furthermore, in the period before the Unification Decision, the issue was reviewed before the Constitutional Court through an individual application. In the Court’s Akdeniz İnşaat ve Eğitim Hizmetleri A.Ş. decision, in summary, the will of the party to continue the proceedings was given superiority and it was concluded that the rejection of the intervenor’s request for a remedy alone did not violate the right of access to the court[6].
It is observed that, in general, the Constitutional Court’s previous judgments do not consider the right of the intervenor to apply for legal remedy independently within the scope of the right to a fair trial[7]. In parallel with the Constitutional Court, it is stated in the doctrine that not granting the intervenor the right to initiate a legal remedy independently does not violate the right of access to the court[8]. According to this view, the person has the right to file an administrative lawsuit as a plaintiff as of this date, if he/she is aware of the action of the administration affecting his/her law. If he/she does not exercise this right and intervenes in the lawsuit filed by another party, it is stated that it is not possible to interpret the fact that he/she cannot perform the procedural actions not performed by the party due to his/her status as an intervenor as a denial of his/her right of access to the court. Another concern expressed regarding the intervenor’s ability to act alone is that the will of the intervening civil persons may override the will of the respondent administration[9].
Decisions and Opinions Regarding the Ability of the Intervenor to Apply for Legal Remedies Individually
Prior to the Unification Decision, the Council of State had also made decisions based on the characteristics of administrative lawsuits and the difference between administrative lawsuits and lawsuits in civil proceedings, stating that the intervenor can apply for legal remedies on its own.
According to a decision[10] of the 6th Chamber of the Council of State in 2017, the intervenor, who will be directly affected by the result of the lawsuit and who will lose its right subject to the lawsuit if the lawsuit is concluded against it, should be able to apply for legal remedies independently of the defendant with whom it participated in the lawsuit. It is evaluated that there is no legal accuracy in the dismissal of the intervenor’s request for appeal without examining the intervenor’s application for appeal, since the defendant administration, with which it participated in the case, has not applied for appeal. It is considered that the person whose intervention is accepted due to the fact that their personal interest will be affected by the outcome of the case should be accepted to request the rectification of the decision rendered at the end of the case on its own, even if the party with whom it participates in the case does not request the rectification of the decision, so as not to have consequences to the detriment of the party with whom it participates.
In one of its decisions on the subject, the Constitutional Court made a different assessment from the above-mentioned decision and found that the applicant has victim status in terms of the right to a fair trial, since the legal position of the intervenor will be affected by the decision to be rendered at the end of the case.[11]
Another important decision[12] on the subject is the Menemen Minibüsçüler Odası v. Türkiye decision of the European Court of Human Rights (“ECHR”). The ECHR concluded that the applicant’s inability to defend himself in a dispute directly affecting his rights and obligations, solely due to the failure to comply with procedural requirements, violated his right of access to a court and thus Article 6/1 of the Convention[13].
There are also opinions in the doctrine that argue that, the accessory intervenor should be able to apply for legal remedies independently of the party[14]. One of the opinions in the doctrine evaluates the ability of the accessory intervenor to appeal the judgment on its own to legal remedies as a requirement of the principle of ex officio investigation in administrative proceedings law (Art. 20/1 of Act No. 2577)[15]. Accordingly, the third party, who is not a party to the dispute, being able to take actions that the main party has neglected or left incomplete, will ensure that the dispute is better explained and more accurate decisions are made[16].
Conclusion: Unification Decision of the Council of State
Both views examined so far are based on the nature of administrative proceedings. The Council of State Unification of Jurisprudence Board, however, put an end to the discussions by interpreting the nature of administrative proceedings with an approach based on the freedom to seek legal remedies. As a result, the Board decided that the intervenor may apply for legal remedies on its own in the event that the party with whom it participated in the case does not apply for legal remedies, as long as it does not contradict its proceedings and statements.
The Board, in its unification decision, evaluated the right to intervene in the case within the scope of the freedom to seek legal remedy and emphasized that everyone has the right to a fair trial and the right to exercise this right through legal means pursuant to Article 36 of the Turkish Constitution. Thus, the Board stressed that the right to a fair trial applies to everyone, and therefore the intervenor, who is standing alongside the party, should also be able to benefit from the rights to a fair trial, access to the court, judicial protection and to be heard.
The Board also compared the CCP with the Abrogated Code of Civil Procedure and concluded that the new CCP expands the actions that the intervenor may take. Following its findings on the positive regulations, the Board finally resolved the issue by pointing out the unique characteristics of administrative jurisdiction[17].
In conclusion, based on these findings, the Board concluded that the intervenor may pursue legal remedies on its own, as long as it does not contradict the proceedings or statements of the party with whom the intervenor participated in the proceedings.
- This assumption is mostly applicable to those in the position of the defendant. See the decision of the 6th Chamber of the Council of State, dated 07.01.2020 and numbered 2019/13994, on the grounds that the person requesting intervention alongside the plaintiff has the right to file a separate action, as cited in Altındağ, Halil: “Hukuk Usulü Muhakemeleri Kanunu ile Vergi Usul Kanununun Uygulanacağı Haller”, İdari Yargılama Hukuku (Ed. Zehreddin Aslan), 4th Edition, Seçkin Yayınları, Ankara, 2023, p. 364.
- Şimşek, Tacettin: “İdari Yargılama Hukukunda Davalı Yanında Müdahilin Tek Başına Kanun Yollarına Başvuruda Bulunma Hakkı.” Türkiye Barolar Birliği Dergisi, No. 134, 2018, p. 211. http://tbbdergisi.barobirlik.org.tr/ViewPDF-2018-1738 (Access Date: 30.12.2023)
- Aslan, Zehreddin s. 362. Akyılmaz Bahtiyar / Sezginer, Murat / Kaya, Cemil: Türk İdari Yargılama Hukuku, 6th Edition, Savaş Yayınevi, Ankara, 2021, p. 686; Altındağ (Ed. Aslan), ibid, p. 362. The 6th Chamber of the Council of State has different decisions on the subject, in which it defines principal intervention differently: 6th Chamber of the Council of State, decision dated 12.04.2017 and numbered 2017/915 E., 2017/2524 K., 6th Chamber of the Council of State, decision dated 15.03.2018 and numbered 2017/2261 E., 2018/2250 K., lexpera.com.tr.
- Akyılmaz, Sezginer, Kaya, ibid, p. 691; Candan, Turgut: Açıklamalı İdari Yargılama Usulü Kanunu, 9th Edition, Yetkin Yayınları, Ankara, 2022, p.1350
- Council of State Board of Administrative Appeals, decision dated 19.10.2017 and numbered E. 2017/2682, K. 2017/3159, lexpera.com.tr.
- “63. ...the right to a fair trial does not guarantee that the intervenor can continue the proceedings despite the will of the party with whom he or she participates in the proceedings (see § 53). Therefore, there is no constitutional obligation to grant the intervenor the right to appeal the judgment independently of the will of the main party. In this respect, in the case at first instance, considering that the main party of the case (the administration) did not have the will to continue the proceedings by not appealing the judgment rendered against it, the rejection of the appeal request made by the applicant, who is an accessory intervenor, without being examined does not constitute an interference with the constitutional guarantees regarding the right of access to the court. 65. For the reasons explained, since it is clear that there is no violation of the applicant’s right of access to the court guaranteed under Article 36 of the Constitution, the application shall be deemed inadmissible for clearly lacking grounds.” Constitutional Court’s Akdeniz İnşaat ve Eğitim Hizmetleri A.Ş. decision dated 19.07.2018 with application number 2015/2909, lexpera.com.tr.
- Aksoylu, Özge: “İdari Yargılama Hukukunda Müdahilin Bağımsız Olarak Kanun Yoluna Başvurma Hakkı” Galatasaray Üniversitesi Hukuk Fakültesi Dergisi, No. 1, 2020, p. 61-63.
- Candan, ibid, p.1097.
- See the dissenting opinion in the decision of the 6th Chamber of the Council of State dated 12.04.2017 and numbered 2017/915 E., 2017/2524 K., lexpera.com.tr.
- “... the interest of the third party benefiting from the act subject to the action is an interest superior to the interest of the respondent administration to be protected by the dismissal of the action. While the conclusion of the case by deciding to annul the transaction brings a legal and material burden to the administration such as being condemned only to the trial expenses, it causes much greater material and legal losses than the trial expenses of the third party who benefits from the act subject to the action. Taking into account such issues, it is concluded that the intervention of third parties whose material and legal interests are affected by the action in administrative proceedings is the principal intervention and the principal intervention is more appropriate to the quality and nature of the intervention in administrative proceedings. The accessory intervention in administrative actions is an institution that is appropriate to the position of those who intervene in the case alongside the plaintiffs. Because it is possible for those who intervene in the case alongside the plaintiff to file a lawsuit within the time limit for filing a lawsuit, provided that they demonstrate that their interests have been violated by the action subject to the lawsuit.” 6th Chamber of the Council of State, decision dated 12.04.2017 and numbered 2017/915 E., 2017/2524 K., lexpera.com.tr. See also: 17th Chamber of the Council of State, decision dated 08.05.2015 and numbered 2015/9317 E., 2015/1943 K., lexpera.com.tr.
- “...it has been concluded that the applicants, who were included in the trial process as intervenors in anticipation of being affected by the outcome of the case, have the status of victims in terms of the allegations of violation of the right to a fair trial and that this part of the application meets the admissibility criterion regarding jurisdiction in terms of person.” The Constitutional Court’s decision dated 26.06.2019 and numbered 2015/7846 Cengiz İnş. San. ve Tic. A.Ş. and Mirax Tur. İnş. Tic. A.Ş. decision, lexpera.com.tr.
- European Court of Human Rights, Menemen Minibüsçüler Odası vs. Türkiye decision dated 09.12.2008 with application number 44088/04. See: https://hudoc.echr.coe.int/eng?i=001-124047 (Access Date: 30.12.2023)
- Aksoylu, ibid, p. 109; Şimşek, ibid, pp. 182-184.
- Pekcanıtez Hakan: “İdari Yargıda Fer’i Müdahil Hükmü Tek Başına Temyiz Edebilir mi? (Karar Tahlili)”, Prof. Dr. Turhan Tufan Yüce’ye Armağan, İzmir, 2001, p. 594; Yasin, Melikşah: “İdari Yargılama Usulünde Davaya Müdahale” İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Volume: 69, No. 1, 2011, pp. 448-449 https://dergipark.org.tr/tr/pub/iuhfm/issue/9185/115036; (Access Date: 29.12.2023).
- Pekcanıtez, ibid, p. 594.
- Yasin, ibid, p. 443.
- “On the other hand, due to the characteristics of administrative proceedings, in certain cases, the intervenor may be directly related to the subject matter of the dispute in administrative jurisdiction compared to the civil procedure, or the relationship between the intervenor and the party it joins is subject to the lawsuit. In this framework, although the intervenor is not a party to the case in a formal sense, the dispute subject to the lawsuit concerns the rights and interests of the intervenor in a material sense and the intervenor is directly affected by the outcome of the decision to be rendered. Accordingly, in administrative jurisdiction, making the intervenor dependent only on the actions of the party that it participates with may lead to unfair results.
- In this respect, it is clear that the ability of the intervener to apply for legal remedies alone, in the administrative proceedings procedure, where the principle of ex officio investigation is adopted, will contribute to the correct and complete determination of the material event and to make the most appropriate decision and thus to realize the public interest; to protect the legal order by the administrative judiciary by ensuring that the administration acts in accordance with the law and to fulfill the function of realizing the principle of equality before the law by ensuring that the legal remedies are applied uniformly throughout the country.” Unification of Jurisprudence Decision of the Council of State, dated 03.02.2023 and numbered 2021/4 E., 2023/1 K., lexpera.com.tr..
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