A Review on the Remedies Arranged in the Misdemeanors Law Against Decisions of Administrative Sanction
Muhammet KahveciWith the enactment of the Misdemeanour Code No. 5326, which aims to establish a system for misdemeanours that are dispersed throughout the legislation, various controversial issues have emerged. Applications have been lodged with the Constitutional Court claiming that some articles of the Code are unconstitutional. Accepting the judicial judiciary as a general jurisdictional judicial remedy in the provisions concerning remedies has led to discussions on the constitutional division of jurisdiction between the judicial and administrative judiciary. Differences in opinion have also arisen regarding the provisions of the Misdemeanours Code concerning remedies. In particular, it has been debated whether a decision on an administrative sanction, which is subject to legal remedies under the Misdemeanours Code, can also be subject to extraordinary legal remedies under the Criminal Procedure Code. Different opinions have been expressed in the literature on the subject. These debates and uncertainties have also been reflected in practise and court decisions. The case law of the Constitutional Court and the Court of Cassation has changed over time.
İdari Yaptırım Kararlarına Karşı Kabahatler Kanunu’nda Düzenlenen Kanun Yollarına İlişkin Bir İnceleme
Muhammet KahveciMevzuatta dağınık halde düzenlenen kabahatler açısından bir sistem getirmeyi hedefleyen 5326 sayılı Kabahatler Kanunu’nun yürürlüğe girmesiyle çeşitli tartışmalı konular da ortaya çıkmıştır. Kanunun bazı maddelerinin Anayasa’ya aykırılık teşkil ettiği iddiasıyla Anayasa Mahkemesi’ne başvurularda bulunulmuştur. Kanun yollarına ilişkin hükümlerde adli yargının genel görevli yargı yolu olarak kabulü, adli yargı ile idari yargı arasında anayasal görev ayrımı tartışmalarına neden olmuştur. Kabahatler Kanunu’nun kanun yollarına ilişkin hükümleri konusunda da görüş ayrılıkları meydana gelmiştir. Özellikle Kabahatler Kanunu uyarınca kanun yollarına başvurulan bir idari yaptırım kararına karşı Ceza Muhakemesi Kanunu uyarınca olağanüstü kanun yollarına başvurulup başvurulamayacağı tartışma konusu olmuştur. Konu hakkında öğretide farklı görüşler ileri sürülmüştür. Söz konusu tartışmalar ve belirsizlikler uygulamaya ve mahkeme kararlarına da yansımıştır. Anayasa Mahkemesi ve Yargıtay içtihatları zamanla değişiklik göstermiştir.
In Turkish Penal Code No. 765, misdemeanours were defined as a type of offence. This Code classified offences into two categories: crimes and misdemeanours. However, with the introduction of Turkish Penal Code No. 5237, misdemeanours are no longer included as a type of offence. Removal of certain acts constituting a misdemeanour from the Penal Code require a separate code. Consequently, the Misdemeanours Code was adopted and came into force to create a system for acts requiring administrative sanctions, which are scattered throughout the legislation, and to ensure consistency in their implementation.
With the enactment of the Misdemeanours Code, many problems and debates have arisen. First, these debate concerned whether some articles of the code conform to the constitution. Beyond constitutional debates, there are also discussions about how legal regulations should be applied and interpreted. There is no consensus on the nature of the Misdemeanours Code, primarily because it is closely related to both administrative and criminal law. Administrative sanction decisions against misdemeanours are considered “administrative actions”. There is no doubt about this matter. However, annulment procedures, which follow classical administrative procedures, cannot be applied to all administrative sanction decisions. Acts requiring administrative sanctions are broadly and uniformly regulated in the legislation. The Misdemeanours Code defines all acts requiring administrative sanctions as misdemeanours and establishes general provisions applicable to them.
The Misdemeanours Code also provides specific legal remedies against decisions involving administrative fines and property transfer to the public. According to this regulation, judicial jurisdiction (criminal judge) generally serves as the judicial remedy, except where otherwise provided, against decisions involving administrative fines and property transfer to the public. Before the Misdemeanours Code came into force, the administrative judiciary was typically responsible for administrative sanction decisions. Previously, although a clear regulation in law was necessary for the judicial judiciary to be responsible for decisions involving administrative sanctions, the Misdemeanours Code now requires that this responsibility must be explicitly stated in law for the administrative judiciary.
It has been argued that some provisions of the Misdemeanours Code are unconstitutional, leading to applications being made to the Constitutional Court of the Republic of Türkiye for the annulment of these provisions. In particular, the constitutionality of provisions on legal remedies has been debated. The core of these debates is whether the administrative judiciary has a constitutional basis and whether its judicial power is constitutionally limited. Thus, there is a question of whether the legislator can, through legal regulation, assign the resolution of a dispute falling under the administrative judiciary’s jurisdiction to the judicial jurisdiction. The Constitutional Court annulled some articles of the Misdemeanours Code as unconstitutional, leading to their revision. Following the new regulations, an application for annulment was filed again, claiming unconstitutionality, but the Constitutional Court rejected the request for various reasons. The criteria used by the Constitutional Court were “public interest” and “justified reason.”
The Misdemeanours Code refers to the Turkish Penal Code in many articles under its general provisions. However, the Turkish Penal Code or the Criminal Procedure Code does not serve as general laws in the context of the Misdemeanours Code. The Misdemeanours Code is a distinct piece of legislation with its own legal remedy system. It regulates “application” and “objection remedy” against decisions involving administrative fines or the transfer of property to the public due to an act constituting a misdemeanour. A debate has been held on whether an application can be made against decisions resulting from the objection remedy. The most significant debate in this context is whether the extraordinary legal remedies laid down in the Criminal Procedure Code can also be applied to misdemeanours. Although the doctrine contains different opinions, the Court of Cassation has issued varying decisions on this issue.
