17 May 2018 Thursday

Ahmet Altuntaş and Others [PA] (no. 2015/19616, 17 May 2018)

The Facts

An administrative fine was imposed on the applicants, who were the owners of an agricultural land, for burning of stubble on their land.

Maintaining that there were numerous agricultural lands adjacent to one another; that a fire starting in any land extended to the others due to wind and the fire on their own lands might have broken out in this way, the applicants brought an action before the administrative court for annulment of the administrative fine imposed on them. However, their action was dismissed.

The regional administrative court examined the applicants’ appeal and accordingly upheld the decision. The applicants’ request for rectification of the judgment was also dismissed by the same regional administrative court.

The Applicants’ Allegations

The applicants maintained that those who burned the stubble could not be identified; and that a penalty was imposed on them as the land owners although they had not burned the stubble. They accordingly alleged that there was a breach of the principle that criminal responsibility shall be personal, which is safeguarded by Article 38 of the Constitution.

The Court’s Assessment

The presumption of innocence is enshrined in Article 38 of the Constitution as follows: “No one shall be considered guilty until proven guilty in a court of law”. Besides, in Article 36 of the Constitution, it is set forth that everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial.

As the accused is presumed innocence as required by the presumption of innocence, a trial should be conducted with a view to reaching a material fact. However, the person charged with an offence cannot be requested to prove his innocence in order to reach this material fact.

However, in administrative sanctions imposed, under the specific circumstances of a concrete case, due to misdemeanours, standards as to presumptions of responsibility may be construed in a more flexible manner, compared to the criminal offences and penalties. However, even in such a case, presumptions of proof must not attain the extent which would infringe the presumption of innocence.

The incumbent court considered the applicants’ ownership of the agricultural lands, where stubble was burned, sufficient for imposing an administrative fine on them. In other words, their position as a property owner was shown as a ground for subjecting them to an administrative fine.

As a result of the on-site examination carried out on the lands, no finding to identify the person burning the stubble could be reached. Taking into consideration that the applicants, who are the owners of the lands in question, did not make a report or file a criminal complaint that stubble had been burned on their immovable properties, the incumbent court relied on a presumption of fact that the act of burning stubble had been performed by the applicants. In other words, the burden of proof was not with the claimant but shifted to the applicants in the present case. Thereby, the applicants charged with the act have automatically become guilty. On the other hand, it is not possible to prove the contrary of the court’s presumption that that the misdemeanour was committed.

It has been observed that the court extended the scope of the legislation in force in line with the principle of objective responsibility (by acting on the basis of assumptions) and dismissed the applicants’ requests. In other words, the court established a link between the imputed act and the applicants by relying not on the concrete facts but on a rebuttable presumption of fact and accordingly found the applicants guilty of the misdemeanour.

It has been concluded that the applicants suffered a significant disadvantage vis-à-vis the administration in terms of self-defence; and that therefore, the presumptions of proof reached the extent which was in breach of the presumption of innocence. Besides, the fact that the applicants were provided with the opportunity to self-defence did not redress the violation of the presumption of innocence.

For the reasons explained above, the Court found a violation of the presumption of innocence safeguarded by Articles 36 § 1 and 38 § 4 of the Constitution.