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AUDIT OF HAGB DECISIONS THROUGH INDIVIDUAL APPLICATION TO THE CONSTITUTIONAL COURT
Postponement of the announcement of the verdict is regulated in the Code of Criminal Procedure, Article 231, paragraph 5 and its continuation.
(5) (Annex: 6/12/2006-5560/23 art.) If the sentence convicted at the end of the trial due to the crime charged to the accused, is imprisonment for two years or less or a judicial fine; The court may decide to defer the announcement of the verdict. Provisions regarding reconciliation are reserved. Postponing the announcement of the verdict means that the established verdict does not have any legal consequences for the accused.
(6) (Annex: 6/12/2006-5560/23 art.) In order to decide to postpone the announcement of the provision; a) The accused has not been convicted of an intentional crime before, b) The court decides that he will not commit a crime again, taking into account the personality characteristics of the accused and his attitudes and behaviors at the hearing, It must be completely eliminated by bringing or indemnification. (Additional sentence: 22/7/2010 – 6008/7 art.) In case the accused does not accept, it is not decided to postpone the announcement of the verdict.
As stated in the above article of law, certain conditions must be fulfilled in order for HAGB, i.e. Delaying the Announcement of the Provision, to be decided. If the sentence imposed on the accused is a prison term of two years or less or a judicial fine, if the accused has not been previously convicted of an intentional crime and he consents to the HAGB decision, a decision is made to defer the announcement of the verdict. The control of HAGB decisions is carried out by a higher court. This control is called the appeal remedy. Although the defendant is free to take the HAGB decision to a higher court, the rejection of the objection to the HAGB decision is definitively given by the upper court. This means: The ordinary legal remedy of appeal and appeal is closed.
The control of HAGB decisions is also discussed in the doctrine. The accused, who cannot appeal and appeal, can only claim that the decision is unlawful by submitting an objection petition to a higher court. In practice, it is seen that the objection to the HAGB decision was rejected by the higher courts without justification. For this reason, the accused, who wants the HAGB decision to be lifted, resorts to ways such as Overturning in the Benefit of the Law or Individual application to the Constitutional Court.
Individual application to the Constitutional Court is a secondary legal remedy that can be resorted to if violations of fundamental rights and freedoms are not corrected by the courts of instance. In this respect, it is essential that the allegations of violation of fundamental rights and freedoms are first brought forward before the courts of instance, evaluated by these authorities and resolved. The Constitutional Court is not an authority that examines the decisions made by the courts of instance in terms of material and legal aspects. The duty of the Constitutional Court in individual applications is to examine whether the guarantees within the scope of the rights remaining in the common protection area of the Constitution and the Convention have been violated in the concrete case. It is understood that the decisions of the HAGB were taken in terms of the right to a fair trial, the prohibition of torture and ill-treatment, freedom of expression, and the right to an effective application when making an individual application to the Constitutional Court.
A.) FOR THE PROHIBITION OF TORTURE AND IMPLIED TREATMENT
Decisions in which the fundamental right that was violated was the prohibition of torture and ill-treatment added a new condition to the HAGB conditions regulated in the Criminal Procedure Code. In the decision of Deniz Yazıcı (App. No: 2013/6359, 10/12/2014), the Constitutional Court decided to postpone the announcement of the verdict about the perpetrators of the ill-treatment, saying that “a disproportionate application between the crime and the punishment given and a deterrent that can prevent such illegal acts.” not having an effect”. In the aforementioned application; It concluded that the state did not fulfill its positive obligations to protect the physical and mental integrity of the applicant through laws and violated the procedural obligation to conduct an effective investigation stipulated in the third paragraph of Article 17 of the Constitution. Therefore, in cases where the prohibition of torture and ill-treatment is violated, local courts cannot give a HAGB decision.
FOR FREEDOM OF EXPRESSION
The Constitutional Court considers the weight of the sanction applied as a factor to be taken into account while evaluating the proportionality of the interference with freedom of expression. According to the Supreme Court, although the decisions to postpone the announcement of the verdict are not in the nature of a conviction, in case of committing an intentional crime within five years, the prescribed penalties are applied exactly. It is stated that the threat of punishment will act as a deterrent to people from discussing public issues and may lead to self-censorship, and it is stated that the decisions to postpone the announcement of the verdict may in some cases constitute a disproportionate interference with the freedom of expression.
REGARDING THE RIGHT TO A FAIR HEALTH
In a decision given by the Constitutional Court within the scope of individual application, it was stated that the sentence of the deferred sentence was given based on incomplete examination and that fundamental rights were violated, that the announcement of the verdict was postponed upon the request/consent of the applicants and that a decision that made it possible to appeal/appeal was not preferred. considered as manifestly ill-founded. The Court has determined that the defendants, who requested a decision to defer the announcement of the verdict, waived their right to demand the examination of the merits and procedures to be made in the appeal/appeal. Accordingly, the applicants, by giving their consent, preferred to benefit from the benefits arising from the decision to defer the announcement of the verdict. Another decision is “[v]that the decision rendered is subject to an appeal review rather than an appeal stems from the applicant’s own choice. It is clearly stated in the Law No. 5271 that the decisions of HAGB will be subject to the appeal legal remedy, and the applicant has implicitly revealed that he also accepted the nature and scope of the objection review by expressing his consent to the HAGB, and he clearly found it ill-founded”.
The point that creates controversy in the doctrine is to leave the person between two disadvantaged situations and to deprive the accused, who thinks that the decision of the HAGB is a better option, from the right of appeal and appeal by saying that you almost made the choice. As mentioned above, the Constitutional Court’s position in terms of HAGB decisions is clear, and it gives a decision of inadmissibility regarding the applications.
One of the violations examined by the Constitutional Court; Making an Error Regarding Whether the Objection Was Made in Time. Here, it was decided that the right of access to court was violated. Another violation occurred when the reasoned decision was not communicated. Here, the Constitutional Court has decided that the right to benefit from the necessary facilities for defense has been violated. The applicant’s claims for compensation were denied.
Stj. Av. Elif Nur Akyol
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