Sayfa 467Dr. Erdem BAFRA…
Abstract
The purpose of Public Procurement Law No. 4734 is to establish the principles and procedures to be applied in any procurement held by public authorities and institutions governed by public law or under public control or using public funds. On the other hand, for the sake of a productive and functional tender process, this Law also regulates some administrative measures.…
In this scope; regarding penal liability of tenderers, article 59/2 of Public Procurement Law No. 4734 regulates that; for those against whom a public lawsuit is decided to be filed following the criminal prosecution held in accordance with paragraph 1 due to tenders conducted within the scope of this Law, and those mentioned in paragraph 2 of Article 58, can not participate in the procurement held by public institutions and authorities included within the scope of this Law, until the end of judgement proceedings.…
Indeed, Public Procurement Authority of Turkey records the black lists regarding these kinds of prohibitions and administrative authorities verifies the prohibition or availability status of the tenderers during the tender process. Within this scope, it can be concluded that this kind of a prohibition causes some fiscal, commercial and economic results in terms of the tenderers.From this point of view, it is forbidden to participate in public procurement for those against whom a public lawsuit is decided to be filed following the criminal prosecution held in accordance with paragraph 1 due to tenders conducted within the scope of this Law, and those mentioned in paragraph 2 of Article 58. On the other hand, this kind of a prohibition has been criticised especially in terms of “presumption of innocence”, freedom of labour and proprietary right, for years.…
In terms of article 59/2 of Public Procurement Law No.4734, it is crucial to clarify the legal qualification of this kind of a prohibition. By this way it is also possible to conclude about to what extend general principles of penal law should be applied and constitutionality of the rule.…
In this scope, regarding the legal qualification of this prohibition, Constitutional Court underlined in its order that “In public procurement, the prohibited situation for those against whom a public lawsuit is decided to be filed following the criminal prosecution regarding the acts and conducts which constitute a crime due to Turkish Penal Code, is a kind of administrative measure enacted by the parliament.”.…
As a result, Constitutional Court decided that this kind of a prohibition does not include any sanction, while accepting it is a kind of an administrative measure. Also; the Court underlined that, this kind of a measure has to be for “principle of proportionality”. As a consequence, it can be concluded that it is crucial to reveal to what extend general principles of penal law should be applied to administrative sanctions or measures especially in terms of “presumption of innocence” principle.…
On the other hand, regarding this kind of a prohibition period, it is crucial to clarify the meaning of “end of judgement proceedings”. As this kind of a prohibition also has some results on economic and commercial activities of the companies, clarifiying this kind of a period is also crucial in terms of legal certainty. When we analyse the decisions of Council of State, we can see that the Court evaluates the issue in the light of individual applications to Constitutional Court in view of unreasonable detention periods and European Court of Human Rights jurisprudence. As a consequence; according to Council of State, “end of judgement proceeding” regulated in article 59 …
Key Words: those against whom a public lawsuit is decided to be filed, administrative measure, administrative sanction, prohibition from participation in tenders, public procurements.…
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