REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
JUDGMENT
MOHAMED KASHET AND OTHERS
(Application no. 2015/17659)
20 June 2019
On 20 June 2019, the Plenary of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Mohamed Kashet and Others (no. 2015/17659).
THE FACTS
[9-35] During the exit controls carried out by the officials at the Free Zone Customs Office, a sum of cash money was found in the car which the applicants were in.
Upon an instruction received from the chief public prosecutor’s office, the customs officers seized the money. The applicants successfully filed an objection with the magistrate judge to lift the seizure order. Upon approval of their objection, the seized money was returned to the applicants.
The chief public prosecutor’s office imposed administrative fines on the applicants separately, on the ground that they committed misdemeanour. The applicants challenged the prosecutor’s decision before the magistrate judge. The latter ordered that an expert examination be carried out on the matter.
The expert report stated that the impugned cash money had been found to have been taken into the country in a bag, while it had been possible to send it through a bank, and that therefore the decision against them was not erroneous. Hence, the magistrate judge dismissed the applicants’ challenge. The applicants’ subsequent appeal was also rejected.
36. The Constitutional Court, at its session of 20 June 2019, examined the application and decided as follows:
37. The applicants asserted that there was no reason in the present case for the imposition of an administrative fine, since importing and exporting foreign exchange to and from the country was permitted according to the decision of the Council of Ministers, dated 11 June 2015. They claimed that the administrative fines imposed on them were in contravention of the law. The applicants added that no grounds had been found to prosecute (i.e. a decision of non-prosecution had been issued) in similar cases.
38. The applicants further complained that administrative fines had been imposed on them despite the fact that the commercial source of the money was clear as the money in question had been transported due to the transfer of company shares only three days after this transfer. The applicants indicated that the total sum of the administrative fine imposed in this scope was 4,291,014 Turkish liras (TRY) whereas the amount of money found was TRY 1,426,200; thus, when compared to the amount of undeclared money at issue, the fine was disproportionate.
39. For these reasons, the applicants alleged that the right to property, the right to a fair trial, the right to an effective remedy, the prohibition of discrimination, and the principle of a state governed by rule of law had been violated.
40. Article 35 of the Constitution, titled “Right to property”, reads as follows:
“Everyone has the right to own and inherit property.
These rights may be limited by law only in view of public interest.
The exercise of the right to property shall not contravene public interest.”
41. The Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16).
42. Although the applicants, through their complaints within the scope of the right to property, claimed that there had also been a violation of the prohibition of discrimination, they failed to concretely substantiate this allegation. Moreover, seeing that the objections raised by the applicants against the administrative fine were examined at two separate instances, a violation of the right to an effective remedy is also out of question. It is also beyond doubt that the principle of a state governed by rule of law within the meaning of Article 2 of the Constitution is one of the general principles which has to be considered within the framework of the protection of all rights and freedoms giving rise to individual applications under the shared protective umbrella of the Convention and the Constitution. In the present case, given that the disputed administrative fine was prescribed by law, there is no issue to note as regards the alleged violation of the principle of legality of crimes and punishment (nullum crimen, nulla poena sine lege). Thus, the Court finds it unnecessary to hold separate examinations with respect to the above-mentioned complaints raised via the hereby individual application.
43. The essence of the applicants’ complaints concerns the alleged violation of the right to property as a result of the imposition of an administrative fine for the misdemeanour of attempting to bring foreign exchange into the country without declaration. Therefore, all of the alleged violations raised by the applicants have been considered within the scope of the right to property.
44. Alleged violation of the right to property must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
a. Existence of Property
45. In the present case, the Public Prosecutor’s Office decided to impose an administrative fine of TRY 715,169 on each applicant for the misdemeanour of attempting to bring foreign exchange into the country without making a declaration and obtaining a permission. Since there is no doubt that the money collected from the applicants as a result of the imposition of an administrative fine was part of the applicants’ assets and that the imposition of an administrative fine caused a decrease in the applicants’ assets, this money clearly constituted a possession for the applicants (for the Court’s assessments in the same vein, see Orhan Gürel, no. 2015/15358, 24 May 2018, § 43).
46. An administrative fine was imposed on the applicants due to their failure to comply with the obligations to make a declaration and obtain permission for importing foreign exchange into the country. Thus, the aim pursued with this interference was to regulate and control the entry and exit of cash foreign exchange into and from the country. Therefore, taking note of the consequences and particularly the aim of the interference performed in the present case through the imposition of an administrative fine on the applicants, the Court has considered that the application must be examined from the standpoint of the rule concerning the control of the use of the possession/property in line with the public interest (for the Court’s assessments in the same vein, see Orhan Gürel, § 46).
47. Article 13 of the Constitution provides as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”
48. Article 35 of the Constitution does not envisage the right to property as an unlimited right; accordingly, this right may be limited by law and in the interest of the public. In interfering with the right to property, Article 13 of the Constitution must also be taken into consideration as it governs the general principles concerning the restriction of fundamental rights and freedoms. In order for the interference with the right to property to be in compliance with the Constitution, the interference must have a legal basis, pursue the aim of public interest, and be carried out in accordance with the principle of proportionality (see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February 2017, § 62).
49. The administrative fine giving rise to the present application was imposed by virtue of Article 3 §§ 2 and 7 of Law no. 1567 on Protection of the Value of Turkish Currency (Law no. 1567). Seeing that the provisions of this Law are clear, accessible and foreseeable, there is no doubt that the interference with the applicant’s right to property was prescribed by law (see Orhan Gürel, §§ 50-51).
50. In the present case, considering that large amounts of money in cash can might be used for money laundering, drug trafficking, financing of terrorism or organised crime, tax evasion or other serious financial crimes, the State is authorised to monitor and supervise the exchange of money into or from the country and, by extension, the transport of foreign exchange over the border. Besides, the above-mentioned monitoring and supervision is also a requirement of international conventions which put obligations on the State in this regard, such as the United Nations Convention against Transnational Organized Crime. The obligation of customs declaration and permission placed on individuals, as observed in the present case, allows the authorities to know and detect the foreign exchange in an amount exceeding a certain threshold which will be taken out of or brought into the country. Therefore, there is a public interest in penalising the applicant due to non-compliance with the obligation of declaration and permission, which was considered as a misdemeanour, and it is beyond doubt that the interference pursued a legitimate aim (see Orhan Gürel, § 53).
(1) General Principles
51. Finally, it should be examined whether the public authorities’ interference with the applicants’ right to property was proportionate.
52. The principle of proportionality (ölçülülük) comprises of three subprinciples, which are “appropriateness” (elverişlilik), “necessity” (gereklilik) and “proportionality” (orantılılık). “Appropriateness” means that the prescribed interference is capable of achieving the objective aspired for; “necessity” shall mean that the interference is absolutely necessary for that objective, that is achieving such an objective with a lighter intervention is not possible; and “proportionality” shall refer to the need for striking a reasonable balance between the interference with the individual’s right and the objective sought (see the Court’s judgments no. E.2011/111, K.2012/56, 11 April 2012; no. E.2014/176, K.2015/53, 27 May 2015; no. E.2016/13, K.2016/127, 22 June 2016, § 18; and Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 38).
53. Pursuant to the principle of proportionality, a fair balance must be struck between the public interest sought to be achieved by restricting the right to property and the individual’s rights. This fair balance will have been upset where it is found out that the applicant has personally borne an excessive burden. In the assessment of proportionality of the interference, the Court will take account of the burden imposed on the applicant from two perspectives: on the one hand, it will examine the importance of the legitimate aim sought to be achieved; and, on the other, it will have regard to the nature of the interference along with the behaviour of the applicant and the public authorities (see Arif Güven, no. 2014/13966, 15 February 2017, §§ 58 and 60).
54. In order for a fair balance to be struck between the aim of public interest sought to be achieved by the interference with the right to property and the protection of the individual’s right to property, the property owner must firstly be given a chance to effectively put forth his defence and objections against the measures put in place and the allegations and defence submissions in question must be reasonably responded to (see, for cases where the interference was found proportionate thanks to the fact that the applicant was afforded, inter alia, an effective right of defence, Eyyüp Baran, no. 2014/8060, 29 September 2016, §§ 75-95; and Fatma Çavuşoğlu and Bilal Çavuşoğlu, no. 2014/5167, 28 September 2016, §§ 74-89. See in contrast, for cases where the interference was found disproportionate due to the denial of the same guarantee during the proceedings, Mahmut Üçüncü, no. 2014/1017, 13 July 2016, §§ 79-102; and Arif Güven, §§ 57-72).
55. The Court has already examined a similar complaint from the standpoint of proportionality in the case of Orhan Gürel, in which it laid down the principles regarding the matter (see Orhan Gürel, §§ 54-65).
56. In the cited case, the Court stressed that the interference could not be said to have been unnecessary in view of the fact that the interference was capable of achieving the public interest sought and that only an administrative fine had been imposed on the applicant since his act was categorised as a misdemeanour. As regards the question whether the interference was proportionate, the Court held that the applicant had been afforded the opportunity of effectively putting forth his allegations and defence submissions against the imposition of the administrative fine and that the inferior courts had not ruled arbitrarily or unforeseeably. Lastly, having acknowledged that the legal interest pursued by the categorisation of the act as a misdemeanour and the prescription of an administrative sanction for it was simply to enforce compliance with the obligation of making a declaration to customs authorities and obtaining a permission, the Court particularly emphasised that no sanction had been applied other than the imposition of an administrative fine in the amount that corresponded, as of the incident date, to half the value of the foreign exchange being carried by the applicant. Under these circumstances, the Court concluded that the interference with the right to property did not place an excessive burden on the applicant and that it was proportionate vis-à-vis the public interest it pursued (see Orhan Gürel, §§ 54-65).
57. The same principles must be applied to the present case as it concerns a similar complaint. The public authorities have established that the foreign exchange giving rise to the alleged violation of the right to property was seized as the applicants were trying to bring it into the country in cash. Indeed, the applicants have not contested this fact. Accordingly, the applicants wished to bring cash foreign exchange in the amount of 630,000 United States dollars (USD) into the country but they neither made a declaration to the customs authorities in this regard nor obtained a permission in advance. For this reason, separate administrative fines were imposed on each applicant under Article 3 § § 2 and 7 of Law no. 1567.
58. The Court notes at the outset that the applicants have not raised any complaints to the effect that they were unable to present a defence or effectively put forth their objections against the interference with their right to property. By indicating that it was not forbidden to bring foreign exchange into the country, the applicants contended that the administrative fines imposed on them were in contravention of law. Nonetheless, as a rule, the Court’s duty within the scope of an individual application is limited with regard to the interpretation of legal rules and it may not intervene in this area unless there is obvious arbitrariness or manifest error of discretion. In this context, since the inferior courts acknowledged that exchange of foreign currency into or from the country was possible at the material time on the condition of declaration and permission and that this permission procedure had not been complied with in the present case on the basis of an interpretation of the Decree no. 32 of the Council of Ministers and Articles 1 and 3 of the Law no. 1567, these decisions cannot be considered as arbitrary or unforeseeable.
59. On the other hand, the applicants were respectively fined TRY 715,169 in the present case. It is understood that, as was the case in the incident giving rise to the application of Orhan Gürel, these fines corresponded to half of the then-current market value of the cash foreign exchange detected by the authorities. However, the fines at issue were imposed due to a single incident. Thus, a total of TRY 5,006,183 in administrative fines were imposed on the applicants for USD 630,000 (TRY 1,426,200) of undeclared money.
60. In the instant case, there is neither any criminal charges imputed to the applicants by public authorities nor any allegations suggesting that the foreign exchange found on the applicants had been used for money laundering, financing of terrorism, drug trafficking or any other criminal activity or that it was a fruit of crime. In this context, the legal interest pursued by the imposition of administrative fines was simply to ensure compliance with the obligation of making a declaration to customs authorities and obtaining a permission. In fact, the Chief Public Prosecutor’s Office issued a decision of non-prosecution in respect of the applicants for the act in question. The applicants also submitted documents to prove that the money had been acquired through legitimate means, against which the public authorities did not make any finding or accusation to the contrary. It is also possible to say that, in the incident involving bringing foreign exchange into the country, the applicants’ failure to declare the foreign exchange they were carrying to the customs authorities did not cause any damage in terms of the protection of the Turkish currency.
61. The Court has acknowledged that the control of undeclared and unpermitted flow of cash is especially important with respect to prevention of crime as a requirement of international conventions and that the State enjoys a wide margin of appreciation in the regulation and application of administrative fines (see Orhan Gürel, § 63). However, the exercise of this margin of appreciation also has a limit, which is respecting the requirements of protection of the right to property. Accordingly, as indicated above, an interference must not lead to an excessive personal burden on the part of the property owners.
62. In the instant case, the Court observes that the administrative fine imposed amounted to 3.5 times the sum of seized money. Although the misdemeanour stemmed from the same incident and act, each of the applicants was imposed a separate administrative fine as per Article 14 of the Law no. 5326 on the ground that multiple persons had been involved in the commission of the misdemeanour.
63. Consequently, when examined in the light of the principles established in the case of Orhan Gürel, the present complaint brings the Court to a different conclusion due to its particular circumstances. That is, even though the applicants caused the interference as a result of their own fault and the consequences of the act were foreseeable, the total amount of the administrative fines imposed on the applicants in the present case was much higher than the sum of money that could have been declared. However, the legal interest sought by this rule is merely limited to ensuring compliance with the obligation of declaration and permission. Thus, when taken together with the legal and material interest safeguarded with the prescribed sanction, the administrative fine in question has, under the circumstances of the present case, caused an excessive personal burden on the part of the applicants.
64. As a result, the Court has reached the conclusion that the interference with the applicants’ right to property, namely the imposition of administrative fines for having attempted to bring foreign exchange into the country without permission, has placed an excessive and extraordinary burden on the applicants despite the intrinsic public interest it pursued and the wide margin of appreciation accorded to the public authorities in this respect. Therefore, the fair balance which needed to be struck between the applicants’ right to property and the public interest sought by the interference was upset to the detriment of the applicants and the interference was not proportionate.
65. For these reasons, it must be held that there has been a violation of the right to property protected under Article 35 of the Constitution.
Serdar ÖZGÜLDÜR expressed a dissenting opinion in this respect.
66. Article 50 §§ 1 and 2 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...
(2) 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 favour 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.”
67. If the Court finds a violation of a fundamental right or freedom within the scope of an individual application, the main requirement which needs to be satisfied in order to consider that the violation and its consequences have been redressed is to ensure restitution to the extent possible, that is to restore the situation to the state it was in prior to the violation. For this to happen, the continuing violation needs to be ceased, the decision or act giving rise to the violation as well as the consequences thereof need to be removed, where applicable the pecuniary and non-pecuniary damages caused by the violation need to be indemnified, and any other measures deemed appropriate in that scope need to be taken (see Mehmet Doğan, § 55).
68. Before ruling on what needs to be done to remove the violation and its consequences, the source of the violation must first be ascertained. In this respect, a violation may stem from administrative acts and actions, judicial acts, or legislative acts. Determining the source of the violation plays a significant role in determination of the appropriate way of redress (see Mehmet Doğan, § 57).
69. In cases where the violation originates from a court ruling, the Court decides, as a rule, to send a copy of the judgment to the relevant court for a retrial to be held to redress the violation and its consequences pursuant to Article 50 § 2 of Code no. 6216 and Article 79 § 1 (a) of the Internal Regulations of the Constitutional Court (see Mehmet Doğan, § 58).
70. Accordingly, the discretion to decide whether it is necessary to conduct a retrial in case of a finding of a violation by the Court is vested not in the inferior courts but in the Court itself. In turn, the inferior courts are under an obligation to take the steps necessary in order to redress the consequences of the violation in accordance with the direction set by the Court in its judgment.
71. The applicants requested finding of violations and a retrial, as well as claiming respectively TRY 20,000 as pecuniary compensation.
72. The Court has concluded that there has been a violation of the right to property under the circumstances of the present case due to the interference in the form of administrative fines imposed on the applicants. Accordingly, the Court understands that the violation originated from a disproportionate interpretation by the judicial authorities of the provision under Article 3 of Law no. 1567 together with Article 14 of Law no. 5326. In other words, the Court has found that the fact that judicial authorities interpreted the rule provided by Article 3 of Law no. 1567 together with Article 14 of Law no. 5326 in this way caused an excessive personal burden on the part of the applicants.
73. In such cases, there is legal interest in holding a retrial in order to remove the consequences of the violation of the right to property. A retrial to be conducted in this scope aims to remdress the violation and its consequences according to Article 50 § 2 of Code no. 6216. In this regard, what is to be done by the inferior courts consists of removing in the first place the court ruling giving rise to the violation and finally rendering a new ruling in accordance with the violation judgment. In this framework, the relevant trial court should bear in mind that the applicants, who were merely found to have committed the misdemeanour of attempting to bring foreign exchange into the country without permission, may only be fined on the basis of the amounts of foreign exchange for which they are personally at fault. For this reason, a copy of the judgment must be remitted to the Mersin 2nd Magistrate Judge (Miscellaneous File no. 2015/3839) for retrial.
74. Since the ruling in favour of a retrial offers sufficient redress in terms of the consequences of the violation, the applicants’ claims for compensation must be rejected.
Zühtü ARSLAN, Engin YILDIRIM and Yusuf Şevki HAKYEMEZ expressed dissenting opinions in this respect.
75. According to the calculations over the document in the case file, the court fee of TRY 226.90 must be reimbursed to applicant Moslem Alhabbal separately whereas the court fee of TRY 226.90 must be reimbursed to the rest of the applicants jointly. Also, the counsel fee of TRY 2,475 must be reimbursed to all the applicants jointly.
For these reasons, the Constitutional Court held on 20 June 2019 that
A. UNANIMOUSLY, the alleged violation of the right to property be DECLARED ADMISSIBLE;
B. BY MAJORITY and by dissenting opinion of Mr. Serdar ÖZGÜLDÜR, the right to property safeguarded by Article 35 of the Constitution was VIOLATED;
C. BY MAJORITY and by dissenting opinions of Mr. Zühtü ARSLAN, Mr. Engin YILDIRIM and Mr. Yusuf Şevki HAKYEMEZ, one copy of the judgment be REMITTED to the Mersin 2nd Magistrate Judge (Miscellaneous File no. 2015/3839) for a retrial to redress the consequences of the violation of the right to property;
D. BY MAJORITY and by dissenting opinions of Mr. Zühtü ARSLAN, Mr. Engin YILDIRIM and Mr. Yusuf Şevki HAKYEMEZ, the applicants’ compensation claims be REJECTED;
E. The court fee of TRY 226.90 be REIMBURSED to applicant Moslem Alhabbal separately whereas the court fee of TRY 226.90 be JOINTLY REIMBURSED TO THE REST OF THE APPLICANTS; also, the counsel fee of TRY 2,475 be JOINTLY REIMBURSED TO THE APPLICANTS;
F. The payment be made within four months as from the date when the applicant applies to the Ministry of Treasury and Finance following the notification of the judgment; in case of any default in payment, statutory INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and
G. A copy of the judgment be SENT to the Ministry of Justice.
1. The applicants complained about the violation of their right to property due to the imposition of an administrative fine for the misdemeanour of attempting to bring foreign exchange into the country without making a declaration. The majority of our Court have found a violation, thereby ordering a retrial and rejecting the applicants’ claims for compensation. While agreeing with the conclusion that there has been a violation of the right to property, I disagree with the majority’s view in regard to the source of the violation and the way of redress.
2. The majority has decided that the violation stemmed from a misinterpretation of the legal rules during their application to the case at issue and that the violation needs to be redressed through conducting a retrial by bearing in mind that the applicants “may only be fined on the basis of the amounts of foreign exchange for which they are personally at fault”.
3. In the present case, the Chief Public Prosecutor’s Office decided, pursuant to Article 3 of the Law no. 1567 on Protection of the Value of Turkish Currency, to impose an administrative fine equivalent to half (TRY 715,169) of the seized sum of money on each applicant for having attempted to bring foreign exchange into the country without declaration. The objections raised against this decision were dismissed by the relevant magistrate courts.
4. In addition, Article 14 § 1 of the Law of Misdemeanours (Law no. 5326) was also considered in determination of the administrative fine. According to this provision, “Where multiple persons are involved in the commission of a misdemeanour, an administrative fine shall be imposed on each of these persons as perpetrators.”
5. The disproportionality of the interference with the applicants’ right to property and, by extension, the violation originated from the legislative provisions. To be precise, the violation has emerged from Article 3 of Law no. 1567, which has to be applied in conjunction with Article 14 of Law no. 5326. Therefore, the source of the violation is not how the rule was interpreted but it is the rule itself. It is out of the question for the judicial authorities that are entrusted with applying the law to disregard explicit provisions of law through interpretation. Interpretation is applicable when rules are open and likely to be understood differently. As it was also indicated in Article 14 of the Ottoman Civil Code (Mecelle), there is no place for interpretation and jurisprudence where there is a clear and precise provision (“Mevrid-i nasda içtihada mesağ yoktur”).
6. Therefore, the violation found in the present case stemmed from the fact that the judicial authorities applied a clear provision of law, i.e. directly from the law, which is a legislative act. The action to be taken in this situation is not conducting a retrial but instead amending the provision of law which gave rise to the violation so that all consequences of the violation can be remedied and similar new violations can be prevented. Thus, a copy of the judgment should have been communicated to the legislative branch.
7. On the other hand, since communicating a copy of the judgment would be insufficient for redressing the applicants’ suffering stemming from the violation in the present case, the applicants’ claims for compensation should have been satisfied, as well. In fact, even though the applicants each paid TRY 715,169 in administrative fines, they claimed TRY 20,000 as pecuniary compensation. In this case, the applicants should have indeed been awarded TRY 20,000 seperately.
8. For these reasons, I disagree with the majority’s decision to order a retrial and deny the applicants any payment of compensation whereas a copy of the judgment should have been communicated to the legislative branch and the applicants should have been awarded compensation in order to redress the violation along with all of its consequences.
I agree with the views in the dissenting opinion written by Zühtü ARSLAN with regard to the need for communicating a copy of the judgment to the legislative branch and awarding the applicants compensation in order to redress the violation along with all of its consequences.
The administrative fine envisaged by Article 3 of Law no. 1567 is to be imposed in an amount equivalent to the market value of the items and securities/valuables in question if any of the securities/valuables listed in Article 1 of that Law have been brought into or taken out of the country without permission; or in an amount equivalent to half of that value if such an act has only been attempted (as is the case in the present application). Taking account of the amount of foreign exchange (valuable) seized, the majority has found that the administrative fines imposed on the applicants reached up to nearly 3.5 times the seized amount of money and that this caused an excessive and extraordinary burden. Finally, the majority concluded that the fair balance which needed to be struck between the applicants’ right to property and the public interest was upset to the detriment of the applicants and the interference was not proportionate. Nevertheless, it is clear that various procedures and methods are prescribed for determination of administrative fines by many different provisions in the legislation. In this respect, certain acts which can be regarded as minor infractions are punishable by administrative fines in arguably high amounts. At this point, the gravity of the disrupted public order is the determining factor and this matter essentially falls within the legislature’s margin of appreciation.
The legislative provision concerning the administrative fine which gave rise to the present application was put in place in pursuit of public interest, i.e. with the aim of protecting the value of Turkish currency, and prescribed a proportionate sanction. Thus, it is inappropriate to make an assessment based simply on the amount of seized valuables (foreign exchange) and the administrative fine imposed. In view of the fact that there are several other provisions such as this one in the legislation (e.g. sales of alcoholic products outside the designated hours, certain infractions at petrol stations etc.), there is no balance -upset to the detriment of the applicants- to speak of in the case at hand.
For these reasons, having personally reached the conclusion that there has not been a violation with the applicants’ right to property, I disagree with the majority’s decision to the contrary.
1. In the application concerning the alleged violation of the right to property due to imposition of an administrative fine for the misdemeanour of attempting to bring foreign exchange into the country without permission, the Court, while recognising the aim of public interest pursued and the public authorities’ wide margin of appreciation in this regard, found that the interference with the right to property in the form of imposition of administrative fines on the applicants placed an excessive and extraordinary burden on the part of the applicants. Having concluded that the interference was not proportionate because it upset, to the detriment of the applicants, the fair balance that had to be struck between the applicants’ right to property and the public interest pursued by the interference, the Court held that there has been a violation of the applicants’ right to property enshrined in Article 35 of the Constitution.
2. For having attempted to bring cash foreign exchange into the country without permission, each of the seven applicants was separately fined TRY 715,169, which corresponded to half of the then-current market value of the total amount of undeclared foreign currency (USD 630,000). The USD 630,000 which was not declared to the customs authorities was equivalent to TRY 1,426,200 at its market value at the material time; however, the administrative fines imposed amounted to a total sum of TRY 5,006,183.
3. While agreeing with the majority of the Court in finding a violation of the applicants’ right to property due to the imposition of a disproportionate administrative fine, I disagree with the decision to remit the case file to the Mersin 2nd Magistrate Court for retrial because I am of the opinion that the source of this violation stems from the Law itself.
4. The relevant provision of law in this respect is Article 3 § 2 of the Law no. 1567 on Protection of the Value of Turkish Currency. According to this provision, “If the act consists of bringing into or taking out of the country the securities/valuables listed in Article 1 without permission, an administrative fine shall be imposed on the person, unless the act constitutes a criminal offence or misdemeanour under the Anti-smuggling Law (no. 5607), in an amount equivalent to the market value of the items and securities/valuables in question; or in an amount equivalent to half of that value if the act has only been attempted.”
5. Thus, by virtue this mandatory provision of the Law, each of the individuals who committed such an act have to be penalised with an administrative fine in an amount to be calculated on the basis of the market value of the items and securities/valuables, about which the courts have no margin of appreciation. For this reason, even though the cause of the violation in the instant case is the disproportionality of the administrative fine imposed, this disproportionate fine stemmed not from the relevant court’s interpretation of the provision but from the very fact that the Law provides as such in a way which does not allow for any other interpretation.
6. Indeed, regard being had to Article 14 § 1 under the head of “Complicity” of the Law of Misdemeanours (Law no. 5326) which reads “Where multiple persons are involved in the commission of the misdemeanour, an administrative fine shall be imposed on each of these persons as perpetrators” as well as other relevant paragraphs therein, the courts have no choice but to impose an administrative fine on each person, who were complicit in attempting to bring foreign currency into the country without permission, which is calculated in accordance with Article 3 § 2 of Law no. 1567.
7. Therefore, seeing that the violation in the present case stems from the provision of Article 3 § 2 of Law no. 1567, which cannot be applied in any other way, there is no need for remitting the case file to the Mersin 2nd Magistrate Court for a retrial to be conducted in order to redress the consequences of the violation of the right to property.
8. To redress the violation, first of all the applicants should have instead been awarded pecuniary compensations separately. As the applicants respectively claimed TRY 20,000 as pecuniary compensation, this claim should have been respected and each of them should have been awarded TRY 20,000 as pecuniary compensation as the material redress of the violation.
9. Secondly, in view of the fact that it is for the legislative branch to review the legal provision giving rise to the violation with a view to preventing similar violations, the situation should have been communicated to the Grand National Assembly of Turkey.
10. With this dissenting opinion as to the way of redress, I agree with the finding of a violation reached by the majority of the Court.
