Turkey: A New Opportunity For Taxpayers: Individual Application To The Constitutional Court

Last Updated: 5 June 2013
Article by Zeki Gündüz

I. General

Individual application to the Constitutional Court is a new legal remedy admitted into the Turkish legal system upon approval by referendum held on September 12, 2010 of the Law on Amending Certain Articles of the Constitution of the Turkish Republic, dated 7/5/2010 and numbered 5982. Since it is new as well as different from both the current administrative and judicial remedies and the individual application mechanism arranged in the European Convention on Human Rights, it is more important to introduce this remedy to tax payers.

Essentially, it is expected that the individual application of this right, which could be defined as an exceptional and secondary remedy used by the individuals whose fundamental rights and freedoms have been violated by the actions or negligence of the public force, only after all other remedies have been exhausted, is also used by the tax payers effectively against the violations of rights.

II. Positive Law Basis

The reason of the system is to prevent violations of the fundamental rights and freedoms assured by the Constitution, and, in the case of an actual violation, to eliminate such violation together with its results. In particularly, articles 45 and 51 of the Law on Establishment of the Constitutional Court and Its Judgment Methods (dated 30/3/2011 and numbered 6216), which has been in force since 23 September 2012 and regulates the individual application, include arrangements that concretize these Constitutional provisions.

The Constitutional Court Bylaws published in the Official Gazette dated 12/7/2012 and numbered 28351 include rather detailed provisions on the functioning of the individual application procedure.

The law is based on the Council of Europe's Committee of Ministers' recommendation number 2004(6). In this context, with the Interlaken Declaration adopted by the Council of Europe's Committee of Ministers on February 9, 2010, the state parties have undertaken to establish as soon as possible the mechanisms required to implement the Covenant and effectively eliminate the violations of fundamental rights in their national laws.

In our country, the proposed constitutional amendment prepared by the Constitutional Court in 2004, which includes the individual application, has been approved by the Venice Commission with its opinion dated 29/06/2004 and numbered 296/2004. Besides, the Venice Commission evaluated in its opinion dated 18 October 2011 and numbered 612/2011 the Law No. 6216 on Establishment of the Constitutional Court and Its Judgment Methods, and confirmed in the same opinion that the individual application arrangements follow the samples already known to the European countries and meet the European standards.

What is essential for the European Council bodies is that the state parties establish in their national laws the mechanisms to eliminate the human rights violations. The right to file an individual application with the Constitutional Court is undoubtedly the most important one of such mechanisms.

II. Scope of the Right

The public force behaviour that warrants an individual application may be either a positive behaviour in the form of an action or transaction or a negative behaviour in the form of non-performance of a transaction or action that must be performed. Filing an individual application about negligence of the public force will be possible only if the public bodies are obliged to take an action.

On the other hand, the actions that may be the subject of an individual application are the public force actions that are binding and mandatory for the individuals. Since it will be necessary that the action specified in an individual application violates the individual's basic constitutional right, non-binding actions (e.g. general directives, delivery of opinions in-house, expert reports, suggestions, or recommendations, etc.) will not be the subject of any individual application.

In this context, although it is possible for the taxpayers to apply to the Constitutional Court for the entire fundamental rights and freedoms assured by the Constitution, it is obviously expected that most of the applications will be on the violations of the property right and/or the principle of equality. Nevertheless, a number of rights and freedoms such as the right to due process, right against self-incrimination, right to privacy stand out as the other rights that may be used by the taxpayers effectively.

In daily practice, the taxpayers' rights are violated by actions or transactions based on material or formative tax laws, as is the case in many countries. The decisions to be taken by the Constitutional Court on several transactions that have been initially rejected as they were not final and executable under the administrative jurisdiction rules (e.g. the decisions rejected by the court of first instance but approved by the Council of State in the cases opened against the transactions such as rejection of loss reduction reports or the reduction request for VAT, the accrual slips) or on various unfair practices emerging from the collection law (precautionary attachment, precautionary accrual, calling on a guarantee, cancellation of the collusive sale) are highly anticipated, because it is quite possible that the decisions of the constitutional judges who will approach the matter from the viewpoint of the constitutional technique rather than the taxation technique will be in favour of the taxpayer.

III. Conclusion

We hope that, with this new method which is rather important for the taxpayer's rights and thus must be vigilantly applied, new discussions will be started in the Turkish literature and tax administration with regard to the nature of tax liability, and that a new approach based on a regard for human rights will be negotiated for taxpayers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Zeki Gündüz
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