Council of State's Unification of Decisions on Appeals Filed by Intervening Parties

Until recently, the Council of State of Turkey had an unsettled practice regarding the appealability of decisions by intervening parties where the principal party does not appeal a decision. Indeed, certain chambers of the Council of State allowed intervening parties to appeal decisions regardless of the principal party's choice, whereas the other chambers restricted the intervening parties' right to appeal with the principal party's appeal.

Lately, a unification of decisions on appeals filed by intervening parties has been published in the Official Gazette(1) to resolve the controversy between these decisions. Indeed, the Council of State's decision(2) ruled that intervening parties can apply for an appeal individually, even if the principal party does not file an appeal. This is on condition that the intervening party's appeal is not against, or is not contradicting, the principal party's explanations or intent. Also, the intervening party's appeal petition must be served to the principal party to properly inform them about the appeal.

The unification of decision asserts that the concept of intervention to court cases aims to ensure a third party to participate in court proceedings as an "intervening party" to assist a principal party in succeeding with a legal interest. In this regard, although an intervening party cannot enjoy all rights granted to a principal party, it must benefit from the right to a fair trial, access to courts, legal protection and the right to be heard.

In addition to the above, the unification of decision further stresses that, as intervention in court cases is not regulated in the Administrative Procedure Law, the provisions in the Civil Procedure Law (CPL) would apply here. These provisions stipulate that an intervening party can take any procedural actions available for the principal party in parallel to its arguments and defenses. The provisions of the CPL must also be evaluated and interpreted as regards the purpose, function, efficiency and unique specifics of administrative law. In this regard, the Council of State reached the conclusion that allowing individual appeals for intervening parties is required to ensure the right to a fair trial, if such appeals are not in contradiction with the principal party's explanations and actions.

Lastly, it must be noted that the unification of decision has been granted with a majority of votes – not unanimously. The dissenting votes take the view that an intervening party's subjective standing should also be evaluated as well as not contradicting with the principal party's position and, therefore, the intervening party cannot apply for an appeal unless there is a direct breach to its interests or personal rights in a lawsuit initiated for an action about itself.

Notwithstanding the above, unification of decisions is binding for the courts. In this regard, intervening parties' individual appeals will be allowed before administrative courts if the appeal does not contradict the principal party's position.

First published by ILO - Litigation Newsletter in Sep 05, 2023.

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