07 Sep A PENALTY CANNOT BE IMPOSED WITHOUT A WARNING SIGN INDICATING THAT THE AUDIT HAS BEEN CARRIED OUT
A state of law means a state that depends on the rules of law in its activities and ensures the legal security of its citizens. If so, it is necessary that the executive, one of the men of the state, also depends on the rules of law and operates in accordance with it. In this case, the activities of the administration should be linked to the rule. Therefore, the activities related to the rule should be known to the citizens, which is only in this way that the legal security of the citizen is ensured. This is called the “principle of regular administration”. The administration does not have the authority to impose sanctions only on a citizen who commits a violation of the rules. At the same time, the administration should develop brake mechanisms and warnings against a citizen’s violation of the rules of law. Because if the administration turns into a man who only waits for a citizen to violate the rules and Sanctions him, it shows the image that the administration has set up a trap to impose penalties, which is contrary to the principle of the rule of law. You can examine the Supreme Court’s decision that it is unlawful to impose a penalty without warning signs that a radar inspection has been carried out, which will be supported by numerous examples.
Criminal Department
Base Number : 2014/2954
Decision Number : 2014/14281
“text of jurisprudence”
I-Event :
Alasehir District Suleyman Demirel Street officials on 27.05.2013 on the radar instrument speed control at 14.54 hours at the wrong F.. A..it was found that he exceeded the speed limit and an administrative fine of 343.00 Tl was imposed on the same date with the protocol 525573 serial number. On the same day, Firat applied to the Alasehir Magistrate’s Court for the cancellation of this administrative fine. Magistrates ‘ Court as a result of the review made by “speeding about opponent given administrative fines for violations, however, in the absence of radar, the radar signal at the control site, without duly considering whether fines would have cut the required legal notices legal bearing upon the conclusion that the right to appeal was made by, in accordance with paragraph 28/8-B of law 5326, it was necessary to establish the following provision on the removal of the decision on administrative sanctions contrary to the procedure and law.”The application was justified and it was decided to cancel the minutes of the administrative fine. Against this decision, a request was made by the General Directorate of security to break the law in the interest of the court on the application that the court’s justification was contrary to the law.
II-the scope of the dispute regarding the request for violation in the interest of the law:
No. 2918 Highway Traffic Act nor the regulation of traffic on highways in the speed control radar are to be performed, where these control although there was a warning sign that does not include any provision on keeping and marking, “and the absence of the necessary legal notices duly radar signal is not done” on the grounds that “the removal of administrative sanctions” in the direction of the court is the provision that is illegal.
III – legal evaluation :
According to the provisions of Article 2 of our Constitution, “the Republic of Turkey in the Society of peace, fairness and in a spirit of national solidarity, human rights, respecting the basic principles specified initially based on democratic, secular and social state of law.” According to the established case law of the Constitutional Court (for example, decisions of 27.03.1986-B:85/31-D:86/111, 08.11.1991-B:91/9-D:91/36 and numbered) “the state of law continues every action and operation in accordance with the law, respects human rights, establishes and develops a just order in all areas, It is a state that avoids unconstitutional situations and attitudes, dominates the law in all state bodies, considers itself bound by the Constitution and the superior rules of law and is open to judicial control, knows that it will be invalid when it moves away from the awareness that there are basic legal principles and the Constitution that the legislator cannot break above the law.”
In short, the rule of law means “a state that depends on the rules of law in its activities and provides legal security to its citizens”.
Since the rule of law means a state that depends on the law, there is no doubt that the executive branch, one of the three powers of the state, is also bound by the rules of law.
From the point of view of the executive branch, the specificity and prior knowledge of its administrative activities are mandatory. In the rule of law, the actions and actions of the administration must be predictable by those who are managed. In administrative actions and actions, the administration must regulate this authority by general rules such as statutes and regulations and comply with these regulations. This is called the” principle of regular administration”. Also, again, because of the principle of determination of administrative activities, the administration should not give up its stable practices.
Again, the rule of law, “ ” individual rights and freedoms to the state, Public Order and safety, public health and the environment, the economic order, social peace and order, crime and misdemeanours actions that violate the rules of public morality, national and international law within the framework of a duty and there is no obligation to make him pay. But it is necessary to recognize that the state has a duty to prevent violations of these rules, essentially and primarily. In other words, the duty of the administration, which is an erki of the rule of law, should be to develop the level and habit of acting in accordance with the rules, not to wait for individuals to violate the rules and go down the path of punishment. This is also a requirement of the “principles of good governance”. It is also a requirement of the rule of law that the administration (executive) is bound by the principles of good administration. As a matter of fact, at the meeting of the ministerial representatives of the committee of Ministers of the Council of Europe, of which our country is also a member, dated 20 June 2007 and numbered 999, “recommendation decision CM/REC(2007)7 to member states on Good Governance” was adopted.
Article 10 of the recommendation decision entitled “The principle of openness” ;
“1.The administration operates in accordance with the principle of openness.
2.The administration shall inform private persons of their decisions and transactions by appropriate means, including the publication of official documents.
3.It recognizes the right to access official documents in accordance with the rules for the protection of personal data.
4. The principle of openness cannot harm privacy protected by law.”
Has the provision.
In the meantime, there is a need to explain the legal nature of the decisions of the committee of Ministers of the Council of Europe: the legal effectiveness of the Council of Europe arises in the form of contracts and advisory decisions. ” Recommendation of the committee of ministers ” is a decision of the committee of Ministers on the governments of the member states, based on provision 15/B of the status of the Council of Europe, which measures national legislators and administrations.
Although not binding, decisions are made by consensus, and the committee invites governments to “inform them whether they have taken decisions in accordance with the recommendations”, ensuring that the recommendations are taken into account. From time to time, the Council of state uses the recommendations of the committee of Ministers of the Council of Europe to support the rationale in its decisions. For example, a journalist’s request for a yellow press card was rejected by the administration in an unprovoked transaction. The Council of state, while acknowledging the necessity of the rejection decision to be reasoned, has, among other reasons, referred to the recommendation of the committee of Ministers of the Council of Europe. (DIDDGK, E:1995/769-K:1997/525, 17.10.1997, DD, 95, 1998, p.87). (Source: Onur KARAHANOGLULLARI, understanding the administration with law: legality and Administrative Procedures, 2. Basi, Ankara 2012, Turhan bookstore, P.107, 395)
The internal law regulation on our subject is as follows :
According to the provision of paragraph (c) of the first paragraph of Article 2 of the Law No. 3152 on the organization and duties of the Ministry of Interior, the task of “ensuring and supervising traffic order on highways” has been entrusted to the Ministry of Interior. According to Article 33 of the same law, the Ministry of interior is charged and authorized to“organize the services they are obliged to perform by law with statutes, regulations, communiques, circulars and other administrative texts”.
Within the framework of this “regulatory duty and authority” of the Ministry of interior, the directive on measures to be taken in traffic inspections and traffic accidents was prepared and put into effect with the approval of the Minister dated 31.10.2011. ” In traffic inspections; before, after and after the audit, in traffic accidents; the procedures and principles of work and operations to be carried out at and after the accident scene, as well as to determine the movements of managing and regulating traffic”.
References;
34, entitled” considerations for speed control with Radar”. Article 1. in Paragraph (D) of the paragraph, the following rule is included ,
“In case of constant inspection, the radar vehicle is deployed in such a way that it is easily visible from both sides of the highway and does not endanger traffic.”
Article 47 entitled ” informing road users” is as follows:
“(1)Improve the level of observance of traffic regulations, Traffic Safety and road users, ensure to educate, raise awareness, in order to control which segments of the highway, at which time and in which areas will be intensified and relevant risk information will be made, cause-and-effect relationships and disclosure of audit results, national and local media and other communication tools are utilized to the maximum extent.”
As can be seen, the Ministry of Interior has the purpose of “increasing the level of compliance with traffic rules, ensuring traffic safety and informing and raising awareness of road users” with the provision of this directive;
– In which parts of the highway and in what periods it will be done,
– What topics to focus on,
It provided for the maximum use of national and local media and other means of communication.
Thus, a regulatory administrative process established by the Ministry of Interior has established a regulation on “informing road users (especially drivers) by making maximum use of national and local media and other means of communication in matters of which sections of the highway, in what periods and on what issues to be intensified.”
10 of the recommendation decision “on Good Governance”, written on the day and number above, adopted by the Council of Europe at the meeting of the ministerial representatives of the committee of Ministers. Article 1. and 2. it is in accordance with the provisions of the paragraph.
3152 according to the provisions of Article 29 of law provisions of the instruction, the Interior Ministry affiliates, and ordinary laws, according to the ministry, under the conduct of law enforcement in general also it is indisputable that connect to the traffic police.
As for the evaluation of the concrete event in the light of these explanations:
In accordance with the provisions of articles 34/1-O and 47 of the directive, it should be accepted that road users should be informed about “which part of the highway and at what time the speed control with radar will be performed”. This is also a requirement of the principles of “openness and informing with appropriate means”, which are considered to be the principles of good governance of the recommendation adopted by the ministerial representatives of the committee of Ministers of the Council of Europe.
According to Article 47 of the directive, the administration will make maximum use of “national and local media and other means of communication” in this information activity. It should be concluded that the administration is obliged to “inform road users under all circumstances” and that it can “make maximum use of national and local media and other means of communication.” The administration will first inform with its usual means and methods. The road from the highway to the beneficiaries, the traffic situation and to give the necessary information about the immediate environment, prohibitions and restrictions to be applied in order to ensure traffic order and safety on the highways by notification to the traffic signals, standard, meaning, qualities quantity and other principles”, published in the official gazette dated 19.06.1985 18789 is regulated by the regulation on traffic signs. Therefore, information within the scope of Directive 47 on measures to be taken in traffic inspections and traffic accidents should be made with “traffic signs” to be placed in accordance with the procedures and principles in this regulation. In addition to this method, it will also use media and other communication tools if necessary. Therefore, in accordance with the said Directive provision, drivers must first of all be informed by traffic signs about “which part of the highway and at what times the speed control with radar will be carried out”.
First, waiting for people to violate the rules without informing them in order to ensure the safety of life and property, in order to punish road users, will mean that the traffic rules are not suitable for the purpose of setting them, as well as setting traps for vehicle drivers, which is incompatible with the principles of the modern rule of law and is unacceptable.
IV-conclusion and decision :
For the reasons described above, the Supreme Court decided unanimously on 08.07.2014 to reject the request of the Attorney General of the Republic to overturn the law in the interests of the public.
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