Providing Information On Traffic Control
TC.
JUDICIARY
CD 7
2014/2954 Esas 2014/14281 Decision 08.07.2014 Date
CASE: Due to the act of violating Article 51/2-b of the Highway Traffic Law No. 2918, F. A. Upon the request of the Ministry of Justice for the reversal for the benefit of the law of the decision of the Alaşehir Criminal Court of Peace dated 05/07/2013 and numbered 2013/493 different business, upon the acceptance of the application for the administrative fine of 343,00 Turkish liras imposed by the administrative fine decision report dated 27/05/2013 and numbered GT- 525573 of the Alaşehir Traffic Supervision Unit Chief Office and the cancellation of the administrative fine decision report, the file sent to our Chamber by the request letter of the Chief Public Prosecutor of the Court of Cassation dated 06.01.2014 and numbered 2013/406441 was examined: The request letter of the Chief Public Prosecutor’s Office of the Court of Cassation for reversal for the benefit of the law is as follows; “… The file containing the decision of the Alaşehir Criminal Court of Peace dated 05/07/2013 and numbered 2013/493 different business dated 05/07/2013 and numbered 2013/493 regarding the cancellation of the administrative fine decision report by accepting the application for the administrative fine of 343,00 Turkish liras imposed with the administrative fine decision report dated 27/05/2013 and numbered GT-525573 of the Alaşehir Traffic Supervision Unit Chief of the Alaşehir Traffic Supervision Unit about F. A. due to the act of violating Article 51/2-b of the Highway Traffic Law No. 2918 was examined. Although the Alaşehir Criminal Court of Peace decided to cancel the administrative fine on the muteriz on the grounds that there was no radar sign in the place where the radar control was carried out, and that the fines imposed without the necessary legal warnings were not duly made, it was decided to cancel the administrative fine on the muteriz; “In paragraphs 3 and 4 of Article 50 titled ‘Speed limits’ of the Highway Traffic Law No. 2918. (3) Signboards indicating the maximum and minimum speed limits are placed by the relevant institutions in the places deemed necessary. (4) The speed limits specified in the regulation by the institutions authorized by this Law may be reduced or increased according to the road and traffic conditions. In such cases, the situation shall be indicated by traffic signs and announced by appropriate means.” and in Article 51, paragraphs 1 and 2 of the same Law titled ‘Compliance with speed limits’, ”(1) Drivers are obliged not to exceed the speed limits specified in the regulation unless otherwise decided and marked. (2) (Amended paragraph: 08/01/2003-4785 S.K./4. Art. ) Drivers who exceed the speed limits by ten percent to thirty percent (including thirty percent) as a result of the determination made by technical devices measuring speed or various technical methods shall be fined 64 700 000 TL, and drivers who exceed the speed limits by more than thirty percent shall be fined 131 900 000 TL.”, and the provisions of Article 100, paragraph 1 of the Highway Traffic Regulation titled ‘Speed limits’, which is also enacted on the basis of this Law. “(Amended Article: 01.09.2010 – 27689 S.R.G. Yon./ll.mad) Except for the records and conditions written in the Highway Traffic Law and this Regulation and unless otherwise indicated, the minimum and maximum speed limits per hour for the types of vehicles without trailers according to the road conditions are shown below. “ and in paragraphs 1, 2 and 6 of Article 101 of the same Regulation titled “Compliance with speed limits and ensuring that the speed complies with the necessary conditions”, “(1) Drivers must not exceed the speed limits specified in Article 100 of this Regulation unless otherwise decided and marked. (2) Speed while driving a vehicle may be measured by radar and similar technical devices, or it may be measured and determined by stopwatch or other methods. (6) In these sections of the suburban highways passing through or around the settlements where there is no sign to the contrary determining the speed limit, in terms of the safety of life and property, if the crossing is prohibited by a physical obstacle or determined by underpasses and overpasses and speeding does not constitute an obstacle for pedestrian and vehicle traffic, vehicle drivers may travel within the maximum speed limits assigned to them by the regulation, taking into account the road and traffic situation. ”, neither in the Highway Traffic Law No. 2918 nor in the Highway Traffic Regulation, there is no provision regarding the presence of warning signs and markings indicating that an inspection is being carried out in places where radar speed control will be carried out, and as explained above, drivers are obliged not to exceed the speed limits set by the regulation unless a contrary decision is taken and markings are made, In the concrete case, in the face of the fact that it has been determined by the radar device that the muterizin was traveling at 71 km / h by exceeding the 50 km / h speed limit determined for automobile vehicles within the settlement by more than 10%, it was not deemed inappropriate to decide to accept the objection with written justification instead of rejecting it. Pursuant to Article 309 of the Code of Criminal Procedure No. 5271, it is requested to request the reversal of the decision of the Alaşehir Criminal Court of Peace dated 05/07/2013 and numbered 2013/493 different business, and the file is presented together.”
I- Incident: On 27.05.2013, on 27.05.2013, during the speed control on Süleyman Demirel Street in Alaşehir District, it was detected that the offender F. A. exceeded the speed limit at 14.54 and an administrative fine of 343.00 TL was imposed on him on the same date with the serial number 525573. Offender F. applied to the Alaşehir Criminal Court of Peace on the same day for the annulment of this administrative fine. As a result of the examination made by the Criminal Court of Peace, “As a result of the examination, 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 rule as follows to abolish the administrative sanction decision contrary to the procedure and law in accordance with paragraph 28/8- b of the law numbered 5326.” With the reasoning as follows, the application was justified and the administrative fine report was canceled. 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 there is no provision in the Highway Traffic Law No. 2918 nor in the Highway Traffic Regulation regarding the presence of warning signs and markings indicating that this control is carried out in places where speed control will be carried out with radar, it is related to the illegality of the Court’s decision to “cancel the administrative sanction decision” on the grounds that “there is no radar sign and the necessary legal warnings were not duly made”.
III- Legal assessment: 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 out in the preamble, respecting human rights, adhering to Atatürk’s nationalism, within the peace of society, national solidarity and sense of justice.” According to the established case law of the Constitutional Court (e.g. decisions dated 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 rules of law in its activities and provides legal security to its citizens”. Since the rule of law means a state that is 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, it is imperative that its administrative activities are certain and knowable in advance. 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 activities, 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 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.” There is a provision.
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, which sets 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, Grasping the Administration with Law: Legality and Administrative Actions, 2nd Edition, Ankara 2012, Turhan Kitabevi, p.107,395) The relevant domestic legal 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 they are obliged to perform by law through by-laws, regulations, communiqués, circulars and other administrative texts”. Within the scope of this “regulatory 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 traffic accidents, before and after arrival at the scene of the accident, as well as the actions to manage and regulate traffic”.
Directive;
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 deployed 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, national and local media and other means of communication shall be utilized to the maximum extent in explaining in which sections of the highway, in which periods and on which issues the inspections will be carried out and in which areas they will be intensified, as well as risk information, cause-effect relationships and inspection results.” As can be seen, with this Directive provision, the Ministry of Interior aims to ‘increase the level of compliance with traffic rules, ensure traffic safety and inform and raise awareness of road users’;
– On 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”. These regulations are in compliance with the provisions of paragraphs 1 and 2 of Article 10 of the Council of Europe’s recommendation on “good administration” adopted by the Committee of Ministers 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 Council of Europe’s recommendation adopted by the Ministerial Representatives of the Committee of Ministers that the principles of good administration should be “openness and appropriate means of notification”.
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 informing 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 providing the necessary information about the road, traffic situation and the immediate surroundings to those benefiting from the highway, and 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, 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 through traffic signs. Expecting road users to violate the rules without informing them in order to penalize them through 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 vehicle 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’s Office of the Court of Cassation for reversal in favor of the law since it was not deemed appropriate.