TO ALANYA CRIMINAL COURT OF MAGIC ON DUTY
APPEAL:
ADDRESS :
OBJECTED INSTITUTION:
SUBJECT OF OBJECTION: My objection to the curfew is an administrative fine.
DESCRIPTIONS:
Although I do not accept that I have violated the Curfew Restriction and other allegations against me, within the scope of the circular issued by the Ministry of Interior, the legal justification for the curfew is Article 11/C of the Special Provincial Administration Law and Articles 27 and 72 of the Public Health Law.
Although the Provincial Administration Law has clearly provided the Governors with the authority to make decisions and take measures on some issues, I consider that the imposition of a curfew based on this law violates the principle of “determination of the state of law” regulated under Article 2 of the Constitution. When Articles 27 and 72 of the General Sanitary Law No. 1593 are examined, it is seen that it includes powers such as quarantining patients and suspected cases in homes or hospitals for a certain period of time, applying examinations for travelers, and quarantine regarding epidemics in a certain area.
I consider that the situations in the relevant articles are contrary to Article 13 and Article 15 of the Constitution. When the fundamental rights and freedoms in Article 13 of the Constitution are restricted under certain headings, and when Article 15 of the Constitution is examined, it is necessary that war, mobilization or extraordinary issues occur when it is possible to restrict the fundamental rights and freedoms of the person. However, although the corona virus is an epidemic disease, it does not provide the conditions specified in the Constitution and contradicts Articles 27 and 72 of the Public Health Law. I am of the opinion that the curfew imposed under the Provincial Administrative Law and the Public Health Law is contrary to the provisions of the Constitution.
Again, the curfew, which caused me to be penalized, started to be implemented with a circular, not a law. This practice is also against the essence of the Constitution.
Another application to object to an administrative fine with the same subject, which was filed on the same grounds as above, was accepted by the Republic of Turkey Adana 5th Criminal Judgeship of Peace, “in accordance with Article 28/8-b of the Misdemeanor Law No. 5326, due to the fact that the administrative sanction decision is unlawful”. The administrative fine imposed on the applicant was lifted by the aforementioned Court with the “Decision dated 24.02.2021 and numbered 2021/1183 D.Is”. I am of the opinion that this decision constitutes a “precedent decision” and I am presenting the decision as an appendix to this petition.
The administrative fine imposed on me was issued by the administrative law enforcement officers. However, the authority in this matter belongs to the Local Authority, not the law enforcement officers. It is against the law in terms of authority for the Law Enforcement Forces to establish administrative fines. The case law of the 19th Penal Chamber of the Court of Cassation, which was evaluated as a result of an appeal against another administrative fine on the same grounds and on the same subject, evaluates the illegality in terms of the aforementioned authority as follows:
Against the fact that it contains the provision “Administrative fines written in this Law are imposed by the local civil authority”; Since the authority to issue the administrative sanction decision belongs to the local civil authority, it has been evaluated that the action would be unlawful in terms of the “authority” element, in terms of the administrative fine, which is responsible for keeping the incident (misdemeanor) report.
For all these reasons, I request the annulment of the administrative fine imposed on me.
CONCLUSION AND REQUEST: For the reasons briefly explained above, I respectfully submit and request that, upon the acceptance of my objection, an administrative fine of 3,150,00 TL issued against the law be cancelled. 08/06/2021
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