Fundamental changes have been made recently to Turkey’s Administrative Procedure Act.^[1] Of particular note is that “summary” – i.e. abbreviated – proceedings have been introduced to accelerate certain administrative actions. Now, according to the Environment Code, Act No. 2872, challenges to Environmental Impact Assessment (EIA) reports will be considered in summary proceedings.

Within this framework, disputes regarding decisions rendered by the Ministry of Environment and Urbanization pursuant to the conclusion of environmental impact assessment of planned projects will also be subject to summary proceedings. In Turkey, especially regarding cement, energy and construction projects, EIA reports must be issued after an evaluation of possible positive and negative effects on the environment before such projects are allowed to move forward. Even then, administrative actions may be initiated by those with standing to challenge these reports. With the new law, these challenges will be considered by the administrative courts in summary proceedings.

In accordance with the summary proceedings, the procedure in relation to the application to a superior administrative officer for removal, revocation, modification or application before initiating a lawsuit against the Administrative Authority was ceased. The statutory period envisaged for initiating the legal proceedings has been changed from sixty days to thirty days and the statutory period for filing the Points of Defense has been changed from thirty days to fifteen days. Identically, the term of the court of first instance’s examination is set to be seven days, and the objection process against the claims related to suspension of execution (yürütmenin durdurulması) has been abolished. Notwithstanding, it is stated that the cases will be concluded within one month at the latest as of the commencement of the cases and that the decision may be appealed within fifteen days after the service of such decision.

One of the most significant amendments introduced by the summary proceedings is that pursuant to Article 20/A (ii), the Council of State has been granted with a special verdict in order to render judgments as a court of first instance. In cases that are subject to summary proceedings, the Council of State’s judgment will be final and binding in case the court of first instance’s decision is appealed.

Within this framework, for the projects subject to environmental impact assessment, the legal actions that will be initiated against EIA-Positive (ÇED Olumlu) or EIA-Not Required (ÇED Gerekli Değildir) decisions will also be subject to summary proceedings. The enforcement date of the provisions regarding the procedure of summary proceedings is regulated under the Provisional Article 8. According to the related article, summary proceedings shall be applied immediately as of the date the law enters into force. Accordingly, summary proceedings shall also be applied to the appeal phase of the pending lawsuits. In this context, upon appeal of the judgment handed down by the Council of State will be final and binding and the correction of judgment procedure cannot be implemented against such judgment.^[2]

Even though the intent of related provisions is to accelerate the trial process of lawsuits that are initiated against administrative decisions that generate results that are difficult or impossible to bear for both the Administration and the Claimant as a result of a delay in decision-making period, the fact that the abovementioned provisions also cause breach of certain articles of the Constitution is one of the highly-debated matters.

It is argued that these provisions violate the freedom to claim rights stated in article 36 of the Constitution of the Republic of Turkey (Constitution), the right to a fair trial and the right for defense considering Article 13 of the Constitution regarding restriction of fundamental rights and freedoms, the right of petition stated in Article 74 of the Constitution and the right of recourse to judicial review against acts of administration according to Article 125 of the Constitution. As a result of the application made by the congressmen of the Grand National Assembly of Turkey for alleged violation of certain articles of the Constitution by the provisions related to summary proceedings, the Constitutional Court decided that the provisions that are requested to be annulled do not constitute a breach of Constitution and that the annulment claims shall be rejected on the basis of the fact that the legislation of the abovementioned provisions are within the scope of the legislator’s judicial discretion.^[3]