I. Objection to the deferment of the announcement of the verdict — objection was annulled.
II. The provision allowing judgments other than convictions to be given without interrogating the defendant was annulled.
1. The Constitutional Court annulled the provision under the Code of Criminal Procedure that an appeal can be made against the decision to defer the announcement of the verdict.
New development
With its decision No. 2021/121 E. 2022/88 K., the Constitutional Court annulled Article 231/12 of the Code of Criminal Procedure No. 5271 (CCP) that regulates the right to object to the deferment of the verdict announcement. The annulment decision will enter into force on 23 June 2023. You may access the decision published in the Official Gazette dated 23 September 2022 available here.
Deferment of the announcement of the verdict
The deferment of the announcement of the verdict is an institution that prevents the defendant from entering a penal institution and ensures that the conviction does not have legal consequences for the defendant. For it to be applicable, the defendant in a criminal case must have been sentenced to a maximum of two years imprisonment or a judicial fine. In the case of deferment of the announcement of the verdict, the court has not yet announced its decision in a way that will have consequences in the legal system, but has deferred the announcement.
With the decision to defer the announcement of the verdict, the defendant is subject to a five-year supervision period. If the defendant complies with the obligations and does not commit an intentional crime during this supervision period, the decision to defer the announcement of the verdict is annulled at the end of the period and the criminal case is dismissed.
The function of the annulled clause and the Constitutional Court’s grounds for annulment
Within the scope of the annulled Article 231/12 of the CCP, the legal remedy that can be applied against the deferment of the announcement of the verdict is regulated as an objection. In this case, the injured party or the victim of the crime had the right to object to the deferment decision.
The Constitutional Court found this provision contrary to the right to legal remedies regulated under Article 40 of the Constitution and annulled the provision because the objection procedure does not provide sufficient procedural guarantees, does not offer a chance of success, is decided upon only by examining the file and is not an effective means of review. With the annulment of this provision, it is expected that the legal remedy to be applied against the deferment of the announcement of the verdict will be regulated by additional regulations.
Conclusion
The legal remedy of objection against the deferment decision regulated in Article 231/12 of the CCP was annulled. The annulment decision will enter into force nine months later, on 23 June 2023.
2. The Constitutional Court annulled the provision under the CCP that allowed a judgment other a conviction to be given without interrogating the defendant.
New development
With its decision No. 2021/118 E. 2022/98 K., the Constitutional Court annulled Article 193/2 of the CCP that stipulates that if a judgment other than conviction is to be given, the trial can be concluded even if the defendant has not been interrogated. The annulment decision will enter into force on 4 October 2023. The decision published in the Official Gazette dated 4 October 2022 is available here.
The annulled provision
Pursuant to the annulled paragraph 2 of Article 193 of the CCP, in cases where the court was to render “any judgment other than conviction” in accordance with the evidence gathered, the court could render a judgment in the absence of the defendant, even if the defendant had not been interrogated.
The Constitutional Court’s grounds for annulment
The annulled provision did not make a distinction while referring to “judgments other than conviction,” hence it was applicable to all judgments except for conviction. Pursuant to Article 223 of the CCP, it is mandatory that the offense attributed to the accused must be proven to have been committed by the accused in order to decide not to impose a penalty and the imposition of security measures against the accused, which are among the judgments other than a conviction. For this reason, the Constitutional Court is of the opinion that the conclusion of the trial without interrogation of the defendant brings a disproportionate limitation to the right to be present at the hearing, the right to a defense and the right to a fair trial for the decisions where the defendant’s legal responsibility continues. Due to these reasons, the Constitutional Court found the provision contrary to Article 13 of the Constitution regulating the limitation of fundamental rights and freedoms and Article 36 regulating the freedom to seek justice, and annulled the provision.
Conclusion
Article 193/2 of the CCP, which allows for a judgment other than conviction to be rendered without interrogating the defendant, was annulled. Therefore, the judges will not be able to conclude the case without interrogating the defendant, even if they are to render a decision other than a conviction. The annulment provision will enter into force on 4 April 2023, six months after the publication of the decision in the Official Gazette.
