REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
DECISION
Application No: 2013/849
Date of Decision: 15/4/2014
FIRST SECTION
DECISION
President
|
:
Serruh KALELİ
|
Members
|
: Nuri
NECİPOĞLU
|
|
Hicabi
DURSUN
|
|
Erdal
TERCAN
|
|
Zühtü
ARSLAN
|
Rapporteur
|
:
Recep ÜNAL
|
Applicant
|
: Karlis A.Ş.
|
Representative
|
: Abdulhalim
KARAVİL
|
Counsel
|
: Att. Devrim BİÇEN
|
I. SUBJECT
OF APPLICATON
1. The
applicant asserted that the right to a fair trial was violated due to the
dismissal of its application against an administrative fine imposed on it based
on the circular on tachograph application issued in contrary to the regulation.
II. APPLICATION
PROCESS
2. The
application was lodged on 10/1/2013 via the 2nd Assize Court of Diyarbakır. As
a result of the preliminary administrative examination of the petition and its
annexes, it has been determined that there is no deficiency to prevent the
submission thereof to the Commission.
3. It was
decided by the First Commission of the First Section on 29/3/2013 that the
examination of admissibility be conducted by the Section and the file be sent
to the Section.
4. In the
session held by the First Section on 29/7/2013, it was decided that the
examination of admissibility and merits be carried out together.
5. The facts
and cases which are the subject matter of the application were notified to the
Ministry on 30/7/2013. The Ministry presented its written opinion to the
Constitutional Court on 16/9/2013.
6. The
opinion letter of the Ministry was notified to the applicant on 24/9/2013. The
applicant submitted its petition including its statements against the opinion
of the Ministry on 7/10/2013.
III. FACTS
AND CASES
A. Facts
7. As expressed
in the application form and the annexes thereof, the facts are summarized as
follows:
8. The
applicant was sentenced to an administrative fine of 319,00 TL by the officials
of the Traffic Control Branch Directorate of Diyarbakır on 12/7/2012 on the
ground that it did not comply with the liability to use a tachograph in
accordance with subparagraph (b) of paragraph one of article 31 of the Highways
Traffic Code dated 13/10/1983 and numbered 2918.
9. The
applicant filed an opposition against the administrative fine before the 2nd
Criminal Court of Peace of Diyarbakır (Court) on 26/7/2012.
10. A hearing
was held by the court in order for the opposition to be ruled. The attorney of
the applicant attended at the second hearing dated 11/12/2012 and requested
that a decision be delivered on the acceptance of the opposition by stating
that it was not possible to impose a limitation which was not regulated by law
through a circular, that his client did not have the obligation of knowing the
circular.
11. Through
the decision of the court dated 11/12/2012 and numbered 2012/748, a decision
was delivered to the face of the attorney of the applicant as regards the
dismissal of the opposition in a final fashion. B. Relevant Law
12. Article
31 of the Code numbered 2918 is as follows:
"In vehicles;
…
b) It shall be obligatory
to also have a tachograph in trucks, wreckers and buses, a
taximeter in taxi automobiles
and to keep them available. However, the
obligation to have and use tachograph shall not be sought for vehicles
which were manufactured in years prior to the date on which the Code numbered 2918 entered into force and those which
were registered and will be registered as official vehicles and those which transport passengers and freight within a
city and municipal urban area. …
Drivers who fail to have, use or keep available a taximeter,
tachograph in their vehicles according to subparagraph (b) ... of paragraph one
shall be sentenced to a fine of 34.800.00 liras. If the driver is not the owner
of the car as well, a fine report shall be issued also for the registry plate
for the same amount. …”
13.
Subparagraph (a) of paragraph one of article 99 of the Highways Traffic
Regulation (Regulation) dated 18/7/1997 and numbered Official Gazette 23053 is
as follows:
"The principles as regards in what kind of vehicles the
device of tachograph and driver employment certificates will be kept and used
are shown below.
a) The devices of tachograph
…
1) It shall be obligatory to keep available and use the
devices of tachograph in buses, trucks and wreckers which transport freight or
passengers between cities.
2) The operator and driver of each vehicle in which a device
of tachograph is equipped shall be obliged to keep these devices available as
of the date on which they are installed.
3) The obligation of
keeping a device of tachograph shall not be sought for vehicles in the type of
bus, truck and wrecker which transport passengers and freight within a city and
municipal urban area.
…”
14. The
relevant parts of the Consolidated Circular of the Traffic Implementation and
Control Department Presidency of Turkish National Police (Circular) are as
follows:
“…
According to article 31 of the Highways Traffic Code, it
shall be obligatory to have and keep available a tachograph in trucks, wreckers
and buses, a taximeter in taxi automobiles. According to this;
…
The obligation of having and using a tachograph shall not be
sought for those which transport passengers and freight within a city and
municipal urban area as well, a letter of undertaking to be received from a
notary public shall be requested during the procedures of registration to be
performed in the name of natural and legal persons that are the owners of a vehicle
and declare that they will transport freight and passengers within a city and
municipal urban area during the procedures of registration.
In the procedures of registration to be performed based on
these submitted documents, this circumstance shall be recorded in the relevant
part of the certificate of registration.
Civilian vehicles which are exempted from the obligation of
using and having a device of tachograph shall have a driver employment
certificate in the event that they perform land transportation between cities.
This matter shall be checked during traffic controls.
In the event that vehicles which declare that they work
within a city and municipal urban areas and make this matter recorded into
their documents use highways outside a city and municipal urban areas, the
criminal provisions of article 31 of the Code shall apply."
IV. EXAMINATION
AND JUSTIFICATION
15. The
individual application of the applicant dated 10/1/2013 and numbered 2013/849
was examined during the session held by the court on 15/4/2014 and the
following were ordered and adjudged:
A. Claims
of the Applicant
16. The
applicant asserted that an administrative fine was imposed on it based on the
Circular although the regulation in article 99 of the Regulation did not impose
any liability or restriction on the owners of vehicles, that its application
against the administrative fine imposed as a result of the implementation,
through the Circular, of the restrictions which were not present in the
Regulation and the imposition of responsibilities on it within the framework of
article 124 of the Constitution and the hierarchy of norms was dismissed by the
Court, that therefore the right to a fair trial (defense) was violated and
requested for a decision to be delivered on the holding of a retrial.
B. Evaluation
1. In
Terms of Admissibility
17. In the
opinion letter of the Ministry, it was stated that the main complaint of the
applicant is related to the principle of lawfulness, that no concrete reason was
put forth by the applicant as regards the complaint of the right to a fair
trial (defense) and an opinion was presented as to the effect that the
complaints of the applicant should be examined within the framework of article
38 of the Constitution.
18. In its
declaratory petition against the opinion letter of the Ministry, the Applicant
expressed that the dismissal of the complaints of the applicant in a final
fashion without the examination and evaluation thereof by the local court in a
sufficient manner was a violation of the right to a fair trial.
19. Although
the applicant asserted that the right to a fair trial (defense) was violated
due to the facts and cases which it explained in the application petition as
the subject matter of the violation, it is understood that the complaints of
the applicant are, in essence, related to the violation of the principle of
lawfulness in crime and in punishment regulated in article 38 of the
Constitution. For this reason, the concrete application has been examined within
the framework of the principle of lawfulness in crime and in punishment, it has
not been considered necessary to carry out a separate examination in terms of
the right to a fair trial.
20. In the
opinion letter of the Ministry, as regards admissibility, it was stated that
the European Court of Human Rights (ECtHR) interpreted the concept of crime in
an autonomous manner without being bound by the characterization of the action
in national law, that an evaluation for the merits, not the procedure was
performed in order for an effective protection to be provided against arbitrary
actions, that the characterization in national law was initially taken into
account as the criteria of interpretation in the ECtHR case-law in which a
general differentiation was not performed, that however in addition to this,
the quality, aim and severity of a crime and the punishment prescribed therefor
were also taken into account, that while the quality of a crime was evaluated,
the issues as regards how the relevant crime was characterized by the great
majority of the states which are party to the European Convention on Human
Rights (Convention), the similarity of this crime with other crimes in the
criminal law, the characteristics of the procedures applied, whether the crime
is binding for a group or everyone based on public interest were taken into
account, that if it could be considered as a crime in terms of one of the
criteria, then this would be considered as sufficient.
21. According
to the provisions of paragraph three of article 148 of the Constitution and
paragraph (1) of article 45 of the Code on the Establishment and Trial
Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216, in
order for the merits of an individual application lodged to the Constitutional
Court to be examined, it is necessary that the right which is claimed to be
intervened by the public force be enshrined in the Constitution and that it
also be covered by the Convention and the additional protocols to which Turkey
is a party. In this context, it is necessary to identify the scope of the
fundamental right and freedom which is the subject matter of an individual
application within the framework of the common field of protection of the
Constitution and the Convention (App. No: 2012/1049, 26/3/2013, § 18; App. No:
2012/13, 2/7/2013, § 34).
22. The
principle of lawfulness in crime and in punishment is regulated in paragraph
one of article 38 of the Constitution with the side heading "Principles relevant to offences and penalties"
and in paragraph (1) of article 7 of the Convention with the side heading
"No punishment without law".
The fact that a dispute is relevant to crimes and penalties is the prerequisite
for the evaluation of a claim of violation within the scope of the common field
of protection of the aforementioned articles.
23. In a
similar application, it was accepted that disputes as regards the
administrative sanctions imposed due to the acts of misdemeanor as "allegation directed ... in criminal jurisdiction ..."
were also included within the scope of the field of protection of article 6 of
the Convention (App. No: 2013/1718, 2/10/2013, § 26). It is necessary to accept
that the claim as to effect that the principle of lawfulness in crime and
punishment was violated due to the administrative fine and the dismissal of the
application against this fine by the Court is also included within the scope of
the common field of protection of the Constitution and the Convention.
24. Due to
the reasons explained, it should be decided that the application, which is not
clearly devoid of basis and where no other reason is deemed to exist to require
a decision on its inadmissibility, is admissible.
2. In
Terms of Merits
25. In the
opinion letter of the Ministry, the lawfulness of crimes and penalties was one
of the main elements of the principle of the state of law, that the aim of this
guarantee was to ensure an effective protection against arbitrary
investigations, prosecutions and punishments, that the concept of "law" in the article had an autonomous
meaning just as other concepts, that the ECtHR understood "act" not as a disposition of the
legislative branch in form exclusively, but as "an objective legal norm" independently from the
procedure and form of introduction of the provision, that it was necessary that
the norms in question comply with international liabilities of human rights and
the requirements of a democratic society and that they be ratified with an
authority stemming from the Convention, that it was also necessary that regulations
as regards a crime and the penalty against it be accessible and foreseeable,
that when individuals examined the wording of the relevant provision which was
accessible, it was necessary that they know which executive or negligent
actions would make them encounter with which penalty through the help of a
lawyer when necessary, that it was important that the conclusion reached in
terms of merits be foreseeable in a way which was consistent and reasonable for
the essence of the action, that the obligation of installing a tachograph whose
contravention constituted a traffic crime was clearly regulated in the Code
numbered 2918 by also stating the exceptions thereof and the penalty against
it, that the letter of undertaking stipulated in the Circular was related to
the determination of vehicles which would benefit from the exception as regards
the obligation of installing a tachograph in the relevant Code, that this
determination resulted from a practical need and was not contrary to the legal
regulation, that individuals who made vehicle registration procedure performed
in the relevant units of Turkish National Police were averagely informed of the
aforementioned Circular and its implementation.
26. In its
declaratory petition against the opinion of the Ministry, the applicant stated
that the decisions of the ECtHR included in the opinion of the Ministry did not
set a precedent for the concrete incident in which the obligation of having a
tachograph that was not prescribed in the Code and the Regulation was
prescribed with the Circular and turned into a sanction under an administrative
fine, that moreover no basis was shown in the opinion letter as to the effect
that those concerned were informed of the implementation of the aforementioned
Circular during vehicle registration procedures in the units of Turkish
National Police.
27. The claim
that the conditions of implementation for the exemption as regards the
obligation of tachograph which constituted the exception for the act of
misdemeanor were determined through the Circular, that in this way a crime was
created with the Circular and that therefore the principle of "lawfulness in crime and in punishment"
was violated constitutes the essence of the examination of merits.
28.
Lawfulness in crime and in punishment is a fundamental principle which is
enshrined in the Constitution and the Convention as regards the rules of
criminal law and the implementation of these rules.
29. Paragraph one of Article 38 of the
Constitution with the side heading
"Principles relevant to offences and penalties" is as
follows:
"No one can be punished for an act which is not
considered to be an offence by the law that was in force when the offence was
committed; no one can be given a penalty heavier than the penalty stipulated by
the law for that offence when the offence was committed."
30. Paragraph
(1) of article 7 of the Convention with the side heading ''No punishment without law" is as
follows:
31. “1. No
one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or
international law at the time when itwas committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence
was committed."
31. While the principle of regulation by law
is separately included in many articles in the sections of the Constitution as
regards fundamental rights and freedoms, it is also provided in general
principles in relation to the restriction of fundamental rights and freedoms as
stipulated in article 13 that restriction can "only" be imposed "by
law". The
principle of "lawfulness in crime and
in punishment" is also specially enshrined in article 38 of the
Constitution which regulates crimes and penalties.
32. The
principle of lawfulness in crime and in punishment is one of the constituent
elements of a state of law. In addition to constituting a fundamental guarantee
in the regulation of all rights and freedoms in general, the principle of
lawfulness also has a special meaning and importance in terms of the
determination of crimes and penalties and, in this context, prevents
individuals from being alleged and punished in an arbitrary way due to acts
which are not prohibited or sanctioned by law and, in addition, ensures the
retrospective implementation of regulations which are in favor of the alleged
person in an effective manner.
33. The fact
that the exercise of public authority and the consequent authority to impose a
penalty for arbitrary and illegal purposes can be possible through the
implementation of the principle of lawfulness in a strict way. Accordingly, it
is necessary that legislative, executive and judiciary powers which represent
public authority act in respect for this principle; that the boundaries of
legal regulations as regards crimes and penalties be drawn by the legislative
branch in a clear way, that the executive branch not create a crime and penalty
through its regulatory actions without being based on an authority whose
boundaries are determined by law, that the judiciary branch which is tasked
with implementing criminal law not extend the scope of crimes and penalties
determined in codes by way of interpretation.
34. One of the fundamental principles of a
state of law stipulated in article 2 of the Constitution is "certainty". According
to this principle, it is necessary that legal regulations be clear, net,
understandable and implementable in a way that will not give rise to any
interruption and doubt in terms of both individuals and the administration,
that moreover they include some protective guarantees against the arbitrary
practices of public authorities. The principle of certainty is associated with
legal security; an individual should have an opportunity of learning from the
law in a certain accuracy which legal sanction or consequence is attributed to
which concrete action and case, which authority of intervention they grant to
the administration. Only in this case can an individual foresee the liabilities
which are incumbent upon him/her and regulate his/her behaviors accordingly.
Legal security requires that rules be foreseeable, that individuals can have
confidence in the state in all its actions and procedures, that the state
abstains from methods that may damage this feeling of confidence in its legal
regulations (The CC, M.2009/51, D.2010/73, D.D. 20/5/2010; The CC, M.2009/21,
D.2011/16, D.D. 13/1/2011; The CC, M.2010/69, D.2011/116, D.D. 7/7/2011; The
CC, M.2011/18, D.2012/53, D.D. 11/4/2012).
35. The
principle of "lawfulness in crime"
is enshrined in paragraph one of article 38 of the Constitution by stating
"No one can be punished for an act
which is not considered to be an offence by the law ..."and the
principle of "lawfulness in penalty"
is enshrined in paragraph three by stating "Penalties and security measures deemed to be penalties can only be
imposed by law." The principle of "lawfulness in crime and in punishment"
prescribed in the Constitution also constitutes one of the fundamental
principles of criminal law in our current day when an understanding which is
based on human rights and freedoms comes to the forefront. The principle which
is also regulated in article 2 of the Turkish Criminal Code dated 26/9/2004 and
numbered 5237 in parallel with article 38 of the Constitution requires that
which actions are prohibited and the penalties which will be imposed for these
prohibited actions be shown in the law in a way which will not give rise to any
doubt, that the rule be clear, understandable and its boundaries be specified.
This principle which is based on the thought that individuals know prohibited
actions beforehand is aimed at guaranteeing fundamental rights and freedoms
(The CC, M.2010/69, D.2011/116, D.D. 7/7/2011).
36. According
to paragraph one of article 31 of the Code numbered 2918, it is obligatory to
have and keep available a tachograph in trucks, wreckers and buses. Through the
regulation in the second sentence of the same paragraph, those which transport
passengers and freight within a city and municipal urban area are exempted from
this obligation. A regulation which is parallel with this is also included in
article 99 of the Highways Traffic Regulation published in the Official Gazette
dated 18/7/1997 and numbered repeated 23053.
37.
Tachograph is an electronic device which is installed in certain vehicles in
particular buses and trucks in order to record information such as speed or
completed distance, which allows for controlling in an effective way whether
especially drivers who drive the vehicles of transport comply with daily period
of driving and intervals and speed limits which are determined by codes within
the framework of traffic safety or not.
38. In the
Consolidated Circular of the Traffic Implementation and Control Department
Presidency of Turkish National Police, it is stated that in the event that real
and legal persons that are the owners of vehicles undertake in writing to
transport freight and passengers within a city and municipal urban area during
registration procedures, the statement as regards this undertaking will be
annotated in the documents and computer records of the vehicle and due action
will be undertaken in accordance with article 31 of the Code numbered 2918 (§
12) on those who are found to transport freight and passengers outside a city
and municipal urban area in spite of this annotation.
39. The
applicant asserts that although it was covered by the specified exemption and
the relevant regulations did not impose any other liability, it was sentenced
to an administrative fine through the Circular published by the administration
on the ground that it did not fulfill the liability of the letter of
undertaking prescribed for the owners of vehicles covered by the exemption and
that accordingly it did not comply with the liability to use a tachograph in
accordance with subparagraph (b) of paragraph one of article 31 of the Code
numbered 2918.
40. In a
state of law, individuals must know and foresee which actions are defined as
crime and which criminal sanctions they are attributed to in a certain period
of time and, in other words, the rules of criminal law must be foreseeable and
accessible. Otherwise, it will not be possible to
materialize the principle of criminal law expressed as "Ignorance of the criminal codes shall not be
considered as an excuse". Because, criminal
responsibility is based on the assumption that an individual is aware of
his/her action and that s/he has committed this action which constitutes a
crime on his/her free will. For this reason, in order for an individual to be
held responsible for the action that s/he has committed, it is necessary that
which actions constitute crimes be clearly shown in codes. (The CC, M.1991/18,
D.1992/20, D.D. 31/3/1992).
41. The
condition of regulating an action which is subjected to a criminal sanction in
the code in a clear way states that the enactment of regulations as crimes and
penalties in the form of a code is not sufficient and that they need to be
suitable for achieving a certain aim also in terms of content. In this respect,
the text of a code should be drawn up at a level that will allow individuals to
foresee in a certain clarity and accuracy which legal sanction or consequence
is attributed to which concrete action and case by way of receiving legal aid
when necessary. Therefore, prior to implementation, a code should be
sufficiently foreseeable as regards its possible effects and consequences.
Nevertheless, as it will not always be expected that the text of a code shows
all consequences and effects, the degree of desired clarity can be determined
by considering factors such as the content of the text in question, the area
which it aims to regulate and the status and size of the group that it
addresses. It is necessary that a code with these characteristics be easily
accessible as well (The CC, M.2011/62, D.2012/2, D.D. 12/1/2012).
42. In the
Code numbered 2918, no clear regulation is present on how persons "that transport passengers and freight within a city
and municipal urban area" exempted from the obligation of using
a tachograph will be included into this different status. In order for such a
provision to have the capability of implementation and to prevent misuses, it
is a logical requirement that an exemption be attributed to an action or
undertaking. However, no condition of form is prescribed for the exemption
stipulated in the Code numbered 2918 and it is considered necessary that the
concerned only be a person "that
transports passengers and freight within a city and municipal urban area".
It is not possible to foresee that any undertaking, notification or making an
annotation in traffic registration records is required from this expression in
the Code. On the other hand, for example, if "those who notify that they will transport passengers and freight"
and a similar expression had been used in the Code, it could have been
mentioned that the liabilities prescribed by the Circular and attributed to an
administrative sanction had a legal basis. However, the Circular regulation
indirectly creates a new misdemeanor by imposing a liability which is not
stipulated in the Code on those concerned in an unforeseeable way. Because, the
real action of misdemeanor is "the
failure to keep available a tachograph" and its exception
according to the provision of the Code is transporting freight and passengers
within a city and municipal urban area. The Circular, as the exception of this
exception although not stipulated in the Code, prescribes that in the event of
"the failure to declare working within
a city and municipal urban areas and to make the circumstance recorded in the
registration documents", the relevant person will not be able
to benefit from the exemption and will be sentenced to an administrative fine
due to the fact that s/he fails to undertake due action in accordance with the
provision of the Circular even if s/he is actually covered by the exception in
the Code.
43. The
Circular restricted the field of application of the exceptional regulation
without any legal basis by attributing the exemption of tachograph which is
recognized by the Code and is not attributed to any form to the form of
notification and making an annotation in the registration document. The
restriction through an administrative action of the field of application of the
exceptional regulation as regards an action which requires an administrative
fine resulted in the consequence of creation of a misdemeanor in the concrete
incident. This emerging consequence does not accord with the principle of
"lawfulness in crime and in punishment"
regulated in paragraph one of Article 38 of the Constitution.
44. Due to
the reasons explained, it has been concluded that the sentencing of the
applicant to an administrative fine on the ground that it did not fulfill its
liability of notification which is imposed by the Circular and is not
prescribed in the Code violated the principle of lawfulness in crime and in
punishment.
C. In
Terms of Article 50 of the Code Numbered 6216
45. The
applicant requested that the file be sent to the relevant Court for retrial in order
for the consequences of the violation to be removed.
46. Paragraph
(2) of Article 50 of the Code numbered 6216 with the side heading of ''Decisions" is as follows:
"If the determined violation arises out of a court
decision, the file shall be sent to the relevant court for holding the retrial
in order for the violation and the consequences thereof to be removed. In cases
where there is no legal interest in holding the retrial, the compensation may
be adjudged in favor of the applicant or the remedy of filing a case before the
general courts may be shown. The court, which is responsible for holding the
retrial, shall deliver a decision over the file, if possible, in a way that
will remove the violation and the consequences thereof that the Constitutional
Court has explained in its decision of violation."
47. The
violation determined in the incident which is the subject of the application
stems from the decision of the Court. As it is possible to remove the violation
and its consequences in the event that a retrial is held, it should be decided
that the file be sent to the relevant Court for holding a retrial.
48. It should
be decided that the trial expenses of 1,698.35 TL in total composed of the fee of
198.35 TL and the counsel's fee of 1,500.00 TL which were made by the applicant
and determined in accordance with the documents in the file be paid to the
applicant.
V. JUDGMENT
In the light
of the reasons explained, it is UNANIMOUSLY
decided on 15/4/2014 that;
A. The application as to the effect that
the the principle of "lawfulness in
crime and in punishment" guaranteed by Article 38 of the
Constitution was violated is ADMISSIBLE,
B. The principle of "lawfulness in crime and in punishment"
guaranteed by Article 38 of the Constitution was VIOLATED,
C. The decision be SENT to the relevant
Court for retrial in order for the violation and the consequences thereof to be
removed,
D. The trial expenses of 1,698.35 TL in
total composed of the fee of 198.35 TL and the counsel's fee of 1,500.00 TL,
which were made by the applicant be PAID TO THE APPLICANT,
E. The payments be made within
four months from the date of application of the applicants to the State
Treasury following the notification of the judgment; if there happens to be a
delay in payment, legal interest be accrued for the period elapsing from the
date when this duration ends until the date of payment.