The Constitutional Court (hereinafter referred to as “AYM”) has annulled the provisions concerning the suspension of the execution of sentences under Articles 231/5 to 231/14 of the Code of Criminal Procedure No. 5271, which were published in the Official Gazette No. 32266 on 01.08.2023, and in its decision dated 01.06.2023 with the number 2022/120 E. 2023/107 K.

In fact, the Constitutional Court concluded that the institution in question:

1. In the 5-year monitoring process, it obstructed the use of many fundamental rights and freedoms due to arbitrary actions of public authorities,

2. It violated Article 36 of the Constitution titled “Freedom to Seek a Remedy” because it was not subject to the appeal process,

3. By requiring the confiscation of proceeds of crime, criminal goods, etc., and submitting them together with the confiscation decision, it caused an unlawful restriction on the right to property, as the execution of the confiscation decision remained uncertain and could not be supervised by the higher courts,

4. Because the victim’s consent was required to render the decision and the regulation was perceived as a form of impunity in society, it resulted in the deprivation of the victim’s right to moral redress and prevented adequate and effective compensation,

5. As it was not a penalty but rather a form of coercion, it obstructed the State’s obligation to impose proportional punishment for crimes and hindered the deterrent effect for crimes,

The provision was annulled with these reasons, and it was stated that the annulment would come into effect as of 1st August 2024.

In response, the legislator, without waiting for the date of the annulment of the HAGB (Suspension of Sentence Execution) to take effect, made a new regulation regarding HAGB within Article 231 of the CMK, aiming to continue the institution of HAGB. To this end, the Law No. 7499, titled “Law on Amendments to the Code of Criminal Procedure and Some Other Laws,” which is known as the 8th Judicial Package, was published in the Official Gazette No. 32487 on 12.03.2024, and Article 231 of the CMK was revised in light of the AYM decision.

Thus, the substantial changes regarding the HAGB institution that will come into effect on 01.06.2024 are as follows:

1. The condition for the defendant to accept the HAGB institution in Article 231/6 of the CMK has been removed.

2. It has become possible to appeal against HAGB decisions through the “appeal process”.

3. The expression “Except for Provisions Regarding Confiscation” has been added to Article 231/5 of the CMK, allowing the immediate implementation of confiscation decisions given along with the HAGB decision.

4. If the HAGB decision is pronounced under Article 231/11 of the CMK, an appeal process has been introduced, limited by the conditions specified in the paragraph.

You can access the law regarding the mentioned changes through the link below:

https://www.resmigazete.gov.tr/eskiler/2024/03/20240312-1.htm

If you wish to request more detailed information on the subject, you may contact us at any time using the contact numbers provided below.