TURKISH SUPREME COURT
7th Criminal Chamber
Case No.: 2014/17363
Decision No.: 2014/20586
Date of Decision: 12/01/2014
CRIME OF INTENTIONAL INJURY – THERE IS A PROVISION STATING THAT IN CASES WHERE SENTENCING MUST BE POSTPONED SOLELY DUE TO ILLNESS, THE CRIMINAL COURT SHALL RENDER A DECISION – A COMPLAINT MAY BE FILED WITH THE EXECUTION JUDGE; THIS IS A GENERAL PROVISION – THIS PROVISION HAS BEEN VIOLATED
Summary: In cases where the execution of a sentence must be postponed solely due to illness, if the criminal court decides that the sentence has taken effect, and if a request to suspend execution is rejected after the execution has begun—even in the mandatory and urgent situations specified in the paragraph—the execution judge, disregarding the fact that there is a general provision regarding this process, instead of accepting the objection in this regard, in the rejection decision, it was ruled that the provision in question had not been violated and that the decision to reject the request was made in accordance with the interests of the law.
(Penal Code No. 5275, Art. 17, 98, 99, 100, 101) (Criminal Procedure Code No. 4675, Art. 4, 5) (Penal Code No. 5271, Art. 309)
Case: The defendant, who was tried for the crimes of intentional assault, endangering public safety, carrying an unlicensed firearm, and threatening doctors, was sentenced to 2 years and 7 months in prison under Case No. 2013/91 dated September 3, 2013, his legal representative, his wife ZD, filed a request for the suspension of the execution of the sentence pursuant to Law No. 5275 regarding the execution of the sentence under Case No. 17/4. Upon this request, the Çanakkale Chief Prosecutor’s Office issued an execution decision dated September 12, 2013, and numbered 2013/3730, rejected the request for suspension of execution on the grounds that it did not meet the conditions specified in the relevant article and that the decision did not fall within the jurisdiction of the execution judge.
The Çanakkale Enforcement Judge filed an objection to this decision with a ruling dated October 22, 2013, and numbered 2013/1607. Similarly, in the case filed in Çanakkale against the Supreme Court’s decision dated November 4, 2013, regarding denial of justice, and in the criminal case No. 2013/962, as well as in the case filed due to the nullification of the benefit of the law issued by the Ministry on December 17, 2013, under case number 77401, a notice was sent to the relevant department regarding the Supreme Court Prosecutor’s request dated January 6, 2014, and case file No. KYB. 2013-406567.
Decision: In the aforementioned notice;
According to the file, regarding the execution of the sentence, following the commencement of the prisoner’s sentence, upon the legal representative’s application regarding the Çanakkale Prosecutor’s Office’s request to postpone the execution, and in order to decide on the execution and the postponement of the execution, the request to postpone the execution was rejected on the grounds that it did not fall within the scope of duties and authorities,
Pursuant to Article 17/4 of the Law on the Execution of Sentences No. 5275, after the execution of the sentence, in urgent cases, it is not mandatory under the circumstances specified in the paragraph, and execution for periods exceeding six months may be carried out in accordance with the Republic’s execution regulations; however, if the request is rejected, this decision cannot be appealed; if the objection is filed with the competent authority that has a special regulation, it may be appealed.
Furthermore, under the second paragraph of Article 2 of Law No. 4675, the duty to examine complaints regarding procedures and activities such as the execution of sentences for convicted persons and to dismiss them as non-criminal is included among the duties of the execution judge. For example, under Article 101 of Law No. 5275, the legislature further requires that the court deciding on execution-related matters also render a decision in certain specific cases. According to Articles 98 through 100 of the same law, Article 98 stipulates that decisions to be rendered in accordance with the relevant provisions shall be issued by the civil court. Pursuant to paragraph 17/4 of Article 2, the criminal court shall render a decision only in cases where the sentence must be postponed due to illness.
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In accordance with Articles 4 and 5 of Law No. 4675, which contain the general provisions regarding this process, and pursuant to paragraph 309 of Article 5271 of the Code of Criminal Procedure, Paragraph 309 of the Code of Criminal Procedure, once the execution of the sentence has commenced, the decision by the Office of the Chief Public Prosecutor to reject a request for release in mandatory and urgent cases—or to reject such an objection in writing rather than accepting it—is applicable to the execution judge, regardless of the form of the complaint. Pursuant to the provision, it has been assessed that the violation of the said decision is necessary and required on the grounds of a violation of the law on behalf of the Turkish nation.
Conclusion: Since the content of the report regarding the allegation of unlawfulness, upon the request of the Chief Prosecutor of the Supreme Court, was found to be valid, the decision of the Çanakkale Heavy Penal Court dated November 4, 2013, and numbered 2013/962, regarding the different proceedings, was rendered by the court at the scene in accordance with Article 309/4-a and finalized by unanimous decision on December 1, 2014.