Annulment Decision Regarding the Deferral of the Explanation of the Judgment
With the decision numbered 2022/120 of the Constitutional Court ("The Constitutional Court") published in the Official Gazette dated 1 August 2023 and numbered 32266, the claim of the Trabzon 2nd Criminal Court that the Deferral of Announcement of Verdict ("DAV") regulated in Article 231 of the Code of Criminal Procedure numbered 5271 ("The Code") is unconstitutional has been found to be valid and the relevant legal provision has been cancelled.
A. THE DEFERRAL OF ANNOUNCEMENT OF VERDICT
The deferral of announcement of verdict, also known as the postponement of announcement of verdict, is one of the postponement institutions regulated in the criminal procedure and execution law and is based on a conviction. With the said institution, the consequences of conviction verdict are postponed, in other words, verdict does not cause the legal consequences of verdict for defendant.
Some objective and subjective conditions required by the Law in order to benefit from the deferral of announcement of verdict are given below. Accordingly;
Upon decision to defer the announcement of verdict, five-year supervision period begins for defendant. During this period, court may decide to apply protective measures such as prohibiting defendant from going to certain places or continuing an artistic or vocational programme. In the event that defendant commits a deliberate crime or disobeys the measures ordered by court during supervision period stipulated by the Law, deferred verdict shall be announced and shall have same consequences as a normal conviction.
If defendant does not commit an intentional crime and complies with obligations ordered by court within five-year supervision period starting with decision to defer the announcement of verdict, DAV shall be cancelled at the end of five years without being recorded in defendant's record. This means that verdict of conviction does not have any consequences.
B. GROUNDS FOR CANCELLATION BY THE COURT
I. Failure to Apply to Appeal Mechanisms Against HAGB
Since the deferral of announcement of verdict was technically not a verdict but a decision, it created various problems in practice in terms of the appeal mechanisms to be applied. Although it was not possible to appeal against verdict deferred to be announced, it was possible to appeal against DAV decision directly.
In its annulment decision, the Constitutional Court considered the inability to appeal against DAV decisions as a violation of the freedom to seek rights regulated in Article 36 of the Constitution. This is because the restriction of the right to appeal, which is guaranteed by the law, interferes with the right to request the review of judgement and the right of access to court. Although it is possible to waive these rights, in order for this waiver to be valid, the declaration of intention must be clear, consequences must be foreseeable, the minimum guarantees regarding the right to a fair trial must be provided and there must be no overriding public interest that renders the waiver illegitimate. In practice, it has been evaluated that asking defendant whether he/she wants a HAGB and deeming him/her to have waived the legal remedy of appeal if he/she does so, removes waiver from the legitimate ground since the conditions mentioned above have not been fulfilled.
II. Unfair Pressure on Defendant by Asking the Defendant's Will for HAGB
Due to the lack of a legal regulation on when the defendant's declaration of intention regarding the DAV will be asked, the Constitutional Court drew attention to the fact that in practice, defendant declares his/her intention before the end of trial without knowing what judgement will be made against him/her, this situation puts defendant in a vulnerable position in the face of the threat of conviction and forces him/her to waive the right to appeal in advance, which has not yet arisen, and in this respect, the Constitutional Court concluded that the provision does not meet the requirement of legality and imposes an excessive burden on defendant. In its annulment decision, the Constitutional Court drew attention to the lack of assurance to which defendants were exposed and stated that the guarantees provided by the right to a fair trial could not be audited in the legal appeal process and this situation led to violations of rights. In this respect, it has been concluded that the stated rule does not fulfil the requirement of legality since there is no procedural guarantee for asking defendant whether he/she accepts the DAV after the verdict of conviction, and it also imposes an excessive burden on defendant and is not proportionate.
III. Uncertainty as to stage at Which Confiscation Proceedings Will Be Executed İn the event of a HAGB and the Lack of Sufficient Assurance İmpose Excessive Burden on Owners
In cases where a DAV is made, the Constitutional Court concluded that the relevant legal provision disrupts the fair balance between the public interest and the protection of the property right of individuals and is disproportionate, since there is no clear legal provision regarding stage at which the will be executed, the possibility of appealing to the legal remedy of appeal, where it can be argued whether the restriction of the constitutional right to property by confiscation is arbitrary or not, is suspended and sufficient assurances are not provided.
V. Violation of the Victim's Constitutionally Guaranteed Right to Develop His/Her Material and Moral Existence
In the relevant annulment decision, the Constitutional Court pointed out that the purpose of Article 17 of the Constitution is to ensure the effective implementation of the provisions of the legislation and the identification of those responsible in cases of death or injury to the material and moral existence of person, and stated that the application of DAV Institution is not sufficient and effective as it results in defendant not receiving an executable sentence and no moral compensation is provided for victim.
In particular, the Constitutional Court underlined that if perpetrator of ill-treatment in question was also a public official, this situation should not be tolerated and the absence of a legal provision prohibiting the application of DAV for public officials prosecuted for crimes such as torture, torture and ill-treatment constituted a violation in terms of the principles of proportionality and providing appropriate redress to victims.
C. ENFORCEMENT
Considering that the legal vacuum that would arise due to the cancellation of the relevant provision of the law would harm the public interest, the Constitutional Court decided that the cancellation decision would enter into force one year after its publication in the Official Gazette.
D. CONCLUSION
For the reasons summarised above, DAV institution has been cancelled by the Constitutional Court to be effective as of 1 August 2024.
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A. THE DEFERRAL OF ANNOUNCEMENT OF VERDICT
The deferral of announcement of verdict, also known as the postponement of announcement of verdict, is one of the postponement institutions regulated in the criminal procedure and execution law and is based on a conviction. With the said institution, the consequences of conviction verdict are postponed, in other words, verdict does not cause the legal consequences of verdict for defendant.
Some objective and subjective conditions required by the Law in order to benefit from the deferral of announcement of verdict are given below. Accordingly;
- conviction at the end of judgement is a sentence of imprisonment for a term of two years or less or a judicial fine,
- defendant has not been previously convicted of an intentional crime,
- court reaches conclusion that defendant is not likely to re-perpetrate crime,
- There is no previous DAV decision against defendant and supervision period continues,
- the damages caused to victim or the public by crime shall be compensated by defendant; and
- The defendant's acceptance of a DAV decision being made about him/her is required.
Upon decision to defer the announcement of verdict, five-year supervision period begins for defendant. During this period, court may decide to apply protective measures such as prohibiting defendant from going to certain places or continuing an artistic or vocational programme. In the event that defendant commits a deliberate crime or disobeys the measures ordered by court during supervision period stipulated by the Law, deferred verdict shall be announced and shall have same consequences as a normal conviction.
If defendant does not commit an intentional crime and complies with obligations ordered by court within five-year supervision period starting with decision to defer the announcement of verdict, DAV shall be cancelled at the end of five years without being recorded in defendant's record. This means that verdict of conviction does not have any consequences.
B. GROUNDS FOR CANCELLATION BY THE COURT
I. Failure to Apply to Appeal Mechanisms Against HAGB
Since the deferral of announcement of verdict was technically not a verdict but a decision, it created various problems in practice in terms of the appeal mechanisms to be applied. Although it was not possible to appeal against verdict deferred to be announced, it was possible to appeal against DAV decision directly.
In its annulment decision, the Constitutional Court considered the inability to appeal against DAV decisions as a violation of the freedom to seek rights regulated in Article 36 of the Constitution. This is because the restriction of the right to appeal, which is guaranteed by the law, interferes with the right to request the review of judgement and the right of access to court. Although it is possible to waive these rights, in order for this waiver to be valid, the declaration of intention must be clear, consequences must be foreseeable, the minimum guarantees regarding the right to a fair trial must be provided and there must be no overriding public interest that renders the waiver illegitimate. In practice, it has been evaluated that asking defendant whether he/she wants a HAGB and deeming him/her to have waived the legal remedy of appeal if he/she does so, removes waiver from the legitimate ground since the conditions mentioned above have not been fulfilled.
II. Unfair Pressure on Defendant by Asking the Defendant's Will for HAGB
Due to the lack of a legal regulation on when the defendant's declaration of intention regarding the DAV will be asked, the Constitutional Court drew attention to the fact that in practice, defendant declares his/her intention before the end of trial without knowing what judgement will be made against him/her, this situation puts defendant in a vulnerable position in the face of the threat of conviction and forces him/her to waive the right to appeal in advance, which has not yet arisen, and in this respect, the Constitutional Court concluded that the provision does not meet the requirement of legality and imposes an excessive burden on defendant. In its annulment decision, the Constitutional Court drew attention to the lack of assurance to which defendants were exposed and stated that the guarantees provided by the right to a fair trial could not be audited in the legal appeal process and this situation led to violations of rights. In this respect, it has been concluded that the stated rule does not fulfil the requirement of legality since there is no procedural guarantee for asking defendant whether he/she accepts the DAV after the verdict of conviction, and it also imposes an excessive burden on defendant and is not proportionate.
III. Uncertainty as to stage at Which Confiscation Proceedings Will Be Executed İn the event of a HAGB and the Lack of Sufficient Assurance İmpose Excessive Burden on Owners
In cases where a DAV is made, the Constitutional Court concluded that the relevant legal provision disrupts the fair balance between the public interest and the protection of the property right of individuals and is disproportionate, since there is no clear legal provision regarding stage at which the will be executed, the possibility of appealing to the legal remedy of appeal, where it can be argued whether the restriction of the constitutional right to property by confiscation is arbitrary or not, is suspended and sufficient assurances are not provided.
V. Violation of the Victim's Constitutionally Guaranteed Right to Develop His/Her Material and Moral Existence
In the relevant annulment decision, the Constitutional Court pointed out that the purpose of Article 17 of the Constitution is to ensure the effective implementation of the provisions of the legislation and the identification of those responsible in cases of death or injury to the material and moral existence of person, and stated that the application of DAV Institution is not sufficient and effective as it results in defendant not receiving an executable sentence and no moral compensation is provided for victim.
In particular, the Constitutional Court underlined that if perpetrator of ill-treatment in question was also a public official, this situation should not be tolerated and the absence of a legal provision prohibiting the application of DAV for public officials prosecuted for crimes such as torture, torture and ill-treatment constituted a violation in terms of the principles of proportionality and providing appropriate redress to victims.
C. ENFORCEMENT
Considering that the legal vacuum that would arise due to the cancellation of the relevant provision of the law would harm the public interest, the Constitutional Court decided that the cancellation decision would enter into force one year after its publication in the Official Gazette.
D. CONCLUSION
For the reasons summarised above, DAV institution has been cancelled by the Constitutional Court to be effective as of 1 August 2024.
For more information and support, please contact us at info@lbfpartners.com.
LBF Partners Law Firm
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