Consequences of the Constitutional Court's Cancellation of the Deferral of the Explanation of the Judgement

HAGB Regulation and Cancellation Process in General

On 01.06.2023, the Constitutional Court, with its decision numbered 2022/120E and 2023/107K, decided to cancel paragraphs 231/5 (5) (6), (7), (8), (9), (10), (11), (12) and (13) of the Code of Criminal Procedure and to enter into force one year after the publication of the decision in the Official Gazette. The decision was published in the Official Gazette numbered 1/8/2023-32266 and will enter into force on 01.08.2024. Until this date, new regulations will be made by the legislator. 

If we briefly state what the cancelled regulations are; upon the request and acceptance of the defendant in the prosecution, if the sentence is a prison sentence of two years or less or a judicial fine, the defendant who has not been convicted of an intentional crime before, provided that the victim or the public completely compensates for the damage suffered by the victim or the public, the court may decide to defer the announcement of the conviction (HAGB). 

After this decision, the defendant is subjected to a five-year supervision period, no further HAGB decision can be made during the supervision period due to an intentional offence, in case the defendant commits a new intentional offence during the supervision period, the court announces the verdict, and if no new intentional offence is committed during the supervision period, the verdict is annulled and the case is dismissed. In the judgement where HAGB was decided, the imprisonment sentence could not be postponed or converted into alternative sanctions if it was short-term. HAGB decisions could not be appealed against and an objection was filed. After the objection, the result did not change much in practice and the courts generally made a decision without going into the merits of the matter. 

The main objective of the institution was to give the accidental offenders another chance, to prevent the defendants from being stigmatised as criminals in the society and to reintegrate them into the society as normal individuals. While protecting accidental criminals, the institution of Leniency was criticised for not providing appropriate redress for the victims of the crime and providing impunity armour for the criminals. At the end of this process, the Constitutional Court cancelled the regulations on the HAGB institution on the following grounds. 

Grounds for Cancellation of the Constitutional Court 

The Constitutional Court has cancelled the relevant regulations on the grounds stated below. It is useful to briefly explain the grounds under three headings.

The lack of assurance in the procedure of obtaining the defendants' declaration of will regarding the acceptance of the Leniency Decision has been pointed out and it has been concluded that the defendant, who is forced to make a declaration before the end of the trial, waives his right to apply to the legal remedy of appeal if he accepts the Leniency Decision, and this situation causes a violation of the right of access to the court.

It has been stated that asking the defendant to reveal his/her will as to whether he/she wants a Leniency Decision to be made before the judgement is rendered may cause the defendant, who wants to secure himself/herself, to engage in a kind of probability calculation before the evidence is presented and discussed, and to declare his/her will in uncertainty, and this situation may create an unfair pressure at the beginning of the trial on issues related to the fundamental rights and freedoms of the defendants. It is stated that the defendant, who is asked whether he/she wishes to postpone the announcement of a judgement that has not yet been given and notified to the defendant, is forced to predict the outcome of his/her own trial and make a statement with a will that has not yet been enlightened, at a stage when all doubts about the incident subject to the trial have not been eliminated. It is concluded that the will to waive a certain legal remedy expressed at a stage before the court's judgement is rendered does not fulfil the constitutional validity conditions, and in this case, depriving the defendant of the opportunity to apply to the legal remedy of appeal against the judgement without a valid will to waive restricts the right to request a review of the judgement and the right of access to the court. As a result, it was found contrary to Article 36 of the Constitution (right to a fair trial).

It has been stated that the absence of a legal regulation stating that the Leniency period is not applicable to crimes committed by public officials due to their duties and considered as torture, torture and ill-treatment is incompatible with the assurance that the perpetrators are given punishments commensurate with their acts and that appropriate redress is provided for the victims.

In the court's judgement, it was pointed out that the Leniency Decision issued against the person is not a punishment but consists of placing the person under the threat of punishment. Considering this nature of the Leniency Decision, the Court, in many of its previous decisions, has considered that the application of the institution of Leniency in terms of allegations of ill-treatment results in the defendant not receiving an enforceable sentence and that the application of this institution does not require the consent of the victim or the provision of a moral compensation for the victim, and that the said deferral decision does not provide an adequate and effective remedy for the victim. As a result, it was stated that the Leniency Decree, in its current form, is insufficient to prevent arbitrary practices of public authorities and has a deterrent effect on fundamental rights and freedoms, especially freedom of expression and the right to organise meetings and demonstrations, and was found to be contrary to Article 13 (Limitation of fundamental rights and freedoms) and Article 17 (Immunity, material and spiritual existence of the person) of the Constitution.

It has been concluded that the absence of a clear legal provision regarding the stage at which the confiscation will be executed in the event of a confiscation decision together with the Leniency Decision and the lack of the possibility to apply to the legal remedy of appeal against the restriction on the right to property through confiscation impose an excessive burden on the owners and violate the right to property.

The confiscation decision, which results in the transfer of property to the public at the end of the criminal proceedings, restricts the right to property and controls the use of property for public benefit (Bekir Yazıcı [GK], B. No: 2013/3044, 17/12/2015, 54-58). There is no clear legal provision regarding the stage at which the confiscation will be executed in case of a HAGB decision.

Again, in the event that a confiscation decision is made together with the HAGB decision, there is no possibility to apply to the legal remedy of appeal, which is envisaged as a way to argue whether the restriction of the property right through confiscation is arbitrary or unlawful.

It has been assessed that there is uncertainty at the time of execution of the confiscation and that this situation, which cannot be checked for compliance with the law, imposes an excessive burden on the owners. Therefore, it has been concluded that the restriction on the right to property through confiscation pursuant to the rule disrupts the fair balance between the public interest and the protection of the property rights of individuals and is not proportionate. As a result, it was found to be contrary to Article 35 of the Constitution (right to property).

For the reasons stated above, the Constitutional Court found the HAGB regulations contrary to the regulations on 13 (Limitation of Fundamental Rights and Freedoms) 17 (Protection of the Material and Spiritual Being of the Person), 35 (Right to Property) and 36 (Freedom to Seek Rights) of our Constitution and decided to cancel them.

Protections Provided to Public Officials, Civil Servants, Military and Law Enforcement Personnel by Leniency Decisions in Our Law

The annulled regulation, which is still in force, is a very important regulation for public officials, civil servants, law enforcement personnel and military personnel who incidentally commit a crime. Article 48 of the Civil Servants Law No. 657 stipulates that a civil servant who loses the general conditions of being a civil servant will lose his/her profession if he/she is sentenced to imprisonment for one year or more for an offence committed deliberately. Similarly, when the regulations are examined, it is stated in Article 12 of the Law on Specialist Privates that those who are sentenced to a sentence of imprisonment for a period of more than thirty days by judicial or military courts for other offences, except for negligent offences, and those who are sentenced to a sentence of imprisonment for a period of one month or more by judicial or military courts, except for negligent offences, shall have their contracts terminated, and according to Articles 50 and 94 of the Turkish Armed Forces Personnel Law No. 926, officers and non-commissioned officers shall lose their profession. Articles 50 and 94 of the Turkish Armed Forces Personnel Law No. 926 stipulate that officers and non-commissioned officers shall be discharged from their service for one year or more in the event of a conviction of imprisonment of one year or more for an offence committed intentionally.

In Article 3 of the similar Law on Judges and Prosecutors, while determining the qualifications of judges and prosecutors, the criterion of not being sentenced to imprisonment for more than three months has been introduced. In the face of these regulations, with the exception of disgraceful offences and offences against the constitutional order and some other exceptional offences listed as exceptions in the above-mentioned laws, it is decided to defer the announcement of the verdict upon the request of the defendant, especially for convictions over 1 year, and the relevant personnel does not lose their profession. After this opportunity is eliminated, the possibility of giving another chance to a public official who commits a crime by chance will also be eliminated.

Our Opinion on the New Legal Arrangements against the HAGB Institution

The HAGB institution will continue to be applied until 01.08.2024. Afterwards, there will be a need for an arrangement that will continue the protection umbrella in the existing provisions in the laws mentioned above. The re-establishment of a HAGB institution that includes regulations that will eliminate the violations stated in the decisions of the Constitutional Court will allow the protection provided by the institution to continue, while at the same time preventing violations of rights. We believe that new regulations will protect the material and moral integrity and property rights of those harmed by the crime, prevent public officials, especially those charged with torture, torture and ill-treatment crimes, from benefiting from the armour of impunity, and on the other hand, ensure that the defendants benefit from legal remedies by making an effective application after the first instance trial, and perhaps it may be beneficial to make a regulation that the defendant can better foresee the consequences of applying this way before the judge makes his decision, and may prefer this path after being aware of what the decision may be and its legal consequences.