In Emergency Situations
04 Feb, 2025

The Constitutional Court, in its ruling numbered 2022/120 E. 2023/107 K., published in the Official Gazette No. 32266 on 01.08.2023, has annulled the provisions related to the suspension of the announcement of the judgment in Articles 231, paragraphs 5 to 14 of the Code of Criminal Procedure No. 5271.

However, this annulment decision will come into effect on 01.08.2024, until that date, if the conditions are met, the decision of the suspension of the announcement of the judgment (HAGB) can still be given, and the annulment decision will not have retroactive effect, meaning it will not annul decisions made before that date.

The case subject to the annulment decision took place in the context of a criminal case opened by the 2nd Criminal Court of First Instance of Trabzon on charges of “intentional injury” and “resisting to prevent official duty.” The case resulted in a HAGB decision, which was appealed to the Constitutional Court with the arguments that it did not provide sufficient redress for the victims, led to offenders being exempt from punishment, and failed to fulfill the state’s obligation to protect individuals’ physical and moral well-being.

The Constitutional Court, indeed, found that the HAGB institution:

a. During the 5-year probation period, due to arbitrary actions by public authorities, it prevented the use of many fundamental rights and freedoms,

b. Because it is not subject to the appeal process, it violated Article 36 of the Constitution titled “Freedom to Seek Legal Remedy,”

c. When a confiscation decision, which ensures the transfer of property obtained through crime or criminal goods to the public, is made along with the HAGB, it creates uncertainty in the execution of the confiscation decision and prevents oversight by higher courts, thereby violating the “Property Right” under Article 35 of the Constitution in an unlawful manner,

d. Since it does not require the victim’s consent and due to its perception as a regulation of impunity in society, it deprives the victim of their right to moral compensation and consequently prevents sufficient and effective redress,

e. Because it is more of a threat of punishment rather than an actual sentence, it prevents the state from fulfilling its obligation to impose proportional punishment and to ensure the deterrent effect of penalties for crimes,

For these reasons, the decision was annulled.

You can also access the annulment decision through the following link:

https://www.resmigazete.gov.tr/eskiler/2023/08/20230801-5.pdf

With this annulment decision, starting from 01.08.2024, if the sentence at the end of the trial is a prison sentence of 2 years or less or a judicial fine, a decision for the suspension of the announcement of the judgment will no longer be allowed; the execution of the sentence will proceed after it becomes final.

For more detailed information on this matter, please feel free to contact us through the contact details below at any time.

Esenyel Partners | Constitutional Court Cancelled the Deferral of the Announcement of the Judgement
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