Administrative fines are sanction decisions imposed directly by administrative authorities in response to a disruption of administrative order. Involving the compulsory collection of a specified sum, these decisions are taken and enforced by the administration without recourse to any judicial body. The administration may impose such a sanction only where, as required by the principle of legality in penalties, the statute expressly permits it and confers the power to impose the sanction on the administration. The administration cannot create a misdemeanour or a penalty of its own motion in situations for which the statute makes no provision. A person on whom an administrative fine has been imposed may, if satisfied that the decision is unlawful, pursue an objection and an action for the fine to be set aside. For fines falling within the Misdemeanours Act, an application must be made to the Criminal Judgeship of Peace within 15 days of the date on which the decision was pronounced or served. That said, since certain statutes designate a different authority for objections, an assessment must be made for each fine according to the circumstances of the case.
Turkish legislation characterises certain forms of conduct as misdemeanours and provides that the competent administration may impose a fine in respect of some of them. However, these decisions, known as administrative fines, may be unlawful on a variety of grounds and may be set aside by the judicial authorities.
Below we examine, in turn, the legal nature of the fine, the acts in respect of which it is imposed, the authority to which an objection is to be made and the period within which it must be lodged, the exceptional time limits introduced by special statutes, and the distinct procedures applying in the traffic and social security fields.
The Concept of an Administrative Fine
An administrative fine is a pecuniary penalty imposed directly by the competent administrative authorities in respect of conduct which does not constitute a criminal offence but is prohibited as a misdemeanour. The distinguishing feature of these fines is that they attach not to an offence but to acts classified by law as misdemeanours. Whereas a fine imposed in respect of conduct defined in the statute as an offence is a judicial fine, the response to conduct defined as a misdemeanour is characterised as an administrative fine. Although judicial fines may in certain circumstances be converted into a custodial sentence, no such conversion is possible in the case of administrative fines. Under the Misdemeanours Act, these fines may be set as a fixed amount or on a proportionate basis. It is also possible for the statute to circumscribe the fine by specifying a lower and an upper limit.
Which Acts Attract an Administrative Fine?
In accordance with the principle of legality in penalties, the regulation of administrative fines has not been left to the discretion of the administration; it is effected by statute and for a limited set of situations. While the principal basis for these fines is Misdemeanours Act No. 5326, administrative fines are also laid down in special statutes.
The principal misdemeanours set out in the Misdemeanours Act which attract a fine are the following:
- Acting contrary to an order lawfully issued by the competent authorities in connection with judicial proceedings or for the purpose of protecting public safety, public order or public health
- Gambling
- Begging
- Disturbing the peace and quiet of others while intoxicated
- Disturbing the peace and quiet of others by making noise
- Harassing others for the purpose of selling goods or services
- Occupying squares, avenues, streets or pavements used by pedestrians, or offering goods for sale in such places, without the express written permission of the competent authorities
- Consuming tobacco products in the enclosed areas of public service buildings, in public transport vehicles, and in areas belonging to private law persons which are open to general use
- Refusing to give a public official information as to one’s identity or address when asked in connection with that official’s duties, or making a false statement in that regard
- Polluting the environment
- Posting cloth, paper or similar posters and notices in squares and parks, on publicly owned walls or areas along avenues and streets, or on premises belonging to private persons without their consent
- Occupying the 112 Emergency Call Centre with false reports
- Carrying a firearm without a licence
The principal situations laid down in other statutes which give rise to an administrative fine may be listed as follows:
- Acts contrary to the principles set out in Article 20 of the Environment Act No. 2872 which undermine the protection of the environment
- Conduct contrary to the zoning legislation listed in Article 42 of the Zoning Act No. 3194
- Acts defined in the Highway Traffic Act No. 2918 which manifestly breach the traffic rules
- The commission of acts characterised as misdemeanours in the Turkish Commercial Code No. 6102
- Breaches of the obligations imposed on employees and employers under the Labour Act No. 4857
- Situations specified in the Social Insurance and Universal Health Insurance Act No. 5510 which constitute a breach of working conditions
- Conduct stated in the relevant articles of the Military Service Act No. 1111 to be disruptive of order
- Breaches of the prohibitions in Articles 2, 3 and 4 of the Act No. 4207 on the Prevention and Control of the Harms of Tobacco Products
- Conduct contrary to the provisions introduced for the protection of consumers in Article 77 of the Consumer Protection Act No. 6502
- Contravention of the provisions of the Public Health Act No. 1593 and of decisions taken by the competent authorities on the basis of that statute
To Which Authority Is the Objection Made?
Unless there is provision to the contrary, an objection to an administrative fine is made by following the general objection procedure under Article 27 of Misdemeanours Act No. 5326.
Within the framework of the relevant provisions of the Misdemeanours Act, the general authority for objections is the Criminal Judgeship of Peace.
Where a sanction other than a fine has also been imposed, the authority to be applied to is instead the Administrative Court. For example, if an order closing the business premises has been made alongside the fine, an action must be brought before the Administrative Court for the annulment of both decisions.
The general framework governing the annulment of administrative acts is examined in detail in our note entitled Objections to Administrative Acts and the Action for Annulment.
Where a special provision applies, the objection must be made in accordance with the procedure indicated in that statute. In order to avoid confusion, the time limit for objection and the authority concerned must be stated in the notification when the fine is served on the person concerned. Service effected contrary to the proper procedure does not set the objection period running.
The Time Limit for Objection
As noted above, unless a special provision appears in the statutes, the provisions of the Misdemeanours Act apply to administrative fines. The general time limit for objection is likewise set out in that Act. Under the relevant provisions, an application may be made to the Criminal Judgeship of Peace against an administrative sanction decision within fifteen days at the latest of the date on which the decision was served or pronounced. If no application is made within that period, the decision becomes final.
Where force majeure has caused the period to be missed, the preclusive period operates differently. In such cases, an application must be made against the decision within seven days at the latest of the date on which the force majeure ceased. Although the application does not prevent the decision from becoming final, the court may suspend its enforcement. The existence of force majeure is assessed in the light of the circumstances of each case.
Different Time Limits Under Special Statutes
The period referred to in the preceding section applies where the institutions’ own special statutes contain no provision to the contrary. For applications against the decisions of certain institutions, however, their special statutes lay down time limits distinct from the general period. The following are examples of such exceptional periods:
- Against fines imposed under the Zoning Act No. 3194, an action for annulment may be brought before the Administrative Courts within 60 days at the latest of service of the administrative sanction report on the person concerned.
- Against fines imposed under the Environment Act No. 2872, an action must be brought before the Administrative Courts within 30 days at the latest of the same starting date.
- The procedure to be followed in respect of fines imposed by the Social Security Institution on the basis of the Social Insurance and Universal Health Insurance Act No. 5510 also departs from the general procedure; that subject is addressed under a separate heading below.
Traffic Fines and Orders Impounding the Vehicle
For traffic fines the authority to be applied to is the Criminal Judgeship of Peace and the period is 15 days. The starting point of that period varies according to the manner in which the fine was imposed: where a law enforcement officer stops the driver and issues the fine in person, the period runs from the date on which the report was drawn up. Where the fine is issued against the registration plate by systems such as the electronic monitoring system, that is to say in the driver’s absence, the objection must be lodged within 15 days of the date of service.
Where an order impounding the vehicle has also been made alongside the traffic fine, the competent court is the Administrative Court for the place in which the police command that took the decision is situated. In other words, in this situation the Administrative Court is regarded as competent in respect of the annulment both of the fine and of the impoundment order. The objection period likewise departs from the general period and is applied as 60 days from service of the decision.
The Procedure for Social Security Institution Fines
Persons and bodies made subject to a fine by the Social Security Institution cannot apply directly to the courts. Before an action is brought, the administrative objection remedies indicated in the special statute must be exhausted. Since there are Administrative Fine Commissions within the Institution, an application must first be made to the relevant commission. The period for that application is fifteen (15) days, and objections may be lodged in person or by registered post with acknowledgement of receipt.
If the commission rejects the objection, only then may an action be brought before the administrative court for the annulment of the fine imposed by the Institution.
Frequently Asked Questions
Is representation by a lawyer mandatory for an objection to an administrative fine?
Turkish law allows parties to defend and represent themselves in person before the courts; save for limited exceptions, representation by counsel is not mandatory. No such requirement is laid down for the Administrative Courts either. However, the complexity of administrative law legislation and the short and strict nature of the periods under the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, give rise to errors of procedure and of substance that are difficult to remedy. For that reason it is advisable to seek the support of lawyers practising in the field of administrative law before any step is taken.
Does an unpaid administrative fine become a custodial sentence?
Failure to pay the fine does not result in its conversion into a custodial sentence. Enforcement proceedings are commenced against the person who fails to pay and the amount is collected by that route.
Does an administrative fine appear on the criminal record?
These fines do not appear on the criminal record. The criminal record contains only entries relating to offences established by a final court decision.
Within what period is an action brought against SGK fines?
For fines imposed by the Social Security Institution, an application must be made to the Commission for Objections to Administrative Fines within the Institution before an action is brought. If the application is unsuccessful, an action for annulment must be brought before the Administrative Courts within 30 days of the date on which the decision of rejection was served.
When does the period for objecting to a traffic fine begin?
For traffic fines the authority to be applied to is the Criminal Judgeship of Peace and the period is 15 days. Where a law enforcement officer stops the driver and issues the fine in person, the period runs from the date on which the fine was written. Where the fine is issued against the registration plate by systems such as the electronic monitoring system and thus in the driver’s absence, the objection must be lodged within 15 days of the date of service.
Within what period is an administrative fine paid, and is a reduction applied?
Administrative fines for which no payment period is specified in the relevant statute are paid within one month of service. Where payment is made within that period, a reduction of 25% is applied to the amount of the fine.
Can the fine be paid in instalments?
The Misdemeanours Act provides that, where the person’s financial circumstances are unfavourable, it may be decided that the fine be paid within one year in four equal instalments, on condition that the first instalment is paid in advance. If the instalments are not paid in full and on time, the whole of the remaining amount is collected.
The Independent Legal Assessment
The most frequently encountered loss of rights in administrative fine files arises simply from applying to the wrong authority, before any argument on the merits is ever reached. Although the general rule points to the Criminal Judgeship of Peace, a closure, impoundment or suspension of activity order added alongside the fine carries the dispute wholly into the administrative jurisdiction. The first task is therefore to establish whether the decision served contains only a fine or several sanctions together.
Nor is the regime of time limits uniform. The general fifteen-day period under the Misdemeanours Act, the thirty- and sixty-day periods under the environmental and zoning legislation, and the mandatory application to a commission in the social security field all operate separately from one another. A failure to state the objection period and the competent authority in the notification, or service effected irregularly, creates in itself an avenue of defence.
In a given file the following points should be examined first:
- Whether the act on which the fine is based is expressly defined as a misdemeanour in the statute
- Whether the unit imposing the sanction is endowed by statute with that power
- Whether service was effected in accordance with the proper procedure and whether the objection period and the competent authority were stated in the decision
- Whether a second sanction accompanies the fine and, accordingly, which authority has jurisdiction
- Whether a period derived from a special statute or a mandatory administrative application procedure is engaged
- Whether the reduction for payment within the period and the possibility of payment by instalments are assessed together with the objection strategy
Independent Legal provides advisory services and conducts litigation in respect of objection applications against administrative sanction decisions and annulment proceedings before the Criminal Judgeships of Peace and the Administrative Courts.