TC.
SUPREME
7. CD
2014/2954 BASIS 2014/14281 DECISION 08.07.2014 DATE
Case: for the act of contravening Article 51/2-b of the Road Traffic Law No. 2918 F. A. about Alaşehir Traffic Control Unit Head dated 27/05/2013 and GT- 525573 administrative fine decision minutes applied with 343.00 Turkish lira administrative fine application for the cancellation of the administrative fine decision minutes dated 05/07/2013 and 2013/493 different business decision no. of the Ministry of Justice on the request to be violated in the interest of the law, the Supreme Court prosecutor general’s office 06.01.2014 day and 2013/406441 request letter sent to our apartment was reviewed: the Supreme Court prosecutor’s Office’s request for violation in the interest of the law is as follows:; “…For the act of contravening Article 51/2-b of the Road Traffic Law No. 2918 F. A. the traffic monitoring unit of the squad about Alaşehir dated 27/05/2013 and GT-525573 administrative fines administrative fines applied with the record of decision 343,00 numbered Turkish Liras administrative penalty decision with the acceptance of the application for the cancellation of the memorandum of Alaşehir Magistrates ‘ Court No. spanning various business decision dated 05/07/2013 2013/493 were examined. Alaşehir Magistrates ‘ Court, in the absence of radar control the radar signal at the site, duly bearing the required legal notices on the grounds that legal fines does not have cut without muteriz a decision is made on the cancellation of administrative fines, “No. 2918 on Highway Traffic Act of the “speed limits” titled 50. Articles 3 and 4. “(3) signs indicating the most and least speed limits are placed in places deemed necessary by the relevant organizations. (4) the speed limits specified in the regulation may be reduced or multiplied according to the road and traffic situation by the organizations authorized by this law. In these cases, the situation is indicated by traffic signs and announced by appropriate means. 51 of the same law entitled “compliance with speed limits.” Articles 1 and 2. “(1) drivers must not exceed the speed limits specified in the regulation if a decision to the contrary has not been taken and marked. (2) (amended paragraph: 08/01/2003-4785 P.K./4. md.) Speed measuring technical device or various technical procedures as a result of the detection of speed limits from ten percent to thirty percent (including thirty) drivers who exceed 64 700 000 pounds, drivers who exceed more than thirty percent 131 900 000 pounds fine is applied.”the regulations in the form of” Highway Traffic Regulation issued on the basis of this law” speed limit ” entitled 100. Article 1. contained in the paragraph, ” (amended Article: 01.09.2010-27689 P.R.G. Direction./ ll.mad) minimum and maximum speed limits per hour for types of vehicles without trailers according to road conditions, except for written records and conditions in the Road Traffic Law and this regulation, and unless there is a sign to the contrary, are shown below.“compliance with speed limits and ensuring that speed meets the necessary requirements” 101. articles 1,2 and 6. “(1) drivers are obliged not to exceed the speed limits specified in Article 100 of this regulation if a decision has not been taken and marked to the contrary. (2) the speed at which the vehicle is driven can be measured by radar and similar technical devices, as well as by a stopwatch or various methods. (6) that determines to the contrary is not a sign or a speed limit through the last settlements in this part of other cities around highways, life and property security in terms of physical transitions across a block with top and bottom gates and the game banned or specifier does not present an obstacle in terms of pedestrian and vehicular traffic speeding if the road and traffic situation by considering themselves as vehicle drivers the maximum speed within the boundaries of regulation is appointed to watch.”considering the arrangement in the form, neither The Road Traffic Law No. 2918 nor the Road Traffic Regulation have any provisions regarding the possession of warning signs and marking that the radar speed inspection is carried out in places, as explained above, drivers must not exceed the speed limits determined by the regulation, unless a decision is made to the contrary and the marking is made, in a concrete incident, muterizin was found to be traveling at 71 km/h, exceeding the 50 km/h speed limit set for cars within the settlement by more than 10%, in the face of the radar device, there was no hit in deciding to accept the objection on Written grounds instead of rejecting it. No. 309 of the Code of Criminal Procedure No. 5271. in accordance with article 05/07/2013 of Alaşehir Magistrate’s Criminal Court and 2013/493 different business no.”

I-incident: Alaşehir District Süleyman Demirel Street officials on 27.05.2013 on the radar instrument speed control at 14.54 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. Misdemeanor F. he applied to the Alaşehir Magistrate’s Court on the same day for the cancellation of this administrative fine. The Magistrates ‘ Court as a result of the review made by “administrative fines given for speeding violations Muteriz about, however, in the absence of radar control the radar signal at the site, duly bearing the required legal notices legal cut without considering whether the fines would have the right to appeal upon the conclusion that was made by the procedures of administrative sanctions against the law and the Law No. 5326 28/8- in accordance with Paragraph B, it was necessary to establish a provision for its removal as follows.”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 – scope mismatch of demand destruction for the benefit of the Law No. 2918 on Highway Traffic Act nor in the regulation of traffic on highways where the speed control radar are to be performed, these control although there was a warning sign that does not include any provision on keeping and marking, “the absence of the necessary legal notices are duly done and the radar signal is not” on the grounds that “the removal of administrative sanctions” in the direction of the court is that the provision is illegal.

III- Legal assessment: 2nd according to the provisions of our Constitution, “the Republic of Turkey the Society of peace, national solidarity and in a spirit of fairness, 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-E:85/31-K:86/111, 08.11.1991-E:91/9-K: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, a state 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, it is mandatory that its administrative activities are defined and known in advance. 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, “ ” Government individual rights and freedoms, public order and safety, public health and the environment, economic order, society in peace and order, crime and misdemeanours actions that violate the rules of public morality, national and international law within the framework of duty and obligation is there 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 June 20, 2007 and numbered 999, “recommendation decision CM/REC(2007)7 to the 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.”There is a 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 KARAHANOĞLULLARI, understanding the administration with law: legality and Administrative Procedures, 2. Basi, Ankara 2012, Turhan bookstore, P.107,395) the domestic law regulation on our subject is as follows: 3152 the Ministry of Interior has been entrusted with the task of “ensuring and supervising traffic order on highways” with the provision of paragraph (c) of the first paragraph of Article 2 of the law on the organization and duties. 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 traffic management and regulation movements”.

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.” ‘Informing road users titled” 47 the same article as follows: “(1)Improve the level of observance of traffic regulations, Traffic Safety and educate road users, in order to raise awareness of the highway segments, which control, at which time risk will be intensified and relevant information will be made and in which areas, why- national and local media and other communication tools are used to the maximum extent in the disclosure of outcome relations and audit results.” As can be seen, the Ministry of interior, with this directive provision, “to increase the level of compliance with traffic rules, to ensure traffic safety and to inform and raise awareness of road users” in order to;

– 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. The provisions of Article 29 of the law 3152 instruction according to the provisions of the Ministry of Interior affiliates, according to the laws and ordinary, general law enforcement in the conduct of the traffic police under the ministry, it is indisputable that connect to also.

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, to give the necessary information about the traffic situation and the immediate environment, prohibitions and restrictions to be applied in order to ensure traffic order and safety on highways by notification to the traffic signals, standard, meaning, qualities, quantity and other principles”, published in the official gazette dated 18789 19.06.1985 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 it in the interests of the law.