Jurisdiction and Violation of Fundamental Rights and Freedoms by The Taxation AuthorityKerem Can Güner, Veli Kargı
Although in the financial area, the taxation authority is defined as the reflection of the state’s sovereign power, its authority is not unlimited; rather it is a limited authority that determines the extent of taxation. The taxation authority’s framework is bound by the larger framework of constitutional principles on which common acceptance has been reached as a result of various nations’ long struggles for rights and democracy. First, the study explains in detail our country’s historical process of taxation development and authority, its meaning, and its related constitutional principles. Next, the study details the legal process in such cases as improper use of the taxation authority, taxation principles specified in the constitution, and the loss of individual rights. Finally, the study discusses examples of cases and decisions regarding improper use of taxation authority, both in our country and in countries that have accepted the European Convention on Human Rights. Recommendations are made to prevent violations of rights.
Vergilendirme Yetkisinin Temel Hak ve Özgürlükleri İhlâli ve Yargı YoluKerem Can Güner, Veli Kargı
Devlet, ortak kamu ihtiyaçlarını belirli kurallar çerçevesi kapsamında karşılamak amacıyla ortaya çıkmış hem ekonomik hem de sosyal anlamda büyük öneme sahip bir tüzel varlık olarak tanımlanabilir. Vergilendirme yetkisi devletin egemenlik gücünün mali alana yansıması olarak nitelendirilmekle birlikte bu yetki sınırsız olmayıp yükümlülerin hangi ölçüler kapsamında vergilendirileceğini belirleyen sınırlı bir yetki olarak nitelendirilebilir. Vergilendirme yetkisinin çerçevesi çeşitli ulusların çağlar boyunca süren hak ve demokrasi mücadelesi neticesinde üzerinde ortak kabule ulaşılan birtakım anayasal ilkeler dâhilinde sınırlandırılmıştır. Dolaylı gözlem yönteminin kullanıldığı çalışmamızda öncelikle vergilendirme yetkisinin tarihsel süreci ve ülkemizdeki gelişimi, ifade ettiği anlam ve bağlı olduğu anayasal ilkeler detaylı bir şekilde açıklanmıştır. Son olarak vergilendirme yetkisinin anayasada belirtilen vergilendirme ilkelerine uygunsuz biçimde kullanımı ve bireysel hak kayıpları gibi durumlarda izlenecek hukuksal süreç açıklanmış ve vergilendirme yetkisinin uygunsuz kullanımına dair hem ülkemiz hem de Avrupa İnsan Hakları Sözleşmesini kabul etmiş olan ülkelerdeki dava ve karar örnekleri detaylı bir biçimde ele alınmıştır. Yargılamaya konu olan somut olaylar incelenmiş vergilendirme yetkisinin kullanım sınırlarını belirleyen anayasal ilkeler ve kanunlara rağmen pek çok temel hak ihlali durumunun söz konusu olduğu sonucuna ulaşılmıştır. Söz konusu temel hak ve özgürlük ihlallerinin engellenebilmesi adına öneri ve tavsiyelerde bulunulmuştu.
The state can be defined as an institution of great economic and social importance, having emerged to meet common public needs within certain rules. The concept of state and taxation authority has reached meanings now accepted after many historical processes, many of them especially painful. Almost all Western countries have experienced years of upheaval and conflict in order to limit the authority’s taxation power. The Magna Carta Libertatum, adopted by England’s King John in 1215, was the first step in formation of limits of the taxation authority adopted by almost all states, as a result of the 1689 “Bill of Rights” in Britain and in the American colonies’ struggle against the British state. As a result, conditions under which citizens would be taxed were left to various public councils that could be considered the period’s legislature, and thus the first taxation authority limits were established. In line with societies’ democratic developments over time, the taxation authority has been subjected to a number of principles. First, the taxation authority is described as the reflection of the state’s sovereign power in the financial area. However, this authority is not unlimited, but characterized as an authority within limits, i.e., a framework that determines dimensions of tax obligations. The taxation authority’s framework is limited by a number of constitutional principles that have reached common acceptance due to various nations’ centuries-long struggles for rights and democracy. In legal terms, then, an administration’s arbitrary and excessive use of taxation authority is prevented through constitutional principles adopted by almost every country with the modern rule of law. Thanks to the constitutional principles, taxpayers are prevented from being harmed by use of taxation authority and from suffering loss of rights. Although the limits of taxation authority and the constitutional principles to which it adheres contain some differences, according to countries’ financial structures and governance, they are similarly accepted among countries that also accept the European Convention on Human Rights, and they continue to exist in their constitutions absolutely.
Although the taxation authority’s boundaries are very clearly drawn and specified within a constitutional framework, excessive or illegal use of taxation authority during implementation means interference with individuals’ fundamental rights and freedoms, especially revealing situations in which principles of taxation under a constitution are violated. Sometimes such interference is due to legal misinterpretation, and sometimes the administration wants to act as a legislature. Preventing these violations and connecting violations to individuals is a basic condition of the rule of law. Ajudication of rights and freedom violations arise in three ways: individual applications to the constitutional court against taxation procedures, applications to the European Court of Human Rights, and appeals and cancellation cases filed before the constitutional court against legislative and executive proceedings on the taxation process. In particular, the right of individual application to the constitutional court, which came into play with the constitutional amendment of 2010, is at an important point for reducing the number of cases filed against our country in the European Court of Human Rights and to increase the likelihood of a solution to such disputes through domestic legal means.
First in our study, the historical process of the taxation authority’s development, its meaning, and the constitutional principles to which it is connected are explained in detail. Next, the legal process to be followed in the taxation authority’s improper use, taxation principles specified in the constitution, and loss of individual rights are explained. Then, examples of cases and decisions on improper use of taxation authority, both in our country and in countries accepting the European Convention on Human Rights, are discussed in detail. Finally, recommendations are made to prevent violations of rights.