Constitutional Court Decision Regarding Cancellation of the Institution of Deferment of the Announcement of the Verdict

November 8, 2023

DEFERMENT OF THE ANNOUNCEMENT OF THE VERDICT INSTITUTION

The sentence imposed on the defendant for whom the court has decided to defer the announcement of the verdict does not produce results within a certain period of supervision. If the defendant does not commit a crime intentionally within this five-year supervision period and complies with the other conditions of deferment the announcement of the verdict, the penalty decision given against the accused will be annulled. In this case, it is fixed that the defendant committed the crime, but the sentence given will not have the legal consequences. In other words; HAGB suspends legal intervention in the life of the accused.

In order for the court to decide to defer the announcement of the verdict, the following conditions must be met:

* The defendant must not have been convicted for an intentional crime,

* The sentence condemned must be two years or less, or a judicial fine is charged,

* The defendant should not have been subject to deferment the announcement of the verdict before,

* It should be concluded that the defendant will not commit a crime again,

* The damage suffered by the victim or the public as a result of the commission of the crime has been compensated.

* The accused must accept the decision of deferment the announcement of the verdict.

With this decision, the defendant is subject to supervision for five years. If the accused does not commit a crime deliberately and behaves in accordance with the obligations during this inspection period, the penalty provision is abolished and the case is dismissed so that it is not included in the criminal record of the defendant. If the accused commits a crime intentionally and violates the obligations within the said five-year period, the Court terminates this decision and announces the decision about the defendant. In other words, the previous inconclusive judgment about the defendant ends with the termination of the deferment the announcement of the verdict and the sentence given to the defendant is executed. This penalty cannot be postponed and cannot be turned into alternative sanctions.

CONSTITUTIONAL COURT DECISION NUMBERED 2022/120 E. and 2023/107 K. REGARDING CANCELLATION OF THE INSTITUTION OF DEFERMENT OF THE ANNOUNCEMENT OF THE VERDICT

 Trabzon 2nd Criminal Court of First Instance was made an application Constitutional Court with the following allegations:

“The rule is unconstitutional by stating that the deferment the announcement of the verdict does not provide sufficient compensation for the victims, it leads to the exemption of the perpetrators from punishment, and the state cannot fulfill its obligation to protect and develop the material and spiritual existence of individuals”

As a result of the evaluation of the allegations by the Court, it was decided to annul paragraphs 5-14 of Article 231 of the Criminal Procedure Code (CPC), which regulates the Institution of Deferment the Announcement of the Verdict The Decision published on the Official Gazette dated 01 August 2023 will enter into force on 1 August 2024.

JUSTIFICATION OF THE ANNULMENT DECISION

 

The Constitutional Court, pursuant to the 12th paragraph of Article 231 of the Criminal Procedure Code, the fact that there is only a legal remedy for objection against the deferment the announcement of the verdict and if the defendant accepts this decision given by the Court, the defendant does not have a chance to apply to the appeal law and as a result, the defendant is deemed to have waived his right in advance. It has been determined that he was forced to waive in advance and that this constitutes a violation of the ‘Right to a Fair Trial’ regulated in Article 36 of the Constitution.

In addition, the Constitutional Court, in its decision, stated that the fact that the consent of the victim was not sought in this matter and that there was no opportunity for moral compensation for the victim did not provide an adequate and effective remedy for the victim and therefore this situation constituted a violation of the ‘Right to Protection of the Material and Moral Property of the Person’ regulated in Article 17 of the Constitution’.

The Constitutional Court also subjected the institution of deferment the announcement of the verdict to a separate evaluation in terms of cases where the perpetrator was a public official and found that the absence of any legal regulation that this would not be applied in terms of public officials and the fact that this problem could not be solved in practice was incompatible with the obligations of the state to “provide appropriate redress for the victims” and “to punish the perpetrators commensurate with their actions”.

Finally, in terms of confiscation proceedings, the Constitutional Court stated that in cases where the decision of deferment the announcement of the verdict was made, it could not be assessed by way of appeal whether the restrictions on the right to property by confiscation were arbitrary, excessive and unlawful or not, since there was no concrete article of law on the stage at which these proceedings would be executed, and that this institution contained a violation of Article 13 of the Constitution in this respect.

For the reasons explained above, Constitutional Court’s, annulled the Deferment Of The Announcement Of The Verdict institution regulated under Article 231/5-14 of the Criminal Procedure Code. The annulment provision will enter into force on 1 August 2024, one year after the publication of the Constitutional Court Decision in the Official Gazette.

For your information and consideration.

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