Published on 19 September 2022

SECOND SECTION

Applications nos. 23284/21 and 60528/21 AYDIN İNŞAAT TAAHHÜT PARK VE KAFETERYA İŞLETMECİLİĞİ TİCARET LİMİTED ŞİRKETİ against Türkiye lodged on 26 April 2021 and 19 November 2021 respectively communicated on 30 August 2022

SUBJECT MATTER OF THE CASE

The applications concern the settled practice of administrative courts to bar intervenors ( fer’i müdahil ), who have joined the proceedings in favour of the administration by reason of the fact that the outcome of those proceedings directly concern their rights, to appeal in their own right when the defendant administration has not appealed against a trial court’s decision.

The applicant company, who was allowed to intervene in favour of the defendant administration concerning the two related proceedings brought by a private company against the administration with a view to annulling a permit granted to the applicant company to enlarge its highway service area business and the ensuing public procuration which resulted in the administration in giving the applicant company a ten-year lease. In those proceedings the administrative courts ruled in favour of the claimant and annulled the permit and the public procuration. The administration, as the principal defendant, did not appeal against the trial court’s decisions. The applicant company tried unsuccessfully to lodge an appeal, arguing that the impugned proceedings directly concerned its business activity, but the Regional Administrative Court and the Supreme Administrative Court rejected the appeal requests in their respective decisions of 11 March 2020 and 14 May 2020 noting that the intervenor did not have a right of appeal independently of the principal defendant in administrative law.

The applicant company complains of a violation of his right of access to a court.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant company’s right of access to a court within the meaning of Article 6 § 1 of the Convention (see Menemen Minibüsçüler Odası v. Turkey , no. 44088/04, §§ 22-26, 9 December 2008)?

The parties are invited to discuss the following in their observations:

- What is the purpose of limiting the ability of the intervenor to appeal in its own right or independently of the administration?

- What is the legal basis for the restriction in question?

- Can a distinction be made between allowing the intervenor to proceed with procedural steps, such as appeal, as long as they are not in stark contrast with the defendant administration’s position and those steps which would contradict the position of the latter?

- Are there any other effective legal avenues for an intervenor, who is directly affected by such proceedings which has not been appealed by a defendant administration, to seek relief for the protection of its interests?