T.C.
SUPREME
16. CRIMINAL DEPARTMENT
E. 2017/2491
K. 2017/5658
T. 20.12.2017
* MANDATORY ELEMENTS FOR MAKING AN OPINION ON THE MERITS (It is Considered Mandatory for the Public Prosecutor to Explain His Opinion on the Merits in Terms of All Crimes That Are the Subject of Trial, and to Cover the Laws and Articles That Are Requested to be Applied If This Opinion is in the Direction of Conviction)
* OPINION THAT DOES NOT CONTAIN THE NAMES OF CRIMES AND ARTICLES OF THE LAW THAT ARE REQUESTED TO BE APPLIED (The Defendant’s Final Defense is Taken in This Way and the Establishment of a Conviction is Restricted by the Right of Defense – the Public Prosecutor’s Statement on the Merits in Terms of All Crimes That Are Subject to Trial, and This Opinion is Considered Mandatory to Explain and Cover the Laws and Articles That Are Requested to be Applied If the Conviction is in the Direction of the Conviction)
* RESTRICTION OF THE RIGHT TO DEFEND (The Establishment of the Conviction Provision by Taking the Defendant’s Final Defense Together with the Opinion of the Public Prosecutor, Which He Explained in Detail About the Merits at the Hearing Where the Defendant Is Also Present, But Which Does Not Include the Names of the Crimes and the Articles of the Law That He Wants to Apply, Restricts the Right to Defend)
5276/m.216,225/1
SUMMARY : the public prosecutor opinions on the merits of the trial of all crimes which are the subject of this opinion in terms of the description and in the direction of the conviction if the items are required to be implemented because it is considered mandatory coverage laws and the public prosecutor in the court where the defendant resides, as explained opinions about the basis, however, the law does not contain the desired names and implementation of crime with the provision of the opinion that the defendant’s conviction based on the last defense by restricting the establishment of the right to defense has required to overturn.
CASE : The case was examined and considered as necessary:
DECISION : 1-)In the decision of the Criminal General Assembly of the Supreme Court of Cassation dated 27.05.2014, based on 2013/1-76, adopted by our Department 2014/282;
‘After the evidence is presented at the trial to reveal the concrete truth, which is the purpose of criminal procedure, the stage of drawing conclusions from this evidence, that is, the discussion, begins. 216/1 of CMK No. 5271 to the parties concerned with the evidence thus presented. according to the order specified in the article, the right to a say will be given and the opportunity to discuss will be provided. After the discussion phase is completed, the participant and his deputy, who first represents the individual prosecutor, and then the Public prosecutor, who represents the public prosecutor, will declare their opinion on the merits. According to the conclusion reached from the evidence obtained during the investigation stage, the prosecution responsible for preparing the indictment is thus obliged to comply with Article 225/1 of the CMK. it establishes the limits of the prosecution stage in accordance with its article. At the end of the prosecution phase, the prosecution will present its claims on the merits in its own opinion by evaluating the evidence brought to trial and discussed, and the defendant or defense counsel will be able to make their defense about it. This is a necessary and obligatory condition for achieving a healthy decision as a result of reasoning, which is a process by which the conclusion (i.e. decision) is reached by the conflict of the thesis (i.e. claim) and the antithesis (i.e. defense).
251 of CMUK No. 1412, which is related to the subject of the dispute. and 216 of CMK No. 5271. although their articles are regulated in a similar way, there is no clarity in both laws on what form the public prosecutor’s opinion on the merits will be. However, criminal procedure laws should not be expected to regulate each issue in detail. For this reason, the fields that are not regulated by the procedural laws are filled in with comments and comments provided that they are not contrary to the rights and freedoms of the person and comply with the spirit of the law, and these applications become legal as they are adopted. In practice, it is an established and accepted method to express an opinion on the merits by the Public prosecutor for each crime that is the subject of a trial and to clearly state the laws and articles that are requested to be applied if this opinion is in the direction of conviction.
On the other hand, there is no doubt that the clear and clear presentation of the prosecution’s opinion on the merits is also connected with the exercise of the right to defend. Because a healthy defense can only be based on a healthy claim. For this reason, representing the public prosecution, the public prosecutor before the decision is made that is the subject of the proof that is collected according to opinions about the merits of each trial in terms of crime of conviction and if the open and in an understandable manner and by law must disclose the opinion of law if the items show.
“The prosecution will shed light on the judge with its provisions of the nature of the opinion throughout the reasoning, put forward a thesis in the reasoning and try to obtain a synthesis … The prosecution will explain its opinion on how the final decision should be with its opinion on the merits and then, if it no longer doubts and thinks that the conviction decision should be made, then it will ask the defendant to be punished … The discussion is not just about the material issue; since the reasoning will also solve the legal issue, opinions on this issue will also be included in the claim.” (Nurullah Kunter, Criminal Procedure Law, Beta Publications, 9. basi, Istanbul 1989, p.193, 936-937); “Due to the fact that the criminal procedure provision must be collective, it is an indispensable necessity for the prosecutor to express his thoughts during the conclusion-making phase of the final investigation stage, that is, to express his opinion on the merits. Although it may be considered possible for other interested parties to leave the business to the decision of the court without saying anything, such a thing cannot be said from the point of view of the prosecutor; in any case, the prosecutor must tell the latest allegations. In this regard, the issues in the case of the prosecution claim or claims law judge (or, at the discretion of the judge) is left… a declaration that isn’t satisfied with the receipt of legal opinions on the merits of the prosecutor is mandatory, although the judge does not have the authority to compel the prosecutor to refrain from discharging this duty, because in such cases the final decision on the merits of that recognises that can be issued without opinion. However, since such a situation will prevent the criminal procedure provision from being collective, the judge or the president of the court should at least be able to apply to the prosecutor who is the head of the authority and request that someone else be brought to trial instead of the assistant who refuses to give his opinion on the merits … The opinion on the merits should be not only subjective, that is, a material issue, but also a legal issue. The fact that the procedure must also deal with a legal issue requires the prosecutor to express his thoughts on this issue” (… Keyman, the Prosecutor’s Office in Criminal Procedure, … Printing House, Ankara, 1970, p.There are opinions in the form of (258-262).
In its decision Ozerov v. Russia (18.05.2010-64962/01), the European Court of Human Rights emphasizes the importance of the indictment prepared before the trial, but does not prohibit the prosecutor from participating in the criminal proceedings 6 of the ECHR. within the scope of the article, thoughts were expressed that he considered it a violation of his “right to a fair trial”.
As for the concrete event within the framework of the explanations made above;
Opinions on the merits of the public prosecutor in the trial of all crimes which are the subject of the description and terms of this opinion in the direction of the conviction and mandatory coverage laws if the items are required to be implemented, because it is considered as the public prosecutor Hearing dated 28.05.2015 is explained based on opinions about the defendant resides, but as explained above, the crime and the names of the opinion that the implementation does not contain the desired law with the provision of the defendant’s conviction based on the last defense of the right of defense by the establishment of restriction,
2-)Also according to acceptance and application;
a-)The date of 08.10.2015, 2014/140 E, which entered into force by being published in the Official Gazette of the Constitutional Court dated 24.11.2015 and Numbered 29542. 2015/85 K. with the cancellation decision numbered 53 of the Turkish Commercial Code. due to the fact that some of the regulations in the article have been canceled, there is an obligation to establish a provision in accordance with this decision,
b-) In the reasoned decision title, the name of the crime is written as not being a member of an armed terrorist organization, but being a member of an organization established for the purpose of committing a crime, rather than committing a crime on behalf of the organization,
CONCLUSION : Contrary to the law, since the defendant’s appeals were deemed to be in place as of this moment, it was unanimously decided on 20.12.2017 that the provisions that were not examined in other aspects should be OVERTURNED for these reasons.
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