Recent Development
With its decision numbered 2023/81 and dated 26 October 2023 (“Decision“), the Constitutional Court decided to annul the regulations on the lower monetary limit to apply for an appeal in administrative proceedings, due to the lack of clarity in the law as to the date as of which the appeal limit should be considered. The Decision was published in the Official Gazette dated 21 December 2023.
Background
Article 45/2 of the Code of Administrative Procedure No. 2577 (“CAP“) and the regulation in Additional Article 1 of the CAP to increase this monetary limit by the revaluation rate every year were claimed to be unconstitutional on the grounds that they are contrary to the principles of legal certainty, legal predictability and equality.
The provisions subject to annulment regulate the monetary limit for filing an appeal against the decisions of administrative and tax courts. Accordingly; such provision stated that “the decisions of the administrative and tax courts on tax cases, full remedy actions and nullity actions against administrative acts, the subject matter of which does not exceed five thousand Turkish Liras, shall be final and no appeal may be filed against them.”
In the application to the Constitutional Court, it was stated that the monetary limit for the right of appeal, which is increased according to the revaluation rate every year between the dates when the lawsuit is filed and the judgment is made, may change. Therefore, in a dispute where the appeal can be made on the date when the lawsuit is filed, the right of appeal may be lost due to being below the monetary limit as of the date of the judgment. In the Decision, it is stated that this issue is incompatible with the right of access to the court and the right to request a review of the judgment. In addition, it has been claimed that it is not clear in the current legal regulation according to which date the monetary limit for appeal will be determined (the date of the lawsuit or the date of the judgment) and that this situation contradicts the principles of legal certainty and predictability.
What Does the Decision Say?
In the Decision, the Constitutional Court, referring to its previous annulment decision dated 26 July 2023 regarding the monetary limit for the decisions subject to cassation review in the administrative courts, concluded that, since the monetary limit for determining the judgments subject to appeal is updated every year, the law does not clearly and predictably regulate according to which date of the monetary limit the legal remedy of appeal can be applied. Therefore, the current regulation does not meet the requirement of legality. The Constitutional Court annulled the relevant articles as it found them contrary to Article 13 and Article 36 of the Constitution.
The Decision is available here (in Turkish).
Conclusion
With this Decision, the Constitutional Court annulled the second sentence of Article 45 and Additional Article 1 of the CAP. Consequently, the monetary limit for the application for appeal in administrative proceedings was annulled. The Decision will enter into force nine months after the date that the Decision is published in the Official Gazette (21 December 2023), in other words, on 21 September 2024.
