18.12.2023

Legislative Amendment

With the decision of the Constitutional Court ("Court") dated 01/6/2023, numbered 2022/120 E. and 2023/107 K., the paragraphs (5), (6), (7), (8), (9), (10), (11), (12), (13) and (14) of Article 231 of the Criminal Procedure Code numbered 5271 which regulates the institution of announcement of the verdict and deferment of the announcement of the verdict ("DAV"), have been canceled and the decision has been published in the official gazette. It is stipulated that it will enter into force 1 year after its publication. The cancellation decision was published in the Official Gazette dated 01/08/2023 and will enter into force on 01/08/2024.

In the Court's annulment decision, it was particularly emphasized that when the defendant accepted the DAV decision, the trial ceased to be subject to appeal and became subject to objection, and in this case, the defendant waived his right to appeal. Its constitutionality was evaluated in terms of the clarity of the will to waive, the reasonable foreseeability of its consequences for the individual, and the provision of minimum assurance regarding the right to a fair trial. Again, in the current situation, it has been stated that the DAV institution puts the defendant, who has not yet been convicted, in a vulnerable position in the face of the threat of conviction and forces him to waive in advance his right to appeal, which has not yet arisen. It has been stated that the lack of a procedural guarantee regarding the question asked to the defendant about whether he accepts the DAV or not after the conviction is against the requirement of legality, imposes an excessive burden on the defendant and is not proportionate.

In addition to these issues; It was mentioned that the execution time in terms of confiscation is uncertain, that the DAV decision is not a punishment but puts the person under the threat of punishment, that the acts of the public official who are found to have committed torture or ill-treatment can go unpunished, and that there is no legal regulation stating that the DAV will not be applied in terms of these crimes.

What is DAV?

Pursuant to Article 231 of the Code of Criminal Procedure, "Deferment of the Announcement of the Verdict" means that, under certain conditions, the court may decide to postpone the announcement of the verdict. In this case, the verdict does not produce any legal consequences for the defendant. However, within the scope of DAV, in order for the punishment given to the defendant to have no consequences, the defendant must not intentionally commit a crime within 5 years and fulfill his obligations.

What Do the Changes Bring?

Before the change, the conditions sought for a DAV decision about the defendant were as follows:

- The penalty imposed at the end of the trial is imprisonment of two years or less or a judicial fine,

- The defendant has not been previously convicted of an intentional crime,

- The court is satisfied that the defendant will not commit a crime again,

- Complete compensation for the damage suffered by the victim or the public,

- There is no regulation in special laws stating that a DAV decision cannot be made,

- The defendant accepts the DAV.

If these conditions existed, a DAV decision could be issued for the defendant and the defendant was subject to supervision for five years. This meant that if the defendant did not intentionally commit a crime and acted in accordance with his obligations within the five-year supervision period, the verdict would no longer have any legal consequences for the defendant.

In accordance with Article 153 of the Constitution, laws cease to be in force on the date the decision regarding annulment is published in the Official Gazette. However, if necessary, the Constitutional Court may also decide the date on which the annulment provision will come into force (not to exceed one year starting from the day it is published in the Official Gazette). The effective date of the above-mentioned decision has been determined as 1 year, starting from its publication in the Official Gazette, in order to prevent legal gaps that may arise with the immediate entry into force of the annulment decision. This being the case, the legislator will be able to introduce new legal regulations on the subject until 01/08/2024, when the Constitutional Court's annulment decision will come into force. Although there is no official regulation published after the effective date yet, it may be possible to completely abolish the DAV application or to introduce another regulation with the same function in accordance with the Constitution by clarifying the uncertainties stated in the decision of the Constitutional Court. We will be following the regulations until 01/08/2024.

What Will Be the Situation of Current Cases?

Although the legal provisions regarding DAV have been found to be unconstitutional, the existing legal provisions will continue to be applied since the annulment decision has not yet come into force. This will mean that the provisions in question are implemented by the courts even though it is clearly known that they are contrary to the Constitution; It will also cause the provisions in question to lose their legitimacy in the eyes of the public. In this case, the regulations that the legislator will make during the process are important in terms of implementation, and in case the new regulations are likely to be in favor of the defendant, a favorable law may be applied in accordance with Article 7 of the Turkish Penal Code No. 5237 by examining each concrete case. It is difficult to make a general inference on the subject since the next regulation of the legislature cannot be foreseen at the moment and therefore it cannot be evaluated in favor or against. We will evaluate the developments during the process.