Karlis A.Ş., Application No: 2013/849, 15 April 2014

A) Facts

The applicant, a private legal entity, was sentenced to a fine on the ground that it did not comply with the obligation to use a tachograph required under the Highway Traffic Law No. 2918. The applicant filed an objection against this decision and claimed that a sanction based on an obligation not provided by law but a circular could not be imposed, with no avail.

B) Judgment and Reasoning of the Court

Even though the applicant based its application on the right to a fair trial, the Constitutional Court examined the case under Article 38 of the Constitution providing the principle of legality of offences and criminal sanction.

The Court found that the application was admissible since sanctions for misdemeanours were both covered by Article 7 of the ECHR and Article 38 of the Constitution.

Remarking in its substantive examination that the principle of legality of offences and criminal sanctions under Article 38 of the Constitution constituted a manifestation of the principle that fundamental rights and freedoms could be restricted by law, the Constitutional Court emphasized that this principle formed one of the basis of rule of law. According to the Court, legality of offences and criminal sanctions plays an important role in preventing arbitrary conduct by public authorities and thereby is closely related to the other rule of law principles such as certainty and legal security. It could only be possible for individuals to be held accountable for their actions if the regulations are made by law in both formally and substantively. For this reason, a law should be of such clarity and foreseeability that it does not create any uncertainty both for individuals and administration. The level of clarity required may vary depending on factors such as the regulated area and the status of persons to which it is applicable.

In the present case, the Highway Traffic Law constituting the subject matter of the application does not provide a formal requirement for individuals who are exempt from the obligation to use tachographs under the law to be exempted from the same obligation in practice. On the other hand, the relevant circular requires an obligation of notification that is not provided by the law and brings a sanction for non-compliance. In conclusion, to impose a restriction that is not based on law through a circular and to narrow an exemption in relation to a misdemeanour requiring administrative fine by means of an administrative decision constitute a violation of the principle of legality of offences and criminal sanctions.

C) Significance of the Judgment

The Karlis A.Ş. judgment conveys the Constitutional Court’s understanding of the principle of legality of offences and criminal sanctions from its case law on norm controls. The decision also confirms that misdemeanours are covered by Article 7 of the ECHR and Article 38 of the Constitution.