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04 Feb, 2025
5271 CODE OF CRIMINAL PROCEDURE
In Article 231 of the Criminal Procedure Code, regarding the Suspension of the Pronouncement of the Judgment (“HAGB”), changes have been made following the Constitutional Court’s annulment decision. Initially, with the new amendments, even if a judgment of HAGB is issued for an accused, the provisions regarding confiscation will still apply. Additionally, the provision that the HAGB decision could not be issued if the defendant did not accept it has been removed with the new amendments. The most significant change in the article is that, before the new amendment, there was an appeal remedy available against the HAGB institution, whereas now, with the 8th Judicial Package, appeal through the Regional Court of Appeal or Supreme Court (in certain conditions) will be allowed. Similarly, when the first-instance court, acting as the Court of Appeal or the Supreme Court, issues an HAGB decision, this decision can be directly appealed. Finally, an appeal remedy will be available if a deliberate crime is committed or obligations are not fulfilled during the supervision period. The reflection of these matters in the Criminal Procedure Code is as follows:
Before the 7499 Law m. 231

Suspension of the Pronouncement of Judgment and Suspension of the Pronouncement of the Judgment (“HAGB”)

(5) If the sentence imposed due to the crime charged is a prison sentence of two years or less, or a judicial fine, the court may decide to suspend the pronouncement of the judgment. Provisions related to reconciliation are reserved. The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequence for the defendant.

(6) (…) c) The victim’s or public’s loss due to the crime must be completely compensated through restitution, restoration to the previous state, or indemnification. If the defendant does not accept this, the suspension of the pronouncement of judgment cannot be decided.

(7), (8), (9), (10) “””

(11) If the defendant commits a new intentional crime or violates the obligations related to supervised release during the supervision period, the court shall pronounce the judgment. However, the court may evaluate the defendant’s situation in fulfilling the obligations and decide not to enforce part of the sentence up to half or, if conditions allow, postpone the prison sentence or convert it to alternative penalties, thus establishing a new conviction.

(12) An appeal can be made against the decision to suspend the pronouncement of the judgment. The appeal authority reviews the decision and judgment; if it detects violations of procedure or substance, it will annul the decision and send the case back to the court for further action.

After the 7499 Law m. 231 (Effective Date: 12.03.2024)

Suspension of the Pronouncement of Judgment and Suspension of the Pronouncement of the Judgment (“HAGB”)

(5) If the sentence imposed due to the crime charged is a prison sentence of two years or less, or a judicial fine, the court may decide to suspend the pronouncement of the judgment. Provisions related to reconciliation are reserved. The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequence for the defendant, except for the provisions regarding confiscation.

(6) (…) c) The victim’s or public’s loss due to the crime must be completely compensated through restitution, restoration to the previous state, or indemnification.

(7), (8), (9), (10) “””

(11) If the defendant commits a new intentional crime or violates the obligations related to supervised release during the supervision period, the court shall pronounce the judgment. However, the court may evaluate the defendant’s situation in fulfilling the obligations and decide not to enforce part of the sentence up to half or, if conditions allow, postpone the prison sentence or convert it to alternative penalties, thus establishing a new conviction. An appeal can be made against the explanation or newly established judgment. The appeal authority can only evaluate this decision under the conditions stated in this paragraph.

(12) Unless otherwise stated in the third paragraph of Article 272, an appeal can be made against the decision to suspend the pronouncement of the judgment. The provisions of Article 286 apply to the decisions given by the Regional Court of Appeal. If the decision to suspend the pronouncement of the judgment is issued by the Regional Court of Appeal or the Supreme Court, it can be appealed directly. In the appeal process, the decision and judgment will be examined regarding violations of procedure or substance.

TRANSITIONAL ARTICLE 6- (Effective Date: 12.03.2024)

(2) a) The changes made to the 11th and 12th paragraphs of Article 231 regarding the appeal remedy with the law introducing this article will be applied to decisions made after 01.06.2024 regarding the suspension of the pronouncement of the judgment.

b) For decisions made before 01.06.2024 regarding the suspension of the pronouncement of the judgment, the appeal remedy will continue to be applied. These appeals will be concluded according to the provisions of Article 231 as they were before the changes introduced by the law.

c) For decisions made before 01.06.2024 regarding the suspension of the pronouncement of the judgment, if the judgment is pronounced or re-established under the 11th paragraph of Article 231, the previous appeal provisions will be applied.

d) For decisions made before 01.06.2024 regarding the suspension of the pronouncement of the judgment, the defendant’s consent is still required.

5271 CODE OF CRIMINAL PROCEDURE
In Article 247 of the Criminal Procedure Code, titled “Definition of a Fugitive,” the previous version of the article only provided a provision stating that a “Conviction” judgment could not be given for a defendant who had not previously been questioned. This provision was annulled by the Constitutional Court’s decision dated 22/03/2023 (E: 2022/145, K: 2023/59). With the new amendment in the 8th Judicial Package, the article was reworded to state that neither a conviction nor a judgment of “no penalty” can be given for a defendant who has not been previously questioned. The reflection of this change in the Criminal Procedure Code is as follows:
Before the 7499 Law m. 247 After the 7499 Law m. 247 (Effective Date: 12.03.2024)
Definition of a Fugitive

Article 247- (1), (2) “””

(3) (Cancelled: by the Constitutional Court’s decision dated 22/03/2023, E: 2022/145, K: 2023/59.)

Definition of a Fugitive

Article 247- (1), (2) “”

(3) A fugitive defendant can be prosecuted. However, if they have not been previously questioned, neither a conviction nor a judgment of no penalty can be given.

Esenyel Partners | No. 7499 ‘Law Amending the Code of Criminal Procedure and Certain Laws’ on the examination of the articles titled ‘Announcement and Suspension of Judgement’ and ‘Definition of Fugitive’
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