TC.
THE DECISION OF THE SUPREME COURT
7. CD
BASE 2014/2954 DECISION 2014/14281 DATED 08.07.2014
CASE: F. For the act of violating Article 51/2-b of the Road Traffic Code No. 2918. A. about Alaşehir Traffic Control Unit dated 27/05/2013 and GT- The record of decision administrative fines applied with numbered 525573 343,00 administrative penalty decision with the acceptance of the application of administrative fines in Turkish Liras for the cancellation of the memorandum of Alaşehir Magistrates ‘ Court of the decision of the Ministry of Justice dated 05/07/2013 2013/493 different business corruption for the benefit of the law upon the request of the chief prosecutor of the Supreme Court and our apartment’s Day Writing Prompts 06.01.2014, numbered 2013/406441 the file has been reviewed that is sent to: the Chief Public Prosecutor of the Supreme Court in favor of the law of reversal request letter is as follows; “… for the act of violating Article 51/2-b of the Road Traffic Code No. 2918, F. A. Alaşehir about the traffic monitoring unit of the squad and dated 27/05/2013 GT-numbered 525573 Turkish Liras for the record of decision administrative fines applied with the application of administrative fines 343,00 with the acceptance of the decision of the cancellation of the memorandum of administrative penalty Alaşehir Magistrates ‘ Court dated 05/07/2013 2013/493 spanning various business decision No. were examined. Alaşehir Magistrates ‘ Court by radar, the radar signal at the control site in the absence of the required legal notices duly cut without administrative fines fines does not have legal bearing on a decision is made on the grounds that the cancellation of muteriz, “No. 2918 Highway Traffic Act of “Speed the boundaries titled” 50. articles 3 and 4 of the Article. ”(3) The signs indicating the maximum and minimum speed limits, which are included in the paragraphs, shall be placed in the 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 of the Article. in their paragraph, “(1) Drivers must not exceed the speed limits specified in the regulation if a decision to the contrary has been taken and not marked. (2) (Amended paragraph: 08/01/2003-4785 p.K./4. md.) A fine of 64 700 000 pounds is applied to drivers who exceed the speed limits by ten percent to thirty percent (including thirty) as a result of a technical device measuring speed or detection by various technical procedures, and 131 900 000 pounds is applied to drivers who exceed more than thirty percent. 100 of the Highways Traffic Regulation entitled “Speed limit”, which was issued on the basis of this Law with the regulations in the form of “Speed limit”. Article 1. contained in the paragraph, “(Amended article: 01.09.2010 – 27689 p.R.G. Direction./ll.mad) The minimum and maximum speed limits per hour for types of vehicles without trailers according to road conditions are shown below, except for the registration and conditions written in the Road Traffic Code and this Regulation, and unless there is a sign to the contrary. 101 of the same Regulation entitled ”Compliance with speed limits and ensuring compliance of speed with the necessary requirements”. articles 1,2 and 6. “(1) Drivers must not exceed the speed limits specified in Article 100 of this Regulation if a decision has been taken to the contrary and it has not been marked. (2) The speed while the vehicle is being driven can be measured with radar and similar technical devices, as well as measured with a stopwatch or various methods can be detected. (6) that determines to the contrary is not a sign or a speed limit other cities around the highways in this part of settlements that last through life and property in terms of security, a physical block and the game transitions across top and bottom gates with pedestrian and vehicular speeding banned or specifier does not present an obstacle in terms of traffic if the vehicle drivers themselves to the road and traffic situation is appointed by considering the maximum speed within the boundaries of regulation can watch. considering the arrangement in the form of ”, neither the Highways Traffic Code No. 2918 nor the Highways Traffic Regulation has any provision on the presence of warning signs and markings indicating that speed control is being carried out in places to be controlled by radar, as explained above, drivers must not exceed the speed limits set by the regulation unless a decision is made to the contrary and marking is made, in the concrete case, it was determined by the radar device that Muterizin was traveling at a speed of 71 km / h by exceeding the 50 km / h speed limit set for automobile vehicles by more than 10% in the settlement, instead of rejecting the appeal, there was no hit in deciding to accept it on written grounds. Article 309 of the Code of Criminal Procedure No. 5271. in accordance with article 2013/493 of the decision of the Alaşehir Magistrates’ Court dated 05/07/2013 and amended work number in accordance with the request to be overturned, the offer and the file are submitted together.”

I- Incident: Alaşehir District, Suleyman Demirel Street, officers on 27.05.2013 with a radar device in the speed control at 14.54 p.m. misdemeanor F. A.it was determined that the vehicle exceeded the speed limit and an administrative fine of TL 343.00 was applied with the serial number 525573 on the same date. Misdemeanor F. he applied to the Alaşehir Magistrate’s Court on the same day for the cancellation of this administrative fine. Magistrates ‘ Court as a result of the review made by “speeding about Muteriz 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 the procedures of administrative sanctions against the law and Law No. 5326 28/8- in accordance with paragraph b, it was necessary to establish a provision on its abolition as follows.”On the grounds that the application was justified, it was decided to cancel the administrative fine minutes. Against this decision, a request was made to overturn it for the benefit of the law upon the application of the General Directorate of Security that the court’s reasoning was contrary to the law.

II – scope mismatch of demand destruction for the benefit 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 assessment: 2nd according to the provisions 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 settled case law of the Constitutional Court (for example 27.03.1986-E:85/31-K:86/111, 08.11.1991-E:91/9-K dated and numbered decisions 91/36) “state law, every action, and process in compliance with the law, respect for Human Rights, showing a fair build and continuing to develop it in every field layout, It is a state that avoids unconstitutional situations and attitudes, dominates the law in all state bodies, considers itself bound by the supreme rules of the Constitution and law and is open to judicial supervision, knows that the basic principles of law and the Constitution, which the legislator cannot violate, will become invalid when he moves away from the awareness that there are basic principles of law and the Constitution.” In short, the rule of law“ means the state that adheres to the rules of law in its activities and provides legal security to its citizens. Since the rule of law means the state that is subordinate to the law, there is no doubt that the executive branch, which is one of the three men of the state, is also bound by the rules of law. From the point of view of the executive body, it is imperative that its administrative activities be determined and known in advance. In the rule of law, the actions and actions of the administration must be predictable by the authorities. In administrative actions and actions, the administration must regulate this authority with general rules, such as bylaws and regulations, and comply with these regulations. This is called the ”principle of regular administration”. In addition, again, due to the principle of the specificity of administrative activities, the administration should not abandon its stabilized 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, mainly and primarily. In other words, the task of the administration, which is an eri of the rule of law, should not be to wait for individuals to violate the rules and go down the path of punishment, but to develop the level and habit of behaving in accordance with the rules. 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 dated 20 June 2007 and numbered 999 of the 999 of the Council of Ministers, of which our country is also a member, the “CM/REC (2007) RECOMMENDATION No. 7 TO MEMBER STATES ON GOOD GOVERNANCE” was adopted.

In Article 10 of the Aforementioned Recommendation entitled “The Principle of Openness;

“1 .The administration carries out activities in accordance with the principle of openness.

2. The Administration notifies private persons of its decisions and actions 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 the privacy protected by law.” There is a provision.

Meanwhile, the Council of Europe also needs to explain the legal nature of the decisions of the Committee of Ministers: the legal effectiveness of the Council of Europe arises in the form of contracts and decisions of recommendations. The ”Recommendation of the Committee of Ministers” is the decision of the Committee of Ministers on the governments of the member states based on Article 15/b of the Council of Europe Statute, which imposes measures on national legislators and administrations. Although it is not binding, the method of taking decisions by consensus and the fact that the Committee invites governments to “inform whether they have taken decisions in accordance with the recommendations” ensures 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 for its decisions. For example, a journalist’s request for a yellow press card was rejected by the administration in an unreasonable transaction. While the Council of State recognized the necessity of the reasoned rejection of the decision, it also referred to the recommendation of the Committee of Ministers of the Council of Europe, among other reasons. (DIDDGK, E: 1995/769-K:1997/525,17.10.1997, DD, 95.1998, p.87). (Source: Onur KARAKHANOGLULLARI, Understanding of Administration by Law: Legality and Administrative Procedures, 2. Basi, Ankara 2012, Turhan Bookstore, p.107,395) The internal legal 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 Internal Affairs, the task of “Ensuring and controlling traffic order on highways” has been transferred to the Ministry of Internal Affairs. By the provision of Article 33 of the same law, the Ministry of internal affairs “the services to fulfill the law; statutes, regulations, circulars, and other administrative texts” edit authorised and are tasked with. The Directive on the Measures to be Taken in Traffic Inspections and Traffic Accidents within the scope of this “regulation mandate and authority” of the Ministry of Internal Affairs has been prepared and put into effect with the approval of the Minister dated 31.10.2011. ‘In order to determine the procedures and principles of work and operations to be carried out before, at the time of and after the inspection, in traffic accidents, at the scene of the accident and after, as well as the actions to manage and regulate traffic” was issued for the purpose of “Traffic inspections.

The Directive;

34 entitled ”Considerations for speed control by radar”. Article 1. the following rule is given in the subparagraph (ç) of paragraph,

“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” Article 47 of the same 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, why- conclusion relations and other means of communication with national and local media are used to the maximum extent in the disclosure of audit results.”As can be seen, the Ministry of Internal Affairs has provided traffic inspections with the provision of this Directive in order to ‘increase the level of compliance with traffic rules, ensure traffic safety and inform and raise awareness of road users;

– In which sections of the highway and for what periods it will be carried out,

– What topics will be concentrated on,

He envisaged maximum use of national and local media and other means of communication in his issues. Thus, the Ministry of the interior that have been established by regulatory and administrative process “segments, which controls Highway Traffic, at which time and in which areas will be made on the issues will be intensified national and local media and other communication tools being utilized to the maximum extent by road users (especially drivers) to inform” that established a regulation relating observed. 10 of the above-mentioned regulations, the Council of Europe’s recommendation on “good governance”, written on the day and number of Ministers’ Representatives of the Committee of Ministers, adopted at the meeting. 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 recognized that road users should be informed about “in which part of the roadway and for which periods radar speed monitoring will be carried out”. This is also a requirement of the principles of “openness and informing with appropriate means”, which are considered to be one of the good governance principles of the recommendation decision adopted by the Ministerial Representatives of the Committee of Ministers of the Council of Europe.

According to the provision of 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 in all circumstances”, and for this purpose it can “make maximum use of the national and local media and other means of communication. The Administration will first provide information using 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, the information in accordance with Article 47 of the Directive on Measures to be Taken in Traffic Inspections and Traffic Accidents should be made with ”traffic signs” to be put up in accordance with the procedures and principles in this Regulation. Apart from this method, it will also benefit from social media and other communication tools if necessary. Therefore, in accordance with the provision of the aforementioned Directive, drivers must first of all be informed about the issues “in which part of the roadway and at what times the speed control by radar will be carried out” with traffic signs. Firstly, waiting for traffic inspections to be carried out to ensure the safety of people’s lives and property, violation of the rules without informing road users in order to punish them, is not in accordance with the purpose of the traffic rules, as well as entrapment of vehicle drivers, which is incompatible with the principles of the modern rule of law and 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 Prosecutor General’s Office to overturn the law for the benefit of the Public Prosecutor’s office because it was not considered appropriate.

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