An administrative dispute does not always close with the judgment of the court of first instance or with the conclusion of the appeal before the regional administrative court. Where one or both of the parties consider the decision before them to be unlawful, they may ask for the file to be reconsidered by the highest authority within the administrative judicial order. The concept of the appeal on points of law describes precisely this possibility: it is a request for the lawfulness of the judgment given to be reviewed by the Council of State.
This review mechanism serves to reduce the margin of error in adjudication and to preserve the unity of case law. Not every file, however, is subjected to review on points of law as a matter of course. Which judgments may be taken to the Council of State, and which become final at the moment they are given, are clearly delimited by the Administrative Procedure Act No. 2577 (İYUK) and by special statutes. Where these limits are not known, even an application lodged within the time limit may prove fruitless from the outset.
Below we examine the appeal on points of law in all its aspects: we address in turn who may apply, which decisions fall within and outside its scope, the time limits to which the application is subject, the stages through which the review passes and the types of decision the Council of State may give.
Definition of the Appeal on Points of Law
The appeal on points of law is a legal remedy denoting recourse to the Council of State in respect of certain judgments established by the regional administrative courts following the appeal proceedings, together with those decisions separately enumerated by statute. The subject matter of the application is not a fresh trial of the file as to the facts, but a review of the lawfulness of the judgment that has been given.
The appeal before the regional administrative court, which constitutes the level of review preceding the appeal on points of law within the administrative judicial order, and the decisions in respect of which that remedy may be pursued, are the subject of a separate study; our note entitled The Appeal Remedy in Administrative Proceedings addresses that matter in detail.
Who May Lodge an Appeal on Points of Law
The right to appeal on points of law belongs, as a rule, only to the parties to the proceedings. Where more than one person stands in the position of claimant or respondent, each of them may appeal against the judgment in their own name.
The position differs in respect of an intervener who participates in the proceedings as a third party. The intervener is not a principal party to the action; they have joined the proceedings by taking their place alongside one of the parties. There are decisions in differing directions among the chambers of the Council of State as to whether the intervener may lodge an appeal on points of law alone, independently of the party alongside whom they stand, and this question continues to be a matter of dispute.
Decisions That May and May Not Be Made the Subject of an Appeal on Points of Law
Decisions Against Which the Appeal on Points of Law Is Closed
Certain judgments have been placed outside the review of the Council of State, either by their very nature or by express statutory provision:
- Decisions that become final before the regional administrative court at the conclusion of the appeal proceedings may not be reconsidered by way of an appeal on points of law.
- Where an action brought before the administrative courts has been dismissed on the ground that the dispute falls within the ordinary courts, that dismissal may not be appealed on points of law. If the ordinary court likewise declines jurisdiction, the resulting conflict of jurisdiction is resolved by the Court of Jurisdictional Disputes.
- Where the dispute does fall within the sphere of the administrative courts but the action has been brought before an administrative court lacking subject-matter or territorial jurisdiction, no appeal on points of law lies against the dismissal given on that ground either.
- Interlocutory decisions may not, as a rule, be appealed on points of law on their own; review on points of law operates in respect of final decisions on the merits. A final decision is the judgment established at the conclusion of the proceedings which has the effect of divesting the judge of the file. Interlocutory decisions that have had a bearing on the formation of the final decision may, exceptionally, be taken to review only together with the final decision.
- No appeal on points of law may be lodged in respect of judgments characterised by statute as final. Thus, under Article 6(3) of the Police Powers and Duties Act No. 2559, administrative fines may be objected to before the administrative court with territorial jurisdiction within seven days of notification, and the judgment established by that court on such an objection is final. Similarly, under Article 53(3) of the Law on Foreigners and International Protection No. 6458 (2013), a deportation decision may be challenged before the administrative court with territorial jurisdiction within 7 days of notification; the decision given by the administrative court on that matter is likewise final.
Decisions Open to Review on Points of Law
The statute has expressly brought certain groups of actions and certain decisions within the scope of the appeal on points of law.
Actions subject to the expedited trial procedure come first among these. The following acts fall within the scope of that procedure, which is governed by Article 20/A of İYUK: tender procedures other than decisions to bar from tendering; urgent expropriation procedures; decisions of the Privatisation High Council; sale, allocation and leasing transactions carried out within the framework of the Tourism Incentive Act No. 2634 of 12 March 1982; decisions taken as a result of environmental impact assessment under the Environment Act No. 2872 of 9 August 1983, excluding administrative sanction decisions; and Presidential decisions taken under Act No. 6306 on the Transformation of Areas at Disaster Risk of 16 May 2012.
Actions concerning central examinations are also open to appeal on points of law. Under Article 20/B of İYUK, decisions given 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 transactions connected with those examinations, and the examination results, may be taken to review before the Council of State.
In addition, the final decisions of the litigation chambers of the Council of State, together with the judgments established by the regional administrative courts in the actions enumerated below, may be appealed on points of law before the Council of State within thirty days of notification of the decision, even where other statutes provide otherwise:
- Actions brought seeking the annulment of regulatory acts.
- Tax actions, full remedy actions and actions directed against administrative acts whose subject matter exceeds TRY 581,000 as at 2023.
- Actions for annulment brought against acts resulting in a person’s removal from a particular profession, from public office or from student status.
- Actions for annulment directed against acts preventing the pursuit of a particular commercial activity indefinitely or for a period of thirty days or more.
- Actions brought seeking the annulment of appointment, transfer and removal from office procedures effected by joint decree, together with appointment, transfer and removal from office procedures concerning public officials at the level of head of department and above.
- Actions arising from zoning plans and parcelling procedures.
- Decisions given upon objection by the Central Commission for the Protection of Natural Assets and by the High Council for the Protection of Cultural Assets, and actions arising from the application of the Bosphorus Act No. 2960 of 18 November 1983.
- Actions brought against acts relating to the application of the legislation on mines, quarries, forests, geothermal resources and natural mineral waters.
- Actions concerning educational examinations applied throughout the country and examinations held for the practice of a profession or craft or for entry into the public service.
- Actions arising from the application of the legislation on the granting of operating licences for coastal facilities such as ports, cruise ports, yacht harbours, marinas, jetties, quays, and petroleum and liquefied petroleum gas pipelines.
- Actions arising from the application of Act No. 3996 of 8 June 1994 on the Realisation of Certain Investments and Services within the Framework of the Build-Operate-Transfer Model and of Act No. 4283 of 16 July 1997 on the Establishment and Operation of Electricity Generation Facilities under the Build-Operate Model and the Regulation of Energy Sales.
- Actions arising from the application of the Free Zones Act No. 3218 of 6 June 1985.
- Actions arising from the application of the Soil Conservation and Land Use Act No. 5403 of 3 July 2005.
- Actions brought against decisions taken by the regulatory and supervisory boards in relation to the market or sector within their field of competence.
Finally, the judgments established by the Council of State in files it hears in the capacity of a court of first instance are also subject to review on points of law.
What Grounds May Be Relied Upon?
The examination carried out at the stage of the appeal on points of law is confined to whether the judgment is lawful. The grounds that may be advanced in this framework may be gathered under three principal heads: that the court has determined a dispute falling outside its subject-matter and territorial jurisdiction; that the judgment established is unlawful; and that there is an error or omission in the application of the rules of procedure of such a nature as to affect the outcome. Where the Council of State finds that even one of these situations has arisen, the decision appealed against is quashed.
Time Limit for Application
The general rule is that the final decisions of the litigation chambers of the Council of State and the decisions of the regional administrative courts are to be appealed on points of law within thirty days of notification. The legislation nevertheless prescribes shorter special periods for certain types of decision, and missing these periods may lead directly to the loss of rights.
In respect of final decisions given in disputes arising from acts subject to the expedited trial procedure, the period is fifteen days from the date of notification. In actions concerning the central and common examinations held by the Ministry of National Education and the Measuring, Selection and Placement Centre, the acts and transactions relating thereto, and the examination results, an appeal on points of law against the final decision may be lodged within only five days of notification.
Stages of the Review on Points of Law
Preliminary Examination
The notice of appeal on points of law is submitted, as the case may be, to the regional administrative court that gave the decision, to the Council of State, or to the authorities designated in Article 4 of İYUK. Following the application, the regional administrative court or the litigation chamber of the Council of State that gave the decision transmits the file, together with the index list of documents, to the Council of State or to the relevant Assembly, once the opposing party’s response has been received or the period allowed for a response has expired.
The preliminary examination then begins. At this stage the following points in particular are reviewed: whether the court fees and costs have been paid; whether the notice of appeal has been drawn up in accordance with the required form; whether the application has been made within the statutory period; whether the applicant has the capacity to appeal on points of law and a legal interest in doing so; whether the judgment made the subject of the appeal is amenable to that remedy; and whether the claim has been waived. A period for completion is allowed in respect of deficiencies in fees and costs; once the deficiency has been remedied, the file passes to the examination stage. If a deficiency is identified under any of the other heads, the application is dismissed without regard to whether it is well founded on the merits.
Examination on the Merits
A judicial authority may decide on the merits of a dispute only where the file is complete; the same condition applies to proceedings on points of law. For the file to be regarded as complete, the postal and court fee costs must have been paid, the necessary notifications must have been served on the parties, and the opposing party must have filed a response or the statutory period allowed for that purpose must have expired. Once these steps have been completed, the chamber of the Council of State or the regional administrative court that gave the decision sends the file, attached to the index list of documents, to the Council of State or to the Assembly.
A rapporteur judge is assigned to conduct the preliminary examination of the file reaching the Council of State. If no deficiency is found in the rapporteur judge’s examination, the chamber or assembly competent for the proceedings on points of law assesses whether the claim is well founded and determines the application. If, at the conclusion of the examination, the decision contains one of the grounds for quashing, it is quashed; if no such ground exists, the appeal on points of law is dismissed.
Holding a Hearing
The written trial procedure applies in the administrative courts and the examination is conducted, as a rule, on the basis of the file. An examination with a hearing is an exceptional course, dependent upon a decision to be given by the Council of State or the relevant regional administrative court upon the request of the parties. Where a hearing is ordered, the summonses are served on the parties at least thirty days before the date of the hearing.
The Appeal on Points of Law under the Expedited Trial Procedure
The expedited trial procedure differs in many respects from the general procedures of the administrative courts. Its purpose is to bring the dispute swiftly to a conclusion and to render the decision given enforceable within a short time. Under this procedure, the period for bringing an action and the period allowed for the response are shorter than under the other procedures. Moreover, decisions given on a request for a stay of execution are open neither to objection nor to appeal before the regional administrative court.
Because appellate review by the regional administrative court is thereby dispensed with, judgments established in actions subject to this procedure are reviewed directly by way of an appeal on points of law. An appeal on points of law may be lodged against final decisions within fifteen days of the date of notification; the appeal is determined within two months at the latest and the decision is issued for notification within one month at the latest.
The Appeal on Points of Law in Cases Heard by the Council of State at First Instance
The Council of State sits as a court of first instance in certain disputes. Within this scope, the following are heard before the Council of State: actions for annulment and full remedy actions brought against Presidential decisions; regulatory acts other than Presidential decrees; regulatory acts issued by ministries, public bodies or professional organisations having the character of a public institution and applicable throughout the country; acts and transactions effected pursuant to decisions given by the Administrative Chamber or the Board of Administrative Affairs of the Council of State; matters falling within the jurisdiction of more than one administrative or tax court; and decisions of the High Disciplinary Board of the Council of State together with acts of the Presidency of the Council of State relating to that Board’s field of competence. Administrative actions arising from concession specifications and agreements concerning public services for which no arbitration clause is provided also fall within this scope.
In these files, the review on points of law is carried out, according to the subject matter of the dispute, by the Assembly of Administrative Litigation Chambers of the Council of State or by the Assembly of Tax Litigation Chambers of the Council of State. The decision to be given by these assemblies at the conclusion of their examination is either to quash or to uphold; with a decision to uphold, the judgment becomes final.
The Appeal on Points of Law in Cases Concerning Ministry of National Education and ÖSYM Examinations
Under the special trial procedure applied 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 transactions relating to those examinations, and the examination results, an appeal on points of law may be lodged against the final decision within five days of the date of notification. The appeal is concluded within fifteen days at the latest and the decision given on the appeal is final.
For details of the remedies available against administrative acts and of the operation of the action for annulment, reference may be made to our study entitled Objection to Administrative Acts and the Action for Annulment.
Decisions That May Be Given at the Conclusion of the Appeal on Points of Law
Upholding
Where, at the conclusion of its examination, the Council of State finds the judgment appealed against to be lawful, it dismisses the application. With that decision, the judgment given by the administrative court becomes final.
Upholding with Correction
Where the judgment is found to be lawful in its general outline but contains material errors or omissions not of such a nature as to require quashing, the Council of State may remedy them and uphold the decision.
Upholding with Amended Reasoning
Where the outcome of the decision is found to be sound but an error or omission not of such a nature as to require quashing is identified in its reasoning, the Council of State may correct the reasoning and uphold the judgment.
Quashing
At the conclusion of its review on points of law, the Council of State may give a decision to quash in the following situations:
- the decision has been established on a matter falling outside the limits of the court’s subject-matter and territorial jurisdiction,
- the judgment is unlawful,
- procedural errors or omissions of such a nature as to affect the outcome have been identified in the proceedings.
Following a decision to quash, two options lie before the regional administrative court: to comply with the quashing or to insist upon its own decision.
Where the quashing decision is complied with, the investigation is conducted in line with the grounds for quashing, the deficiencies identified are remedied and a new judgment is established. Review on points of law of that new judgment is carried out solely as to its conformity with the quashing decision.
The regional administrative court may decline to comply with the quashing and maintain its previous decision; in that event a decision of insistence arises. Where the decision of insistence is appealed on points of law, the claim is examined and determined, according to the subject matter of the dispute, by the Assembly of Administrative Litigation Chambers or the Assembly of Tax Litigation Chambers of the Council of State. Compliance with the decisions of those assemblies is mandatory.
Ruling on the Merits
Proceedings on points of law are, as a rule, confined to a review of lawfulness, and the Council of State does not possess the power to establish a judgment on the merits. The exception to this rule concerns actions subject to the expedited trial procedure and actions relating to central and common examinations. Because no appeal lies to the regional administrative court in these files and the appeal on points of law constitutes the sole mechanism of review, the Council of State may rule on the merits. The exercise of such a power depends upon the information relating to the facts being considered sufficient, or upon the grounds of appeal being directed solely to points of law. The judgments established by the Council of State on an appeal on points of law are final.
Independent Legal Assessment
The stage of the appeal on points of law is not a fresh hearing of the dispute from the outset but a testing of the lawfulness of a judgment that has been established. For that reason, framing the notice of appeal as a repetition of the arguments made at first instance or on appeal before the regional administrative court will in most cases produce no result. An effective application is a text that sets out in concrete terms which rule of law the decision infringes, or which procedural deficiency has affected the outcome.
A significant proportion of the losses of rights encountered in practice rest not on the merits but on errors in assessing scope and time limits. Applying against a decision given as final, or taking the special periods of fifteen or five days to be thirty days, results in dismissal without the merits of the file being examined at all.
In determining the strategy for an appeal on points of law in a concrete file, the following heads should be assessed as a matter of priority:
- Establishing whether the decision is amenable to an appeal on points of law, having regard to the monetary threshold and the type of action together
- Determining at the outset whether the dispute falls within the scope of the expedited trial procedure or the central examination regime
- Documenting the date of notification and clarifying whether the period to be applied is the general period or a special one
- Separating and advancing the grounds of appeal under the heads of subject-matter and territorial jurisdiction, unlawfulness and procedural error
- Remedying deficiencies in court fees and postal costs and in the form of the notice of appeal at the moment of application
- Establishing a road map from the outset for the process extending to examination by the assemblies, against the possibility of a decision of insistence
Independent Legal provides advisory services and conducts litigation throughout the entire process in administrative disputes, from the bringing of the action to the conduct of the appeal before the regional administrative court and the appeal on points of law.