Administrative jurisdiction is the area where individuals have the opportunity to have judicial review against the proceedings and actions of the administration. In this trial process, not only the plaintiff and the defendant, but also the participation of third party who will be affected by the subject or outcome of the case is important. Intervention: In this context, it is a basic institution that ensures the participation of third parties in the process in administrative cases.
Since the principle of ex officio investigation is applied in administrative proceedings, the court is obliged to reveal the material truth in any case, even if the third party does not intervene in the case. However, in this case, situations may arise in which the legal institution of intervention is needed in administrative jurisdiction. For example, if the court is not aware of the evidence in the possession of the third party, it is beneficial for third parties to intervene in the case in order to protect their rights and not to be adversely affected by the outcome of the case1.
In the Turkish administrative justice system, intervention is not explicitly regulated in the Administrative Jurisdiction Procedures Law ("AJPL"). Instead, through the reference made to the Code of Civil Procedure (“CCP”) with Article 31 of the AJPL, the rules of civil procedural law are applied in administrative jurisdiction. Therefore, in order to understand the institution of intervention in administrative cases, it is necessary to take into account the regulations in the CCP and adapt these provisions in line with the structure and purposes of administrative jurisdiction.
In the CCP regulation, intervention is divided into primary intervention and accessory intervention, and these two institutions will be evaluated within the scope of administrative jurisdiction below.
- Primary Intervention in Administrative Jurisdiction
Primary intervention arises when a third party, who is not a party to the case, claims a direct right over the subject matter of the pending case. For primary intervention, the legal interest in the subject matter of the case must belong to the primary intervener. According to Article 65 of the CCP, a third party may participate in the case by claiming that he/she also has a right over the disputed right in the ongoing case between the parties. In this case, the third party acts as an independent party in the existing case. Although the relevant regulation in the CCP is in this direction, the provisions on intervention will be applied in administrative jurisdiction only to the extent that they are compatible with its nature. As such, there are authors who argue that primary intervention cannot be accepted in administrative jurisdiction.
Some of the reasons given by the authors who argue that primary intervention is not possible in administrative jurisdiction are the dominance of the principle of ex officio investigation in administrative jurisdiction, and the fact that one of the parties is generally a private law person. For these reasons, it is stated that the nature of administrative jurisdiction is incompatible with primary intervention. However, since there are also opinions in our doctrine that accept primary intervention, it is beneficial to address the conditions of intervention by taking into account the CCP regulation:
In order to make the primary intervention possible:
- First, there must be a pending case.
- A third party other than the parties must be able to have the status of intervener.
- The third party to be the primary intervener must directly claim a right over the subject matter of the case.
- The third party who will intervene must have legal capacity. Some authors2 state that the intervener filing a “primary intervention case” in administrative jurisdiction must have not only objective capacity but also subjective capacity.
Unlike accessory intervention, in primary intervention the third party must claim a direct right over the subject matter of the case. Here, the intervener does not stand beside the parties to the case but participates in the case as a separate party to defend his/her own independent right.
The case filed with primary intervention is essentially a new case added to the existing case. Therefore, the primary intervener performs all procedural acts independently, submits evidence, and may appeal against the court's decision. The court hears the case of the primary intervener together with the existing case and renders a judgment.
- Accessory Intervention in Administrative Jurisdiction
Accessory intervention occurs when a third party joins the case on the side of one of the parties to contribute to their success in the lawsuit. According to Article 66 of the CCP, a third party who has a legal interest in the success of one of the parties may join the case on that party's side. This provision is also applied in administrative jurisdiction pursuant to Article 31 of the AJPL.
The conditions of accessory intervention are as follows:
- First, there must be a pending case.
- The third party requesting accessory intervention must not be a party to the case.
- The third person who will intervene must have legal capacity. Regarding the condition of capacity in accessory intervention; in the doctrine, it is stated that since the accessory intervener, who participates in the case alongside the party with a legal interest in winning the case, does not claim a right over the subject matter of the case like the primary intervener, but only the condition of “legal interest” is sought, subjective capacity is not required, but objective capacity is sufficient3.
- The third party wishing to intervene as accessory intervener must have a legal interest in the success of the party, he/she supports in the case. One of the biggest differences between accessory intervention and primary intervention is that the outcome of the case affects the legal interest of the intervener.
The most important characteristic of the accessory intervener is that he/she does not have the status of an independent party. According to the wording of the CCP, the accessory intervener may perform all acts in favor of the party for whom he/she intervened.
The intervener cannot perform an act contrary to the acts of the supported party; for example, if the party waives the case, the intervener cannot continue the case. However, the intervener may submit evidence and make statements. The issue of whether the intervener may appeal against the judgment is not regulated in the law; this issue, which is subject to extensive debate in doctrine, is clarified by judicial decisions. The Council of State has rendered decisions recognizing that an accessory intervener may file an appeal against the judgment. Below is the relevant part of a Council of State decision in this direction:
“Since their interest will be affected by the outcome of the case, it should be accepted that interveners, whose intervention has been accepted, against whom a recourse action has been filed, and who may be held liable to pay compensation, may appeal even if the party they supported does not file an appeal, in a manner that does not result in a disadvantage to the supported party, as a requirement of the freedom to seek rights and the principle of fair trial.
…
“In this case, while the Regional Administrative Court should have examined the interveners' appeal and made a decision on the merits of the case, it was not legally accurate to decide to reject the appeal without examination on the grounds that interveners cannot appeal on their own.” (Council of State “Danıştay” 10. D., E. 2022/282 K. 2022/339 T. 24.1.2022)
Conclusion
The participation of third parties in administrative cases is of great importance in terms of the right to a fair trial and the right to be heard. Notification of the case ensures that third parties are informed of the cases concerning them, while intervention institutions allow them to participate directly in the proceedings.
Primary intervention enables the third party to participate in the case with an independent claim of right, resulting in the addition of a new party to the existing case. Accessory intervention, on the other hand, allows the third party to support the case by joining one of the parties.
Footnotes
1. Mehmet Kodakoğlu, Hukuk Muhakemeleri Kanunu Hükümlerinin İdari Yargılama Hukukunda Uygulanması Bağlamında Asli Müdahale Sorunu, p. 21.
2. Mehmet Tosun/Emre Tan, İdari Yargıda Davaya Müdahale (Uygulama ve Teori Açısından İnceleme), p. 845.
3. Mehmet Tosun/Emre Tan, İdari Yargıda Davaya Müdahale (Uygulama ve Teori Açısından İnceleme), p. 845.
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.
