Cancellation of the Rule governing the Postponement of the Announcement of the Decision (Hagb)
The Contested Rule
The contested rule stipulates that the announcement of the verdict against the accused, who has been sentenced to two years or less in prison or a judicial fine, may be postponed.
Grounds of Application
In summary, the application decision stated that the Decision to make a Decision of Regret does not provide adequate compensation to the victims, leads to the exemption of the perpetrators from punishment, and the state cannot fulfill its obligations, suggesting that the rule is unconstitutional. The obligation of individuals to protect and develop their material and spiritual existence
The Court’s Assessment
HAGB refers to the postponement of the announcement of the conviction decision to be made as a result of the criminal trial, depending on certain conditions. While the trial is still ongoing and based on the possibility that the accused will be sentenced in the future, the accused is asked whether he has accepted the HAGB application before the decision is made. In the contested rule, taking into account the Constitutional Court’s previous determinations regarding the functioning of the HAGB institution, the compliance of the institution in question with constitutional guarantees regarding fundamental rights and freedoms has been evaluated.
For the defendants who accept the application for Remorse at the beginning of the trial, it is impossible to check whether the guarantees of the right to a fair trial are provided by the court of first instance at the later stages of the trial. an appeal can be filed and this may lead to violations of rights. A trial that is supposed to be subject to the appeal procedure becomes subject to the appeal procedure when the defendant accepts the Decision of Remorse. The defendant waives his right to appeal by accepting the Verdict of Remorse. It is understood that the will to waive a certain legal remedy expressed at a stage before the finalization of the court decision does not meet the constitutional validity requirements.
It was assessed that the HAGB institution also contains some incomplete regulations in terms of confiscation procedures. In case of a decision of regret, there is no clear legal regulation regarding the stage at which the confiscation procedure will be carried out. It has been observed that there is uncertainty at the time of execution, and this situation may lead to the execution of the confiscation decision together with the Decision of Regret, by suspending the possibility of applying for an appeal against the restriction of the right to property in relation to the restriction of the right to property. a confiscation decision has been made and it has been concluded that the rule imposes an excessive burden on the owners, taking into account that adequate guarantees have not been provided.
On the other hand, the HAGB decision made about a person does not have the nature of a punishment, it consists of putting the person under the threat of punishment. Taking into account this nature of the Decision of Regret, the Constitutional Court, in many previous decisions, it is understood that applying to the Institution of Remorse for allegations of ill-treatment results in the defendant’s inability to receive an enforceable sentence, and this institution does not require the consent of the victim or paying moral compensation to the victim, and this postponement decision does not provide an adequate and effective remedy for the victim.
Another evaluation of the Remorse Program relates to cases where the perpetrator is a public official. It should be taken into account that in cases where the perpetrator is a public official, an unlawful and extremely serious act cannot be tolerated in any way. In this context, a public official who is found to have committed torture or ill-treatment should not remain de facto unpunished. Committed by a public official due to his duty and 17 of the Law.
it was found that there is no legal regulation stipulating that the Law of Remorse will not be applied to crimes deemed to be torture, torture and ill-treatment within the meaning of the article. Constitution; it was understood that the practices of the criminal courts could not solve this problem. This situation is incompatible with the obligation imposed on the state by the Constitution to impose penalties commensurate with the actions of the perpetrators and to provide appropriate compensation to the victims.
For the reasons explained above, the Constitutional Court ruled that the rule was unconstitutional and annulled it, Law No. 5271 231 regulating the HAGB. it has decided that the other provisions of the article will also be repealed and the cancellation provisions will enter into force as of 11.12.2013. One year after the decision was published in the Official Gazette.
You can reach our other article samples and petition samples by clicking here.