Appeal denotes recourse to the regional administrative courts against the judgments of administrative and tax courts sitting at first instance, and the reconsideration of the decision given, at a higher level, in respect of both its factual and its legal aspects.
As a word, "istinaf" corresponds to beginning again and taking a matter up afresh. In Turkish law it is positioned as a legal remedy pursued at second instance against first-instance judgments; where this remedy is used, the appellate authority reviews the lower court’s decision for compliance with the law. What distinguishes it from an appeal on points of law is that the review also concerns matters of fact. In other words, the second-instance court may, where necessary, go into the substance of the dispute and examine the facts as a court of first instance would, and may hold a hearing where the conditions for doing so are met.
An appeal is in the nature of a continuation of the proceedings conducted at first instance. The underlying idea of this stage is that first-instance decisions found to be erroneous should be reviewed and, where necessary, corrected.
What Is an Appeal?
An appeal is recourse to the regional administrative courts, as the higher-instance authority, against the judgments given by the administrative and tax courts, which are the administrative courts of first instance, and the fresh review of the decision before that authority in respect of both its factual and its legal aspects.
The institution serves as a second tier of review situated between the administrative courts of first instance and the Council of State, which conducts review on points of law.
Decisions That May Be Made the Subject of an Appeal
Decisions Not Open to Appeal
In respect of certain judgments there is no possibility of applying to the regional administrative court. These situations may be listed as follows:
- Disputes falling below the monetary threshold. This threshold, which is redetermined each year, stood at TRY 20,000 for 2023; in full remedy actions, actions for the annulment of an administrative act and tax actions in which the subject matter of the action does not exceed that amount, the decision of the court of first instance is final and no appeal lies.
- Decisions characterised by law as final. For example, under Art. 6(3) of Police Duties and Powers Act No. 2559, an objection may be lodged with the administrative court having territorial jurisdiction within seven days of notification against the administrative fines provided for in that article; the judgment given by the court upon that objection is final. Similarly, under Art. 53(3) of Law on Foreigners and International Protection No. 6458 (2013), an application may be made to the administrative court having territorial jurisdiction within 7 days of notification against a deportation decision, and the decision given by the court on this matter is final in character.
- Disputes subject to the expedited trial procedure. This procedure is governed by Article 20/A of Administrative Procedure Act No. 2577 and its scope covers the following: tender procedures, other than decisions to bar from tenders; urgent expropriation procedures; decisions of the Privatisation High Council; sale, allocation and lease transactions carried out under the Tourism Encouragement Act No. 2634 of 12/3/1982; decisions taken as a result of environmental impact assessment under the Environment Act No. 2872 of 9/8/1983, other than administrative sanction decisions; and Presidential decisions taken under Act No. 6306 of 16/5/2012 on the Transformation of Areas at Disaster Risk.
- Actions concerning central examinations. No appeal lies in actions brought in respect of the central and common examinations held by the Ministry of National Education and the Measuring, Selection and Placement Centre, the acts and procedures relating to them, and the examination results (Administrative Procedure Act No. 2577, Art. 20/B).
Decisions Open to Appeal
The rule is that an appeal lies against the decisions of the administrative courts and the tax courts. The fact that a different legal remedy is provided for in other laws does not alter this result.
Whether the judgment was given by a single judge or by a panel is likewise not decisive as regards the availability of an appeal. Only where one of the situations listed above is present is recourse to the regional administrative court against the first-instance decision unavailable.
Grounds of Appeal
This remedy may be pursued by the parties who have an interest in the review being carried out. The basis of the application consists of errors of procedural law and of substantive law contained in the decisions of the administrative and tax courts.
Put another way, the errors into which the court of first instance has fallen in assessing the facts, the evidence and the legal grounds, together with the errors it has made in complying with the rules of administrative procedure, may be advanced as grounds of appeal.
Time Limit for Lodging an Appeal
The time limit for lodging an appeal is 30 days and begins to run on the date on which the decision of the administrative or tax court is notified to the parties.
Even where one of the parties has not pursued this remedy within 30 days of the notification made to it, its right of action arises again upon the application of the opposing party. In that event, the party that did not lodge an appeal may advance its own request for appeal together with its reply, within the 30-day period for replying that runs from the notification to it of the opposing party’s notice of appeal.
Stages of the Appeal Review
The Preliminary Examination Stage
The application is made by a petition addressed to the presidency of the regional administrative court within whose judicial district the court of first instance that gave the decision is situated. In applications for legal remedies, the files are forwarded to the regional administrative court irrespective of the addressee and the request stated in the petition. The petitions received are examined by a rapporteur judge assigned by the president of the chamber.
At this stage the rapporteur judge assesses the petition in respect of subject-matter jurisdiction, territorial jurisdiction, capacity, standing, encroachment upon the administrative authority, whether there exists an act capable of forming the subject of an administrative action, the time limit, and whether the petition has been drawn up in accordance with Art. 3 and Art. 5 of the Administrative Procedure Act No. 2577.
Where the subject matter of the application is of a nature to be resolved by a single judge, no report is prepared in respect of the petition; the necessary steps are carried out directly by the rapporteur judge concerned.
If the rapporteur judge finds no unlawfulness in the matters listed, or if the unlawfulness set out in the report he has prepared is not found to be well founded by the relevant chamber of the regional administrative court, the notice of appeal is served on the opposing party.
Where, on the other hand, the relevant chamber finds the unlawfulness indicated in the report to be well founded, or itself establishes such unlawfulness of its own motion even though it was not touched upon in the report at all, it gives the following decisions:
- If the dispute falls within the sphere of the ordinary courts, the action is dismissed; where the administrative judiciary has jurisdiction, if the action has been brought before a court lacking subject-matter or territorial jurisdiction, it is dismissed on that ground and the file is ordered to be sent to the court concerned.
- If unlawfulness is established in respect of capacity, of whether there exists a final and enforceable act capable of forming the subject of an administrative action, or of the expiry of the time limit, the action is dismissed.
- In actions brought without naming a respondent or naming the wrong respondent, it is ruled that the petition be served on the true respondent to be determined.
- If a deficiency is found as regards the compliance of the petition with Art. 3 and Art. 5 of the Administrative Procedure Act No. 2577, it is ruled that the petitions be rejected so that they may be redrawn in accordance with those articles or the deficiencies remedied within thirty days; and, where the action has been brought by a representative of the entitled person who is not a lawyer, so that the action may be brought within thirty days in person or through a lawyer.
- If it is concluded that there has been an encroachment upon the administrative authority, it is ruled that the petitions be referred to the competent administrative authority.
The Stage of Review on the Merits
Save for the exceptions set out in the law, the regional administrative court sets aside the first-instance decision that it does not find to be in accordance with the law and, by trying the dispute afresh, gives a new judgment on the merits. At this stage the appellate authority may exercise all of the powers held by the court of first instance.
The review is not confined to rules of law alone. In the course of the examination, the material facts and the evidence forming the subject of the dispute are addressed; in addition, whether the rules of law applied by the court of first instance were correct is also assessed. The regional administrative court, by reviewing the evidence as to the truth of the facts in the same way as the court of first instance, also examines whether the rules applied are apt to the concrete facts.
Hearings in the Appeal Review
In administrative proceedings the rule is that a decision is given on the basis of the file. Nonetheless, where certain situations set out in the law are present, it is possible for a hearing to be held.
Whether a hearing will be held at the appeal stage depends on the request of the parties and on the decision of the regional administrative court concerned. A request for a hearing may not be advanced at any moment of the proceedings; it may be raised in the statement of claim and in the replies and defences. Even where no such request comes from the parties, the judge or the court may, of its own motion, decide that the proceedings be conducted with a hearing where it considers this necessary.
Summonses to a hearing are sent to the parties at least thirty days before the day of the hearing. Hearings are, as a rule, held in public; where public morals or public security so require, part or all of the hearing is conducted in camera by decision of the chamber or court concerned.
Decisions That May Be Given at the End of the Appeal Review
Rejection of the Application
If, upon the examination it has carried out, the regional administrative court finds the first-instance decision to be in accordance with the law, it rejects the appeal. Where it is possible to remedy material errors in the judgment, it makes the necessary correction and decides to the same effect (Administrative Procedure Act No. 2577, Art. 45(3)).
Setting Aside the Decision and Giving a Fresh Ruling on the Merits
If the first-instance decision is not found to be in accordance with the law, the application is allowed and that decision is set aside. In this event the regional administrative court goes into the merits of the case and gives a new judgment.
Setting Aside the Decision and Sending the File Back to Its Court
Where the regional administrative court finds well founded an appeal directed against decisions given upon the preliminary examination, or where the case has been heard by a court lacking subject-matter or territorial jurisdiction or by a judge who has been recused or disqualified, it allows the application, sets aside the first-instance decision and sends the file to the court concerned. Decisions of this nature are final.
May a Stay of Execution Be Requested at the Appeal Stage?
The fact that a legal remedy has been pursued does not of itself stay the execution of the first-instance decision. On the other hand, while the appeal proceedings are pending, the court may be asked to stay the execution of the decision.
Notices of appeal containing a request for a stay of execution are sent to the regional administrative court by the court that gave the decision, without being served on the opposing party. The assessment of the request is made and determined by the regional administrative court.
Detailed explanations on the subject are to be found in our note entitled What Is a Stay of Execution Decision?
Legal Remedies Against the Decisions of the Appellate Authority
Appeal on Points of Law
The final decisions of the litigation chambers of the Council of State, together with the judgments given by the regional administrative courts in the actions listed in the legislation, may be appealed on points of law before the Council of State, even where a provision to the contrary is contained in other laws. The time limit for this application is thirty days from the notification of the decision. The details of the subject are addressed in our note entitled Appeal on Points of Law in Administrative Proceedings.
The Independent Legal Assessment
In most disputes in administrative proceedings, the appeal is the last tier of review at which an effective outcome can be obtained; for many of the decisions given by the regional administrative court are final in character and closed to review by the Council of State. For this reason the application must be conceived not as preparation for an appeal on points of law, but as the principal stage at which the arguments on the merits are set out in full.
The loss most frequently encountered in practice arises from a late realisation that the decision is not open to appeal. The monetary threshold, the scope of the expedited trial procedure and the special regime governing examination actions must without fail be checked before the notice of appeal is prepared. In a specific file we recommend that the following headings be given priority:
- Establishing at the outset whether the decision is open to appeal, in respect of the monetary threshold and the special procedural provisions
- Calculating the thirty-day period by reference to the date of notification and fixing the final day by documentary evidence
- Assessing, where the opposing party lodges an appeal, the possibility of a cross-appeal within the period for replying
- Setting out in the petition, in detail and separately from the legal grounds, the objections relating to the material facts and to the assessment of the evidence
- Bearing in mind that a request for a hearing may be advanced only in the statement of claim and in the replies and defences
- Submitting the request for a stay of execution together with the application where there is a possibility of loss that is difficult to remedy
Independent Legal provides advisory services and litigation management in connection with the preparation of appeals in administrative proceedings, the conduct of proceedings with a hearing, and the follow-up of the appeal on points of law against decisions of the regional administrative courts.