19 July 2018 Thursday

Akdeniz İnşaat ve Eğitim Hizmetleri A.Ş. [PA] (no. 2015/2909, 19 July 2018)

The Facts

The Ministry designated an area in which private persons owned land as a special project site. Master and implementary development plans of this site were accordingly amended.

The applicant company concluded a construction contract with owners of some immovables located within this site in return for land share and thereafter started construction of the housing project.

The municipality filed a case before the administrative court against the Ministry and requested annulment of the amendments to the city development plan. The administrative court ordered stay of execution. The defendant administration appealed the administrative court’s decision before the Regional Administration Court. During this period, the construction of housing project undertaken by the applicant company was locked up and sealed and its activities were suspended on the ground of the decision ordering stay of execution.

The applicant company had become aware of the case upon the suspension of its construction works and submitted a petition to the administrative court to join the proceedings, on the side of the defendant administration, as an intervening party. It also requested the Regional Administrative Court to dismiss the case.

The Regional Administrative Court dismissed the defendant administration’s appellate request and returned the file to the administrative court. The latter court accepted the applicant company’s request for joining the proceedings and also annulled the complained amendments.

Neither the defendant administration nor the complainant municipality appealed the administrative court’s decision. However, the applicant company filed an appeal against this decision. The State of Council rejected the applicant company’s appellate request, without examining the case- file, on the grounds that the applicant company was not entitled to make procedural requests contrary to the acts and statements of the party on whose side it joined the proceedings; and that in its capacity as an intervener, the applicant company was not entitled, by itself, to resort to appeal remedy against the will of the defendant administration.

The applicant company requested rectification of the decision rendered by the Council of State and then lodged an individual application pending the examination of its rectification request by the Council of State.

The Applicant’s Allegations

The applicant maintained that the understanding and practice allowing no opportunity for the intervener to file an appeal at its own will constituted a breach of the right to access to court.

The Court’s Assessment

The right to access to court is an element inherent in the right to legal remedies that is safeguarded by Article 36 of the Constitution. One of the safeguards considered to be falling into the scope of the right to access to court is to provide individuals with the opportunity to file an action against acts having a bearing on their interests as well as to join the proceeding initiated by third parties which has a bearing, by its consequences, on their interests.

However, it cannot be said that the right to a fair hearing embodies a safeguard which would necessitate absolute and unconditional provision of all opportunities and rights afforded to the main party to a secondary intervener. In the present case, the applicant company submitted its objection, pending the examination by the Regional Administrative Court, to the defendant administration’s appeal against the decision of the suspension of execution. However, its objection was not taken into consideration as it had not been yet granted the capacity of an intervener at that time.

In the present case, the applicant company submitted its objection, pending the examination by the Regional Administrative Court, to the defendant administration’s appeal against the decision of the suspension of execution. However, its objection was not taken into consideration as it had not been yet granted the capacity of an intervener at that time.

Decisions for the suspension of execution do not settle disputes with a final effect, and proceedings still continue to be conducted upon such decisions. Therefore, it is possible at that stage for the applicant company to effectively join the proceedings.

It has been observed that the applicant company was aware of the proceedings which had a bearing, by its consequences, on its rights and interests, it was involved in the dispute and had the opportunity to express its opinions as to the matters concerning the merits of the dispute, and, therefore, it effectively joined the proceedings.

Regard being had to the proceedings as a whole, it has been concluded that the intervention procedure cannot be said to have been rendered ineffective.

In addition, the right to a fair hearing does not afford a safeguard that the intervener may continue proceedings in case the main party to the case, on whose side the intervener joins the case, does not wish to pursue the proceedings. In other words, there exists no constitutional obligation to the effect that the intervener is entitled to appeal the verdict, irrespective of the will of main party to the case.

Accordingly, the dismissal of the applicant company’s independent appeal on procedural grounds does not constitute an interference with the constitutional safeguards concerning the right to access to court.

For the reasons explained above, the Court declared the alleged violation of the right to access to court inadmissible for being manifestly ill-founded.