TURKISH SUPREME COURT
8th Criminal Chamber
Case No.: 2013/9303
Decision No.: 2013/20061
Date of Decision: July 4, 2013
OFFENSE OF POSSESSING AN UNLICENSED FIREARM – NO LEGAL REMEDY IS PROVIDED AGAINST THE POSITIVE OR NEGATIVE DECISION ISSUED BY THE PUBLIC PROSECUTOR’S OFFICE, WHICH CARRIED OUT THE EXECUTION, REGARDING ITS REQUEST FOR A POSTPONEMENT OF THE EXECUTION – VIOLATION OF THE JUDGMENT
SUMMARY: The provision of the law regarding the execution of sentences, which grants the prosecutor discretion regarding the postponement of execution, decision-making, and enforcement, grants the Public Prosecutor’s Office the authority to make a decision—whether positive or negative—regarding the execution of the sentence. There is no provision for appealing the decision to postpone enforcement; the Criminal Court also lacks the authority to review appeals… While the request is denied, <this is not a decision that warrants the reversal of the ruling.>
(Law No. 5275, Art. 17) (Law No. 5271, Art. 309)
Case:
The defendant was convicted of possessing an unlicensed firearm under Article 13/1 of Law No. 6136 on Firearms, Knives, and Other Weapons. During the execution of the decision of the Bakırköy 22nd Criminal Court of First Instance dated March 4, 2010, and numbered 2009/872, the convict was sentenced to 1 year in prison and a fine of 1,500 Turkish Liras pursuant to Article 17 of Law No. 5275 regarding the application of judicial and security measures.
Pursu ant to the Bakırköy Prosecutor’s Office decision No. 22/22 dated January 2, 2013, following the rejection of the request to postpone the convict’s sentence for a period of 6 months, regarding the decision to postpone the convict’s sentence for a period of 6 months as per Bakırköy Decision No. 11, and on the grounds that there was no need to issue a decision based on the Criminal Court decisions dated 01/08/2013, No. 2009/872, and No. 2010/130, regarding the issuance of a judgment in the case file pertaining to the Criminal Court decisions dated 01/22/2013 and No. 2013/500;
Pursuant to Article 17 of Law No. 5275 on the Enforcement of Criminal Sentences and Security Measures, if the Prosecutor’s Office responsible for enforcement has issued a decision—whether positive or negative—regarding the postponement of enforcement, there is no legal provision to challenge such a decision; since the original court did not issue a decision to postpone enforcement upon the convicted person’s appeal. Pursuant to Article 309 of Law No. 5271, the decision of the General Directorate of Criminal Affairs of the Ministry of Justice dated March 26, 2013, and the request for the annulment of Law No. 20028 were reviewed in light of the decision of the Supreme Court of Appeals dated July 9, 2013, and the notice of the Prosecutor’s Office numbered 2013-128476.
If necessary, it shall be discussed and evaluated:
Decision: Pursuant to Article 17, Paragraph 22, Law No. 5275 on the Enforcement of Criminal Penalties and Security Measures grants the Public Prosecutor responsible for enforcement discretion regarding the postponement and suspension of enforcement. However, the law does not require the Public Prosecutor responsible for the execution to issue a positive or negative decision upon a request for postponement of the execution. Since the First Instance Criminal Court lacks the authority to review the objection, the request must be rejected and a written decision must be issued.
Conclusion: In Case No. 11 of Bakırköy, it is evident that the content of the notification made to the Supreme Court Prosecutor’s Office at the request of the Ministry of Justice is appropriate in this regard. Pursuant to the decision of the 309th High Criminal Court, dated 01/22/2013, No. 2013/500, a unanimous decision was made on 07/04/2013 to refer the case to the Court of Cassation on the grounds that the file had been tampered with, and subsequently to refer it from the Court of Cassation to the Prosecutor’s Office.