Abstract
Unmanned Aerial Vehicle (“UAV”) are divided into two categories as civil and military. This article aims to provide general information regarding civil UAV usage in Turkey. Article 144 of the Turkish Civil Aviation Act (“TCAA”)1 numbered 2920 which has been published on the19.10.1983 dated and 18196 numbered Official Gazette has been amended by the Article 33 of the Executive Order regarding the regulations with respect to the State of Emergency dated 01.09.2016 and numbered 674 (“EO”)2. Various provisions about the usage of the civil UAV are regulated into the Unmanned Aerial Vehicle Systems Instruction (“Instruction”) that is supervised by the Directorate Generalof Civil Aviation (“DGCA”) on 22.06.2016. The purpose of these regulations is herein to prevent crimes, in which oblige persons who use UAV to record and to register. However, due to nulla crimen sine lege which is the principle of legality and crime and punishment cannot be regulated by the administration, legal character of the respected regulations is somehow controversial.
I. INTRODUCTION
The number of the UAVs has being increasedrin line with the technology developments.Unmanned aerial vehicle systems (“UAVS”)which has been used mainly in the military field since the 1970’s, these vehicles attracted the attention of the civil sector due to its many advantages. For example, there is no loss of life, low operating costs, capability to provide long term intelligence, the exploration and surveillance in the air, and started to being promoted in other various fields. The intended purpose of UAVS ranges from the agriculture to energy, from the cinema sector to advertising sector, from the preservation of natural life to postal and cargo transportation, from mining to urban planning. For that reason all these equipments led and will lead to many problems as well as these advantages3. In this context, regulations related to crime and punishment regarding the usage of UAV and UAVS shall be made. Whether it is possible to make these regulations is being debated in line with the principle of legality. The principle of legality with respect to crime and punishment is one of the most fundamental principles of the modern criminal law. Literature has different views as well as there are different precedents of the Constitional Court related to whether it is a violation of the principle of legality for authorities to regulate crime and punishment through its regulatory procedures.4 Under this discussions, TCAA is amended by the Article 33 of the EO and re-regulations are made regarding imposing administrative fine to persons who does not register their unmanned aerial vehicles within the designated time period, makes false statements during the registration or flies unmanned aerial vehicles contrary to the rules that are determined5. In this context, UAV will be defined with the substantive elements as a basis. Then, the recording and registration requirements will be explored. The context of the flight permits, airworthiness and no-fly zones is to be determined. By doing so, nulla crimen sine lege, and the consequences of this principle in restricting the administration making regulations and the approach of the Constitutional Court are inspected below.
II. CIVIL UAV
A. What is UAV?
From a technical aspect, UAV is a common and general term for air vehicles which are managed by autonomous or artificial intelligence via a remote control, an autopilot or a navigational instrument or an information system which are able to take off and be airborne without any human / flight personnel / crew on or in it6. According to another definition, UAV’s are vehicles monitored without human beings, and can be driven via a remote control or self-maneuvered or both, are able to be loaded and unloaded These new unmanned vehicles which is mostly known just as “UAV” during the development period has recently called as “UAVS” so the term of UAV only corresponds the aircraft platform and not the entire system that flies it7. UAVs are defined as “an aircraft operated as a component of the UAVS, capable of continous flight through aerodynamic forces and can be flied or airborne via plan of an UAV pilot from a distance without presence of a pilot on it.” İn paragraph j of Article 4 of the Instruction. UAVS is defined as “all of the individual system elements which are required for flight such as “UAV and control station, command and control data link, take off and landing system.” in paragraph k of Article 4 of the Instruction. Under Article 5 titled “Classification” of the Instruction, the UAVs are separated into 4 (four) separate classes with reference to take-off weights.
• UAV0: UAVs with a maximum take off weight is between 500 (five hundred) grams (inclusive) and 4 (four) kilograms.
• UAV1: UAVs with a maximum take of weight between 4 (four) kilograms (inclusive) and 25 (twenty five) kilograms.
• UAV2: UAVs with a maximum take of weight between 25 (twenty five) kilograms (inclusive) and 150 (one hundred and fifty) kilograms.
• UAV3: UAVs with a maximum take of weight at least 150 (one hundred and fifty) (inclusive) or more kilograms.
1. Elements of the Civil UAV
Air vehicle is defined as “any vehicle that has ability to take off and be airborne” in paragraph b of the Article 3 of the TCAA.8 “Taking off” refers to going in to the atmosphere and being airborne/floating in the air refers to the holding of the atmosphere thorough the reaction of the air pressure.9 However, the main elements of the UAV are ability to take off, to be airborne, to be unmanned (without a crew), to have a civil character and to be controlled remotely or via autonomous operation by UAV pilot10.
a. Ability to Take Off
Ability to take off indicates going into the atmosphere with or without engine11. Ability to, take off may be defined as during an aircraft is in a fixed position on a fixed surface, the action of departing from such position into the flight or airborne state or “flight start”12.
b. Floating –Cruising/Staying in the Air
Floating-Cruising in the air indicates holding in the atmosphere due to the reaction of the air pressure13. Furthermore Floating-Cruising in the air also defined as the movement of an air vehicle from one point in the atmosphere to another point in the atmosphere14.
c. Being Unmanned/Without a Crew
The most important character of unmanned aerial vehicles which have ability to fly by following the route assigned to them automatically or manually by remote control is being unmanned, in other words, without a crew. The meaning of being unmanned is absence of human in and on it15.
d. Having a Civil Character
It is stated that “aircraft used in military, customs and police services shall be deemed to be state aircraft” in paragraph b of Article 3 of the Convention on International Civil Aviation (Chicago, 07.12.1944)16.
State Air Vehicles are defined as “air vehicle used in services of military, customs and fight against forest fire” in paragraph c of Article 3 of the TCAA17. Turkish Civil Air Vehicle is defined as “Vehicles which are excluded from the scope of state air vehicles and ownership of belonging to Turkish State or public entities or Turkish citizens” in paragraph d of the respected article.
Due to TCAA regulations except for the ones allocated to services that are specified (military, security, customs and fight against the forest fire) in the law by the state all unmanned air vehicles have civil charactecter whether they belong to the state, to public legal entities or private law persons18.
State UAV is defined as “Air Vehicles used in services of military, security, customs and fight against the forest fire” in subparagraph ç of the paragraph 1 of the Article 4 of the Instruction and excluded from the scope of the Instruction as per paragraph 2 of the Article 2.
e. Being Controlled Remotely or via Autonomous Operation by the UAV Pilot
It is accepted that UAVs necessarily act connectedly to a command system or contral station in our day the system that consist of Ground Control Station, Ground Data Terminal and other equipment and enables the flight of the UAVs is called “UAVS”19.
B. Legal Status of the CivilUAVs
Article 65 of the TCAA states that “unless contrary is stated herein, air vehicles are subject to provisions regarding movable property.” The conclusion to be drawn from this provision is that unless there is a contrary regulation in the Act, air vehicles shall be subject to provisions regarding movable property both under the Turkish Civil Code numbered 472120 and under TCAA without any distinction21.
C. Terms of Inclusion of the UAVs to the Instruction
In accordance with the Article 2 of the Instruction, the terms for UAVs to be included in the Instruction are hereinbelow presented;
• Flight in the Turkish Airspace • Not being included within the scope of state UAVs
• Not being an UAV or one of the systems that are only used indoors
• Not being one of the unmanned balloon that are attached to the ground or another platform or similar systems
• Not having a maximum take-off weight less than 500 (five hundred) gram.
III. Recording and Registration Requirement for UAV
A. Recording Requirement
There is recording requirement for each and every UAV as per the provision of “The responsible operators and managers of the companies that sell unmanned aerial vehicles are obliged to duly keep identification informa tion of the purchasers and purchased vehicle and record the information regarding the purchased vehicle which has the maximum take-off weight of five hundred grams (included) and above on the same day to a recording system which is created by the Directorate General of Civil Aviation. These recordings are shared with the law enforcement agencies in order to prevent crimes and to be used crime investigations. Those who act contrary to this requirement and do not record the vehicle that they personally brought from abroad or took over in the country within maximum three days shall be punished with an administrative fine amount of five thousand Turkish Liras.” of Article 144 of the TCAA22. Moreover, this matter is regulated in the hereinbelow paragraph 2 of the Article 11 of the Instruction;
“a) Each and every UAV that is produced in our country is recorded to the “Recording System” on the same day by its producer.
b) Information of the each and every UAV which are sold by an importer company, along with the purchaser shall be recorded to the “Recording System” on the same day by the responsible managers of the selling company.
c) The UAV which is brought personally from abroad or taken over in the country shall bre recorded to the “Recording System” within maximum 3 days.
Each and every UAV that is produced in our country, is personally brought from abroad or purchased from importer companies shall be recorded to the “Recording System” within 7 (seven) days23.
The following data is entered into the Recording System as per paragraph 3 of the respected article:
• The producer, brand and model, serial number of the UAV and its systems,
• Production place and date of the UAV and its systems,
• The maximum take-off weight of the UAV, • Name, Turkish Identification Number/Tax Number, address and contact information of the owner/operator of the UAV and its systems,
• Criminal record with an archive record of the owner and pilot of the UAV and its systems
• A covenant that is issued and approved in a notary for those who are ounger than 18 (eighteen) years old indicating they accept legal and criminal responsibility that may arise in the future by their legal represenatives.
Recording proceedings are regulated in two categories as personal proceedings and commercial proceedings in official web page of the DGCA24.
1. Personal Recording Proceedings25
a) Recording
It is required to record UAV in the event of its weight is 500 (five hundred) grams and above to the Recording System.
b) Recording of the Purchased UAV
In the event of UAV is purchased from a person or a store (including online shopping), the record shall be submitted via Purchased UAV web page.The display of the UAV on the respected web page is only possible in the event of the company that sold UAV has created a sales record. The vehicle which may not be used shall be scrapped.
c) Sales Recording of the UAV
Personal users may olsa record the UAV sales via “UAV Sales Record” page.
d) Production and Import Recording of the UAV
In the event of a production of an UAV, the record shall be submitted via Recording of UAV Production and Import page. It is mandatory to submit a specific serial number of the UAV that is produced during the recording. This proceeding is subject to DGCA approval.
e) Recording of UAV From Abroad
The recordings of the UAVs which are brought from abroad shall be submitted via Recording of UAV Production and Import page as well. The bringing from abroad proceedings are divided into two categories as “travel” and “customs”. Therefore, in case UAV is brought during a travel the “travel” option, in case UAV is purchased via cargo “customs” option shall be selected. This proceeding is subject to DGCA approval as well.
f ) Recording of Pilots to the System
Moreover, pilots shall also be recorded to the Recording System.Every person who uses UAV that wights more than 500 (five hundred) grams shall be recorded to this system. Those who will be recorded shall select the type of UAV that they will be using at first. Following the submittal of the necessary documents to the system, the application shall be sent to the approval of DGCA. Users of UAV0 and UAV1 shall be automatically assigned recording number. UAV2 and UAV3 users are required to upload the scanned versions of their licences, submit their licence numbers and last validity date. Training is not required for personal usage of both UAV0 and UAV1 usage.
Piloting authorizations of the personal users shall automatically be assigned to their vehicles. In case UAV is being used by others, defined pilot shall be changed by submitting the TR identity number to the relavent data box. The assigned pilot shall be recorded to the system and approved by the DGCA. The commercial enterprises may not record pilots directly but may link the recorded pilot to the commercial enterprise. However, in such cases the respected proceeding shall be approved by the linked pilot.
g) Getting UAV Flight Ready
The option of “I want/wish to use” shall be selected in order to get the UAV which is purchased and recorded for the purpose of sales flight ready. Afterwards, The required steps are in order, submitting description regarding the UAV, uploading photos and defining the pilot. Although it may be possible to send the UAV to the approval of the DGCA following the completion of the other steps without defining the pilot, the UAV would not be ready for flight since no QR code would be generated without defining the pilot.
Once the UAV is approved by the DGCA, the system shall generate a QR code for the UAV. After the fourth step which is downloading the QR code, the corresponsing QR code shall be printed and affixed to a flat surface of the UAV. Subsequently the UAV shall be ready for flight.
h) Flight Permit Request
It is mandatory to obtain a flight permit in order to fly in the zones that are no fly zones and residential areas, crowded or overcrowded areas.
Application fort permit page is avaible on the system under the “my UAVs” and “Request Flight Permit” pages.
Local authorities may ban flight in certain areas from time to time due to safety concerns.
Abovementioned information with respect to the flight permit request applies to the commercial recording proceedings.
2. Commercial Recording Proceedings
a) Record
It is required to record UAV in the event of its weight is 500 (five hundred) grams and above to the Recording System. Commercial user shall be selected among the type of record for the commercial recordings. The person who creates the first record of a company shall be designaed as the authorized manager of the respected company. This person may link and autorize other employees with the manager authority.
Persons who create commercial recordings shall necessarily evaluate their authorization to carry out proceedings on behalf of the respected company and its legal consequences.
b) Recording of the Purchased UAV
In case UAV is purchased from a person or a store (including online shopping), the record shall be submitted via Purchased UAV web page.
The display of the UAV on the respected web page is only possible in the event of the company that sold UAV has created a sales record. The status may be viewed via “My Data- Company Data”/”My UAVs-Company UAVs” “Bilgilerim- Şirket Bilgileri”/“İHA’larım – Şirket İHA’ları” page and relavent proceedings may be carried out.
c) Sales Recordign of the UAV
Commercial users may realize the sales of the UAVs via “UAV Sales Recording” page. It is important to submit tax numbers of the companies correctly in order to duly realize the record. Companies which sells UAV in the country shall record the sales of the UAVs with a maximum take-off weight 500 (five hundred) grams and above to the UAV Recording System on the same day.
d) Production and Import Recording of the UAV
Production and Import Recording of the UAV for the Commercial Recording Proceedings are in line with the Personal Recording Proceedings.
e) Recording of the Pilots to the Recording System
Recording of the Pilots to the Commercial Recording Proceedings are generally in line with the Personal Recording Proceedings. However, whilst there is 12 (twelve) hour training requirement for UAV0 users regarding commercial usage, there is 35 (thirty six) hour tranining requirement for UAV1 users regarding commercial usage.
f ) Making the UAV Flight Ready
Making the UAV flight ready is generally in line with the Personal Recording Proceedings.
Flight permit is required for the commercial flights with UAVs which are recorded to the system.
B. Registration Requirement
UAVs in UAV2 and UAV3 classes are registered to air vehicle registry by DGCA and assigned registration mark as per Article 12 of the Instruction.
The documents that are required to be submitted during the application the reserve registration mark for the UAVs in UAV2 and UAV3 classes which are to be registered are as follows;
• Petition which is signed by the owner or the person who has notarized proxy,
• Reservation application form,
• In the event of the owner is a legal entity, the trade name and Turkish Trade Registry Gazette indicating the capital and shareholding structure,
• In the event that owner is a real person Notarized copy of the identification card,
• Notarized signature statement for the real persons, Notarized signature circulars for the Legal entities,
• Ownership status covenant.
IV. PRIOR PERMISSION FOR FLIGHT, AIRWORTHINESS AND NO-FLY ZONES IN UAV INSTRUCTION
A. Prior Permissions
It is regulated that UAVs with the maximum take-off weight between 4 (four) kilograms and 150 (one hundred and fifty) kilograms shall obtain special prior permission for flight operations in Chart-12 which takes place in s in Chart-13 which takes place in Schedule-1 of the Instruction regarding Air Vehicle and Related Product, Piece and Airworthiness of the Device and Enviromental Certification that is published by DGCA.
However paragraph 1 one of the Article 8 of the Instruction is regulated as “Restricted Medical Certificate, Airworthiness Certificate or Special Prior Permission for Flight Certificate within the scope of SHY-21 shall not be issued by the DGCA for the UAVs with the UAV0 classification.”
It is stated “Even though Restricted Medical Certificate, Airworthiness Certificate and Special Prior Permission for Flight shall not be issued for the UAVs with a UAV1 classification, Statement of Safety and Declaration of Conformaty which examples of are presented in the official web page of the DGCA shall be accepted instead.” in paragraph 2 of the related article.
In order for the Security Statement to be valid in accordance with the relevant article, the following shall apply;
• The standards that are used in the production of UAV and its systems are indicated in the schedules of Declaration of Conformaty which is issued by the producer/ importer.
• The Security Statement regarding UAV and its systems have the stated technical features, equipment and system components in a working condition and their maintanence are duly carried out shall be issued and annually renewed by the UAV pilot.
• Necessary usage permits for the frequency that shall be used in the UAV and its systems shall be obtained from Information and Communication Technologies Authority in accordance with the Electronic Communication Law numbered 580927 and dated 05.11.2008by the UAV operator/owner/pilot. Security Statement includes the date of the usage permit of the frequency, number, data of the assigned frequency Usage of the permitted frequency and taking of every precaution against every interference are the responsibilities of the UAV pilot. Electronik communication devices that are to be used in the UAV and its systems shall be compatible with the technical regulations that are issued by the Information and Comunication Technologies Authority.
• Name and communication data of the real person/legal entity who carries out the maintanence shall be included in the Security Statement.
It is regulated that a Special Flight Certificate shall be issued by evaluating the ability to safely and securely operate according to the documents and records that are indicated in the paragraph 3 of the respected article such as maintenance and repair records, product catalogue of the UAV and its systems describing the technical features along with the rules that are applied for the UAV1 class as per paragraph 3 of the respected article with respect to the UAVs in UAV2 class.
According to paragraph 1 of Article 17 of the Instruction, it is not necessary to obtain a flight permit from the Directorate General for the UAVs in UAV0 and UAV1 classes for any sportive or amateur flight that will take place excluding the commercial activities except for the regions mentioned in Article 18 of the Instruction. However, it is also forbidden to fly in the places and during time prohibited by the local authority with the highest rank in the area for these classes. In the context of subparagraph c of related paragraph, the application shall be made 5 (five) working days prior to any flight to the residential, crowded or very crowded regions with the Flight Permit Request Form (“Form”), which is on the DGCA official internet web page.
It is not required to obtain a flight permit in areas/regions excluded from the residential, crowded or overcrowded areas/regions provided that the requirements specified in the Instructions are complied with regarding to the flights UAVs in classes of UAV0 and UAV1 with a commercial purpose.
An application shall be submitted to DGCA with the Form in order to carry out the necessary coordination on UAV flights with the sportive and amateur purposes excluding commercial activities with respect to theUAVs in UAV2 and UAV3 classes as per paragraph 2 of the Article of the Instruction. An application shall be submitted to DGCA regarding to the flights with commercial purposes 15 (fifteen) working days prior.
In case of the request of the foreign operator/renter/pilot to carry out flight in Turkish Airspace, it shall be applied to DGCA with the Form- English which is located in the DGCA’s official web page along with the reasons by diplomatic channels 20 (twenty) working days prior. Turkish Airspace is defined as “Territory under the sovereignty of the Republic of Turkey and field on Turkish territorial waters” in paragraph a of Article 3 of TCAA.
B. Airworthiness
Paragraph 4 of the Article 8 of the Instruction states that “For the UAV which is in UVA3 class, an Airworthiness Certificate shall be issued and renewed every 3 years by Directorate General.” It is stipulated that, in the event that the Airworthiness Certificate is transferred to another person, the DGCA shall be informed in writing in the abovementioned article. The transfer of such documents shall be possible after the approval of the DGCA.
C. No-Fly Zones
It is prohibited to fly with an UAV in any class without risk analysis and without permission from DGCA in the following no-fly zones specified in Article ;
• At airports, notwithstanding altitude, in the nearer fields from the edge of the nearest runway with a distance of 9 (nine) kilometers,
• Notwithstanding altitude, navigational ancillary equipment, heliport, helipad, air park, landing/departure to the sea areas which are posted on the DGCA official web page etc. as center with a nine-kilometer radius
• On very crowded regions and crowded regions notwithstanding altitude
• on “Forbidden, Restricted and Hazardous Areas” that are located in the section 5.1 of the Aeronautical Information Publication ENR of Turkey,
• Around critical buildings, facilities and assets such as military buildings and facilities, prisons, fuel warehouses and stations, arms / fireworks factories and warehouses,
• In the areas declared by NOTAM28.
In addition, the local authority with the highest rank in the area may ban flights within limits that he/she is authorized to do29. Because of the ban, it shall be checked whether there is a ban on flights in the area where the flight will be performed prior to the flight in various places in Turkey.
V. “NULLA CRIMEN SINE LEGE”
A. Principal of Legality in Crime and Punishment
According to the principal of legality, crime and punishment shall be established only by law. Accordingly, the legislation has the authority in the determination of crime and punishment. This determination may only be made by law. Following that, it shall be clearly shown by law which acts constitute a crime and which sanctions are to be applied in case these acts are committed. Thus, the basis of punishment norm shall be provided by law30.
This principle is guaranteed under the Turkish Law with the Article 38 of the Constitution of the Republic of Turkey (“Constitution”)31, with Article 7 of the European Convention on Human Rights which was signed on 20.03.1952 by Turkey and with Article 2 of the Turkish Penal Code (“TPC”)32 numbered 523733.
B. The Aspect of Principle of Legality in Crime and Punishment Regarding Restricting Administration to Make Regulations
As a consequence of principal of legality, “principle of monopoly of law” has been adopted in terms of the basis of criminal law. This principle has the purpose excluding not only non-written sources but written sources other than law, in other words, regulatory procedures of administration from the criminal law, thus limiting the sources of criminal law only with law unlike the general sources of law. The term expressed by the concept of “law” is the legislative acts which are the primary source in terms of hierarchy of norms, by doing so it guarantees the function of the criminal law34.
According to Article 7 of the Constitution, “The legislative power belongs to the Grand National Assembly of Turkey on behalf of the Turkish Nation. This authority cannot be transferred.” Therefore, the authority is the Grand National Assembly of Turkey (“GNAT”) to make legislations. However, in this sense it should not be concluded that the only authority to make legal regulations belongs to the GNAT. Article 91 of the Constitution regulates the executive orders, Article 115 of the Constitution regulates the statutes and the Article 124 of the Constitution promotes administration to regulate subordinate legistlations or quasi legistlaions. However, the paragraph 2 of Article 2 of the TPC which is one of the most fundamental principles of Turkish law is regulated in, indicates clearly that the crime and punishment cannot be established by the regulations of the administration35.
The expression of “In Article 91 of the Constitution, it is stipulated that the TGNA may authorize the Council of Ministers with respect to issuance of the executive orders and the subject matters that may not be regulated by the executive orders are listed. Article 38 of the Constitution, which is entitled “Principles on crime and punishment” is included within the scope of prohibited area that may not be regulated by executive orders. While the executive organ cannot regulate in according to the Constitution to establish crime by EO’s, it is clear that it shall contradict these fundamental rules to constitute certain acts as crime with subordinate legistlations that are regulated without more efforts in comparison with EO’s executive order with respect to regulating possibilities and their forms and come after in the hierarchy of law rules.” takes place in different precedents of the Constitutional Court36.
C. Effect of the Principal of Legality on Instruction
The instruction is one of the atypical regulatory procedure of the administration and therefore the instruction is subject to the principal of legality. It is stated that “the penal provisions which is in the 5th part of the Law numbered 2920 shall be applied to the concerned person and the business in case of performance an UAV flight without permission for operations that require permission from the Directorate General and performing operations outside the air spaces determined by the authorities granted.” in Article 26 of the Instruction.,” acting contrary to this Instruction is subject to penal sanctions under Civil Aviation Regulation – Administrative Fines (CAR-AF).” in paragraph 1 of Article 27 and “The UAV owner and pilot take care of about the privacy and confidentiality of private life. Otherwise, the provisions of the relevant articles of the Turkish Penal Code which is dated 26/09/2014 and numbered 5237 shall apply.” in paragraph 4 of this article.
According to the abovementioned provisions, the application area of the penalties which are previously regulated with law for the crimes once again regulated is expanded. New crimes are established, and penal sanctions are stipulated in accordance with complying with the Instruction37.
Although the Instruction refers to laws for penal provisions, in the event that a law suit is filed in order to revoke a sanction that is to be applied by DGCA, both the Instruction and the administrative action to be made to this Instruction lead to a crisis of b eing subject to revocation due to the obligations (in other words criminal acts) it imposes are not based on law38.
D. Approach of the Constitutional Court After the Year 2016
The Council of Ministers declared a state of emergency throughout the country with the decision numbered 2016/9064 to be effective from 21.07.2016. Following the announcement of a state of emergency, various executive orders were adopted. There is also an EO among the executive orders that are issued that sets forth administrative to the acts that are misdemeanors to those who violate recording and registration obligation fine among other sanctions to be applied39.
It is clear to evaluate that the amendments made on laws with perminant character in particular in particular by executive orders are not in accordance with the abovementioned decisions of the Constitutional Court. However the Constititunal Court changed the precedent and overruled the requisitions claiming lack of jurisdiction due to claiming Executive Orders numbered 668, 669, 670 and 671 include regulations contrary to the Constitution is not sufficient to carry out the constitutionality audit of them in lawsuits filed in order to annul them, an explicit constitutional authorization is required in order for the Constitutional Court to audit the state of emergency executive orders, it is clear that the state of emergency orders may not be audited juidicially under any name when the literal of the Article 148 of the Constitution, the purpose of the legislator and the respected legislative documents are taken into account, nevertheless the judicial audit to be made does not comply with the Article 11 of the Constitution that regulates bindingness and superiority of the Constitution and Article 6 of the Constitution regarding no one and any powers may use a governmental authority does not arise from the Constitution and as per the “however a lawsuit may not be filed in Constitutional Court by claiming executive orders that are issued during the state of emergencies, martial rule and war breach the Constitution.” provision of paragraph 1 of the Article 14840.
VI. CONCLUSION
Under the recent regulations on TCAA, the obligation of recording and registration was introduced in the civilian use of UAVs. This subject is regulated in detailed in the Instruction. In general, UAVs are subject to different regulations according to their categories. Under this regime, the UAV’s take off weight has great importance with respect to the variations. However this recording and registration obligation, which is manifested in different forms in terms of different classes intends to prevent any crimes in general. The consequences of the organization of crime and punishment by the administration are controversial as stated above. Although the Constitution provides the principal of legality on crime and punishment as per the Constitution, which indicates that it shall not conduct a judicial audit in terms of the state of emergency executive orders pursuant to paragraph 1of Article 148 of the Constitution. However, these restrictions shall not be implemented for the Instruction undoubtedly and may subject to judicial review under nulla crimen sine lege.
BIBLIOGRAPHY
Çağlar Altun, İnsansız Hava Aracı Sistemlerine (İHAS) İlişkin Ulusal ve Uluslararası Düzenlemeler, Adalet Yayınevi, Ankara, 2017.
Ekrem Çetintürk, Anayasa Mahkemesi Kararları Işığında İdarenin Düzenleyici İşlemleriyle Suç ve Ceza Konulamaz İlkesi, Uyuşmazlık Mahkemesi Dergisi, Issue 9, June, 2017.
Halid Özkan, İnsansız Hava Araçlarının/Drone’ların Türk Sivil Havacılık Hukukuna Göre Statüsü, Unsurları ve Ceza Hukuku Boyutuyla Güncel Sorunlar, Türkiye Barolar Birliği Dergisi, Year: 2016, Issue:125.
Mustafa Dikmen, İnsansız Hava Aracı (İHA) Sistemlerinin Hava Hukuku Bakımından İncelenmesi, Savunma Bilimleri Dergisi, May, 2015, Volume:14, Issue:1.
Nuri Can Fırat, Havayolu Kazalarından Doğan Kanunlar İtilafı, Ankara, 2010 .
Doç. Dr. D. Funda Kurtuluş, Hava Aracı İpoteği, Başkent Üniversitesi Hukuk Fakültesi Dergisi, Volume:3, Issue:1, January, 2017.
Convention on International Civil Aviation Done At Chicago on the 7th Day of December 1944 , https://www.icao.int/publications/Documents/7300_orig.pdf (Last Access: 04.12.2017).
Gülen Sinem Tek, Ulaşım Araçlarının İpoteği, July, 2011.
Serdar Hızır, Alisher Turaev, Türk Hukuku’nda Hava Araçları Üzerinde İpotek Tesis Edilmesi, Ankara Üniversitesi Hukuk Fakültesi Dergisi, Volume:57, Issue:3, Publication Year:2008.
Supreme Court Assembly of Civil Chambers, D.01.07.2009, C. 2009/-19256, P.2009/300.
https://iha.shgm.gov.tr/public/yardim.html (Last Access: 06.12.2017).
https://iha.shgm.gov.tr/public/bireysel-islemler.html (Last Access: 06.12.2017).
https://iha.shgm.gov.tr/public/ticari-islemler.html (Last Access: 06.12.2017).
M. Balkan Demirdal, Hukukun Temel İlkelerinin Tanımı ve İşlevleri, Hukuka Giriş, 2017.
Serap Zuvin, Ömer Bulgak, İnsansız Hava Aracı Sistemleri Talimatı: Öngörülebilir Cezalar Uygulanabilir mi?, İstanbul Barosu Dergisi, Volume 90, Issue 6 Constitiuonal Court, D.27.09.1994, C. 1993/42, P 1994/72.
Constitiuonal Court, D.18.01.1996, C. 1995/28, P. 1996/2.
Constitiuonal Court, D.02.11.2016, C. 2016/171, P.2016/164.
Constitiuonal Court, D.12.10.2016, C. 2016/166, P.2016/159 .
FOOTNOTE
1 Official Gazette (OG) dated 19.10.1983 and numbered 18196.
2 Official Gazette (OG) dated 01.09.2016 and numbered 29818.
3 Çağlar Altun, İnsansız Hava Aracı Sistemlerine (İHAS) İlişkin Ulusal ve Uluslararası Düzenlemeler, Adalet Yayınevi, Ankara, 2017, p.26.
4 Ekrem Çetintürk, Anayasa Mahkemesi Kararları Işığında İdarenin Düzenleyici İşlemleriyle Suç ve Ceza Konulamaz İlkesi, Uyuşmazlık Mahkemesi Dergisi, Issue 9, July, 2017, p.39-54.
5 Çetintürk, p. 110.
6 Sinan Sami Akkurt, Türk Sivil Havacılık Mevzuatı ve Uluslararası Konvansiyonlar Kapsamında Sivil Havayolu ile Yolcu Taşımacılığından Kaynaklanan Hukuki Sorumluluk, 1st Edition, Ankara, October, 2014, p.82-83 by transfer from Halid Özkan, İnsansız Hava Araçlarının/Drone’ların Türk Sivil Havacılık Hukukuna Göre Statüsü, Unsurları ve Ceza Hukuku Boyutuyla Güncel Sorunlar, Türkiye Barolar Birliği Dergisi, Year: 2016, Issue:125,p. 344.
7 Cengiz Karaağaç, İnsansız hava aracı sistemleri: Gökyüzünün Yeni Yırtıcı Kuşları, (Access: 01.12.2017) https://www.academia. edu/2004387/%C4%B0nsans%C4%B1z_ Hava_Arac%C4%B1_Sistemleri_G%C3 %B6ky%C3%BCz%C3%BCn%C3%B Cn_Yeni_Y%C4%B1rt%C4%B1c%C4%B1_ Ku%C5%9Flar%C4%B1 by transfer from Mustafa Dikmen, İnsansız Hava Aracı (İHA) Sistemlerinin Hava Hukuku Bakımından İncelenmesi, Savunma Bilimleri Dergisi, May, 2015, Volume:14, Issue:1, p. 147.
8 Nuri Can Fırat, Havayolu Kazalarından Doğan Kanunlar İtilafı, Ankara, 2010, p 63; Hasan İşgüzar, Türk Sorumluluk Hukukuna Göre Sivil Hava Aracı İşletenin Akit Dışı Sorumluluğu, Ankara, 2003, p.62-63, Ayhan Sorgucu, Hava ve Uzay Hukuku, Gözden Geçirilmiş ve Güncellenmiş 2. Baskı, Ankara, 2014, p.28, Akkurt, p.63, İnci Kaner, Hava Hukuku (Hususi Kısım), Gözden Geçirilmiş 2. Bası, İstanbul, 2004,p.14 trasfer from Özkan, p,355.
9 Doç. Dr. D. Funda Kurtuluş, Hava Aracı İpoteği, Başkent Üniversitesi Hukuk Fakültesi Dergisi, Volume:3, Issue:1, January, 2017,p.164.
10 Özkan, p. 355.
11 Kurtuluş, p. 164; Gülen Sinem Tek, Ulaşım Araçlarının İpoteği, Temmuz, 2011, p.10,11.
12 Özkan, p. 355.
13 Kurtuluş. p. 164, Tek, p. 10, 11.
14 Akkurt, p. 65 transfer from Özkan, p. 356.
15 Özkan, s.357.
16 Convention on International Civil Aviation Done At Chicago on the 7th Day of December 1944, https://www.icao.int/publications/Documents/7300_ orig.pdf (Last Access: 04.12.2017); Milletlerarası Sivil Havacılık Anlaşması (Sözleşmesi) (Şikago, 07.12.1944) http://ua.mfa.gov.tr/ (Last Access: 04.12.2017).
17 19.10.1983 tarih ve 18196 sayılı Resmi Gazete (RG).
18 Özkan, s.358’den naklen Akkurt, s.67.
19 Özkan, s. 359’dan naklen Salih AkyürekMehmet Ali Yılmaz-Mustafa Taşkıran, İnsansız Hava Araçları Muharebe Alanında ve Terörle Mücadelede Devrimsel Dönüşüm, BİLGESAM, Rapor No:53, Ankara, Aralık, 2012, s.1.
20 Official Gazette dated 08.12.2001 and numbered (OG).
21 Serdar Hızır, Alisher Turaev, Türk Hukuku’nda Hava Araçları Üzerinde İpotek Tesis Edilmesi, Ankara Üniversitesi Hukuk Fakültesi Dergisi, Volume:57, Issue: 3,Publication Year:2008, p.378; Supreme Court Assembly of Civil Chambers, D.01.07.2009, C. 2009/19256, P.2009/300.
22 Official Gazette dated 19.10.1983 and numbered 18196 (OG).
23 Özkan, s. 367.
24 https://iha.shgm.gov.tr/public/yardim.html (Last Access: 06.12.2017).
25 https://iha.shgm.gov.tr/public/bireysel-islemler. html Last Access: 06.12.2017).
26 https://iha.shgm.gov.tr/public/ticari-islemler.html (Last Access:: 06.12.2017).
27 Official Gazette dated 10.11.2008 and numbered 27050 (OG).
28 NOTAM is defined in paragraph 1 of Article 4 of the Instruction as “A warning broadcast for aviators prepared in a special format to provide timely notification of any aviation service, convenience, management or information regarding the existence, conditions, or any changes thereto of the hazard.”
29 Governorship Circular Letter dated 12.04.2016 and numbered 42860840/889-198 of the TR Governorship of Ankara Office of the Private Secretary.
30 Ömer Anayurt, Avrupa İnsan Hakları Hukukunda Kişisel Başvuru Yolu, Ankara, 2004, p.112-113 transferred from M. Balkan Demirdal, Hukukun Temel İlkelerinin Tanımı ve İşlevleri, Hukuka Giriş, 2017, p. 201.
31 Official Gazette dated 09.11.1982 and numbered 17863 (OG).
32 Official Gazette dated 12.10.2004 and numbered 15611 (OG).
33 Demirdal, p.201.
34 İzzet Özgenç, Türk Ceza Hukuku Genel Hükümler, Seçkin Yayınevi, Ankara, 2008, p. 106 transfer from Çetintürk, p.52.
35 Serap Zuvin, Ömer Bulgak, İnsansız Hava Aracı Sistemleri Talimatı: Öngörülebilir Cezalar Uygulanabilir mi?, İstanbul Barosu Dergisi, Cilt 90, Sayı 6, s.179.
36 D.27.09.1994, C. 1993/42, P 1994/72; D.18.01.1996, C. 1995/28, P. 1996/2.
37 Zuvin/Bulgak, p.178-179.
38 Zuvin/Bulgak, p.181.
39 Çetintürk, p.110; D.02.11.2016, C. 2016/171, P.2016/164; D.12.10.2016, C. 2016/166, P.2016/159.
40 Çetintürk, p.112.
