Recent Development
The Constitutional Court (“Constitutional Court“), with its decision numbered 2022/120 E., 2023/107 K. (“Decision“), has decided to annul paragraphs 5-14 of Article 231 of the Code of Criminal Procedure (CCP) regulating the deferment of the announcement of the verdict. The Decision will enter into force on 1 August 2024. You may access the Decision published in the Official Gazette dated 1 August 2023 here.
Deferment of the Announcement of the Verdict Institution
Deferment of the announcement of the verdict is the postponement of the conviction of the defendant in a criminal case before the defendant is considered a convicted person under certain conditions, such as in cases where the sentence has not reached a certain severity and the crime has been committed for the first time. Thus, it is evident that the defendant has committed the crime, but the conviction does not have the legal consequences attributed to it. Therefore, the defendant is also prevented from entering the penal institution.
For the court to defer the announcement of the verdict, the following circumstances are required:
- The trial has been completed and the sentence condemned is of two years or less, or a judicial fine is charged,
- The defendant has not been previously convicted of an intentional crime,
- The damage suffered by the victim or the public as a result of the commission of the crime has been compensated.
In addition to the above conditions, the defendant must consent to the issuance of deferment of the announcement of the verdict decision. Upon the court’s deferring of the announcement of the verdict, the defendant is subjected to a five-year supervision period. During this supervision period, provided that the defendant does not commit a deliberate crime and acts in accordance with the obligations, the decision to defer the announcement of the verdict is annulled and the criminal case is dismissed. Additionally, the judicial record of the defendant does not contain any record in this matter. If a new crime is committed intentionally within the supervision period, the court shall announce the verdict for which it has decided to postpone
Constitutional Court’s grounds for annulment
The Constitutional Court annulled the legal regulation that regulates the deferment of the announcement of the verdict. Firstly, the Constitutional Court found that the acceptance of only the objection as a legal remedy against the deferment of the announcement of the verdict decision pursuant to Article 231/12 of the CCP[1], and the fact that the defendant is deemed to have waived the right to appeal by accepting the deferment of the announcement of the verdict decision, impose an excessive burden on the defendant and forces the defendant to waive in advance. Therefore, the will to waive constitutes a violation of the right to a fair trial regulated in Article 36 of the Constitution.
The Constitutional Court also found that there was a lack of assurance in terms of the consent of the victim when deferment of the announcement of the verdict decision was made. The Constitutional Court found that asking the defendant for consent to a deferment before the verdict is rendered could be considered an admission that the defendant had committed the crime, which is contrary to the right to a fair trial, given that the verdict is exempt from appeal.
In addition, the Constitutional Court considered that the institution of deferment of the announcement of the verdict decision is also unconstitutional in terms of confiscation proceedings, as there is no clear legal provision on the stage at which confiscation proceedings will be executed in the event of a deferment of the announcement of the verdict decision, and it cannot be evaluated whether the restriction on the right to property through confiscation is arbitrary and unlawful in the event of a deferment of the announcement of the verdict. The Constitutional Court found that this uncertainty does not constitute a sufficient guarantee to protect the right to property and is disproportionate. For these reasons, it constitutes a violation of Article 13 of the Constitution.
Furthermore, the Constitutional Court stated that since the defendant did not receive an enforceable penalty as a result of the deferment of the announcement of the verdict, the fact that the consent of the victim was not sought, the lack of a possibility of moral compensation for the victim and the fact that the verdict did not provide an adequate and effective remedy for the victim, the verdict, therefore, constituted a violation of the right to protect the material and moral existence of the person, regulated in Article 17 of the Constitution.
Finally, the Constitutional Court made a further evaluation in cases where the perpetrator is a public official and in such cases, the institution of the deferment of the announcement of the verdict is incompatible with constitutional principles. The Constitutional Court stated that if public officials commit crimes that can be considered within the scope of Article 17 of the Constitution, it must be shown that these extremely serious acts will not be tolerated. The Constitutional Court found that the lack of a legal regulation stating that the institution of deferment of the announcement of the verdict would not apply to public officials, and the failure of the practice to solve this problem, is incompatible with the procedural obligation of the state to “punish the defendants in proportion to their acts” and “provide an appropriate remedy for the victims.”
For the reasons explained above, the Constitutional Court decided to repeal the first sentence of Article 231/5 of the Criminal Procedure Code, which regulates the deferment of the announcement of the verdict and other provisions that are no longer applicable.
Conclusion
With the Constitutional Court’s Decision, deferment of the announcement of the verdict institution regulated under Article 231/5-14 of the Criminal Procedure Code has been repealed. The annulment provision will enter into force on 1 August 2024, one year after the publication of the Decision in the Official Gazette.
[1] There is a Constitutional Court decision numbered 2021/121 E., 2022/88 K. published in the Official Gazette dated 23 September 2022, which abolished the legal remedy of appeal against deferment of the announcement of the verdict decisions, effective as of 23 June 2023. You can access our legal newsletter on this decision here.
