16th Criminal Chamber 2018/1923 E., 2018/4741 K.
“legal text”
Court: Criminal Chamber
Crime: Membership in an armed terrorist organization
Judgment: Turkish Commercial Code No. 314/2, Law No. 3713, Law No. 5/1, Law No. 62, Law No. 53, Law No. 58/9, Law No. 63. Appeal against the conviction ruling issued in accordance with the regulations rejected
The decision rendered by the Regional Criminal Court of First Instance was reviewed on appeal;
IT IS DEEMED NECESSARY AND CONSIDERED:
The legislator, who introduced a new approach to the application of law by including Courts of Appeal in the Turkish judicial system, did not foresee the requirement to state reasons in the appeal, which will carry out both the substantive examination and the legal review (CMK No. 5271, Article 273/4), but its review is limited to legal review in the appeal process (CMK Article 294/2);
According to CMUK No. 1412 (Article 305), the option to waive the appeal ex officio and limit the opening of the file in the appeal petition includes the grounds for appeal and the appeal itself if you wish to demonstrate that you have grounds for appeal due to the disruption caused by the submission of the petition (Article CMK 294/1). If it is shown that the appeal was filed within seven days of the reasoned decision being taken or the specified period expiring, the Regional Court of Justice’s objection to the decision requires the acceptance of the grounds for this petition.
If the appeal petition does not contain grounds for appeal, as in the case of failure to file the petition within the time limit, the decision cannot be challenged or the appellant has no right to do so, and the appeal request is rejected as in a properly conducted appeal case (CMK Article 298). (F. Yenisei-A. Nohoglu, Criminal Procedure Code, p. 923, Centel-Zafer, Criminal Procedure Code, p. 826, C. Şahin-N. Göktürk, Criminal Procedure Code, p. 278). Furthermore, the aforementioned Law
Article constitutes an exception to the “principle of limited review” of an appeal case opened in accordance with the procedure (F. Yenisei-A. Nuchoglu, A. p. 905), provided that the conditions and procedures are clearly specified (ECHR Galstyan/Armenia Application No.; 26986/03 15. 01.2007 t.) and that the rejection of a legal application due to non-compliance with the prescribed procedural requirements does not constitute a violation of this right (ECHR Sjöö/Sweden Application No.; 37604/97) and will be accepted by established judicial decisions;
According to Decision No. 295/1 of the Criminal Procedure Code, the reasoned decision was served on him on 08.01.2018, and the defendant’s defense filed an objection with a petition dated 15.12.2017 against the unreasoned decision issued against the defendant on 13.12.2017. As understood, on January 22, 2018, after the 7-day legal period stipulated in the relevant article, he submitted his reasoned objection petition; Pursuant to Decision No. 298 of the Criminal Procedure Code, regarding the rejection of appeal request No. 5271, in accordance with the relevant article, a decision was made on December 3, 2018, by majority vote, with … and … voting against.
DISSENTING OPINION:
“As understood, the defendant’s defense petition dated 15.12.2017 does not contain the grounds for objection, and a reasoned objection petition was not submitted within the period following the notification of the reasoned decision,” the majority stated that the objection request was in accordance with Article 298 of the Criminal Procedure Code and that its opinion regarding the “rejection” decision
was not included in the scope of the case file under review.
According to the Kayseri Chief Public Prosecutor’s Office’s indictment dated January 6, 2017, numbered 2017/1080, the defendant was sentenced to 6 years and 3 months imprisonment for the crime of “being a member of an armed terrorist organization” in the Kayseri Criminal Court’s decision dated March 21, 2017, numbered 2017/112 E., and the Ankara Regional Court’s decision numbered 2017/110 K. 4 dated 21.03.2017, the defendant was sentenced to 6 years and 3 months in prison for the crime of “being a member of an armed terrorist organization,” and the defendant and his defense attorneys have filed an appeal against this decision. Within the time limit for an appeal.
According to the Criminal Chamber’s decision dated December 13, 2017, numbered 2017/147E. – 2017/489K dated December 13, 2017, the defendant’s defense filed an appeal by submitting a petition objecting to the decision in question, but after the 7-day legal period following the notification of the appeal decision had passed, the High Court, prior to its review, ruled to “reject the appeal on the grounds of appeal.” The majority of the Criminal Chamber also stated that “the defendant’s defense petition dated 15.12.2017 does not contain the grounds for appeal and was not filed within the time limit following the notification of the appeal decision.”
It is understood that, pursuant to Article 298 of the Code of Criminal Procedure, the ruling of dismissal was made on the grounds that the defendant did not submit a reasoned objection petition.
The subject of the October debate, which constituted a concrete dispute, was whether, after the seven-day period following the notification of the reasoned decision had passed, but before the Supreme Court review, whether the defendant or defense counsel who filed an appeal with a reasoned objection petition could submit an additional appeal petition and whether an appeal review could be conducted within the scope of this petition.”
In a rule of law based on human rights, it is important to implement all necessary structural and institutional legal reforms to understand the principle of the rule of law. One of the important elements of ensuring the rule of law is the implementation of the right to a fair trial and access to justice with all its guarantees. Access to justice
is recognized as a right. Since access to justice is a right, the interpretation, comprehensibility, and therefore applicability of the law must also be taken into account. This right must be guaranteed through its exercise, and case law must be established in this manner. It is not sufficient to recognize rights; it is also necessary to ensure the effective exercise of those rights.
Judicial bodies have no right to refrain from dispensing justice. Our Constitution regulates this as follows: “No court may refuse to hear a case within its jurisdiction” (Article 36/2). Refusing to dispense justice means waiving the right.
The right of access to justice guarantees the right to appeal to the courts (to bring a case), to apply to law enforcement agencies that provide safeguards, and to ensure the enforcement of judicial decisions.
The right of appeal ensures that the right of access reaches its highest level in a fair trial (Coulon, Jean-Marie/Roche, Marie-Anne Frison, p. 443).
The right to a fair trial includes fundamental guarantees such as the right to appeal to an independent and impartial court, to be a plaintiff or defendant, to have procedural safeguards during the trial, and to have the trial conducted. Trials must be conducted within a reasonable time, and effective legal review mechanisms must be provided against court decisions.
Article 2 of the Constitution states that the rule of law, which is among the characteristics of the Republic, the protection and strengthening of these rights and freedoms based on human rights, the establishment of order in all areas, the continuous development of criteria that are in accordance with the law and take into account the rules of justice and fairness, the facilitation of the state’s right to legislate, the obligation of all state organs to adhere to the Constitution and laws, and their openness to judicial review in the search for truth, and that freedom is important for the state.
The first paragraph of Article 36 of the Constitution states that “Everyone has the right to a fair trial as a plaintiff or defendant, using legitimate means and methods.” In addition to being a fundamental right, freedom of expression and the right to a fair trial are among the most effective guarantees for the proper exercise and protection of other fundamental rights and freedoms.
The purpose of criminal proceedings is to investigate and reveal the material truth in a manner befitting human dignity. In fact, in its decisions dated February 23, 2016, numbered 2014/5.MD-98, numbered 2016/83, dated December 10, 2013, and numbered 2013/359, the General Assembly of the Criminal Court of Appeals stated that “…the purpose of Criminal Procedure is to determine the material truth definitively, free from doubt, in accordance with the principles established by procedure and rules.
In Civil Procedure Law, the judge investigates the material truth; in Criminal Procedure Law, however, the judge does not rely solely on the evidence presented by the parties, because the parties are bound by the facts, norms, evidence, and claims they present and must be satisfied with the truth they present. The legal evidence system in criminal procedure is highly exceptional (e.g., trial transcripts; only those present at the trial can be proven by these), and anything illegal can be presented as evidence.
The rights to a fair trial and access to information are also included in this scope. Justice against the decisions of the court of appeal is an element that guarantees the provision of effective legal control mechanisms; As a rule, appeals against decisions of criminal courts regarding extradition requests are the ordinary legal remedy, in accordance with the decisions of the Regional Criminal Justice Chamber, which, together with the decisions forming the basis of Law No. 6706 of December 18, contain provisions on international judicial cooperation in criminal matters.
Appeal is regulated within the framework of ordinary legal regulations in the Criminal Procedure Code system. It is extremely important that decisions issued by one judicial body are reviewed by another competent authority. Through appeal, the consistent and uniform interpretation and application of legal rules in a country is ensured. Through appeal, the legality of decisions previously issued by a judicial body is reviewed.
In an appeal review, only the legal aspect of the dispute, i.e., the legal status of the factual circumstances determined by the court of first instance or regional court, is addressed, and the correct application of the legal norm to the factual circumstances is reviewed.
The essence of Article 294/1 of the Criminal Procedure Code No. 5271, titled “Content of the Appeal,” is as follows:
“The appellant must indicate the reason for requesting the reversal of the decision on appeal.”
Article 295 of the same law, under the heading “Grounds for Appeal,” states:
“If the grounds for appeal are not stated in the appeal petition, a supplementary petition containing these grounds shall be submitted to the regional court of appeal within seven days of the expiration of the appeal period or the notification of the reasoned decision.”
In light of these
explanations and legal regulations;
it is necessary to focus primarily on the difference between an objection (petition, request) and a reasoned objection (additional petition, appeal) in the aforementioned legal regulations. These petitions are treated as a single petition.
They can also be submitted together. However, in practice, since the fifteen-day appeal period usually begins with the interpretation of the short decision, it is necessary to first submit an appeal petition (appeal application) in order not to miss the deadline. Practitioners refer to this petition as a “petition for non-compliance with the time limit.”
This extremely common misnomer fosters the misconception that the appeal period ends with the submission of the petition. However, the appeal is realized with the submission of this petition, and the remaining time issue is eliminated.
A reasoned appeal petition (additional petition, appeal layer) is a petition that sets out the grounds for appeal. Prior to the entry into force of the provisions of Decree Law No. 5271 on the Appeal Law, it was not mandatory to file this petition. This is because, in accordance with the provision in Article 314/2 of the Decree Law, which states that “failure to state the grounds for appeal shall not constitute an obstacle to the appeal review,” the High Court may re-evaluate the grounds for appeal.
After the provisions of Decree Law No. 5271 (CMK No. 5271) relating to the entirety of the law came into force, the question of at what stage this petition should be submitted became important.
In a sense, it can be said that the legislator took the risk of finalizing an unlawful decision on the grounds of “insufficient grounds for appeal” in order to expedite the proceedings and prevent the Supreme Court, whose main purpose is to ensure the stable and uniform interpretation and application of legal rules in the country, from facing an unnecessary workload.
However, when these provisions are evaluated in terms of the right to a fair trial and access to justice, it is difficult to say that appeals or additional appeals that “do not concretely demonstrate the basis for the illegality” are consistent with the criteria set forth in the case law of the European Court of Human Rights or with the aim of investigating and finding the material truth in criminal proceedings in a manner befitting human dignity.
Although the law states that “the October petition must be submitted within seven days,” petitions reaching the High Court must be accepted after this period has passed, but before the High Court’s review. Once an appeal has been filed within the time limit, there is no obstacle to the submission of petitions or applications showing new grounds for appeal not previously indicated in these petitions until the Supreme Court begins to examine them. On the contrary, an admission transforms the criminal case and the civil case into a completely different type of trial.
Consequently, after an appeal has been filed within the time limit, there is no obstacle to submitting petitions or applications showing new grounds for appeal not previously stated in these petitions until the Supreme Court begins to review them. Additional petitions and grounds for appeal submitted by the Supreme Court before October must also be reviewed and examined by the Supreme Court. Of course, the petition in question must be submitted to the court that issued the decision in a timely manner, stating all grounds for appeal. If, during the Supreme Court’s review, it is determined that there are no grounds for appeal in the appeal petition, only then…
The appeal must be rejected.
With these complaints, it has been understood that the “majority” did not include the grounds for the appeal petition and did not submit a reasoned appeal petition regarding the appeal within the time limit specified in Article 298 of the Criminal Procedure Code after the reasoned decision was notified. Therefore, it was not possible to agree with the opinion regarding “rejection.”