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Ali OZCAN
Customs Consultant
Article 74 of our Constitution, titled "The right to petition, obtain information and apply to the ombudsman", was last amended in 2010, and the first three paragraphs of the said article came into force as follows:
“Citizens and foreigners residing in Turkey, provided that the principle of reciprocity is observed, have the right to apply in writing to the competent authorities and the Grand National Assembly of Turkey regarding their wishes and complaints regarding themselves or the public.
The results of the applications regarding them are notified to the petitioners in writing without delay.
“Everyone has the right to obtain information and apply to the ombudsman.”
With the "Law on the Right to Information" No. 4982, adopted in 2003, it was aimed to regulate the principles and procedures regarding "people's exercise of their right to information in accordance with the principles of equality, impartiality and openness, which are the requirements of democratic and transparent management." According to this Law; Everyone has the right to information.
In addition, institutions and organizations are deemed obliged to provide all kinds of information or documents to the benefit of applicants, except for the exceptions in the Law, and to finalize their applications for information effectively, quickly and accurately. A provision was also added to the law stating that, as of the date of entry into force of the "Law on the Right to Information", provisions of other laws contrary to this Law will not be applied. Additionally, an "Access to Information Evaluation Board" was established. This Board decides by checking whether the objections regarding the application for access to information are in compliance with the Law. Examining the decisions made by public and other institutions and making decisions regarding the use of the right to information for institutions and organizations are among the duties of the board.
According to the provisions of the "Regulation on the Principles and Procedures for the Implementation of the Law on the Right to Information", depending on the nature of the requested information or document, institutions and organizations may provide the applicant with a copy of the information or document in question, or in cases where it is not possible to provide a copy, the applicant may submit the original of the information or document. The student must be allowed to examine and take notes or to see or hear the contents.
On the other hand, the "Press and Public Relations Consultancy Public Relations and Information Bureau" was established within the Ministry of Commerce to evaluate applications for information requests in accordance with the "Law on the Right to Information" No. 4982. Applications to be made by mail or in person must be made by filling out pre-determined forms. The application date is accepted as the date on which the petition reaches the information unit of the central or provincial organization of the Ministry.
The "Issues to be taken into account in the application for information" on the Ministry's web portal are listed as follows:
Everyone can access the information and documents they request within the framework of the procedures and principles determined by the right to information legislation. However, the information or documents requested from the Ministry must be related to the organization and duties of the Ministry.
Foreigners residing in Turkey and foreign legal entities operating in our country have the right to obtain information within the framework of the principle of reciprocity, provided that the information they request is related to themselves or their fields of activity, without prejudice to the provisions of the international agreements to which we are a party. Applications are made in Turkish.
The information and documents to be requested from the Ministry within the scope of the access to information legislation must belong to the transactions that must be in the Ministry's records and are fully developed. Information and documents requested within the scope of Special Laws, including the Customs Law No. 4458, are considered outside the scope of the access to information legislation.
Applications for information or documents that can be created as a result of separate or special studies, research, examination or analysis, and applications for information or documents related to transactions that have not yet been completed will be answered negatively.
It is not possible to provide access to information or documents that have been announced or announced in advance on a certain date, before the specified date.
Information or documents published by the Ministry and disclosed to the public through books, brochures, announcements and similar means should not be the subject of an application for access to information. (The applicant is informed of where the information can be obtained, such as the place of publication, date, etc.)
If the requested information or documents contain sections that are classified or prohibited from disclosure, the remaining sections will be presented to the applicant after the information that is classified or prohibited from disclosure is removed.
You will be informed that repeated applications made by the same persons, although they have been answered before, and applications of an abstract and general nature will not be processed.
There is no requirement for the application petition or application forms to be typed or printed out from a computer. However, illegible petitions and application forms without contact information will be deemed invalid.
In the identity information inquiry, applications with false identity information such as name, surname or title will not be processed.
The only legal basis for obtaining information is not included in Article 74 of our Constitution and the "Law on the Right to Information" No. 4982. Since the first legislation adopted within the scope of the European Union acquis in Turkey was the customs legislation, the first provisions on "obtaining information" came into force in 2000 with the Customs Law No. 4458.
The eighth article of the Customs Law is regulated as follows:
“1. People can request information from customs authorities about the implementation of customs legislation.
2. The information is provided free of charge to those who request it. However, the expenses incurred by the customs authorities, especially due to the chemical analysis or expertise of the goods or their return to the requester, are covered by the requesting party.”
Apart from this "obtaining information" article, the customs administration is also tasked with providing "binding tariff or binding origin information". Article 9 of the Customs Law on the subject includes the following provisions:
Apart from this "obtaining information" article, the customs administration is also tasked with providing "binding tariff or binding origin information". Article 9 of the Customs Law on the subject includes the following provisions:
"1. Upon written request, binding tariff or binding origin information is given by the Ministry or the authorized customs administration.
2. Binding tariff or binding origin information binds the customs administrations against the right holder only regarding the tariff position of the goods or the determination of the origin of the goods and only for the goods that are subject to customs procedures to be completed after the date on which the information is provided.
In providing binding origin information, the provisions regarding the determination of the origin of the goods in Articles 17 to 22 are taken as basis.
3. The person receiving information;
4. a) For binding tariff information, there is conformity in all respects between the goods to be declared and the goods described in the information provided,
5. b) For binding origin information, the goods to be declared and their status requiring origin acquisition and the goods defined in the information given and their status requiring origin acquisition are found to be appropriate in all respects,
He has to prove it.
4. Six years from the date of issuance of binding tariff information; Binding origin information is valid for three years from the date of issue. Binding information based on incorrect or incomplete information provided by the requester will be cancelled.
5. Binding tariff information loses its validity in the following cases:
6. a) Making changes to the Turkish Customs Tariff Schedule and the information provided does not comply with the provisions introduced by the said change,
7. b) Failure to comply with a change in the decisions of the World Customs Organization regarding nomenclature, prospectus and tariff positions that we are obliged to comply with,
8. c) Notifying the informed person that the binding tariff information has been canceled or changed.
In the cases specified in paragraphs (a) and (b) of this paragraph, the date on which binding tariff information loses its validity is the date of publication of such changes in the Official Gazette.
6. Binding origin information loses its validity in the following cases:
7. a) Changes are made to the rules of origin in accordance with a legislative regulation or an international agreement and the information provided does not comply with the provisions introduced by such change,
8. b) Failure of the World Trade Organization to comply with the Rules of Origin Agreement, which we are obliged to comply with, and any changes in the prospectus and decisions regarding this agreement,
9. c) Notifying the informed person that the binding origin information has been canceled or changed.
In cases specified in paragraphs (a) and (b) of this paragraph, the date on which binding origin information loses its validity is the date of publication of such changes in the Official Newspaper.
7. If the rightful owner of the binding tariff or origin information that has become obsolete in accordance with the provisions of paragraphs 5 and 6 has entered into binding contracts for the purchase or sale of the relevant goods on the basis of such binding information and before this information loses its validity, he shall retain the invalid tariff or origin information in question. may use it for a period of six months from the date of publication or notification. However, if an import, export or preliminary authorization certificate is given to the customs for the products in question during customs procedures, the validity period of this document is taken as basis. The President is authorized to make exceptions to the provisions of this paragraph.
8. The provisions of paragraph 7 regarding binding tariff or origin information may only be used for the following purposes.
9. a) Determination of import or export taxes,
10. b) Calculation of export tax refunds and all other payments given to imports or exports within the scope of agricultural policy,
11. c) Use of the import, export or preliminary authorization certificate issued during the execution of customs procedures for the registration of the customs declaration of the goods, provided that the documents are issued based on the tariff or origin information in question.”
In this context, articles 28 and 29 of the Customs Regulation clarified what information the "Binding Tariff and Binding Origin Information Application Forms" should contain.
As can be seen, "obtaining information" started to find a place in our legislation in the 2000s. At the global level, it is possible for a "person" in a weak position against the state to seek their democratic rights against this powerful "authority" through "obtaining information". It is extremely important that the transactions carried out by organizations responsible for providing public services comply with the laws and general legal rules. Ensuring transparency in public administration and correct and uniform implementation of the legislation are reflections of the approaches envisaged by democratic initiatives.
On the other hand, there is no other public institution in Turkey other than the customs administration that is assigned to "provide binding information". This regulation has moved customs administrations away from the "you make a mistake, I will punish you" mentality, and thanks to the "binding origin information" or "binding tariff information" provided, the customs responsible has moved towards the understanding of "you direct the declaration I will make, do not subject me to penal procedures".
Source:
Constitution
Access to Information Law No. 4982
Customs Law No. 4458
Regulation on the Principles and Procedures for the Implementation of the Law on the Right to Information
Ministry of Commerce Web Portal
QUESTIONS AND ANSWERS
Question 1. How did the "right to petition" in our Constitution evolve into the "right to obtain information"?
Answer: With the spread of democratic understanding at the global level, while even "petitioning" the state was considered an important right in the past, the right to "provide information" has been provided to citizens and foreigners residing in the country in order to control the legality of public actions and transactions and to seek rights.
Question 2. On what date did the "Law on the Right to Information" No. 4982 come into force?
Answer: It came into force in 2003.
Question 3. How are the provisions of the "Law on the Right to Information" No. 4982 implemented in the Ministry of Commerce?
Answer: "Press and Public Relations Consultancy Public Relations and Information Bureau" was established within the Ministry. Those who request information from the Ministry can prepare the application petition in the format they request, or they can also benefit from pre-determined "application forms".
Question 4. Under what conditions can foreigners residing in Turkey and foreign legal entities operating in our country request information from public institutions?
Answer: Foreigners residing in Turkey and foreign legal entities operating in our country have the right to obtain information within the framework of the principle of reciprocity, provided that the information they request is related to themselves or their fields of activity, without prejudice to the provisions of the international agreements to which we are a party. Application petitions must be in Turkish.
Question 5. Which public institutions in Turkey are assigned to provide "binding information"?
Answer: In Turkey, only customs administrations are authorized to "provide binding information".
