Supreme Court of Turkey
8th Criminal Chamber
Case No.: 2013/12392 Decision No.
: 2013/24256
Date of Decision: October 3, 2013
OFFENSE OF OBJECTION TO LAW NO. 6136 – THIS LAW GRANTS THE PUBLIC PROSECUTOR WHO CARRIES OUT THE EXECUTION DISCRETIONARY AUTHORITY REGARDING THE POSTPONEMENT AND SUSPENSION OF THE EXECUTION – THE EXECUTION JUDGE HAS NO RIGHT TO REVIEW THE OBJECTION ON THE GROUNDS OF REJECTING THE REQUEST.
SUMMARY:
Under Law No. 5275, regarding the postponement of the execution of a sentence, the prosecutor is granted discretion regarding the execution of the sentence in accordance with the relevant provision concerning the postponement of execution and the granting of a reasonable period of time. No provision is made for rendering a decision, whether positive or negative, regarding the decision issued by the Public Prosecutor’s Office concerning the execution of the sentence; and in accordance with the essence of Law No. 4675 ½, when execution judges are granted the authority to review appeals regarding the postponement of execution, it has been stated that “the decision to postpone execution constitutes a violation.”
(Law No. 5275, Art. 17)
Case and Judgment: The defendant was sentenced, pursuant to Law No. 6136 on Firearms, Knives, and Other Weapons dated October 11, 2011, and Case No. 2010/121, as well as Articles 62 and 52 of the Turkish Penal Code No. 5237, to 10 months’ imprisonment and a fine of 500 Turkish Liras. During the execution of the decision of the Diyarbakır Criminal Court of First Instance dated October 11, 2011, No. 2010/760, the defendant was sentenced to 10 months’ imprisonment and a fine of 500,000 Turkish Liras pursuant to Article 1.17 the convicted person was sentenced to 10 months’ imprisonment and a fine of 500,000 Turkish Liras.
Following the rejection of the request to postpone the execution of the Diyarbakır Chief Prosecutor’s Office’s execution order No. 2013/2-226 dated March 12, 2013, for a period of 6 months, and following the acceptance of the appeals against the decision to postpone the execution of the sentence for 6 months, based on the approval of the decision to close execution file No. 2013/985 pursuant to the decision of the execution judges of Diyarbakır dated March 21, 2013, No. 2013/923;
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Pursuant to Article 17 of Law No. 5275 on the Implementation of Criminal Penalties and Security Measures, if the prosecuting authority responsible for carrying out the sentence rejects the convicted person’s request for a postponement of the sentence—whether positively or negatively—the appeal of the execution judge who issued the postponement decision is not considered; therefore, there is no provision in the law regarding an appeal against such a decision.
This matter has been examined in accordance with the provisions of Article 34378 of the Ministry of Justice’s General Directorate of Criminal Affairs’ decision No. 309 dated May 29, 2013, regarding the necessity of overturning the decision referred to the Supreme Court of Appeals, as well as the Prosecutor’s Office’s decision No. 2013 -199269 dated June 11, 2013, and our unit’s notification.
In the Name of the Turkish Nation
If necessary, it will be discussed and evaluated:
Under Article 17 of Law No. 5275 on the Implementation of Criminal Penalties and Security Measures, a decision to suspend execution—which is left to the discretion of the public prosecutor regarding the suspension of execution—is also recognized by the Office of the Public Prosecutor. It is anticipated that the decision regarding this ruling will result in either a positive or negative outcome; pursuant to Article 4675 of the Law, if a decision issued by unauthorized law enforcement authorities is rejected and finalized, the decision must be issued in writing.
Conclusion: Since the content of the notification by the Chief Prosecutor of the Supreme Court, at the request of the Ministry of Justice, regarding the violation of the law is deemed appropriate in this regard, pursuant to the decision of the Diyarbakır Enforcement Judge dated March 21, 2013, No. 2013/923-985 under Article 309 of the Criminal Procedure Code, the case file was referred to the Court of Cassation on the grounds that it had been tampered with, and it was decided by the Prosecutor’s Office on October 3, 2013, by unanimous vote, that subsequent proceedings would be conducted by the Court of Cassation.