In the midterm and final assessments conducted to measure competence in a course, the mark a student receives may at times fall considerably below expectation. The cause of that outcome is not always the student’s own misjudgement of their performance; there may equally be a material error in the assessment made by the academic staff member awarding the mark.
The starting point for the legal framework of the matter is Article 43 of the Higher Education Act:
Higher Education Act, Art. 43
"In higher education institutions, the principles concerning the education and instruction carried out according to their founding characteristics and needs, and concerning the diplomas awarded on that basis, shall be set out in the instruction and examination regulations to be drawn up by each university."
The scheme established by the provision is clear: there is no uniform regulation binding all higher education institutions on objections to examinations, results and marks. Each university shapes this area separately through the instruction and examination regulations it issues for itself. Where a student has followed the stages of objection prescribed in the regulations of the institution to which they belong but has not obtained a satisfactory outcome, and considers that the error has not been remedied, they may apply to the courts seeking annulment of the mark. In disputes of this kind, an examination of the examination script by a court-appointed expert performs a decisive function.
A further matter that must be considered in actions for annulment of a mark is the stay of execution. Because the student’s education continues while the proceedings are pending, the fate of the course in which the low mark was received may affect the schedule of courses to be taken in lower and upper semesters, and even the date of graduation.
The Judicial Remedy for Objections to Examination Marks
The first step for a student who considers that the assessment was carried out incorrectly and that the mark deserved should have been higher is to set in motion the objection mechanism defined in the regulations of their institution.
A student who considers that the error has not been remedied even though every avenue of application within the institution has been exhausted may bring an action before the administrative courts seeking annulment of the mark. In the course of the proceedings the court will call in from the higher education institution concerned the examination mark that is the subject of the objection, the scope of the examination, the answer key and any comparable scripts of other students, and will refer the file to specialist court-appointed experts. These experts are generally selected from among academic staff serving at another higher education institution who are competent in the branch of science to which the dispute relates. If the examination leads to the conclusion that the mark was assessed erroneously, annulment of the administrative act at issue may be ordered.
By their nature these are actions for annulment of an administrative act. Through the action brought, the act is reviewed as to its elements of cause, competence, form, purpose and subject matter, so that the unlawfulness may be removed. The general principles governing the annulment of administrative acts are addressed in a separate note entitled Objections to Administrative Acts and the Action for Annulment.
Stay of Execution in the Action to Annul a Mark
The institution of the stay of execution occupies a central place in terms of the function it performs in actions brought seeking annulment of an administrative act. The reason is that administrative acts enjoy a presumption of lawfulness until they are annulled by a court. Put differently, the mere bringing of an action does not of itself suspend the application of the act. Where the conditions that the act is manifestly unlawful and that its application carries the possibility of damage that is difficult or impossible to make good are met together, a decision to stay execution may be given. The details of this institution form the subject of the note entitled What Is a Decision to Stay Execution?
In examination mark disputes this request carries a particular weight. The student’s course of study continues while the action is pending; the status of the course in which they were deemed to have failed directly affects the programme of courses they will take from lower or upper years and the timing of graduation. Accordingly, the student’s course load, placement calendar, graduation date and the point at which they begin their professional life may all come to depend on when and in what direction the action is resolved. For this reason it is of great importance that a stay of execution is also sought in the statement of claim; if the act rejecting the objection continues to be applied, damage that is difficult to make good is very likely to arise for the student.
If the request is granted, the student is treated as though they had passed the examination and suffers no loss of rights until the proceedings are concluded.
The Decisive Role of the Expert Examination
In actions brought seeking that the mark be reconsidered by the court and the result annulled, the element that determines the fate of the file is the outcome of the court-appointed expert examination. In these actions the court promptly requests the examination script and the other relevant documents from the higher education institution, and then sends the file to the expert.
As a rule, the expert examination begins with a comparison of the claimant’s script against the answer key on which the institution relied. At the next stage, the scripts of the students who obtained the highest and lowest marks in the class, and the scripts of students who received the same mark as the claimant, are requested from the institution. Which scripts are to be requested and by what method the examination is to be conducted are left to the nature of the dispute and to the discretion of the experts. That said, this comparative method is decisive in establishing whether the mark awarded was assessed by objective criteria and whether it accords with equity.
The report to be prepared must give reasons and must be structured so as to be amenable to review. Once completed, it is submitted for the court’s appraisal. The parties may object to the report; they may request that a supplementary report be obtained or that a report be sought from a new panel of experts. Depending on whether the court considers such requests well founded, the file may be referred to the experts again. The final appraisal belongs in every case to the court; judgment is given having regard together to the reports on the file and the objections raised against them.
Possible Outcomes of the Action and the Appeal Route
For the administrative court to give a decision of annulment, it must be established that the act at issue is unlawful in respect of at least one of the elements of competence, form, cause, subject matter and purpose.
Two kinds of outcome may arise in actions brought seeking annulment of a mark. If, at the end of the proceedings, the conclusion is reached that the mark the student deserved ought to have been higher than the mark assessed by the respondent institution, the administrative act at issue is annulled. If, on the other hand, the examinations carried out establish that the mark that could objectively be given to the script coincides with the mark challenged, the action is dismissed.
An appeal may be brought against the decision given within 30 days of the date of service. The appeal is heard by the regional administrative courts. The appellate authority, which examines the file on the merits, dismisses the application if it finds the first-instance decision to be lawful; if it reaches the contrary view, it allows the application and sets aside the decision of the local court. In disputes concerning the annulment of an examination mark, no appeal on points of law lies against decisions of the appellate authority. In other words, the decision of the regional administrative court is final and constitutes the last link in the proceedings.
Sample Provisions from University Regulations
For examinations held within Istanbul University, the period and procedure for objecting to results are regulated in Art. 27 of the Istanbul University Associate and Undergraduate Instruction Regulations:
"Within three working days of the announcement of midterm examination results and of the end-of-semester/end-of-year examination mark determined on a scale of 100, students may apply by petition to the student office of the relevant unit and request that the examination script be re-examined. For the examination of the script, the dean or director shall establish a commission of three members from among the relevant faculty members or lecturers, one of whom shall be the faculty member who set the examination. If there is only one faculty member in the department or branch of science to which the examination relates, the other members of this commission shall be selected by the dean or director from among the faculty members of the courses closest to the course examined."
"The commission shall determine the objections finally within not more than three working days."
"Once achievement marks announced in letter form have been announced, changes made for any reason shall not be reflected in the statistical distribution previously produced for that course."
The same matter is addressed in Art. 22 of the Marmara University Associate and Undergraduate Education, Instruction and Examination Regulations:
"In examinations, students shall be assessed numerically on a 100-point scale. The academic staff member who sets the examination shall announce the examination results numerically within eight days following the examination date and shall deliver the examination scripts and the record thereof to the relevant unit."
"Students may object to examination results by submitting a petition to the relevant unit within five working days of their announcement."
"Upon objection, the examination script shall be examined by the academic staff member responsible for the course within five working days at the latest from the date on which the matter is notified to them, and the outcome shall be notified to the relevant unit in writing and with reasons. A change of mark may be made only with the approval of the board of management of the unit and by the relevant student affairs office under the supervision of the head of the unit or of the deputies they authorise. Corrections made in this way shall not affect the finalised letter achievement marks of other students."
These two provisions, set out here for the purpose of comparison, show that the objection mechanism is designed in a manner particular to each institution. Indeed, there is no single, common procedure for objecting to a mark applicable to all higher education institutions.
The variation in practice is not limited to time limits alone. Some institutions allow objections to be made electronically through their own information systems, while others maintain the traditional procedure and do not accept online applications. At institutions in the second group, a student wishing to object to their mark or examination result must prepare the petition in hard copy and deliver it to student affairs by hand.
For this reason, the first thing a student seeking a re-examination of the result must do is review the examination regulations of the institution at which they study. The objection must be made in accordance with the framework drawn in those regulations and within the period prescribed. Applications that fail to comply with the time limit or the formal requirement may be rejected regardless of whether they are well founded on the merits.
Preparing the Letter of Objection
Universities may also make different choices as to the authority to which the letter of objection is to be addressed. At some institutions the petition must be directed to the deanery, while at others the addressee is the head of department or the student affairs unit. Some universities also make it compulsory to use a petition template of their own preparation. Before the letter of objection is drafted, therefore, the relevant regulations must be examined and the text shaped in accordance with them.
The Time Limit for Bringing an Action to Annul a Mark
Actions for annulment must be brought before the administrative court within 60 days of service of the administrative act on its addressee. In examination mark disputes, that period begins on the date on which the rejection decision given by the authority competent to determine objections within the institution is served on the person concerned.
The Court with Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction in these disputes lies with the administrative courts. As no special provision on territorial jurisdiction is laid down, the court of the place where the administrative authority that adopted the act at issue is located has jurisdiction.
Frequently Asked Questions
Is representation by a lawyer mandatory in proceedings before the administrative court?
Under Turkish law the parties may as a rule defend and represent themselves in person; save for limited exceptions, representation by counsel is not compulsory. Nor is representation by an administrative law lawyer required before the administrative courts. However, the multi-layered structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may lead to errors of procedure and substance that are difficult to make good if the process is conducted by persons who are not lawyers. It is therefore advisable to obtain support from lawyers practising in the field of administrative law before any step is taken.
What should a student whose mark falls below expectation do first?
The student should examine the regulations published by the institution to which they belong and follow the stages of objection described there. There is no single procedure applicable to all universities; the procedure varies from institution to institution.
What remedy is available if the objection within the institution is rejected?
Where the competent authority examines and rejects the objection, an action for annulment of the administrative act may be brought before the administrative court of the place where the institution is located within 60 days of service of the rejection decision, seeking that the decision be set aside.
Can the student’s mark be lowered as a result of the action?
No. If, during the proceedings, the conclusion is reached that the student’s mark is higher than it ought to be, the action is simply dismissed. The administrative court cannot reduce the existing mark.
Does bringing an action suspend the application of the examination result?
Because administrative acts enjoy a presumption of lawfulness, bringing an action for annulment does not of itself prevent the act from being applied. However, a stay of execution is sought in the statement of claim, and if that request is granted the application of the act is suspended; the student may proceed with course selection or graduation formalities as though the result had been annulled.
How is the expert examination conducted?
The court requests the examination script and the other documents from the higher education institution and sends the file to the court-appointed expert. The expert makes an assessment by examining together the claimant’s script, the answer key on which the institution relied and comparable scripts. This examination is the stage that determines the outcome of the dispute.
The Independent Legal Assessment
In disputes arising from an examination mark, the fate of the action is mostly determined not by the legal arguments in the pleadings but by the quality of the technical material placed on the file. Ensuring that the answer key, the comparable scripts and the assessment criteria are all brought onto the file allows the expert report to carry reasoning that is amenable to review. A failure to object in good time and in technical terms to abstract statements in the report, by contrast, creates a shortcoming that is difficult to make good later.
The second critical axis of the process is time. The fact that the periods allowed for objections within the institution are frequently set on a working-day basis and are extremely short can cause the student to lose rights at the very first stage. Where an action is brought without the internal route having been properly exhausted, there is a risk of dismissal on procedural grounds without the merits being reached.
In a concrete dispute, the following are the headings to be given priority:
- Establishing at the outset the period for objection and the authority to which application is made under the institution’s own instruction and examination regulations
- Making the objection in time, in compliance with the prescribed formal requirement, whether electronically or in hard copy
- Documenting the date of service of the rejection decision and calendaring the 60-day period for bringing an action
- Ensuring that a request for a stay of execution is invariably included in the statement of claim
- Expressly requesting in the pleadings that the answer key and comparable examination scripts be called in
- Examining the expert report as to its reasoning and reviewability and, where necessary, requesting a supplementary report
Independent Legal provides legal advice and litigation services in administrative disputes arising from education and instruction activities, from managing the objection process within the institution through to conducting the action for annulment of the mark and the appeal stage.