TURKISH SUPREME COURT
10th Criminal Chamber
Case No.: 2014/2577
Decision No.: 2014/2611
Date of Decision: April 14, 2014
DRUG TRAFFICKING OFFENSE – REQUEST FOR VIOLATION OF THE LAW – POSTPONEMENT OF THE DEATH SENTENCE BY THE CONVICT – NECESSITY OF REJECTING THE OBJECTION TO THE EXECUTION JUDGE’S DECISION – THE JUDGMENT HAS BEEN VIOLATED
SUMMARY:
Under Law No. 5275, regarding the decision-making process for postponing the execution of a convicted person, the prosecution is granted discretion regarding the request to postpone execution; no legal provision exists for an appeal against the prosecution’s decision on such a request; that if the convicted person’s defense counsel’s appeal against the decision is rejected, the decision must be reviewed by the presiding judge, that the decision to postpone the execution of the sentence upon acceptance of the appeal is contrary to the law, and that, for this reason, it is deemed appropriate to overturn this decision in the interests of justice.
(Turkish Penal Code Art. 52, 62, 188, 191) (Turkish Execution Code Art. 17, 98) (Turkish Criminal Procedure Code Art. 309) (12th Criminal Chamber, November 14, 2011, Case No. 2011/11301, Decision No. 2011/4822)
Case: H., convicted of drug trafficking. Pursuant to the decision of the Hatay 2nd Criminal Court dated November 7, 2013, No. 1054, and following the acceptance of the appeal based on the principle of the supremacy of law, the case file was forwarded to our office as an attachment to the Prosecutor’s Office’s notification letter dated February 7, 2014.
The case file was reviewed.
Upon Discussion and Evaluation as Required:
Decision: Based on the reviewed file;
a) On May 3, 2007, the Hatay High Criminal Court, through decisions No. 2007/104 and 2007/422, sentenced YH, who was convicted in cases No. 62 and 52 under Articles 188/3, 191/3, 62, and 52, YH was sentenced to 2 years and 1 month in prison and a fine of 1,000 TL. The judgment has become final.
b)
The prisoner, who was on death row, filed a request for the suspension of the execution of his 6-month prison sentence pursuant to Article 17 of Law No. 5275; this request was rejected by the Hatay Chief Prosecutor’s Office on September 26, 2013, via Decision No. 2013/1458.
c) Following the convicted person’s appeal against the decision rejecting the request to postpone the execution, the Hatay Sentencing Judge, in Decisions No. 2013/2151 and No. 2013/2136 dated October 11, 2013, and the Public Prosecutor, on the grounds that no legal remedy was provided against the decision rejecting the request for suspension of the sentence, ruled that it was not possible to render a decision on the convicted person’s defense counsel’s request.
d) Following the convicted person’s defense counsel’s appeal against the Hatay Execution Judge’s decision, the Hatay 2nd High Criminal Court, on November 7, 2013, accepted the appeal seeking the annulment of the Hatay Execution Judge’s decision dated October 11, 2013, under case number 2013/1054, and, in accordance with the request of the Hatay Chief Prosecutor’s Office dated September 26, 2013, and pursuant to Law No. 5275, Article 17/1, decided to postpone the defendant’s prison sentence of 2 years and 1 month from September 28, 2013, to March 28, 2014.
Understood.
In the request and notification regarding the violation of Law No. 98/1, reference was made to the provisions set forth in Article 17 of the same law. Article 98 of Law No. 5275 does not cover appeals against prosecutors’ decisions to reject requests for the postponement of execution. A request for postponement of execution does not constitute a situation that causes a suspension in the calculation of the sentence to be imposed.
There is no need to request a decision from the court specified in the provision, and since a written decision of rejection is issued instead of accepting the appeal, appeals cannot be filed against the prosecutors’ decisions of rejection, regardless of whether the request for postponement of execution was rejected. Hatay 2 has filed a request for a ruling on the violation of the law, arguing that the decision of the High Criminal Court dated November 7, 2013, is contrary to the law.
Although it was stated that there were no adverse factors on the part of the competent authority in the rejection of the appeal, it is understood that the appeal was accepted in the specific case.
Conclusion:
Article 17 of the Law No. 5275 on the Enforcement of Criminal Penalties and Security Measures, dated October 11, 2013, does not provide for an appeal against the prosecutor’s decision regarding a request to postpone enforcement, as it disregards any legal remedy concerning the authority to make decisions based on discretion and recognition; In Hatay, the appeal against the decision to suspend the execution of the sentence, in cases where appeals regarding the acceptance of the execution are rejected, is contrary to the law and reverses the request for the postponement of execution in favor of the applicable law;
The decision of the High Criminal Court in Hatay dated November 7, 2013, and numbered 2013/1054, was amended by the decision of the Court of Appeals numbered 2.309 under Law No. 5271; Article 3. Violation of the law pursuant to paragraph 309 of the same law. Article 4. On April 14, 2014, it was decided by unanimous vote to forward the case file to the Office of the Chief Prosecutor of the Supreme Court for transmission to the aforementioned Court, in order to carry out the necessary proceedings pursuant to subparagraph (A) of the paragraph.