The Turkish Constitutional Court ("Constitutional Court") decided1 to annul provisions 5 to 14 of Article 231 of Criminal Procedural Law No. 5271(CPL) related to the deferral of the announcement of the judgment. The Constitutional Court's decision ("Decision") was published on the Official Gazette of the Republic of Türkiye on 1 August 2023. You can access the Turkish text of the Decision via this link.
To summarize what deferral of the announcement of the judgment means: it is an option for the defendants to choose in the criminal proceedings instead of waiting for the judgment of the court to be announced. However, certain criteria must be met for the defendant to be eligible for this option. First, the punishment of the crime for which the defendant is tried must be within certain limits. In addition, the defendant must not have been convicted of an intentional crime in the past. Then, the damages suffered by the victim or the state due to the crime must have been compensated. Also, the defendant must choose the option of deferral of announcement of judgment. Once these criteria a met and the decision for deferral of the announcement of judgment is issued, a probation period of five years starts for the defendant. During this period, the defendant must not commit any intentional crimes, otherwise, they will be sentenced for the crime for which the decision to defer the announcement of the judgment was issued along with the new intentional crime.
The option of choosing the deferral of the announcement of the judgment has been widely criticized since it came into force. Even in the 2022 Türkiye Report of the European Union, it is mentioned that there are no deterring sentences in criminal proceedings related to intellectual rights. This is mostly due to the deferral of the announcement of the judgment. Likewise, the Constitutional Court justly focuses on these criticisms in the Decision and demonstrates the uncertainties caused by the deferral of the announcement of the judgment. The most common of these criticisms is that decisions for deferral of the announcement of the judgment are not subject to the normal recourse process such as the two-tiered appeal system, respectively before the district court of appeals and the Supreme Court of Appeals. Article 231/12 of the CPL clearly states that one can only file objections against the decisions for deferral of the announcement of the judgment. However, many decisions rendered at the end of criminal trials, including the sentencing decision, are subject to this two-tiered appeal process. This results in the limitation of the defendant's right to legal remedies. Additionally, the defendant is asked whether they accept the decision for deferral of the announcement of the judgment while the criminal trial continues. Hence, the defendant is somehow presumed to be guilty of the charges, and asked to somewhat gamble away their chances. The Constitutional Court found reason in all these criticisms and decided to cancel the provisions for the deferral of the announcement of the judgment, because it violates the defendants' right of property and right to legal remedies.
The decision for deferral of the announcement of the judgment is especially important in criminal trials related to violation of IPRs. According to the report on Justice Statistics 20222 published by the Turkish Ministry of Justice, the total number of decisions rendered by IPR criminal courts is 4,704, whereas the number of conviction decisions is 1,186, and the number of decision for deferral of the announcement of the judgment is 1,822. Therefore, it is clear that the decisions for deferral of the announcement of the judgment is the most common type of decision rendered by IPR criminal courts, even surpassing the number of convictions. This has been the same almost every year since 2015. Thus, this annulment decision is likely to affect criminal trials related to IPRs before all else.
The effects of this annulment decision for criminal trials related to IPRs will be seen more clearly in the coming days. As the effective date of the annulment decision was postponed for one year, it is to be seen what kind of new mechanisms will be put in place by the lawmakers. It is clear that the new provisions must be more transparent, respectful to fundamental human rights and predictable in terms of consequences.
1 (AYM, E.2022/120, K.2023/107, 01/06/2023, § ...)
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