The Rule Preventing The Guarantees To Ensure The Consideration Of The Factors That May Affect The Other In The Trial Of Smuggling Offences And Tax Misdemeanours Is Unconstitutional
Grounds for Objection
In summary in the application decisions; due to the fact that the same act is characterised as both a crime and a misdemeanour in the tax law legislation with the rules subject to objection, taxpayers can be subjected to administrative tax penalty sanctions as well as a judicial sentence of imprisonment, one of the cases regarding these sanctions is carried out in the tax court and the other in the criminal court and is subject to different trial procedures, It has been argued that there is no interaction between the aforementioned courts, therefore the decisions rendered as a result of the trials arising from the same act are valid even if they contradict each other, and that this situation is incompatible with the principle of legal security, and that the rules are unconstitutional.
1. The principle of not being tried or punished more than once for the same act (Ne Bis In Idem)
Although the principle of not being tried or punished more than once for the same act is not explicitly regulated in the Constitution, the Constitutional Court (AYM), in its Ünal Gökpınar ([GK], B. No: 2018/9115, 27/3/2019, § 50) judgement, considered this principle as an element of the right to a fair trial regulated in Article 36 of the Constitution, based on its own case-law on the rule of law and the principle of legal security and with reference to some international law texts. The principle, which serves to ensure legal security in criminal proceedings within the scope of the right to a fair trial, is also recognised as a guarantee of the right to a fair trial in the judgments of the European Court of Human Rights (ECtHR) and in some international conventions.
Conditions of the principle, which can be defined as “No one shall be retried or punished in criminal proceedings for an act for which he has been convicted or acquitted by a final/confirmed judgement in criminal proceedings”, are as follows
– The existence of a criminal judgement process.
– This process must have resulted in a final judgement of conviction or acquittal.
– A (re-)criminal judgement process is carried out again.
– Different judicial proceedings are related to the same act.
– There is no exception to the principle.
In terms of the first and third conditions, it is not necessary for criminal proceedings to be technically envisaged as a process in the sense of criminal procedure law in all cases, and this concept is subject to an autonomous interpretation in the constitutional sense. As a matter of fact, the Constitutional Court, in its norm review and individual application decisions, interpreted Articles 36 and 38 of the Constitution and stated that the concept of penalty also includes administrative tax penalties (Constitutional Court, E.2019/16, K.2019/15, 14/3/2019, § 13; Gür-Sel İnşaat Malzemeleri San. Tic. Ltd. Şti., B. No: 2013/4324, 7/7/2015; Ünal Gökpınar, §§ 54-56).
As regards the second condition, what should be understood by a judgement of conviction or acquittal should be interpreted autonomously by the Constitutional Court. In this context, the interest protected by the principle of not being tried or punished more than once for the same act is that the person should not be tried and punished again/again after a final/confirmed decision, whether positive or negative, on the criminal responsibility of the person by examining the merits of the accusation regarding an act that is subject to a criminal sanction.
Therefore, after the evaluation of the evidence and the determination of the facts in the proceedings regarding a sanction qualified as a punishment within the framework of autonomous interpretation, a decision containing an evaluation in terms of whether the person committed the relevant offence or not should be qualified as a conviction or acquittal decision in the sense of the principle of not being tried or punished more than once for the same act.
However, decisions rendered without examining the merits of the accusation, which do not include a determination on the criminal responsibility of the person, such as a decision of dismissal due to the statute of limitations or a decision of non-prosecution, cannot be characterised as a decision of acquittal within the scope of the principle in question.
Finality/confirmation is also subject to the autonomous interpretation of the Constitutional Court. What should be understood from these concepts is that the relevant decision is final at the time it is rendered due to the fact that no legal remedy is foreseen, or that it is finalised by exhausting the ordinary legal remedies or by not applying for them within the prescribed periods.
In terms of the third condition, double (re)sentencing and re- (re-)sentencing are different from each other. The principle does not require that a person should not be sentenced twice for the same act, but that the person should not be tried again (re-) for the same act and should not be punished depending on this trial. Therefore, the fact that a person is subjected to more than one sanction for the same act within the same judicial process may not by itself undermine the principle. In this case, there is no more than one criminal process.
In terms of the fourth condition, it is not the same offence but the same act that must be sought. As a matter of fact, in Ünal Gökpınar (see § 56 of the same judgment), the Constitutional Court pointed out that it is not necessary to examine the differences between the elements of the offence and that the sameness of the act/phenomenon that is the source of the processes should be taken into consideration. In order to determine whether the offences and misdemeanours are committed by the same act, the temporal, spatial and factual sameness of the act must be ensured.
In order to speak of the same act, the facts that are the source of more than one prosecution or punishment must be identical or materially (to a great extent) the same facts, and they must occur at the same time and place. İn the event that a single act is dealt with in the same manner in two different regulations on punishment, it may be referred to as being one-to-one, and if there are some differences in the regulations, but these differences are insignificant, it may be referred to as being materially (substantially) the same.
If the first four conditions are fulfilled together, a violation of the principle occurs. However, some special cases that may constitute an exception to the principle are envisaged in international law. These should also be taken into consideration in the interpretation of the Constitution in the context of the said principle. In this context, the emergence of new evidence and the existence of a fundamental defect that may affect the outcome of the case, which are recognised in Turkish law under Article 4(2) of Additional Protocol No. 7 to the European Convention on Human Rights, can be considered as the first two exceptional circumstances. The third exceptional circumstance is that the criminal proceedings (even if they are formally more than one) are carried out in a connected manner as parts of a whole, as developed in the case-law of the ECtHR.
Regarding the third exceptional case (especially in the context of penal proceedings carried out under different legal disciplines for the same act), the following criteria should be taken into account:
– Whether multiple proceedings pursue different complementary objectives to address different aspects of the same unlawful act,
– Whether it was foreseeable that more than one process could be carried out in relation to the same act,
– W.hether there is sufficient interaction between multiple processes in the collection and evaluation of evidence and fact-finding, avoiding any duplication that would give the impression that more than one independent process is being carried out, in particular whether care is taken to ensure that facts established in one process by different competent authorities are also used in the other process,
– Whether the sanction applied in the first finalised process is taken into account in the subsequent finalised process in order to prevent an excessive burden compared to the burden that the persons would have faced if a single process had been carried out at the end of multiple processes carried out against them,
– In the event that the above-mentioned material connection is ensured, whether both processes are connected in terms of time (In this context, it should be evaluated whether one process is terminated within a reasonable period of time after the completion of the other process).
2. In terms of the rules that tax penalties and penalties for tax offences cannot be combined and will be applied separately
Rules Subject to Objection
The rules subject to objection stipulate that tax penalties and the penalties of tax evasion offences and offences under other laws cannot be combined according to the provisions on aggregation and repetition, and that the penalties of tax penalties and tax evasion offences shall be applied separately.
The Court’s Assessment
As a result of the right to a fair trial under Article 36 of the Constitution and the principles of legal security and certainty under Article 2 of the Constitution, persons whose trial has ended with a final judgement in accordance with the applicable legal rules should not be under the threat of being tried again for the same act.
The existence of the above-mentioned conditions regarding the process of being tried or punished more than once for the same act would be contrary to the principle of not being tried or punished more than once for the same act.
One of the punishment and trial processes subject to the rules subject to the objection is related to the imprisonment-binding penalties for smuggling offences and the other is related to the administrative fines for tax misdemeanours, and it has been revealed in the decisions of the Constitutional Court that both are criminal in nature.
Although it is seen that in some cases, smuggling offences and tax misdemeanours may be committed with the same act within the scope of the principle of not being tried or punished more than once for the same act, the principle does not exclude a dual trial/punishment process, and therefore the imposition of more than one punishment, if certain conditions are met. The application of more than one punishment is within the discretionary power of the legislator, provided that the guarantees regarding the interconnected execution of the processes as parts of a whole are provided. Accordingly, the rules that do not exclude the linked execution of the processes related to punishment, but only the application of more than one punishment and not allowing them to be combined, do not contradict the principle of not being tried or punished more than once for the same act.
For the reasons explained above, the Constitutional Court decided that the rules are not contrary to the Constitution and rejected the objection.
3. Regarding the Rule on Imprisonment of Those Who Use Forged Documents in Tax Related Transactions
Rule Subject to Objection
The impugned rule stipulates that those who use tax documents, the originals or copies of which are forged in whole or in part, shall be sentenced to imprisonment from three to five years.
Assessment of the Court
Punishment and security measures substituting punishment are determined according to the crime and punishment policy. The legislator has discretionary power in this regard. While exercising its discretionary power, the legislator must act in accordance with the principle of proportionality. The principle of proportionality consists of the sub-principles of convenience, necessity and proportionality.
The rule aims to ensure the proper functioning of the tax system by penalising the use of false tax documents, and thus, the correct determination and collection of the tax. Considering the deterrent effect of the rule, it cannot be said that it is not favourable and necessary in terms of achieving the said purpose.
Considering the social impact of the offence of tax evasion, its dangerousness, its damage to the tax order and its rate of commission, it has been concluded that the range of penalties determined is not heavy or disproportionate, that the rule does not impose an excessive burden on individuals, and in this context, the reasonable balance between the offence and the penalty is observed.
For the reasons explained above, the Constitutional Court decided that the rules are not contrary to the Constitution and rejected the objection.
4. Regarding the Rule on the Mutual Non-Bindingness of the Decisions of the Criminal Court and the Decisions of the Authorities and Authorities to Impose Tax Penalties
Rule Subject to Objection
The rule subject to objection is related to the fact that the decisions of the criminal court shall not have an effect on the actions and decisions of the authorities and authorities that will enforce the tax penalties, and the decisions to be taken by these authorities and authorities shall not bind the criminal judge.
Evaluation of the Court
The rule on mutual non-bindingness is not only related to smuggling offences and tax misdemeanours committed by the same perpetrator with the same act, but also to smuggling offences and tax misdemeanours committed in connection with different acts or by different perpetrators. These situations within the scope require different evaluations.
In terms of Crimes and Misdemeanours Committed by the Same Perpetrator with the Same Act
In cases of smuggling offences and tax misdemeanours, which can be committed by the same perpetrator with the same act, in order for a violation of the principle of not being tried or punished more than once for the same act, which is within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution, certain conditions regarding the trial processes must also be met, as stated above. The first of the two conditions related to the aforementioned process is the conclusion of the trial/punishment process with a final/ finalised conviction or acquittal verdict, and the second is the initiation of a trial/punishment process related to a (re-)punishment.
Despite the re-initiation of a re-sentencing process, there will be no violation of the principle if the processes related to the punishment are carried out in a connected manner as parts of a whole. For this, the above-mentioned conditions regarding this exceptional case must be fulfilled. The rule should be assessed in terms of these conditions.
Whether different complementary objectives are pursued in the proceedings
It is observed that the punishment of smuggling offences pursues different objectives in terms of protecting public order, whereas tax penalties pursue different objectives in terms of protecting the tax administrative order. In this respect, it can be said that two different penalisation procedures, one judicial and the other administrative, which are essentially related to the same act but protect different legal values, pursue complementary objectives.
Whether the procedures are foreseeable
Considering that the trial/punishment processes for tax evasion offences and tax misdemeanours and the penalties to be imposed at the end of these processes are regulated with sufficient certainty, it is understood that these processes are foreseeable.
Whether interaction is ensured in the collection and evaluation of evidence and in the identification of facts
It is observed that both processes based on tax inspection are initially carried out together for a while. Afterwards, the processes are carried out independently, and it is seen that an interaction that will prevent any repetition regarding the collection and evaluation of evidence and the determination of facts is not included in both the subject rule and other rules.
Firstly, whether the sanction applied in the finalised process is taken into consideration in the subsequent finalised process
The rule, which does not include safeguards to prevent the penalties deemed appropriate as a result of the processes from creating an excessive burden on the addressee, does not allow for the application of compensatory mechanisms in cases where the risk of excessive burden is increased by the total penalty imposed against the person.
Whether there is a temporal connection between the processes
As a result of the lack of interaction explained above, it is understood that temporal differences may arise in the finalisation of the processes, and this lack of connection is further reinforced by the rule subject to objection by stipulating that the decisions made in the trial / punishment processes will not bind the decision-making units mutually.
In this respect, even if the punishment processes have complementary purposes and are foreseeable, it is concluded that the rule that prevents the interaction in the collection and evaluation of evidence and the determination of facts, the consideration of the sanction imposed in the first finalised process in the later finalised process and the temporal connection between the processes is contrary to the principle of not being retried or punished for the same act.
In terms of Other Related Crimes and Misdemeanours
Punishment and trial processes regarding smuggling offences and tax misdemeanours committed in connection with different perpetrators or different acts are also within the scope of the rule subject to objection.
The right to a fair trial guaranteed under Article 36 of the Constitution necessitates the consideration of the issues that may affect the judgement/punishment processes. In this context, it is necessary to provide safeguards to ensure that the factors that may affect one another are taken into consideration in the trial/punishment processes regarding the smuggling offences and tax misdemeanours committed in connection. It is concluded that the rule that prevents the fulfilment of this requirement is unconstitutional.
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