Erzincan Binali Yıldırım Üniversitesi Hukuk Fakültesi Dergisi

Öz

A special procedure is stipulated in Article 367 of the Tax Procedure Law regarding the pursuit of tax evasion crimes regulated in Article 359 of the TPL No. 213, and it is regulated in the said article that it is mandatory to obtain an opinion from the relevant. The Court of Cassation sees the provision of a reasoning as a condition of judgment and checks with great care whether it is given for both the act and the perpetrator. In addition, the Court of Cassation accepts that the opinion is a discretionary proof that guides the trial authorities. However, with Article 5 of Law No. 7394 dated 08.04.2022, a significant Change has been made by adding a new paragraph to Article 367 of the Tax Procedure Law, wich regulates the condition of opinion reasoning. With this amendment, it is stated that if it is later determined that a tax evasion act regulated in Article 359, which has been the subject of investigation or prosecution, was committed by or together with another person, there will be no need to obtain a separate opinion in order to file a public lawsuit against these newly identified persons. Thus, before the amendment, the Court of Cassation’s practice that the opinion was required to be given about both the act and the perpetrator in every case, and that if it was understood that the opinion could not be given, the decision to dismiss it was ended, specifically with the regulation introduced. The 11th Criminal Chamber of the Court of Cassation of Appeals, on the other hand, evaluated that this regulation introduced by Law No. 7394 is within the scope of the principle of immediate implementation, and stated that in cases filed before the amendment and where a decision was made to abatement of action due to lack of opinion, abatement of action decision cannot be given, stating that this regulation was introduced. This practice of the 11th Criminal Chamber of the Court of Cassation of Appeasl is based on the acceptance that the condition of opinion of opinion reasoning hearing is an institution that belongs only to criminal law. However, in our opinion, due to the essence and function of the condition of opinion reasoning, it is not possible to accept it as an institution specific only to form of criminal law; in its absence, it has an important aspect specific to substantive criminal law in that it ends the punishing relationship between the state and the individual. In this respect, in the present study, contrary to this opinion of the 11th Criminal Chamber of the Court of Cassation of Appeals, it has been tried to explain that the opinion has both substantive criminal law aspects, and the amendment brought by law No. 7394 is subject to retroactive implementation in pending cases. Two decisions are evaluated and criticized in this context.