Ercüment Erdem Att. Alper Uzun

Substantial Amendments To The Administrative Procedure

September 2014

Law No. 6545, which entered into force through publication in the Official Gazette dated 28.06.2014, essentially amends the Administrative Procedure Law (“APC”) and adopts new provisions pertaining to the administrative procedure.

With the amendment of Law No. 6545 several substantial changes concerning the administrative procedure have been adopted, such as the structuring of Regional Administrative Courts as courts of intermediary appeal (“istinaf”), the replacement of the objection procedure by the intermediary appeal procedure, the adoption of an expedited trial procedure for certain cases, revision of judgments which are subject to appeal and the abolishment of the procedure for the revision of judgment.

Expedited Trial Procedure

Adoption of the expedited trial procedure is one of the substantial amendments adopted by Law No. 6545. As indicated by the texts of legislative intent for the articles, certain administrative proceedings have a different nature than the others and delay in the process of rendering such judgments may result in damages difficult or impossible to irrevocable or impossible to compensate. Since such proceedings are required to be finalized as soon as possible, expedited trial procedure is adopted in order to be applied in such cases.

Dispositions concerning expedited trial procedure are set forth in Art. 20/A of the APL as follows:

1. Expedited trial procedure is applicable for the disputes resulting from the following acts:

a) Acts concerning auctions except decisions on prohibition from bidding,

b) Acts of urgent expropriation,

c) Decisions of the High Board of Privatization,

d) Acts regarding the sale, allocation and rental in accordance with the Tourism Promotion Law No. 2634 dated 12/3/1982,

e) Acts resulting from Environmental Impact Assessment except administrative sanctions in accordance with the Environment Law No. 2872 and dated 9/8/1983, and

f) Council of Ministers’ Decisions adopted in accordance with the Law on the Transformation of Areas at Risk of Natural Disaster No. 6306 and dated 16/5/2012.

The second paragraph of said article defines the application of the expedited trial procedure. Accordingly, the lawsuit should be initiated within thirty days instead of sixty, and the term for preparation of defense is set forth as fifteen days instead of thirty. These lawsuits must be concluded within one month at the latest, starting from the consummation of the file. It is also regulated that the appeal should be filed within fifteen days starting from the final judgment, the term for filing the defense is fifteen days, and the process of appeal should be finalized within two months.

As is seen, the expedited trial procedure contains significant amendments which accelerate the proceedings with respect to normal trial procedure. The expedited trial procedure shortens the term of litigation, term for preparation of defense and the period of appeal for the parties; and the term of inspection for the courts. Additionally, objection with regard to decisions granted for the requests of stay of order and the procedure of revision of decision is abrogated with the new amendments.

On the other hand, it is clearly stated in the relevant article of Law No. 6545 regarding the intermediary appeal that, the procedure of intermediary appeal is not applicable in the expedited trial procedure.

Amendments to Intermediary Appeal and Other Appellate Procedures

As is known, the intermediary appeal is an intermediate legal remedy for the judgments of the court of first instance to be reviewed by the higher court and a legal procedure prior to the appeal procedure.

The intermediary appeal procedure, which was introduced to our legal system in 2004 through amendments made to Civil Procedure Law, has been introduced to the administrative procedure by virtue of Law No. 6545 as well. According to this significant amendment in administrative legal remedies, the concept of “objection”, which was found in the first part of APC Art. 45 entitled “Legal Remedies for Court Judgments”, has been replaced with the “intermediary appeal”. As a result of this amendment, in order to determine whether intermediary appeal or appeal will be in question concerning a decision, the concept of “appeal” which was formerly regulated in APC Art. 46 has been amended accordingly.

In accordance with the amendment made to APC Art. 45 through Law No. 6545, even if it is regulated otherwise in another code, the judgments of administrative and tax courts of first instance shall be subject to intermediary appeal. The intermediary appeal shall be made to the “regional administrative courts”, which is within the same judicial locality with the relevant court of first instance, within thirty days from the notification of the judgment. However, it is also regulated that, the judgments of administrative and tax courts regarding tax actions, full remedy actions and actions for nullity against the administrative acts of which the matter in dispute is not higher than five thousand Turkish Lira are definitive and may not be appealed. Another significant issue regulated within the same article is that, the decisions of the regional administrative courts, which are enumerated under APC Art. 46. are definitive and they are not subject to appeal. As mentioned above, in the expedited trial procedure, the intermediary appeal procedure cannot be applied.

With the provisions on intermediary appeal procedure newly introduced to the APC, Art. 46 entitled “Appeal” has also been amended, and the judgments subject to appeal have been rearranged. Accordingly, even if otherwise provided under different laws, the final judgments of the Council of State’s administrative law divisions and the judgments regarding the cases listed under the abovementioned article delivered by regional administrative courts may be appealed to the Council of State within thirty days following their notification. It must be emphasized that, as a result of this amendment, tax cases, full remedy actions and actions for annulment against administrative acts for which the value of the claim is less than a hundred thousand Turkish Liras cannot be appealed to the Council of State. Thus, judgments concerning cases for which the value of the claim is less than five thousand Turkish Liras are not subject to intermediary appeal, and the judgments concerning cases for which the value of the claim does not exceed a hundred thousand Turkish Liras are not subject to appeal.

In addition to the amendments made by Law No. 6545, revision of judgment is abrogated for administrative cases.

Conclusion

To sum up, significant amendments have been made to the APC by Law No. 6545 which entered into force by promulgation on June 28th, 2014.

Accordingly, the intermediary appeal procedure has been introduced as a legal remedy in administrative procedure instead of objection procedure and the Regional Administrative Courts of Appeal have been structured as authorities of intermediary appeal. Additionally, the expedited trial procedure has been introduced for certain cases in order for them to be concluded faster, the judgments subject to appeal are subject to regulation, some judgments cannot be appealed and the revision of judgment has been abolished.