Legal Analysis of Appeal Processes in Administrative Courts

Legal Analysis of Appeal Processes in Administrative Courts. The legal remedy of appeal (Istinaf) was first incorporated into the Turkish judicial system via the Mecelle (Ottoman Code of Civil Law) dated 1876, abolished in 1924, and readopted in the administrative judiciary following the amendment to the Administrative Procedure Law (Law No. 2577 – IYUK) in 2014. The appellate courts (Regional Administrative Courts – RACs / Bölge İdare Mahkemeleri – BİM) effectively began their operations on July 20, 2016. This system symbolizes the transition from the traditional two-tier judicial structure (First Instance Courts and the Council of State) to a three-tier system.

In administrative judiciary, appeal is an ordinary legal remedy that must be invoked against the decisions of first instance courts on the grounds that the decision is contrary to law.

I. Legal Framework of the Appeal Remedy

A. Nature and Scope of Appeal

The type of appeal applied in the Turkish administrative judicial system largely carries the characteristics of “broad-sense appeal” (full appeal / classical appeal). Broad-sense appeal grants RACs the authority not only for legal review but also for the review of material facts.

In the appeal review, the decision of the first instance court is subjected to both legality review and review of material facts. In this respect, the appeal stage is a continuation of the trial held in the first instance court. RACs have the authority to overturn first instance court decisions that they deem unlawful and render a new decision on the merits of the case.

Unlike the appeal to the Council of State (Temyiz), parties may present new facts and evidence related to the case and request a hearing at the appeal stage. This situation intensifies the appeal review’s impact on first instance courts from both material and legal perspectives.

B. Application Conditions and Period

For an appeal to be filed against the decisions of administrative and tax courts, the decision must not be final; final decisions are directly brought before the Council of State.

Application Period: The appeal application must be made within thirty days (30 days) from the notification of the decision to the relevant parties, to be submitted to the Regional Administrative Court (RAC) within the judicial district where the court is located.

Non-Appealable (Final) Decisions: Pursuant to IYUK Article 45/1, certain cases below specific monetary limits, as well as some cases subject to the expedited trial procedure, are final and cannot be appealed. For example, decisions rendered by administrative and tax courts in full remedy actions, tax cases, and actions for annulment of administrative acts whose subject matter does not exceed a certain monetary limit (20,000 TL as of 2023 , 44,000.00 TL as of 2025 ) under Law No. 2577 are final. This monetary limit is reassessed annually.

II. Procedure of Appeal Application and Decisions of the Regional Administrative Court

A. Application Procedure and Requirements

For the appeal application to be evaluated, the petition must be prepared in accordance with procedural rules, and the necessary fees and expenses must be paid. The application must clearly state and justify that the first instance court’s decision is unlawful. It is not sufficient to generally mention non-conformity with the law in the appeal petition; rather, specific instances of violation of substantive legal rules are expected to be shown. However, there is no obligation to specify in detail which legal rule was incorrectly applied, as the judge is obliged to apply the law ex officio.

B. Decisions the Regional Administrative Court May Render

The Regional Administrative Court (RAC), as a result of the appeal review, may render one of three main types of decisions :

Rejection of the Appeal Application (Affirmation of the Decision): If the RAC finds the first instance court’s decision lawful, it decides to reject the appeal application. If factual errors in the decision can be corrected, the necessary correction is made, and the same decision is rendered.
Vacation of the Decision and Rendering a New Decision on the Merits: If the RAC finds the first instance court’s decision unlawful, it accepts the appeal application, vacates the local court’s decision, and renders a new judgment on the merits of the case. This authority is a result of the broad-sense appeal system applied and concretizes the RAC’s power to conduct both legal and material review.
Vacation of the Decision and Return of the File to the First Instance Court (Reversal): The RAC may only return the file to the first instance court if this is determined during the preliminary review phase. These situations are strictly limited to violations of procedural conditions. Examples include the case being decided by a court lacking jurisdiction (subject matter or geographic) or the involvement of a judge who was disqualified or prohibited from hearing the case. If the decision is vacated due to lack of jurisdiction or competency, the file is sent to the competent or authorized court.

III. Impacts of the Appeal System and Reflections on the Right to a Fair Trial

The introduction of the appeal system in the administrative judiciary has brought about legal debates, encompassing both positive benefits and certain drawbacks.

A. Benefits of the System

Freedom to Seek Justice and Establishment of Justice: The appeal makes it possible for the first instance court decision to be re-examined by more senior judges, contributing to the realization of justice and the prevention of rights losses.
Approach to the Right to Trial Within a Reasonable Time: It has been observed that the time taken to resolve disputes has shortened. Data up to December 31, 2017, showed that the average time for appeal applications to be resolved was 75 days.
Alleviating the Workload of the Council of State: With the establishment of the appellate courts, there was a significant decrease in the number of files submitted to the Council of State (a decrease of approximately 70%, from about 270,000 in 2016 to about 86,000 in 2017). This aimed to strengthen the Council of State’s characteristic as a case law court.

B. Drawbacks and Controversial Aspects of the System

Broad-Sense Appeal Controversy: A large part of the discussions stems from the RACs applying the broad-sense appeal system and their authority to overturn first instance decisions and render new ones.
Risk to Reasonable Time and Quality: Concerns persist that the system may lead to potential drawbacks, such as the violation of the right to a trial within a reasonable time. It is emphasized that while aiming for fast decision-making, the quality of the trial and related rights should not be compromised, and qualified judicial process must be the main objective.
Divergence of Case Law: As a result of the broad-sense appeal, there is a possibility of divergence of case law among the Regional Administrative Courts themselves (regional case law differences) and between them and the Council of State.
Controversies Regarding Legal Remedy Procedure: The fact that the IYUK merely references the cassation procedure (temyiz) for determining some appeal rules has led to legal controversies.
Possibility of Judicial Complacency: The possibility that first instance judges might become complacent, failing to exercise the necessary care and attention in the proceedings because their decisions are now subject to RAC review, is also a concern raised in the doctrine.

IV. Appeal (Temyiz) Following the Istinaf Process

Against the final decisions rendered by the Regional Administrative Courts (RACs), the appeal to the Council of State (Temyiz) is open in cases requiring legal review, those above the monetary limit, or those of public importance. RAC decisions can, as a rule, be appealed within 30 days from the notification of the decision to the parties.

The Council of State serves as the supreme court in the administrative judiciary during the appeal process, aiming to ensure the correct application of the law and the consistency of decisions. Following the review, the Council of State may render a decision of Affirmation(Onama), Reversal (Bozma), or Correction (Düzeltme) if there are minor deficiencies. It may also issue a decision of Partial Affirmation and Partial Reversal if some parts of the decision are lawful and others are unlawful.

RAC Decision of Persistence (Israr Kararı): The RAC may insist on its initial decision by not concurring with the Council of State’s reversal decision. In this scenario, the RAC evaluates the case based on procedural and substantive aspects, taking into account the Council of State’s grounds for reversal, but maintains the correctness of its initial decision. It is an important distinction that the RAC merely correcting deficiencies identified by the Council of State and rendering the same decision is not considered a decision of persistence.

Final RAC Decisions: Decisions rendered by RACs regarding subject-matter jurisdiction, geographical jurisdiction, or designation of forum between first instance courts, as well as decisions concerning provisional remedies like interim injunctions or attachments, are final decisions against which no appeal is permitted.

Our Latest Articles

« Previous Post