Vergi Ceza Hukukunda Ölçülülük İlkesi (Yüksek Yargı Organları Kararları Bağlamında Bir Değerlendirme)

Abstract

The principle of proportionality, which started taking place in social life with Aristotle’s description of justice, has lost its philosophical and doctrinal feature and become a universal legal norm in time. The principal of proportionality has the fundamental legal principle characteristic of being acknowledged by contemporary legal systems and collimating the decisions of The European Court of Human Rights. This principal has become a constitutional norm of obligation rather than a fundamental legal principle in Turkish legal system with a constitutional amendmant plan in 2001. Thus, hesitations about the necessity of legitimizing the regulations and penalties based on the principle of proportionality have been eliminated. This important feature of the principle of proportionality has also played a siginificant role in the purpose of this study. In this context, the objective of the study: Evaluating the fidelity of the penalties which are given within the context of tax criminal law to the principal of proportionality as part of the decisions of Turkish higher judicial bodies. Additionally, proposing solutions in order to practice the principle of proportionality more effectively is another objective of this study. Accordingly, first, the disputes submitted to the higher jurisdiction caused by the given penalties and the regulations within the context of tax criminal law were identified. Thereafter, the decisions which was made with the audit of the principle of proportionality for these disputes were determined and their fidelity to the principle of proportionality were evaluated. As a result of this evaluation, the ways of compatibility and incompatibility of the principle of proportionality in theory and practice were brought to light within the context of Turkish legal sysytem. The aspects of the principle of proportionality were discusses separatly in order to either detailing the study or make the proposed solutions more effective and accurate. Additionally, in what degrees that Turkish legal system accepts the necessities of the principle of proportionality were laid and opinions about how this principle could be made more effective in Turkish legal system were discussed in order to contribute to Turkish legal literature.