3.3.5.2 Judicial Protection
According to Article 125(1), 1982 Constitution, recourse to judicial review is
available against all acts and actions of administration. In practice, this provision
means that all acts and actions, in individual or regulatory form, performed by
administrative bodies, such as central or local administrations, public corporate
bodies, autonomous administrative organs, or public professional organizations, but
also those carried out by judicial and legislative organs in their administrative
capacity, can be subject to judicial review.
When challenging one of those acts or actions before the court, two types of
cases are recognized under administrative law (Art. 2.1(a–b)), Procedure of
Administrative Justice Act):
1. Action for annulment, requiring the violation of the interest by the act in
question and the claim that the act is illegal because one of the following:
competence, form, reason, subject or aim.
2. Full remedy actions, requiring the violation of the individual rights directly by
the administrative acts or actions.
In accordance with these provisions, to bring an action for annulment against an
administrative act is subject to the existence of the violation of the interest. For full
remedy action, there should be a direct violation of the individual rights by the act/
action in question, and damage occurring from this violation that needs to be
compensated.
On the other hand, under Article 30(1), Environment Act, ‘everybody’ who is
confronted with damage due to any activity causing environmental pollution or
degradation, or who becomes aware of such activities, can demand measures to be
taken or the cessation of that activity.
When the provisions of the above-mentioned Procedure of Administrative
Justice Act and the Environment Act are addressed together, it can be argued that
environmental cases should be evaluated as action popularis, and can be brought
before the court by ‘everybody’ without seeking the condition of the violation of an
interest or individual rights. However, in practice, under case-law, while it is predominantly accepted that there is no need to seek the violation of an interest in
actions for annulment regarding environmental issues, in full remedy actions the
violation of individual rights still arises as the condition for taking an action before
the court.
10
10
For more details on the related debate see Güneş (2015: 253–257).
50
Z. Savaşan
According to Article 125(1), 1982 Constitution, recourse to judicial review is
available against all acts and actions of administration. In practice, this provision
means that all acts and actions, in individual or regulatory form, performed by
administrative bodies, such as central or local administrations, public corporate
bodies, autonomous administrative organs, or public professional organizations, but
also those carried out by judicial and legislative organs in their administrative
capacity, can be subject to judicial review.
When challenging one of those acts or actions before the court, two types of
cases are recognized under administrative law (Art. 2.1(a–b)), Procedure of
Administrative Justice Act):
1. Action for annulment, requiring the violation of the interest by the act in
question and the claim that the act is illegal because one of the following:
competence, form, reason, subject or aim.
2. Full remedy actions, requiring the violation of the individual rights directly by
the administrative acts or actions.
In accordance with these provisions, to bring an action for annulment against an
administrative act is subject to the existence of the violation of the interest. For full
remedy action, there should be a direct violation of the individual rights by the act/
action in question, and damage occurring from this violation that needs to be
compensated.
On the other hand, under Article 30(1), Environment Act, ‘everybody’ who is
confronted with damage due to any activity causing environmental pollution or
degradation, or who becomes aware of such activities, can demand measures to be
taken or the cessation of that activity.
When the provisions of the above-mentioned Procedure of Administrative
Justice Act and the Environment Act are addressed together, it can be argued that
environmental cases should be evaluated as action popularis, and can be brought
before the court by ‘everybody’ without seeking the condition of the violation of an
interest or individual rights. However, in practice, under case-law, while it is predominantly accepted that there is no need to seek the violation of an interest in
actions for annulment regarding environmental issues, in full remedy actions the
violation of individual rights still arises as the condition for taking an action before
the court.
10
10
For more details on the related debate see Güneş (2015: 253–257).
50
Z. Savaşan