Recent development
The Constitutional Court made important determinations regarding the Council of State’s authority to review administrative disputes in its decision numbered 2016/144-2020/75 dated 10 December 2020, published in the Official Gazette dated 01 October 2021 (“Decision“).
What does the regulation subject to the Decision say?
The applicant requested annulment of certain amendments made to the Council of State Law No. 2575 in 2016, which contained articles regarding the duties, jurisdiction and review powers of courts.
One of the articles subject to the annulment request was regarding the Council of State’s authority to review the disputes. It provided that the Council of State’s authority to review the disputes is limited to a review of legality and the Council of State does not have the authority to conduct a review of expediency.
Grounds of the annulment request
The annulment of the article in question was requested on the ground that the article directly interferes with individuals’ rights and the limitation of an appeal court’s authority of review does not conform to the principle of the rule of law.
What does the Decision say?
The Constitutional Court rejected the request for the annulment of the article in question. In the reasoning for the rejection, it was emphasized that limiting the Council of State’s authority of review to only a review of legality is a principle that is valid for all courts within the administrative judiciary. Indeed, under both the Constitution of the Republic of Turkey and the Code of Administrative Procedure No. 2577, it is clearly stipulated that the authority of review is limited to a review of the legality of administrative acts and actions and cannot be exercised in the form of a review of expediency under any circumstances.
In the Decision, the Constitutional Court stated that a review of legality consists of examining whether administrative acts are in compliance with the law in terms of authority, form, grounds, subject and purpose. According to the Decision, this review is carried out within the scope of written legal rules and precedent, which constitute the sources of administrative law. On the other hand, a review of expediency pertains to a review that eliminates the discretion of the administration, and such a review is not possible.
Conclusion
There is no doubt that the Turkish administrative judiciary cannot carry out a review of expediency. The Constitutional Court reaffirmed this point under the Decision. However, the limit of the prohibition of review of expediency is an issue that should be carefully evaluated in each case. This is because such prohibition does not prevent the courts from reviewing whether the administration used its discretionary powers in compliance with the law. For example, transactions made by an administrative authority by referring only to public interest, without any concrete reasons, may be annulled. The administration should be able to show objectively that it did not use its discretionary power arbitrarily.
