The Decision of the Judgments Unification Board of the Council of State dated March 3, 2023, and numbered 2021/4 E. - 2023/1 K., has been published in the Official Gazette dated May 25, 2023, and numbered 32201.
It is proposed to resolve the inconsistency between the past decisions of the Chambers and Boards of the Council of State on the issue of whether the intervener can apply for legal remedies individually in the event that the party with whom he/she participated in the case does not apply for legal remedies, by unifying the judgments.
Pursuant to the relevant Judgement Unification Decision ("Decision"), the intervener may apply for legal remedies individually by providing that it is not clearly contrary to the proceedings and writs of the party to the lawsuit, in the event that the party with whom he/she participates in the lawsuit does not apply for legal remedies.
Examination of the Issue on the Merits
During the discussions, it was argued that according to the wording or systematic interpretation of the Code of Civil Procedure and the Code of Administrative Procedure, it is not possible for an intervener to apply for legal remedies individually. Due to the nature of administrative lawsuits, it can be said that the intervener will be directly affected by the decision to be rendered due to the fact that the dispute subject to the lawsuit concerns his/her rights and interests, even though he/she is not a party to the lawsuit. Therefore, the intervener's reliance solely on the proceedings of the party participating in the proceedings may lead to unfair results. In this context, providing the intervener with the opportunity to apply for legal remedies individually in administrative proceedings contributes to the accurate and complete discovery of the material truth, the realization of the public interest, the administration's compliance with the law, and the protection of the legal order by the administrative judiciary.
In addition to this, it is deemed useful to review the disciplines such as "Reasonable Time", "Legal Certainty," and "Freedom to Seek Rights - Right to a Fair Trial", which are also considered as a criterion that balances the principles that may conflict with each other in the examination carried out in terms of general principles of law. The view that the intervener can apply for legal remedies on his/her own is based on the freedom to seek rights. The contrary theory emphasizes the principles of legal certainty and reasonable time of proceedings, stating that if this situation is accepted, it will create legal uncertainty for the parties to the case and hinder the timely resolution of the proceedings. However, the Decision emphasizes that the administrative judiciary should not ignore the right to a fair trial and that a balance should be struck between conflicting principles.
As a result of the examination of the matter on the merits, it has been evaluated that the ability of the intervener to apply for legal remedies independently of the case will serve the realization of the public interest in administrative proceedings, where the principle of ex officio investigation is adopted, and thus contribute to the fulfillment of the function of realizing the principle of equality before the law. Taking into account the special characteristics of administrative jurisdiction and in line with these explanations, it is concluded that the right of the intervener to apply for legal remedies individually against the decision rendered against the party he/she participated in the case with is necessary to ensure the right to a fair trial. However, if the intervening party acts against the writs of the participating party, the intervening party is prevented from taking legal action. According to the provisions of the Code of Civil Procedure, to which Article 31 of the Code of Administrative Procedure refers, the intervener may have the right to apply for legal remedies against the decision individually as long as it is not contrary to the proceedings or statements of the participating party.
The decision of the Judgements Unification Board of the Council of State has strengthened the right to a fair trial, which is the fundamental principle of the freedom to seek justice and protected the rights of those who may be affected by the case. As a result of the relevant Decision, the intervener will be able to protect the legal interests by applying for legal remedies individually if the party of the case does not apply for legal remedies, provided that it is not clearly contrary parties' actions and statements. Thus, the intervener has the opportunity to benefit from rights such as a fair and equitable trial, access to the court, the right to request judicial protection, and the legal right to be heard.
You can find the details of the Judgments Unification Decision here (only available in Turkish).