What is administrative fine?

The provisions of the Code of Criminal Procedure regarding testimony, expert examination and discovery shall also apply regarding this application. Because, in administrative fines, the right to a fair trial should be respected and as a result of this principle, the principle of equality of arms should be taken into consideration. In the following Constitutional Court decision, the rejection of the applicant's request for expert examination was deemed contrary to the principle of equality of arms and a violation decision was made. According to the decision:

"During the trial process, the analysis report dated 18/8/2020 was brought to the file and notified to the applicant. In his petition dated 15/2/2021 and his petition dated 26/2/2021, the applicant stated his complaints and objections about multiple issues such as the fact that the remains in question were related to the production process, that they did not belong to his area of responsibility, that the sample determination procedures were performed incorrectly, and that an expert examination was carried out regarding the result of the analysis report. It should be underlined that the applicant had objections from the first stage of the trial against the determination that the product contained chemical pesticides at a level that would endanger public health, according to the results of the analysis carried out by the administration. However, when the trial was evaluated as a whole, it was seen that the objections to the analysis reports regarding the chemical pesticides detected above the legal limit in the food product were not subjected to expert examination and the necessary elements that would justify this situation were not included in the justification of the decision. In these circumstances, it is clear that the method followed by the judicial authorities does not comply with the requirements of the principles of equality of arms and adversarial trial and does not contain guarantees that protect the interests of the applicant. For these reasons, there is no situation that requires departure from the principles and the conclusion reached in the above-mentioned decision.

For the reasons explained, it must be decided that the principles of equality of arms and adversarial trial within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution have been violated." 02.03.2026 T and 2021/58759 Application No.

During listening; The applicant and his lawyer, the representative of the relevant public institution and organization, and any witnesses are heard, the expert report is read, and other evidence is presented.

After listening to the relevant parties and presenting all the evidence, the court asks the party against whom an administrative sanction decision was made and who is present, for his final words. The right to have the final say can also be exercised by the legal representative or lawyer of the party against whom an administrative sanction decision has been made. The court announces its final decision in the presence of the parties present.

The court, as the final decision, decided that the administrative sanction decision;

a) "Rejection of the application" due to its legality,

b) It decides to "remove the administrative sanction decision" because it is against the law. In case an application is made against the administrative fine imposed due to misdemeanors where the lower and upper limits of the administrative fine are specified in the law, the court may decide to accept the application by changing the amount of the administrative fine.

Decisions made upon application against administrative fines, including "three thousand" Turkish liras, are final. (Law on Misdemeanors, Article 28)

The above articles of law explain how the trial should be conducted. It should be added that the right to a fair trial must be strictly respected in the proceedings regarding the objection to the administrative fine. If an expert report has been received, this report must be notified to the applicant and his objections must be evaluated. Again, in matters related to testimony, the procedural rules set out in the CMK will be applied exactly here as well. In a recent decision, the Constitutional Court considered the failure to notify the appellant of the expert report and not evaluate his objections as a violation of the right to a fair trial. The relevant parts of the decision are as follows:

"In the concrete case, although it was decided to notify the applicant and his attorney of the report of the experts, which could have adverse consequences, it was observed that the decision was made without being notified and without the opportunity to effectively present his claims and objections against the report. Moreover, although these issues were stated as a reason for objection by the applicant in the objection to the decision, this deficiency was not compensated by the objection authority. The applicant had the opportunity to access the evidence against him and put forward his objections regarding this evidence. It is clear that the trial that he could not find was not in compliance with the requirements of the principles of equality of arms and adversarial trial, and that it did not contain safeguards protecting the interests of the applicant. This situation caused the trial as a whole to cease to be fair.

For the reasons explained, it must be decided that the principles of equality of arms and adversarial trial within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution have been violated." B. No: 2022/41702

Hearing is not mandatory. In practice, decisions are usually made based on the file.

LIMITATIONS FOR ADMINISTRATIVE FINE

Two types of limitation periods have been determined for administrative fines. These periods are the investigation and fulfillment statute of limitations.

1-Investigation Limitation Periods

If the investigation statute of limitations expires, an administrative fine cannot be imposed on the person due to a misdemeanor. The investigation statute of limitations;

• a) Five for misdemeanors requiring an administrative fine of one hundred thousand Turkish Liras or more,
• b) Four for misdemeanors requiring an administrative fine of fifty thousand Turkish Liras or more,
• c) Three years for misdemeanors requiring an administrative fine of less than fifty thousand Turkish Liras.

"However", except for Article 89, the Military Service Law no. 1111, the Parliamentary Election Law no. 2839, the Highway Traffic Law no. 2918, the Law no. 2972 on the Election of Local Administrations, Neighborhood Headmen and Councils of Aldermen, the Law No. 3376 on the Submission of Constitutional Amendments to Referendum. "If the administrative fine is not notified until the end of the last day of the calendar year following the date on which the act requiring an administrative fine was committed, which is specified in the Law, the Road Transport Law No. 4925, the Population Services Law No. 5490 and the Law No. 6001 on the Organization and Duties of the General Directorate of Highways, administrative sanction decisions cannot be given, and those already given are annulled."

As can be understood from the above provision, the administrative fine corresponding to the misdemeanor in the listed laws must be imposed and notified by the end of the last day of the calendar year following the date the misdemeanor was committed. Otherwise, the punishment will have no effect. The same is true for traffic fines.

Here it is necessary to pay attention to the relative administrative fines. Because according to the law; The statute of limitations for misdemeanors requiring a relative administrative fine is eight years. A BİM decision on the subject is as follows:

"In the third paragraph of Article 20 of Law No. 5326, an eight-year limitation period is foreseen for misdemeanors requiring relative administrative fines, the investigation covers the period between 29.03.2016 and 23.05.2017 for the plaintiff company, and the Board Decision in question was taken on 13.03.2019, therefore the eight-year investigation limitation period is has not been exceeded, sufficient price analyzes have been made from the information and documents available in the file, an effective and sufficient level of examination has been carried out, the concerted action unity between the undertakings has been revealed in all its dimensions by including tables and graphs in the light of the information, documents and evidence obtained, supply restriction agreements that disrupt competition in the market and concerted actions between competitors are defined as unlawful, prohibited acts in accordance with Article 4 of the Law on the Protection of Competition No. 4054, therefore, the economic situation of the plaintiff company and the composition process. "Since the allegations that the company cannot engage in anti-competitive behavior due to its legal status are abstract and unfounded, it should be decided to reject the appeal against the decision to reject the case." Ankara BİM 8th IDD. K. 2021/1576

Administrative fines that have exceeded the investigation statute of limitations are cancelled.

The statute of limitations begins with the commission of the act or the realization of the result in the definition of the crime.

If the act that constitutes a misdemeanor also constitutes a crime, the statute of limitations provisions regarding the crime apply.

Completion (Collection) Statute of Limitations

When administrative fines cannot be collected within a certain period of time, statute of limitations will now come into question. Execution limitation periods are regulated in Article 21 of the Misdemeanor Law. According to the relevant article:

If the statute of limitations for execution expires, the decision regarding the administrative fine or the transfer of ownership to the public can no longer be fulfilled.

Execution statute of limitations;

• a)Seven if an administrative fine of fifty thousand Turkish Liras or more is decided,
• b) Five if an administrative fine of twenty thousand Turkish Liras or more is decided,
• c) Four if an administrative fine of ten thousand Turkish Liras or more is decided,
• d) Three years if an administrative fine of less than ten thousand Turkish Liras is decided.

The statute of limitations for transferring ownership to the public is ten years.

The limitation period begins to run from the beginning of the calendar year following the calendar year in which the decision becomes final. For example, the statute of limitations for an administrative fine of 55,000 TL finalized in January 2023 will begin to run in 2024 and end at the end of 2030. If legal action is not taken against administrative sanction decisions, or if legal action is taken, the administrative fines reach the traceable stage as a result of the end of the trial stages, and the administrative fine becomes final. An example Council of State decision is shared below:

"In the dispute; in Article 21 of the Law No. 5326, which regulates the statute of limitations on the enforcement of administrative fines, it is stated that if an administrative fine of fifty thousand Turkish Liras or more is decided, these decisions must be fulfilled within 7 (seven) years from the beginning of the calendar year following the calendar year in which these decisions became final, and the decision regarding the administrative fine cannot be applied after the statute of limitations expires; Considering that the seven (7) year limitation period for the administrative fine finalized on 17.3.2007 started on 1.1.2008 and expired on 31.12.2014, and that the payment order for the execution of the administrative fine was notified on 18.2.2015, although it should have been notified until 31.12.2014; "There is no legality in the transaction subject to the case, which was notified after the expiration of the case, and there is no legal accuracy in the court decision subject to the appeal, which rejects the case." D13. Department 2016/694 K.

The statute of limitations does not apply if the administrative sanction cannot be initiated or fulfilled in accordance with the provision of law.

If a payment is made despite the statute of limitations, this payment cannot be requested back.

WHERE ARE ADMINISTRATIVE FINE PAID?

Administrative fines are generally paid to property directorates. However, administrative fines imposed by some institutions are collected by the institution that imposed the penalty. When the administrative fine is notified to the person, it must also be stated where it will be paid. The place of payment must be stated in the notification document.

If the administrative fine is paid within the payment period, a discount of twenty-five percent of the penalty is made. The person who wants to make early payment must pay the penalty within the specified period (15 days) from the notification of the penalty. If the payment period is not determined and notified to the relevant person, one month is accepted. Early payment of the penalty does not prevent the penalty from being appealed. While the person pays the penalty, he can also object to the penalty.

Administrative fines imposed by SGK and İŞKUR are collected by the institution itself and can be paid to the institution itself, banks or PTT branches.

Traffic fines can be paid to the tax office, bank or PTT.

DOES THE ADMINISTRATIVE FINE APPLY TO THE HEIRS?

In our explanations above, we stated that misdemeanors are also considered crimes in a broad sense. In this respect, the principle of individuality of punishments applies here as well. As a result of the principle, administrative fines will end with the death of the person. Communiqué numbered 442 contains the following statements on the subject:

"In this respect, due to the provisions of Article 38 of the Constitution and the repealed Turkish Penal Code No. 765 and the Turkish Penal Code No. 5237, the collection of judicial fines imposed by the courts in the event of the death of the person subject to the penalty must be waived. However, since court decisions regarding confiscation and trial expenses that have become final before death must be executed, these amounts and items are required. It will be sought from both the estate and the heirs.

On the other hand, in accordance with paragraph (4) of Article 17 of Law No. 5326, it is stipulated that if the administrative fines, which are envisaged to be applied based on the provisions of various laws and imposed in accordance with the authorities of the administrations to regulate and impose penalties, are not paid within the periods specified in the special laws and these fines become final, the follow-up and collection procedures will be carried out within the framework of the Law No. 6183.

Provided that there is no separate provision in the special laws regulating administrative fines as to whether the administrative fines will be followed by the heirs of the heirs who have not rejected the inheritance in the event of the death of the persons subject to the penalty, the collection of these administrative fines must be waived in accordance with the principle of "Personality of Penalties" included in Article 38 of the Constitution.

For example, since there is no regulation in the Highway Traffic Law No. 2918, which regulates traffic fines, whether this public receivable will be pursued by the heirs who have not rejected the inheritance in the event of the death of the public debtor who was given a traffic fine, in the event of the death of the public debtor who was given a traffic fine, this receivable will be abandoned without being pursued by the debtor's heirs.

In case of death of the partners and/or legal representatives who are held responsible in accordance with the provisions of Law No. 6183 due to the fact that the judicial or administrative fines imposed on legal entities cannot be collected from the assets of the legal entity, these receivables will continue to be pursued from the heirs who have not rejected the inheritance, since the legal entity is the subject of the penalty.

İŞKUR ADMINISTRATIVE FINE

Turkish Employment Agency, known as İŞKUR in abbreviation, is an autonomous institution affiliated with the Ministry of Labor and Social Security. İŞKUR is given the authority to impose administrative fines by Law No. 4904 on Certain Regulations Regarding the Turkish Employment Agency. As can be seen, there is a law that the institution is subject to.

Many articles of the Law No. 4904 on Certain Regulations Regarding the Turkish Employment Agency have been abolished by the Decree Law No. 703 dated 2.7.2018, published in the Official Gazette No. 30473 dated 9.7.2018. Therefore, the purpose of the law defines the scope, etc. Many provisions such as these are not available in the current version of the law.

Turkish Employment Agency, which is an administrative institution, has the authority to impose administrative fines. Because according to Article 22 of the Misdemeanor Law; The administrative board, authority or public officials clearly stated in the relevant law are authorized to decide on administrative sanctions due to a misdemeanor. As we mentioned above, while misdemeanors are generally regulated in the Misdemeanor Law, some misdemeanors and their sanctions are also included in some special laws.

Article 20 of Law No. 4904 regulates administrative fines. According to the relevant article:

By stating the basis of the institution;

a) Twenty thousand Turkish liras to real persons or legal entities that act as intermediaries in finding jobs and workers without permission from the institution, forty thousand Turkish liras in case of repetition, ten thousand Turkish liras to employers receiving services within this scope,

b)Fifty thousand Turkish liras to real persons or legal entities who organize temporary employment relationships despite not having permission from the institution or whose authority has been revoked, one hundred thousand Turkish liras in case of repetition of the act, twenty thousand Turkish liras to employers who receive services within this scope,

c)Twenty thousand Turkish liras to real persons or legal entities who receive fees or provide benefits from job seekers,

d) Five thousand Turkish liras separately to the private employment agency that arranges any of the invalid agreements in the fourth paragraph of Article 19 and to the employer who employs temporary workers,

e)One thousand Turkish liras for private employment agencies that do not provide additional guarantee,

f)Three thousand Turkish liras separately to real or legal persons who engage in intermediary activities without obtaining permission from the Institution, and to real and legal persons who publish advertisements or job and employee recruitment announcements for real or legal persons who want to take workers abroad without obtaining permission from the Institution,

g)Fifty thousand Turkish liras to real persons and legal entities who take workers abroad for their own businesses and activities without obtaining permission from the Institution, One thousand Turkish liras to employers and private employment agencies for each foreign service contract not approved by the Institution,

h) Five thousand Turkish liras to real persons or legal entities who advertise to take workers abroad without obtaining permission from the institution,

i)Three thousand Turkish liras for those who do not submit the reports, information and documents requested by the Institution and the statistical information required for monitoring the labor market within the period determined by the Institution,

j)Twenty thousand Turkish liras to private employment offices that do not submit the information, documents, records and books requested by the inspectors within fifteen days,

k) Fifty thousand Turkish liras to private employment agencies that use information about job seekers and open jobs for a purpose other than finding jobs and workers,

l) Ten thousand Turkish liras for those who engage in intermediary activities in finding jobs and workers in agriculture without obtaining permission from the institution or renewing the permission,

m) Five hundred Turkish liras for each worker to agricultural intermediaries who do not sign contracts with agricultural workers or do not submit the signed contracts to the Institution,

n)Twenty thousand Turkish liras for each worker to public institutions and organizations that employ permanent workers without intermediary institutions, and ten thousand Turkish liras for each worker to public institutions and organizations that employ temporary workers,

o)One thousand Turkish liras for each worker among public institutions and organizations that can employ workers without intermediation of the institution and those who do not send the recruitment announcement to the Institution,

p)Five thousand Turkish liras for each advertisement for those who publish open job advertisements published by the Institution without permission from the Institution,

q) Fifty thousand Turkish liras to real persons or legal entities that use the name or abbreviation of the Institution in a way that misleads the public or act as if they have received authorization from the Institution,

r)An administrative fine of twenty thousand Turkish liras for each worker will be imposed on those who act contrary to the ban on intermediary activities in placing workers in staff and positions in public institutions and organizations.

Administrative fines may be issued by İŞKUR as a result of the above acts. However, the penalty amounts written above are not valid for today (2023). According to the revaluation rate, the penalties stated in the above-mentioned law article are well above these amounts.

The amounts of some of the penalties frequently imposed on employers by the institution for 2023 are as follows:

• Acting as an intermediary in finding jobs and workers without permission from the institution: 119,428.00 TL
• Repeating the act of intermediary in finding jobs and workers without permission from the institution: 238,871.00 TL
• Receiving services from those who act as intermediaries in finding jobs and workers without permission: 29.853,00 TL
• Arranging a temporary employment relationship without obtaining permission from the institution or despite its authorization being revoked: 298,592.00 TL
• Repeating the act of arranging a temporary employment relationship without obtaining permission from the institution or even though the authority has been revoked: 597,192.00 TL
• Receiving services from those who organize temporary employment relationships without permission: 119,428.00 TL

THE COLLECTION OF İŞKUR FINE AND THE STATUTE OF LIMITATION ISSUE

According to the 20th/last paragraph of Law No. 4904; Administrative fines regulated in this Law are imposed by the Institution and the provincial directorates of labor and employment institutions, collected by the Institution in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932 and recorded as income in the Institution's budget.

As clearly stated in the provision, institutional fines are collected through general seizure. Here, enforcement proceedings are carried out without judgment on the party who was fined. In case of objection, a objection cancellation suit is filed in the civil court of first instance.

The provisions of the Misdemeanor Law regarding statute of limitations apply to administrative fines imposed by İŞKUR. Because, in the Law No. 4904, there is a regulation: "In cases where there is no provision in this Law regarding administrative fines, the provisions of the Misdemeanor Law No. 5326 dated 30/3/2005 apply."

Here, we would like to discuss an incredible decision made by the local court, which is sure to be reversed by the court of appeal, in a case we are following. In the relevant file, we argued that a receivable over 8 years old was barred by statute of limitations. Our limitation objection was rejected by the judge in accordance with the provisions of the Turkish Code of Obligations No. 6098. It is regulated in the Law No. 4904 that the collection will be made in accordance with the provisions of the EBL. Therefore, if a decision is to be made regarding collection, the competent court will be the civil court of first instance. However, this procedure will not prevent İŞKUR penalties from being administrative fines. In terms of the statute of limitations, it will be necessary to comply with the periods specified in the Misdemeanor Law. Because in Law No. 4904, reference is clearly made to the Misdemeanor Law in terms of administrative fines. Decisions like this decision in this direction are wrong. Since we cannot find any precedent, we cannot share it here, but we will share the relevant decisions here after the file is returned from legal proceedings. Unfortunately, weaknesses in the power of interpretation cause us to encounter such interesting decisions.