The Constitutional Court, upon the appeal of Trabzon 2nd Criminal Court of First Instance, took into consideration the institution of Deferment of the Announcement of the Verdict ("DAV") and decided to annul all provisions regarding it.
DAV, which is regulated in Article 231 of the Code of Criminal Procedure, is that the sentence imposed on the defendant does not produce results within a certain period of supervision, and if no intentional crime is committed during the supervision period and the obligations are complied with, the penalty decision is eliminated.
The conditions sought for a DAV decision are as follows:
- Completion of the trial and determination that the sentence is imprisonment for a term of two years or less or a judicial fine,
- The defendant has not been previously convicted of an intentional crime and the court is of the opinion that the defendant will not commit a crime again
- Compensation for the damage suffered by the victim or the public as a result of the crime
- The defendant's acceptance of the DAV.
The application to the Constitutional Court was filed on the grounds that a DAV decision does not provide sufficient justice for the victims, it leads to the exemption of the perpetrators from punishment and the state fails to fulfill its obligation to protect the material and moral assets of individuals.
In summary, the Constitutional Court based the annulment decision on the following grounds:
- In criminal proceedings, the legal remedy of appeal is accepted as the main legal remedy against the judgements rendered by the court of first instance, except in cases determined by law. Criminal Procedure Law foresees the legal remedy of objection before the authorized first instance court regarding the DAV decisions. Therefore, the defendant also waives the right to file an appeal before the Regional Court by accepting the DAV.
- There is no legal regulation as to when the declaration of the defendant's will should be made regarding the DAV decision. For this reason, at the beginning of the trial, before the evidence is discussed and the decision is made, the defendant may get asked for his/her declaration, and the defendant declares acceptance in order to secure himself/herself. However, by accepting the DAV decision, the defendant unwittingly waives their right to appeal as well. Therefore, the right to request a review of the judgement and the right of access to the court are violated.
- In the event that the confiscation of the property subject to the crime is decided, there is no regulation in the law regarding at which stage of the DAV the confiscation will be applied, and this deficiency is considered as a violation of the right to property.
- There is no legal provision stipulating that the DAV shall not be applied to the crimes of torture, torment and ill-treatment committed by public officials in duty. In this context, the obligations to punish the perpetrators in proportion to their acts and to provide appropriate redress for the victims are violated.
It has been decided that the annulment decision will enter into force 1 year after the publication of the annulment decision in the Official Gazette. Accordingly, the annulment decision will enter into force on 1 August 2024 and until then it is possible to render DAV decisions.
It is not yet clear how the annulment of the DAV, which is frequently applied especially in crimes against intellectual and industrial property rights, will affect the proceedings. However, in cases where the finalization of judicial decisions is prolonged, the storage of confiscated products subject to the crime will continue to create a financial burden for the right holders when these products are kept in private warehouses or on the state in general. Of course, this disadvantageous situation can be eliminated by expanding the fast destruction procedure, which is one of the innovations introduced by the Industrial Property Law.
On the other hand, with the abolition of the DAV institution, the non-postponement of the announcement of a possible prison sentence may also increase the deterrence against violations.
Please see this link for the full text of the Constitutional Court's decision numbered 2022/120 E., 2023/107 K., published in Official Gazette dated 1 August 2023. (Only available in Turkish)
Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroglu Arseven.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.