Individual Application

The Facts

The transactions performed by the applicant, who has been engaging in trade, between 2007 and 2011 were made subject to tax inspection. In accordance with the report issued as a result of the said inspection, various taxes and penalties were imposed on the applicant.

The applicant challenged the impugned decision before the tax court. The latter found unlawful the relevant tax/penalty procedures. The administration, appealing against the court’s decision, again issued tax/penalty notices and sent them to the applicant. The Council of State, finding the appeal request irrelevant, found no ground for a decision.

The applicant, pending the cases he had brought against the tax and penalty notices issued by the tax administration for the second time, had his debt restructured in accordance with the Law on the Restructuring of Certain Receivables and eventually paid it. He also withdrew the cases he had filed with the tax courts.

On the other hand, the chief public prosecutor’s office filed a criminal complaint against the applicant for “issuing and using false invoice”. The criminal court found the applicant guilty as charged and sentenced him five times for each offence. The applicant unsuccessfully appealed against the decision of the criminal court. Hence, the regional court of appeal upheld the criminal court’s decision.

The Applicant’s Allegations

The applicant maintained that the principle of not to be tried or punished twice for the same offence had been violated as a result of a tax inspection.

The Court’s Assessment

The right to a fair trial requires that the principle of rule of law be respected in the resolution of disputes. The principle of rule of law that is enshrined in Article 2 of the Constitution as among the characteristics of the Republic should be taken into account in the interpretation and implementation of any constitutional provision.

Another requirement of the rule of law is the principle of legal certainty. The principle of legal certainty also necessitates the preservation of favourable consequences, for the individuals, of the relationships between the private persons as well as between the private persons and the State. In this context, disregard and renewal of the criminal processes, which are concluded in favour of the individuals in accordance with the applicable legal rules and having the characteristics of final judgment, impair the principle of legal certainty.

In addition, punishment of the acts violating the legal order is one of the most basic powers of the State. However, in a democratic legal order, the State’s reaction to unfair acts through punishment must be proportionate and not attain a level impairing the legal certainty. Trial or punishment of an individual who have already been tried or punished before for the same unlawful act impairs the fair balance between the public interest pursued by the sanction and the individual’s interests, thereby placing an excessive burden on the individual.

The principle of not to be tried or punished twice for the same offence ensures that individuals are not tried or punished again while there are pending criminal proceedings against them. Thus, it is aimed to ensure legal certainty as a requirement of the principle of the rule of law in terms of the criminal processes within the scope of the right to a fair trial. Accordingly, the principle of not to be tried or punished twice for the same offence, which is inherent in the principle of rule of law, is an element of the right to a fair trial safeguarded by Article 36 of the Constitution.

In accordance with the principle of not to be tried or punished twice for the same offence, an individual cannot be tried or punished more than once for the same offence. However, this principle is not absolute, and the same offence may be subject to different assessments in different legal disciplines. Since this principle is applicable solely to criminal cases, it does not constitute an obstacle to bringing a civil action or launching a disciplinary investigation, alongside the criminal investigation, for the same offence. Therefore, imposition of different sanctions for the same offence within the scope of such legal disciplines is not in breach of the said principle.

In the present case, both of the impugned proceedings were carried out against the same person and in relation to the same taxation periods. As a result of the administrative proceedings carried out upon the finding of the tax office that false invoices had been issued, tax penalties were imposed for the relevant act. In addition, criminal proceedings were carried out for the same act impairing the taxation procedure. Accordingly, the applicant’s acts leading to certain criminal processes are integrated and should be regarded as the same offence in legal sense.

Considering all these, imposition of tax penalty at the end of the administrative proceedings as well as a sentence at the end of the criminal proceedings, with a view to achieving different aims and legal interests, does not fall foul of the principle of not to be tried or punished twice for the same offence.

Consequently, the Court has found no violation of the principle of not to be tried or punished twice for the same offence within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.