Fines Cannot Be Issued Without Warning Signs Of Inspection
The rule of law means a state that adheres to the rule of law in its activities and ensures the legal security of its citizens. Therefore, it is an obligation for the executive, one of the state’s powers, to be bound by the rules of law and to carry out its activities accordingly. In this case, the activities of the administration must be subject to rules. Therefore, the rule-bound activities must be known by the citizens, and only in this way can the legal security of the citizens be ensured. This is called the “principle of orderly administration”. The administration is not only authorized to impose sanctions on citizens who violate the rules.
At the same time, the administration should develop braking mechanisms and warnings against citizens’ violations of the rules of law. If the administration turns into a power that only waits for the citizen to violate the rules and imposes sanctions on him, this situation gives the image that the administration has set a trap to impose punishment, which is contrary to the rule of law. You can examine the decision of the Court of Cassation on the illegality of issuing a fine without a warning sign indicating that a radar inspection has been carried out, which will be supported by countless examples.
7. Criminal Chamber
Main Number : 2014/2954
Decision Number : 2014/14281
“Case Law Text”
I- Incident :
On 27.05.2013, on 27.05.2013, during the speed control with radar device on Süleyman Demirel Street in Alaşehir District, at 14.54, it was determined that the misdemeanor F… A… was found to have exceeded the speed limit and an administrative fine of 343.00 Tl was imposed on the same date with the serial number 525573. Misdemeanor Fırat applied to Alaşehir Criminal Court of Peace on the same day for the cancellation of this administrative fine.
As a result of the examination made by the Criminal Court of Peace, “As a result of the examination made, it was concluded that the objection made by considering that the administrative fine was imposed due to speed violation, but there was no radar sign in the place where the radar control was made, and that the fines imposed without the necessary legal warnings duly made would not have a legal basis, and that the objection was justified,
it was necessary to establish the following judgment regarding the abolition of the administrative sanction decision contrary to the procedure and the law in accordance with paragraph 28/8-b of the law numbered 5326.” With the reasoning as follows, the application was justified and it was decided to cancel the administrative fine report. Against this decision, a request for reversal in favor of the law has been made upon the application of the General Directorate of Security that the reasoning of the court is contrary to the law.
II- Scope of the Dispute Regarding the Request for Reversal in Favor of the Law:
Although neither the Highway Traffic Law No. 2918 nor the Highway Traffic Regulation contains any provision on the presence of warning signs and markings in the places where speed control will be carried out with radar, the Court’s decision to “remove the administrative sanction decision” on the grounds that “there is no radar sign and the necessary legal warnings were not duly made” is against the law.
III- Legal evaluation :
According to Article 2 of the Constitution, “The Republic of Turkey is a democratic, secular and social State of law, based on the fundamental principles set forth in the preamble, respectful of human rights, loyal to Atatürk’s nationalism, in the spirit of social peace, national solidarity and justice.” According to the established case law of the Constitutional Court (e.g. 27.03.1986-E:85/31-K:86/111, 08.11. 1991-E:91/9-K:91/36) “A state of law is a state whose every action and transaction is in conformity with the law, which respects human rights, which establishes and maintains a just order in every field, which avoids situations and attitudes contrary to the Constitution,
which makes the law dominant in all state organs, which considers itself bound by the Constitution and the supreme rules of law and which is open to judicial review, which knows that it will be invalid when it moves away from the awareness that above the laws are the fundamental principles of law and the Constitution, which the legislator cannot violate.”
In short, the rule of law means “a state that adheres to the rule of law in its activities and provides legal security to its citizens”.
Since the rule of law means a state bound by the law, it is beyond doubt that the executive branch, one of the three powers of the state, is also bound by the rules of law.
In terms of the executive branch, the determinacy and foreknowability of its administrative activities are mandatory. In a state of law, the actions and transactions of the administration must be predictable by those who are administered. In administrative acts and actions, the administration is obliged to regulate this authority with general rules such as by-laws and regulations and to comply with these regulations. This is called the “principle of orderly administration”. Likewise, due to the principle of certainty of administrative actions, the administration should not abandon its practices that have gained stability.
Again, the principle of the rule of law states that the state has the duty and obligation to make the state pay for the acts that violate “individual rights and freedoms, public order and security, public health and the environment, economic order, social peace and order, and general rules of morality, i.e. crimes and misdemeanors, within the framework of national and universal law. However, it must be accepted that the State has, essentially and primarily, the duty to prevent the violation of these rules.
In other words, the duty of the administration, which is an authority of the rule of law, should not primarily be to wait for individuals to violate the rules and punish them, but to develop the level and habit of acting in accordance with the rules. This is also a requirement of the “principles of good administration”. Likewise, it is a requirement of the rule of law that the administration (Executive) is bound by the principles of good administration. As a matter of fact, the Committee of Ministers of the Council of Europe, of which Turkey is a member, adopted “RECOMMENDATION No. CM/REC(2007)7 TO MEMBER STATES ON GOOD ADMINISTRATION” at its meeting of Ministerial Representatives dated June 20, 2007 and numbered 999.
Article 10 of the aforementioned Recommendation entitled “Principle of Openness” states
“1. The administration shall operate in accordance with the principle of openness.
2. The administration shall inform private persons of its decisions and actions by appropriate means, including the publication of official documents.
3. It recognizes the right of access to official documents in accordance with the rules on the protection of personal data.
4. The principle of openness shall not prejudice confidentiality protected by law.”
This provision is included.
In the meantime, it is necessary to explain the legal nature of the decisions of the Committee of Ministers of the Council of Europe: The legal activity of the Council of Europe takes the form of conventions and recommendations. A “Recommendation of the Committee of Ministers” is a decision of the Committee of Ministers, based on Article 15/b of the Statute of the Council of Europe, addressed to the governments of the member states, setting standards for national legislators and administrations.
Although non-binding, the method of adopting decisions by consensus and the Committee’s invitation to governments to “inform whether they have taken decisions in line with the recommendations” ensures that the recommendations are taken into account. Occasionally, the Council of State uses the recommendations of the Committee of Ministers of the Council of Europe to support the reasoning in its decisions. For example, a journalist’s request for a yellow press card was rejected by the administration without justification. The Council of State, while accepting that the rejection decision must be justified, referred to the recommendation of the Committee of Ministers of the Council of Europe, among other reasons (DİDDGK, E:1995/769-K:1997/525, 17.10.1997, DD, 95, 1998, p.87). (Source: Onur KARAHANOĞLULLARI, Understanding the Administration by Law: Legality and Administrative Actions, 2nd Edition, Ankara 2012, Turhan Kitabevi, p.107, 395)
The relevant domestic law regulation is as follows:
Article 2, paragraph one, subparagraph (c) of the Law No. 3152 on the Organization and Duties of the Ministry of Interior entrusts the Ministry of Interior with the duty of “ensuring and supervising traffic order on highways”. Article 33 of the same Law authorizes the Ministry of Interior to “regulate the services which they are obliged to perform by law through by-laws, regulations, communiqués, circulars and other administrative texts”.
Within the scope of this “regulation duty and authority” of the Ministry of Interior, the Directive on Measures to be taken in Traffic Inspections and Traffic Accidents was prepared and put into force with the approval of the Minister dated 31.10.2011. The Directive was issued in order to “determine the procedures and principles of the work and procedures to be carried out before, during and after traffic inspections, and in case of traffic accidents, the procedures and principles of the work and procedures to be carried out before and after arrival at the scene of the accident, as well as the actions to manage and regulate traffic”.
The Directive states
In subparagraph (ç) of paragraph 1 of Article 34 titled “Matters to be considered in radar speed control”, the following rule is included,
“In case of fixed inspections, the radar vehicle shall be positioned in such a way that it can be easily seen from both sides of the highway and does not endanger the traffic.”
Article 47 titled “Informing road users” is as follows
“(1) In order to increase the level of compliance with traffic rules, to ensure traffic safety and to inform and raise awareness of road users, the national and local media and other means of communication shall be utilized to the maximum extent in explaining the sections of the highway, the duration of the inspections, the subjects on which the inspections will be carried out and the risk information, cause-effect relationships and the results of the inspections.”
As can be seen, with this Directive provision, the Ministry of Interior has stated that traffic inspections will be carried out 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 how long,
– Which topics to concentrate on,
It stipulates that national and local media and other means of communication shall be utilized to the maximum extent.
Thus, it is seen that the Ministry of Interior, through a regulatory administrative act, has issued a regulation on “informing road users (especially drivers) about the sections of the highway where traffic inspections will be carried out, at what times and in which areas they will be intensified, by making maximum use of national and local media and other means of communication”.
The aforementioned regulations are in compliance with the provisions of paragraphs 1 and 2 of Article 10 of the recommendation on “good administration” adopted by the Committee of Ministers of the Council of Europe at the Ministerial Representatives meeting.
It is also undisputed that the Directive binds the traffic police, which are affiliated organizations of the Ministry of Interior in accordance with the provision of Article 29 of the Law No. 3152 and which are within the general law enforcement forces under the direction and administration of this Ministry in accordance with their specific laws.
As for the evaluation of the concrete case in the light of these explanations:
In the light of the provisions of Articles 34/1-ç and 47 of the Directive, it must be accepted that road users must be informed about “the section of the highway and the duration of the radar speed control”. This is also a requirement of the principles of “openness and notification by appropriate means”, which are recognized as principles of good administration in the Recommendation adopted by the Ministerial Representatives of the Committee of Ministers of the Council of Europe.
According to Article 47 of the Directive, the administration shall make maximum use of “national and local media and other means of communication” in this information activity. It should be concluded that the administration is obliged to “inform road users under all circumstances” and for this purpose, it may make maximum use of “national and local media and other means of communication”. The administration shall first inform through its own customary means and methods.
The Regulation on Traffic Signs published in the Official Gazette dated 19.06.1985 and numbered 18789 regulates “the standards, meanings, quantities and qualifications and other principles of traffic signs to be applied on highways for the purpose of ensuring traffic order and safety by informing the road users about the road, traffic situation and the immediate surroundings, and by notifying prohibitions and restrictions”. Therefore, the information within the scope of Article 47 of the Directive on Measures to be Taken in Traffic Controls and Traffic Accidents must be provided through “traffic signboards” to be placed in accordance with the procedures and principles in this Regulation.
Apart from this method, the media and other means of communication will also be utilized if necessary. Therefore, pursuant to the aforementioned Directive, it is obligatory to inform drivers about “the sections of the highway where radar speed checks will be carried out and for which periods of time”, first and foremost by means of traffic signs.
Expecting the road users to violate the rules without informing them in order to penalize the traffic inspections, which should be carried out primarily to ensure the safety of life and property, is not in accordance with the purpose of the traffic rules and would mean setting a trap for the drivers, which is incompatible with the principles of the modern rule of law and is unacceptable.
IV- Conclusion and decision :
For the reasons explained above, it was unanimously decided on 08.07.2014 to reject the request of the Chief Public Prosecutor of the Court of Cassation for reversal in favor of the law, since it was not deemed appropriate.
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