The rule of law means a state that adheres to the rules of law in its activities and ensures the legal security of its citizens. Therefore, it is a necessity for the executive, which is one of the powers of the state, to be bound by the rules of law and to operate in accordance with it. In this case, the activities of the administration should be regulated. Therefore, the activities connected to the rule must be known by the citizens, so that the legal security of the citizen is ensured in this way. This situation is called the “orderly administration principle”. The administration does not have the authority to impose sanctions only on the citizen who violates the rule. At the same time, the administration should develop brake mechanisms and warnings against citizens’ violation of the rules of law. Because, if the administration turns into a power that only waits for the citizen to violate the rule and imposes sanctions on him, this situation shows the image that the administration has set a trap to impose penalties, which creates a violation of the rule of law. You can examine this situation, which will be supported by numerous examples, and the Supreme Court decision that it is unlawful to impose a penalty without a warning sign indicating that radar inspection is carried out.
Criminal Chamber
Base Number : 2014/2954
Decision Number: 2014/14281
“Justice Text”
I- Event:
It was determined that the offender F.. A. had exceeded the speed limit at 14:54, during the speed control carried out with a radar device on 27.05.2013 by the officials on Süleyman Demirel Street in Alaşehir District, and an administrative fine of 343.00 TL was imposed on him on the same date with the report serial number 525573. The guilty Fırat 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, “Considering that an administrative fine was imposed on Muteriz for speeding violation, there was no radar sign in the place where the radar control was carried out, and that there would be no legal basis for the fines that were cut without the necessary legal warnings being duly made, the objection was justified. and the annulment of the unlawful administrative sanction decision pursuant to paragraph 28/8-b of the law numbered 5326, as follows. The application was found to be justified, and it was decided to cancel the administrative fine report. Against this decision, upon the application of the General Directorate of Security, stating that the reasoning of the court was unlawful, a request for annulment was made for the benefit of the law.
II- Scope of Dispute Concerning the Request for Overturning in the Benefit of Law:
Although there is no provision in the Highway Traffic Law No. 2918 nor in the Highway Traffic Regulation to have a warning sign and marking indicating that this control is carried out in places where speed control will be made, “administrative sanction” on the grounds that “there is no radar sign and the necessary legal warnings are not duly made”. It is related that the judgment of the Court stating “the annulment of the decision” is unlawful.
III- Legal evaluation:
According to the provision of Article 2 of our Constitution, “The Republic of Turkey is a democratic, secular and social state of law, in the peace of the society, in the understanding of national solidarity and justice, respectful of human rights, loyal to Atatürk’s nationalism, based on the basic principles stated at the beginning.” According to the established jurisprudence of the Constitutional Court (for example, the decisions dated 27.03.1986-E:85/31-K:86/111, 08.11.1991-E:91/9-K:91/36) “The rule of law is defined as every action and transaction. Compliant with the law, respecting human rights, establishing and developing a just order in all areas, avoiding unconstitutional situations and attitudes, making the law prevail over all state organs, considering himself bound by the Constitution and the superior rules of law and open to judicial review, above the law, and above the law. It is a state that knows that it will become invalid when it moves away from the awareness of the basic principles of law and the Constitution that it cannot violate.”
In short, the rule of law means “the state that adheres to the rules of law in its activities and provides legal security to its citizens”.
Since the rule of law means the state that is bound by the law, it is no doubt that the executive organ, which is one of the three powers of the state, is bound by the rules of law.
For the executive body, certainty and predictability of administrative activities are mandatory. In the rule of law, the actions and actions of the administration must be predictable by the governed. In administrative transactions and actions, the administration has to regulate this authority with general rules such as bylaws and regulations and comply with these regulations. This is called the “principle of orderly administration”. Likewise, due to the principle of the certainty of administrative activities, the administration should not abandon its stable practices.
Again, the principle of the rule of law states that the state has the right to pay for actions that violate individual rights and freedoms, public order and security, public health and the environment, economic order, social peace and order, general morality, that is, crimes and misdemeanors, within the framework of national and universal law.
has duties and responsibilities. However, it must be accepted that the State has a duty to prevent violations of these rules. In other words, the duty of the administration, which is an authority of the rule of law, should not primarily wait for individuals to violate the rules and punish them, but should develop the level and habit of behaving in accordance with the rules. This is also a requirement of “good administration principles”. 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, “RECOMMENDATION DECISION NO. CM/REC(2007)7 TO MEMBER STATES ON GOOD ADMINISTRATION” was adopted at the Ministerial Representatives meeting dated 20 June 2007 and numbered 999 of the Committee of Ministers of the Council of Europe, of which our country is also a member.
In Article 10 of the aforementioned Recommendation, titled “Principle of Clarity”;
“1. The administration acts in accordance with the principle of openness.
- The Administration shall inform private persons of its decisions and actions by appropriate means, including the publication of official documents.
- Recognizes the right of access to official documents in accordance with the rules regarding the protection of personal data.
- The principle of openness cannot undermine the confidentiality protected by law.”
There is a provision.
Meanwhile, there is a need 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 emerges in the form of conventions and recommendations. “Recommendation of the Committee of Ministers” is the decision of the Committee of Ministers to the governments of the member states, based on Article 15/b of the Statute of the Council of Europe, which sets standards for national legislators and administrations.
While not binding, the method by which decisions are taken by consensus and the Committee invites governments to “report whether they take decisions on recommendations” ensures that recommendations are taken into account. From time to time, 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 yellow press card request was rejected by the administration without justification. While the Council of State accepted that the rejection decision must be justified, it also referred to the recommendation of the Committee of Ministers of the Council of Europe, among other reasons. (DIDDGK, M:1995/769-K:1997/525, 17.10.1997, DD, 95, 1998, p.87). (Source: Onur KARAHANOĞLULLARI, Understanding Administration by Law: Legality and Administrative Procedures, 2nd Edition, Ankara 2012, Turhan Bookstore, p.107, 395)
The domestic legal regulation regarding our subject is as follows:
With the provision of subparagraph (c) of the first paragraph of Article 2 of the Law No. 3152 on the Organization and Duties of the Ministry of Internal Affairs, the task of “providing and supervising the traffic order on the highways” has been entrusted to the Ministry of Interior. With the provision of Article 33 of the same Law, the Ministry of Interior states that “the services they are obliged to fulfill by law; to regulate it with statutes, regulations, communiqués, circulars and other administrative texts.
Within the scope of this “regulation duty and authority” of the Ministry of Interior, the Directive on the Measures to be Taken in Traffic Controls and Traffic Accidents was prepared and put into effect with the approval of the Minister dated 31.10.2011. “In traffic controls; before, during and after the inspection, in traffic accidents; It was issued with the aim of determining the procedures and principles of the works and transactions to be carried out after the transfer to the accident scene and the movements of managing and regulating the traffic.
the directive;
The following rule is included in the sub-paragraph (ç) of the first paragraph of the article 34 titled “Matters to be considered in speed control with radar”:
“In case of fixed inspection, the radar vehicle is positioned in such a way that it can be easily seen from both sides of the road 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, in which parts of the road, at what time and on which subjects the inspection will be carried out and on which subjects, risk information, cause-effect relations and the results of the inspection are explained at national and local levels. media and other means of communication are utilized to the maximum extent.”
As can be seen, with the provision of this Directive of the Ministry of Interior, traffic inspections in order to “increase the level of compliance with traffic rules, ensure traffic safety and inform road users and raise awareness”;
– In which parts of the highway and at what time,
– What subjects will it focus on,
It envisaged the maximum use of national and local media and other communication tools in its matters.
Thus, with a regulatory administrative act established by the Ministry of Interior, “in which sections of the road, at what times and on which subjects the traffic inspections will be carried out and on which subjects, national and local media and other communication tools will be made use of to the maximum extent possible by road users (especially drivers)”.
It is seen that there is a regulation on “informing”.
These regulations are in accordance with the provisions of the 1st and 2nd paragraphs of Article 10 of the recommendation decision on “good administration”, the date and number of which is written above, adopted by the Committee of Ministers of the Council of Europe at the Ministerial Representatives meeting.
It is also indisputable that the directive binds the traffic police, which is the subsidiary of the Ministry of Interior pursuant to the provision of Article 29 of the Law No. 3152 and is included in the general law enforcement officers under the administration and administration of this Ministry in accordance with its special laws.
As for the evaluation of the concrete event in the light of these explanations:
It should be accepted that road users should be informed about “in which part of the road and at what time the radar speed control will be carried out” against the provisions of articles 34/1-ç and 47 of the directive. This issue is also a requirement of the principles of “openness and informing by appropriate means”, which are accepted as good administration principles of the recommendation adopted by the Ministerial Representatives of the Committee of Ministers of the Council of Europe.
According to the provision of article 47 of the directive, the administration will make maximum use of “national and local media and other communication tools” in this information activity. It should be concluded that the administration is held liable to “inform road users under all circumstances”, and that it can make maximum use of “national and local media and other communication tools” for this purpose. The administration will primarily inform with its customary means and methods. Because “standard, meaning, quantity and quality and other principles of traffic signs to be applied on highways in order to provide traffic order and safety by providing necessary information about the road, traffic situation and the immediate environment to road users, and to inform them of prohibitions and restrictions”, 19.06. It is regulated by the Regulation on Traffic Signs published in the Official Gazette dated 1985 and numbered 18789. Therefore, the information within the scope of the 47th Directive of the Directive on the Measures to be Taken in Traffic Controls and Traffic Accidents should be made with “traffic signs” to be placed in accordance with the procedures and principles in this Regulation. Apart from this method, it will also benefit from the media and other communication tools if necessary. Therefore, in accordance with the aforementioned Directive provision, it is obligatory to inform the drivers, first of all, with traffic signposts, on “in which part of the road and at what time the radar speed control will be carried out”.
First of all, waiting for traffic inspections, which must be carried out to ensure the safety of life and property, without informing road users in order to punish road users, will mean that the traffic rules are not in accordance with the purpose of placing the traffic rules and it will mean setting a trap for vehicle drivers, which is incompatible and unacceptable with the principles of the modern rule of law. .
IV- Conclusion and decision:
Due to the reasons explained above, the request of the Chief Public Prosecutor’s Office of the Supreme Court of Appeals to reverse the law was not deemed appropriate, and it was unanimously decided to REJECT.
