A state governed by the rule of law is one that complies with legal rules in its activities and ensures the legal security of its citizens. Therefore, it is imperative that the executive branch, one of the state’s authorities, be bound by legal rules and act accordingly. In this case, the activities of the administration must be regulated. Consequently, rule-bound activities must be known to citizens, thereby ensuring their legal security.
This situation is called the “principle of regular administration.” The administration does not only have the authority to impose sanctions on citizens who violate the rules. At the same time, the administration must develop mechanisms and warnings to prevent citizens from violating legal rules. Because if the administration becomes a power that only waits for citizens to violate the rules and then imposes sanctions on them, this gives the impression that the administration is setting a trap to impose penalties, leading to a violation of the rule of law. You can examine this situation with countless examples; there is also a Supreme Court decision stating that imposing a penalty without a warning sign indicating that radar monitoring is in place is contrary to the law.
Penal Division
Base Number: 2014/2954
Decision Number: 2014/14281
“Text of Justice”
I- Incident:
On May 27, 2013, during a speed check conducted by authorities using a radar device on Süleyman Demirel Street in Alaşehir District, Fırat was found to have exceeded the speed limit at 14:54, and on the same day, he was fined 343 TL with report number 525573. The offender, Fırat, applied to the Alaşehir Criminal Court of Peace on the same day for the cancellation of this administrative fine.
As a result of the investigation conducted by the Criminal Court of Peace, “Considering that the administrative fine was imposed on the offender for speeding, that there was no radar sign at the location where the radar control was carried out, and that fines imposed without the necessary legal warnings have no legal basis, the objection was found to be justified, and the request for the cancellation of the unlawful administrative penalty decision in accordance with Article 28/8-b of Law No. 5326 is as follows.
The application was found to be justified, and it was decided to cancel the administrative fine report. Against this decision, the General Directorate of Security applied on the grounds that the court’s reasoning was unlawful, and a request for cancellation was made in accordance with the law.
II- Scope of the Objection Regarding the Request for Cancellation in Accordance with the Law:
Although there is no provision in the Highway Traffic Law No. 2918 and the Highway Traffic Regulation regarding the presence of a warning sign and marking, this control is carried out at locations where speed control is to be performed, and an “administrative sanction” has been imposed on the grounds that “there is no radar sign and the necessary legal warnings have not been made in accordance with the procedure.” It has been stated that the court’s ruling to “cancel the decision” is contrary to the law.
III- Legal assessment:
According to Article 2 of our Constitution, “The Republic of Turkey is a democratic, secular, and social state of law, founded on the fundamental principles set forth at the outset, respecting human rights, faithful to Atatürk’s nationalism, and based on national unity and justice within a peaceful society.” According to the established case law of the Constitutional Court (e.g., decisions dated 27.03.1986-E:85/31-K:86/111 and 08.11.1991-E:91/9-K:91/36), “The supremacy of law is defined as every action and transaction.”
A state that establishes and develops a lawful, human rights-respecting, and fair order in all areas, avoids situations and attitudes contrary to the Constitution, ensures the supremacy of law over all state organs, considers itself bound by the Constitution and the supreme rules of law and open to judicial review, a state that sees itself as above the law and above justice; a state that knows it will become invalid when it strays from the awareness of the fundamental principles of law and the Constitution, which it cannot violate.
In short, the rule of law means “a state that complies with the rules of law in its activities and provides legal guarantees to its citizens.”
Since the rule of law means a state bound by law, it is unquestionable that the executive branch, one of the three branches of government, must be bound by legal rules.
For the executive branch, the certainty and predictability of administrative activities are essential. Under the rule of law, the actions and transactions of the administration must be predictable by those being governed. In administrative acts and actions, the administration must regulate this authority with general rules such as statutes and regulations and comply with these regulations. This is called the “principle of regular administration.”
Similarly, due to the principle of certainty of administrative activities, the administration should not abandon its consistent practices.
Nevertheless, the principle of the rule of law states that the state has the right to claim compensation for actions that violate individual rights and freedoms, public order and security, public health and the environment, economic order, social peace and order, and public morality, i.e., for crimes and offenses, within the framework of national and universal law.
The state 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 the authority of the rule of law, should not primarily be to wait for individuals to violate the rules and then punish them, but rather to develop a level of compliance with the rules and a habit of following them. This is also a requirement of the “principles of good governance.”
Similarly, the administration’s (executive branch’s) adherence to the principles of good governance is also a requirement of the rule of law. Indeed, the Committee of Ministers of the Council of Europe, of which our country is also a member, adopted the “RECOMMENDATION CM/REC(2007)7 TO MEMBER STATES ON GOOD GOVERNANCE” at its meeting of Ministers’ Deputies on June 20, 2007. Article 10 of the Recommendation, titled “Principle of Openness,” states:
“1. The administration shall act in accordance with the principle of transparency.”
The administration shall communicate its decisions and actions to private individuals by appropriate means, including the publication of official documents.
It shall recognize the right of access to official documents in accordance with the rules on the protection of personal data.
The principle of transparency shall not undermine confidentiality protected by law.
A provision exists.
Meanwhile, 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 “Committee of Ministers Recommendation” is a decision given by the Committee of Ministers to the governments of member states based on Article 15/b of the Council of Europe Statute, and this article sets standards for national legislative bodies and administrations.
Although not binding, the fact that decisions are taken unanimously and that the Committee invites governments to “report whether they have taken action on the recommendations” ensures that the recommendations are taken into account. The State Council sometimes uses the recommendations of the Council of Europe’s Committee of Ministers to support the reasoning in its decisions.
For example, a journalist’s application for a press card was rejected by the administration without justification. While accepting that the rejection decision must be justified, the State Council 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 Based on Law: Legality and Administrative Procedure, 2nd Edition, Ankara 2012, Turhan Publishing House, p.107, 395)
The local legal regulation relevant to our subject is as follows:
Article 2(1)(c) of Law No. 3152 on the Organization and Duties of the Ministry of the Interior assigns the duty of “ensuring and supervising traffic order on highways” to the Ministry of the Interior. Article 33 of the same Law authorizes the Ministry of Interior to “regulate the services it is legally obliged to perform through laws, regulations, circulars, directives, and other administrative texts.”
Within the scope of this “regulation duty and authority” of the Ministry of Interior, the Directive on Traffic Controls and Measures to be Taken in Traffic Accidents was prepared and entered into force with the approval of the Minister on 31.10.2011. It was published to determine the procedures and principles of actions and processes to be carried out before, during, and after traffic controls and traffic accidents, and to determine the actions of traffic management and regulation.
Article
34, paragraph 1, subparagraph (c) of the Directive contains the following rule under the heading “Points to be considered in radar speed control”:
“In the case of fixed control, the radar vehicle shall be positioned so that it is easily visible from both sides of the road and does not endanger traffic.”
Article 47, titled “Informing Road Users,” is as follows:
“(1) In order to increase compliance with traffic rules, ensure traffic safety, and inform and raise awareness among road users, the road sections where monitoring will be carried out, the times and subjects of monitoring, and the risk information, cause-and-effect relationships, and monitoring results shall be disclosed at the national and local levels. National and local media and other means of communication shall be used to the maximum extent possible.”
As can be seen, with this Directive of the Ministry of Interior, in order to “increase compliance with traffic rules, ensure traffic safety, and inform and raise awareness among road users,” traffic inspections shall be conducted:
– On which sections of the highway and at what times,
– Focusing on which issues,
and the maximum use of national and local media and other communication tools is envisaged.
Thus, a regulatory administrative law issued by the Ministry of Interior determines “in which sections of the roads, at what times, and on which issues traffic inspections will be carried out, and on which issues national and local media and other means of communication will be used to the greatest extent possible by road users (especially drivers).”A regulation on “information” is observed.
These regulations are in accordance with the provisions of paragraphs 1 and 2 of Article 10 of the recommendation on “good governance” adopted at the meeting of the Ministers’ Deputies of the Council of Europe, the date and number of which are stated above.
Furthermore, it is indisputable that traffic police, who are affiliated with the Ministry of Interior pursuant to Article 29 of Law No. 3152 and are among the general law enforcement forces under the administration and management of this Ministry according to their special laws, are also affected by this directive.
In light of these explanations, the concrete case should be assessed as follows:
Pursuant to the provisions of Articles 34/1-c and 47 of the Directive, it must be accepted that road users must be informed about “where on the road and at what time the radar speed control will be carried out.”
This issue is also a requirement of the principles of “transparency and information through appropriate means,” which are accepted as good governance principles in the recommendation adopted by the Ministerial Committee of the Council of Europe.
According to Article 47 of the Directive, the administration will 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 can make maximum use of “national and local media and other means of communication” for this purpose.
The administration will primarily provide information using conventional tools and methods. This is because “the standards, meaning, quantity, quality, and other principles of traffic signs to be used on roads, with the aim of providing road users with the necessary information about the road, traffic conditions, and the immediate surroundings, and informing them about prohibitions and restrictions,” are regulated by the Traffic Signs Regulation published in the Official Gazette dated 19.06. This is regulated by the Traffic Signs Regulation published in the Official Gazette dated 1985 and numbered 18789.
Therefore, the information provided under Article 47 of the Directive on Traffic Controls and Measures to be Taken in Traffic Accidents must be provided through “traffic signs” placed in accordance with the procedures and principles specified in this Regulation. In addition to this method, the media and other means of communication will also be used if necessary. Therefore, according to the provisions of the above-mentioned Directive, drivers must first be informed by traffic signs “in which section of the road and at what time the radar speed control will be carried out.”
First and foremost, waiting to conduct traffic controls necessary to ensure life and property safety without informing road users and with the aim of penalizing them is not in line with the purpose of establishing traffic rules and constitutes setting a trap for vehicle drivers, which is incompatible with and unacceptable under the principles of a modern state governed by the rule of law.
IV- Conclusion and decision:
For the reasons explained above, the Supreme Court of Appeals Prosecutor’s Office’s request for the repeal of the law was deemed inappropriate and was unanimously DECLINED.