Bahçeci, Barış
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Bahceci, Baris
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baris.bahceci@ieu.edu.tr
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08.01. Law
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| Journal | Count |
|---|---|
| European Publıc Law | 2 |
| Annales de la Faculte de Droit d'Istanbul | 2 |
| Ec Tax Revıew | 1 |
| Intertax | 1 |
| Istanbul Hukuk Mecmuası | 1 |
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Article Transforming the Judiciary Into the Rulers' Proxies: the Case of Hagia Sophia(Istanbul University Press, 2022) Bahçeci B.; Yolcu S.This article examines from a critical perspective the judgment of the Turkish Council of State (Danıştay) in 2020, which invalidated the executive decision of 1934 regarding the designation of Hagia Sophia in Istanbul as a museum. We argue that Council of State did not really perform adjudication of a legal dispute in this case, but rather functioned as a proxy of the executive power for particular reasons. As a matter of fact, we argue the justifications regarding the case law of the European Court of Human Rights (ECtHR) and the right to property on which the decision was based to be a falsification. Moreover, the developments before and after the decision demonstrate this judgement to be a product of a non-judicial motivation. Lastly, the sequence of political actions regarding the conversion of several other museums into mosques that have been observed in Turkey over the last ten years implies the non-judicial dynamics behind the Council of State's decision regarding Hagia Sophia. Our analysis reveals the political decisions that would possibly be the subject of criticism by domestic opponents and the international community to have been eliminated by referring the issue to the packed courts in order to avoid all undesired consequences. © 2022 Istanbul University Press. All Rights Reserved.Conference Object Questioning the Penal Character of Disciplinary Sanctions in the European Court of Human Rights' Case Law(Univ Latvia Press, 2020) Bahceci, BarisSince the European Court of Human Rights (Court) has autonomously redefined the concept of penalty, it has extended its jurisdiction. However, unless they deprive of liberty, disciplinary sanctions are excluded from this autonomous definition. In this respect, this case law study depicts the Court's approach to disciplinary sanctions and particularly focuses on problems arising from the implementation. From a descriptive point of view, exceptional status for disciplinary sanctions depends on two factors: The first factor is the criteria that was developed by the Court to assess whether autonomous penalties contain a structural incompatibility. In order to prove this argument, the practices indicating the discrepancy between the criteria of the nature of offence and the nature of sanction will be examined. A critical analysis of this situation shows that if these criteria are used in their current form, the problem will persist, and therefore a reinterpretation is needed. The second factor is the definition of disciplinary sanction undertaken by the Court. The phrase special in this definition creates uncertainty in terms of scope, and has controversial results. Therefore, these two factors need to be reviewed in order to ensure that the Court's case law on disciplinary sanctions yields more objective and consistent results.Article İham’ın Vergi Cezalarında Ne Bis İn İdem İçtihadı İle Türk Hukukunun Uyum Sorunu(2018) Bahçeci, Barışİnsan Hakları Avrupa Mahkemesi (İHAM) kaynağını İnsan Hakları Avrupa Sözleşmesi’ne ek 7. Protokolün 4. maddesinde bulan ne bis in idem ilkesini Zolotukhin/Rusya kararıyla yeniden yorumla-mıştır. Bu yeni yorumun vergi cezaları özelindeki yansımaları son olarak A ve B/Norveç kararıyla şekillenmiştir. İHAM’ın getirdiği yeni yorum, ayniyet (idem) ve mükerrerlik (bis) kavramları çerçevesinde oluştuğundan, bu çalışmada Türk hukukundaki vergi suç ve kabahat-lerine ilişkin hükümler aynı kavramlar üzerinden irdelenmiştir. Bu kapsamda ilk olarak kaçakçılık suçu, vergi ziyaı, usulsüzlük ve özel usulsüzlük kabahatlerinin konu aldığı filler arasında bir örtüşme olup olmadığı, bu fiillere bağlanan cezalara ilişkin içtima kuralları ortaya konularak ayniyet (idem) unsuru açısından uyum sorunu değerlen-dirilmiştir. Mükerrerlik (bis) başlığı altında ise vergi cezaları arasında İHAM içtihadı gereği bir bütünsellik bulunup bulunmadığı ve özellik-le aynı fiil kaynaklı farklı yargılamalar arasındaki etkileşim sorunu ve muhtemel çözüm yollarına dikkat çekilmiştir. Çalışmanın sonuç bö-lümünde ne bis in idem kuralı açısından Türk hukukunda sorun oluş-turan başlıklar ve ilgili Vergi Usul Kanunu hükümleri belirlenmiştir.Article Shifting Financial Privileges From Dynasty To Parliament in the Emergence of Modern Turkiye(Istanbul University Press, 2023) Bahçeci, BarışThis study deals with the emergence of modern Turkey in the axis of the change in financial privileges. In this respect, the acts of the parliaments are analysed with a descriptive approach. While the parliament conducted the liquidation process of the Ottoman dynasty, it also created some new privileges for its members. This study examines this simultaneous process. The liquidation process started in 1908 with the establishment of a constitutional monarchy initiated by the Committee of Union and Progress (İttihat ve Terakki Cemiyeti). Only after 1920, a national assembly convened under a new leadership in Ankara continued the process and seized the assets of the dynasty, ended tax privileges, and cut their allowances in 1924. However, during the same period, parliament extended the financial status of its members with laws enacted even unconstitutionally. Despite that allowances of MPs were increased, and rules creating pension rights turned into a legislative behaviour that set an example for the following decades too. Moreover, parliament also established financial privileges by tolerating the economic activities of its members. Thus, financial privileges based on blood ties were replaced by another type of privileged status in parallel with the transfer of sovereignty. © The Author(s), 2023.Article The Question of Interaction Between Tax and Criminal Proceedings in Turkiye in Terms of Ecthr Jurisprudence(Istanbul Univ, 2022) Bahceci, BarisThis study deals with the question of harmonization between tax and criminal proceedings in Turkish law resulting from the condition of sufficiently close in substance and in time as applied within the scope of Article 4 of Protocol No. 7 (P7-4) of the European Convention on Human Rights (ECHR). In this context, the study first examines the developmental line of jurisprudence regarding the European Court of Human Rights (ECtHR) and then examines how the elements of substance and time have been interpreted, starting with the Glantz and Nykanen judgments against Finland in 2014 and ending with the Kristjansson judgment against Iceland in 2021. Afterward, the study finds aspects of the case-law as created by the ECtHR to be incompatible with Turkish law. Because no legal regulation exists in Turkish law that provides a connection between substance and time, the final section proposes a solution to the identified problems. In this context, a systematic distinction has been made between crimes that do and do not require knowledge of tax techniques. The study recommends with regard to the first type of crime that an investigation into deliberateness be carried out by the tax court with its expert knowledge of tax techniques in order to avoid a repetitive evaluation, and then based on the result, the criminal court should determine the real person or entity who perpetrated the crime. With regard to the second type of crime, no knowledge of tax technique is required for the investigation into intent and thus in conclusion and unlike with the first case, the tax court is recommended to take the criminal court decision into account.Article Citation - WoS: 5Citation - Scopus: 3Redefining the Concept of Penalty in the Case-Law of the European Court of Human Rights(Kluwer Law Int, 2020) Bahceci, BarisSince the European Court of Human Rights (Court/ECtHR) began to define an autonomous concept of penalty, its case law has been developing on the basis of the Engel criteria. This study aims to reveal the implementation of these criteria by the ECtHR and its consequences under the case law. Although the definition of penalty depends on the application of these criteria, the existence of a problem of consistency among them draws attention. As a matter of fact, one of the criteria, the nature of the sanction has undertaken a function to expand the Court's ratione materiae through an objective assessment. However, the other Engel criteria, nature of the offence and degree of severity of the sanction are open to criticism in terms of objectivity, as well as narrowing the limits of the concept of penalty and consequently restricting the Court's ratione materiae.Article The Reflections of the 1921 Constitution on Turkey's Fiscal Law Order(Istanbul Univ, Fac Law, 2022) Bahceci, BarisThis study examines the identity of the fiscal law order shaped by constitutional rules during the period of the 1921 Constitution. The main source for the study is the minutes of the Turkish Grand National Assembly (TGNA), where financial rules are enacted and financial problems discussed. The time period that is the subject of the research is the period of the 1921 Constitution: between April 23, 1920, when the TGNA was convened, and April 24, 1924, when the 1924 Constitution and the first regular budget were enacted. Although the 1921 Constitution does not directly contain a regulation on the fiscal legal order, the change in this order was influenced by the rules of national sovereignty and the supremacy of the assembly. The study is divided into two chapters, one focusing on the issue of legality and the other on budgetary power, which are different reflections of these constitutional rules in financial law. In the first part, the application of legality is examined in terms of how its features differentiate it from the previous period, its functions in this period, and its legacy in the subsequent constitutional period. The second part analyzes how the TGNA reacted to the problem, and extraordinary role, of budget-making and control, which has been ongoing since the period of the Ottoman Parliament (Mebusan Meclisi). Thus, it was possible to reveal how the period of the 1921 Constitution differed from the previous and subsequent periods in terms of its effect on fiscal law. The outputs obtained from the study show the emergence of an identity of the Assembly that did not previously exist.Article Citation - Scopus: 1Is There a Special Enforced Tax Collection Regime Under the Ecthr Case Law?(Kluwer Law Int, 2021) Bahceci, BarisThis article examines the extent to which the European Court of Human Rights (ECtHR) takes into account the privileged nature of tax claims in enforced collection proceedings. Conducted within the framework of the right to property, the aim is to find a response to this question: Does the ECtHR case law allow for a special regime in enforced debt collection proceedings? A definitive answer to such a question requires a comparison between Court judgments on tax debts and non-tax debts. Under both the lawfulness and legitimate aims tests, no distinction appears between these two types of debt. On the other hand, under the proportionality test, the Court generally grants a wide margin of appreciation to States Parties. In this respect, two different dimensions are encountered, namely, the tax collector versus tax debtor and the tax collector versus other creditors. While the ECtHR does not allow differences between the collection regimes of non-tax debts in the former relationship, it appears that in the latter, the Court maintains the privileged status granted to the tax collector in domestic law. However, this privileged status is not unique to tax debts. Therefore, the article concludes that there is no special status for the tax debt enforcement regime under a comparison with non-tax debts.Article Transforming the Judiciary Into the Rulers’ Proxies: the Case of Hagia Sophia(2022) Bahçeci, Barış; Yolcu, SerkanThis article examines from a critical perspective the judgment of the Turkish Council of State (Danıştay) in 2020, which invalidated the executive decision of 1934 regarding the designation of Hagia Sophia in Istanbul as a museum. We argue that Council of State did not really perform adjudication of a legal dispute in this case, but rather functioned as a proxy of the executive power for particular reasons. As a matter of fact, we argue the justifications regarding the case law of the European Court of Human Rights (ECtHR) and the right to property on which the decision was based to be a falsification. Moreover, the developments before and after the decision demonstrate this judgement to be a product of a non-judicial motivation. Lastly, the sequence of political actions regarding the conversion of several other museums into mosques that have been observed in Turkey over the last ten years implies the non-judicial dynamics behind the Council of State’s decision regarding Hagia Sophia. Our analysis reveals the political decisions that would possibly be the subject of criticism by domestic opponents and the international community to have been eliminated by referring the issue to the packed courts in order to avoid all undesired consequences.Article Citation - WoS: 1Citation - Scopus: 2From an Illiberal Posture To an Anti-Liberal Other: the Changing Composition and Jurisprudence of the Turkish Constitutional Court(Kluwer Law Int, 2022) Bahceci, Baris; Yolcu, SerkanThis article reveals the change in the Turkish Constitutional Court's (TCC/Court) jurispru-dence due to the transformation in its structure. We develop our arguments on the assumption that the Court's ideological attitude is determined according to interaction with political actors and argue that from 1980 onwards, two facts were determinant: (1) the role of the constitutional amendment in 2010 in relation to court-packing aim and (2) the role of President of Turkish Republic due to his appointment power. To this end, we examine the changing ideological line of the TCC by focusing on selected rulings delivered during Court's two eras divided by 2010 constitutional amendments. We argue that the TCC dramatically changed direction from liberal towards anti-liberal line in its decisions and structure. Before 2010, members who did not act in line with the president who appointed them and did not have a sharp ideological stance were encountered. This situation was reflected in the voting behaviour of the members and brought ambivalent attitudes. After 2010, this situation was reversed and especially as of 2017, some members became loyal to the president, and it was seen that the court acted with a sharper division in critical decisions and transform into an anti-liberal stance in its jurisprudence.