Bölge İdare Mahkemelerinin Kesin Nitelikteki Kararları Arasında Aykırılığın Giderilmesi

Abstract

Since the beginning of the appellate procedure in the Turkish administrative judiciary on July 20, 2016, certain first-instance court decisions have become final at the appellate stage, thus bypassing any cassation review. This situation gives rise to contradictions in the decisions of the regional administrative courts, which are located in nine different regions of Turkey and serve different judicial districts. Consequently, the same legal rule may be applied inconsistently, leading to the emergence of conflicting decisions. It is a recognized fact that the existence of such conflicting decisions violates the principles of legal certainty and predictability and undermines public confidence in the judiciary. Due to these contradictory decisions, the principle of the rule of law and thereby the society as a whole will suffer. In this context, the procedure for resolving discrepancies between definitive decisions given by chambers of regional administrative courts in similar cases was legislated with the introduction of Article 3/C of Law No. 2576 in 2016. Initially, the task of resolving these discrepancies was assigned to the Council of State's Unification of Jurisprudence Committee. However, after three years of experience during which only one decision on the procedure for discrepancy resolution was issued, the legislative amendment to Article 3/C of Law No. 2576 in 2019 transferred this duty to the Administrative or Tax Chambers Council of the Council of State. Furthermore, this amendment mandated that the councils issue decisions within three months, creating a more dynamic structure. Especially after the year 2020, with its new structure, the path to resolving discrepancies has begun to take shape. Given that this institution is very new, the necessity has been felt to elucidate its debated and deficient aspects, to set out the conditions of the institution, and the legal status of the decisions within a certain systematic framework. This study aims to determine whether the discrepancy resolution process is an effective means, whether the degree courts comply with the discrepancy resolution decisions, and whether the current interests of the parties in whose favor the discrepancy resolution decisions are made have been addressed.