‘Police don’t have the authority to “fine citizens on the street”’

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In a statement released by the Ministry of Interior, it has been announced that a legal or administrative action was taken against 40,591 people for violating the COVID-19 curfew across Turkey in a week.

Speaking to bianet about the issue, lawyer Gökmen Yeşil, who is also the İstanbul Branch Chair of the Progressive Lawyers Association (ÇHD), notes that the administrative bodies, i.e. police officers and governor's offices, do not have the authority to impose such fines on people.

'They cannot use an authority not granted by law'

Lawyer Yeşil underlines that statements and remarks referring to "public good" cannot be used as an excuse to disregard laws:

"To begin with, we need to note that what is essential here is the lack of jurisdiction of the administration. I mean, be that natural disasters or outbreaks, under no circumstances shall the administrative authorities put their signs on a decision that is not clearly defined by the laws.

"The administration cannot use any authority that is not vested in it by the law. Reasons such as public good or general health cannot be an excuse for disregarding the principle of lawfulness.

"Curfew is a regulation that restricts, even eliminates basic rights and freedoms, especially the right to liberty and security, freedom of travel and right to work. So, it is a violation of the 'restriction of fundamental rights and freedoms only by law' as stipulated by Article 13 of the Constitution."

'They wouldn't have authority even then'

Lawyer Gökmen Yeşil also notes that even when there was a State of Emergency in Turkey, this non-jurisdiction would not change.

"Even if a state of emergency had been declared due to the 'dangerous epidemic disease', the administration would not have the authority to impose a curfew," says Yeşil and briefly adds:

"Therefore, it needs to be underlined that curfews of every stripe which have been in effect stem from procedures where the principle of lawfulness has been clearly trampled upon and, in that sense, they are 'unlawful.' So, all related proceedings are also null and void.

'The cited laws don't give such authority'

"In no way do the the Law on Provincial Administration or the Law on Public Health give the authority to impose a curfew.

"Even when a state of emergency is declared, it is still not possible to declare a curfew with a circular letter. That being the case, it is also not possible for the law enforcement officers to impose fines based on a regulation devoid of legal grounds. Fines must be definitely brought to court.

'Neither Governor, nor Minister is authorized'

Lawyer Yeşil also responds to the allegation that fines can be imposed by the order or permission of governor's offices:

"This does not have any factuality, either. Governor's offices do not have the authority to impose a curfew, they are without jurisdiction.

"Administrative authorities cannot be granted the authority to declare curfews under normal circumstances. They do not have such an authority in a state of emergency, either. The measures to be taken in the event of an epidemic disease are written in the State of Emergency Law.

"All else aside, ministers do not have the authority to declare a ban with a circular letter. A ban can only be declared by the then Statutory Decrees, new Presidential decrees or based on legal grounds.

"While the Governor's Office refers to the Law on Provincial Administration or Law on Public Health, these laws do not recognize such an authority."

Why are the fines imposed on upper limit

In treating the ones violating the curfews and mask obligations amid the pandemic, a fine of 3,180 lira (approx. 425 USD) is imposed on citizens as per the Article 282 of the Law no. 1593 on Public Health. Accordingly, Yeşil refers to the reason why the fine is imposed on the upper limit (3,180 lira) while the lower limit as per the Tax Procedure Law is 789 lira:

"Even when they have the authority to impose fines on people, they must still explain why they do it on the upper limit.

"The amount of these fines is determined based on the gravity of the violation and the socio-economic condition of the person. However, during the pandemic, all fines have been imposed on the highest level."

Yeşil reiterates that the fines must be brought to justice in terms of both their imposition and their rates. "The judiciary has already had judgements concluding that 'no fines could be imposed,' says Yeşil.

After the fine is notified to the person, he or she has the right to object by appealing to the authority indicated in the notification within 15 days. (AS/SD)