I. Introduction

Administrative law is defined as the whole of the legal rules that go beyond the private law rules regulating the administrative organ and function, and it is a branch of law that takes its basis from constitutional regulations, stipulates rules regarding the activity and organization of the administration, and balances the superiority and privileges granted to the public and the rights and freedoms granted to individuals.

One of the consequences of the rule of law protected by the Constitution, which forms the basis of administrative law, is that the work and transactions of the administration are subject to judicial review, and this judicial review is carried out by administrative courts. The resolution of disputes in administrative jurisdiction is subject to the procedures and principles set out in the Administrative Procedure Law No. 2577 (“İYUK“), and the types of administrative cases are divided into three: annulment lawsuit, full judicial lawsuit and cases related to disputes arising from administrative contracts. The annulment case, which is one of these types of cases, appears as a judicial review mechanism regarding whether the administrative actions are carried out correctly and duly.

In cases filed in administrative jurisdictions, one of the legal institutions that concludes the case with a result such as a final judgment is waiver. Within the scope of the regulation in Article 31 of the İYUK titled “Cases where the Code of Civil Procedure and the Tax Procedure Law will be applied:”, it is regulated that the provisions of the Code of Civil Procedure No. 6100 (“CPC”) will be applied in cases where there is no provision in the İYUK, and since there is no regulation in the İYUK regarding the waiver institution, which is one of the cases in which the case is concluded, the provisions of the CPC regarding waiver will be applied with the reference to Article 31 of the İYUK.

However, in some of the decisions of the Council of State, it has been stated that the provisions regarding waiver can only be applied to the extent that they are compatible with the types and characteristics of administrative cases and the administrative trial procedure, and in most of its decisions, the institution of waiver of the lawsuit has been evaluated by considering the distinction between public interest and personal benefit. Because, it has been the subject of decisions that the waiver process, which means that one of the parties gives up their case in administrative cases that includes not only individual rights and interests, but also includes a public dimension, should also be evaluated with this dimension.

In this context, an important criterion used in the evaluation of waiver requests is the concept of public interest, and in this article, after the legal framework of waiver requests in annulment cases that ensure the adherence of the administration to the law as a requirement of the rule of law, in the resolution of administrative cases of public interest, which expresses the general interest of the society, within the scope of waiver in administrative cases regarding the cancellation of zoning plans, which are cancellation cases. The focus will be on whether it is an unavoidable factor to consider, how courts handle these claims and evaluate them from a public interest perspective, and the effects of this assessment on their legal consequences will be examined within the scope of precedent jurisprudence.

II. The General Legal Framework of Waiver Requests in Annulment Cases

Annulment proceedings; It is a type of lawsuit filed for the annulment of the transaction by those whose interests are violated if the administrative action is unlawful in terms of authority, reason, form, subject and purpose. Since the annulment case is a type of lawsuit that is in the nature of judicial review of the administration as a requirement of the rule of law principle guaranteed by the Constitution, it is important to check whether the administration acts in accordance with the rules of law and to observe the supremacy of the public interest in this context, as well as the purpose of protecting personal interests in annulment cases. Because, in accordance with the dominant view in the doctrine, annulment cases have an objective nature and the result will be valid for everyone. In summary, the purpose of the annulment case can be described as protecting public order by checking the administration's adherence to the rules of law.

We mentioned that there is no regulation regarding the waiver institution in the İYUK and that the relevant provisions of the CPC will be applied. Pursuant to Article 307 of the CPC titled “waiver of the suit”, waiver is defined as the partial or complete abandonment of the result of the claim by the plaintiff, and in Article 310 of the CPC, it is stipulated that the waiver  can be made at any time until the judgment is final. In addition to this, it is also stated in the CPC that the waiver shall be made orally by petition or during the trial, that the validity of the waiver is not subject to the acceptance of the other party and the court, that the part waived in the partial waiver must be clearly shown in the petition or in the record, and that the waiver must be unconditional and unconditional.

In administrative jurisdiction, waiver can be defined as the partial or complete abandonment of the plaintiff's request for the annulment of the administrative action or the fulfillment of his miscellaneous right. There is a difference in the waiver between an annulment action and a full jurisdiction case, even if annulment cases are rights that the person can freely dispose of, such as full jurisdiction cases. Because, as mentioned above, the plaintiff who waives the cancellation case, which is of an objective nature, will only give up the request for the cancellation of the transaction he wants to cancel, so the legal consequences of the transaction are not eliminated with the waiver of the lawsuit, and the waived transaction will continue to have legal consequences. In other words, although the party whose interests are violated has given up the cancellation request for the transaction of the administration for which the cancellation is requested, the legal consequences of the administration's action will continue to affect the public.

As such, it can be mentioned that in the audit of the legality of the administrative action of the administration, which is subject to judicial review, the public interest should be evaluated beyond the interest of the person whose interest is violated due to the administrative action, and the waiver requests should be evaluated according to the nature of the transaction subject to the lawsuit due to the essence of the annulment cases.

III. Evaluation of The Waiver Institution in Administrative Cases Regarding the Cancellation of Zoning Plans within the Framework of the Concept of Public Interest

aThe Relationship Between Public Interest and Administrative Law

The concept of public interest is basically expressed as an interest related to the survival of the society formed by living together, not related to the person. In other words, the direct and indirect protection of the interests of the people, who form the basis of the order of the society, constitutes public order and is also protected by Constitutional regulations.

In addition, public interest is a concept that can be embodied in public service. In the doctrine, the public interest is defined as the continuous and regular activities carried out and presented to the public by the state or other public legal persons (public legal entities) or under their supervision and control to meet and satisfy public and collective needs and to ensure the public interest [1].

Administrative law, as it is known, is a branch of law in which the purpose of public interest is pursued, public power is used to achieve it, and those who take action are state organs and public officials who are authorized to declare will on their behalf. Because, with the regulation in Article 2 of the İYUK, “Annulment lawsuits filed by those whose interests are violated for the annulment of administrative actions because they are unlawful in one of the aspects of authority, form, reason, subject and purpose”, it regulates that the works and transactions to be carried out by the administration are in accordance with the law in some aspects. The purpose element mentioned in the relevant article is the public interest and is expressed as the establishment of continuous, efficient and regular public service in order to ensure the public interest, which is the ultimate goal of the administrative action. Moreover, considering the unilateral element of the administrative procedures established by the administration and the fact that public services are carried out by the administration, it is clear that the administrative action must be directed to the public interest.

In this context, it is obvious that the concept of public interest and administrative law are closely related, considering that qualified administrative actions that will constitute a violation of Article 2 of the İYUK are subject to annulment proceedings in order to protect the public interest.

b. Opinions in the Doctrine and Evaluation within the Scope of the Decisions of the Council of State

Due to the presumption of legality, which is one of the elements of administrative action, it is obvious that administrative actions are considered lawful until they are canceled. As it is known, lawsuits filed against administrative action, as a rule, do not stop the execution of administrative action. However, pursuant to Article 27 of the İYUK, a stay of execution decision can be made if the administrative action is clearly unlawful and irreparable and impossible damages will arise with the implementation of the administrative action. One view in the doctrine is that a waiver of the lawsuit is not possible once a stay of execution has been issued. This view is explained on the grounds that the decision to suspend the execution and the continuation of the implementation of a transaction that is clearly unlawful will constitute a violation of public order.

Pursuant to another opinion that emerged with the same reason, it is argued that a waiver will not be possible at the appeal stage, since the court of first instance will have determined the illegality of the administrative action when the court of first instance decides to annul the administrative action.

In addition, since there is no regulation limiting waiver in administrative cases in both the İYUK and the HMK, there are also opinions that it is possible to waive the lawsuit at any stage, even if a stay of execution decision and/or an annulment decision is made by the court of first instance. The basis of this view is based on the freedom to seek rights and related fundamental rights and freedoms protected by the Constitution. There are decisions of the Council of State that adopt this view [2].

In accordance with another opinion adopted by the Council of State, it is necessary to evaluate whether a waiver is possible according to the nature of the transaction [3]. In accordance with this view, it is necessary to distinguish between personal interest and public interest according to the characteristics of each case, and in cases where there is a personal interest, the plaintiff will be able to waive his case from the time the court of first instance makes its decision until the judgment is finalized, since the public interest does not take precedence over this interest.

As a matter of fact, the Council of State 8. In the decision of the Law Chamber dated 15.05.2012 and numbered 2011/9473 E. and 2012/2389 K., it was stated that in the lawsuits filed against objective general regulatory transactions that contain the general public interest, such as the zoning plan, the waiver requests were not considered appropriate at the appeal stage after the illegality was determined by the court and the transaction subject to the lawsuit was canceled; Although environmental effects were claimed, it was decided that it was not correct to make a judgment without evaluating the waiver request, since the license requested to be revoked did not contain the elements of a general regulatory transaction in terms of its nature, and the waiver petition was filed before the decision of the court of first instance.

As can be seen in the decisions of the Council of State on waiver, there is no jurisprudence on waiver and waiver requests have been evaluated according to the characteristics of each case subject to the lawsuit. While the predominant view in the old decisions of the Council of State is that it cannot be waived due to the public interest and the principle of the rule of law, since it is an administrative action that concerns the public after the illegality of the zoning plan is determined, it is seen that it has also adopted the view that the waiver of the lawsuit should be free in a situation where the right to file a lawsuit is freely determined in its new decisions.

IV. In Conclusion

Waiver of litigation means that the plaintiff gives up the claim and result of the lawsuit in whole or in part. Since the provisions regarding waiver are not regulated within the scope of the İYUK, the reference to Article 31 of the İYUK and the provisions of the CPC regarding waiver also find application in the administrative judiciary.

However, in the decisions of the Council of State, there is no consensus of jurisprudence regarding the result of waiver in annulment cases. Because, it is an adopted view; While it is argued that the waiver of the lawsuit cannot be conditioned on the acceptance of the courts due to the clear regulations in the CPC, that waiver of the lawsuit is a right like filing a lawsuit, and that the use of this right cannot be restricted by the courts, another view is that the waiver should be applied by taking into account the nature of the administrative cases and to the extent that it is compatible with the types of administrative cases.

In our opinion, although the relationship between administrative law and the concept of public interest and the criterion of ensuring compliance with the law, which is the main purpose of the annulment case, does not seem acceptable to waive the annulment of all administrative actions, and due to the differences between the administrative procedure and the civil trial procedure, the adoption of the view that the waiver institution should be applied to the extent that it is compatible with the characteristics of the administrative judiciary is compatible with the principles of administrative law However, within the scope of the reference made to the CPC by Article 31 of the IPC and the express regulations in the CPC, the waiver of the suit should not be subject to any condition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.