On September 23, 2022, a judgment of the Constitutional Court of Turkey (E.2021/121, K.2022/88, July 20, 2022) (Judgment) invalidating the rule governing the judicial review of criminal court decisions suspending the pronouncement of the judgment was published in the Official Gazette.
Suspension of the pronouncement of the judgment (SPJ) is a noncustodial criminal sanction regime that can be imposed by a court at the sentencing stage. The SPJ was introduced by amendments made in the Criminal Procedure Code (CPC) in December 2006.
Overview of the SPJ
According to article 231 of the CPC, a criminal trial court may decide to suspend the pronouncement of a sentencing judgment imposing a prison sentence of two years or less, or an equivalent judicial fine, if the court believes that the offender will not reoffend.
Only offenders who have previously committed an intentional offense are eligible for an SPJ decision, and the offenders must compensate the victim or the public for the injuries sustained as a result of the offense in order to be granted the SPJ. The offender may refuse the SPJ, in which case the court will pronounce the sentence it originally assessed to be appropriate. (CPC art. 231/6.)
Significant features of the institution of the SPJ are that they are considered within the system of the CPC to be interlocutory decisions and not appealable to higher instance courts. Instead, in accordance with article 231/12 of the CPC, SPJ decisions are subject to review by another first instance court.
An offender who is granted an SPJ decision is subject to mandatory probation for five years; if the offender commits an intentional offense within the probationary period or violates the conditions ordered by the court, the court must pronounce judgment and the sentence will be executed. If the offender fulfills the five-year probationary period without another violation, the suspended judgment is voided and the criminal action is dismissed. (Art. 231/10.)
Judgment of the Constitutional Court
In its opinion the Constitutional Court found that the scope of the review of SPJ decisions was established in practice primarily because of contradictory high court decisions, with some courts reviewing SPJ decisions only for procedural errors and others conducting a review on the merits. (Judgment §§ 6–12.) Moreover, the Constitutional Court, citing several rights-violation judgments that it rendered in rights-violation cases stemming from the failure of courts to effectively review SPJ decisions (including its recent judgment in Atilla Yazar and others (B. No: 2016/1635, July 5, 2022), which was published a day earlier in the Official Gazette), found that reviewing courts typically neither properly considered the claims and evidence offered by the petitioner nor reviewed the SPJ decision in light of fundamental rights and freedoms. (§§ 18–29.) The court held:
The rule providing that decisions suspending the pronouncement of the judgment are [reviewable by another first instance court] does not provide an avenue for judicial review that is certain and effective in considering the claims and evidence put forward by petitioners, the balancing of the opposing interests, and the determination of whether the interference with the fundamental rights and freedoms are proportional and suitable in a democratic society. This violates the right granted to individuals to request means made available to them for applying to competent authorities for relief against infringements of their fundamental rights and freedoms and arbitrary conduct of those who wield public power. In fact, it is also observed that the rule in question is not applied in way that would fulfil such functions. The nonexistence of such judicial review, which is directly relevant to the constitutional regime regarding the limitations of fundamental rights and freedoms, is not respectful of the right to effective application for review. (Judgment § 30.)
Accordingly, the court invalidated article 231/12 of the CPC, which provides that SPJ decisions be reviewed in courts of first instance, as being in violation of the Turkish Constitution’s article 40, which enshrines the right to apply before a competent authority for relief against violations of fundamental rights and freedoms. The court postponed the invalidation of the statute for nine months, beginning from the day of the judgment’s publication in the Official Gazette, to give the legislature time to remedy the gap in the law that would be created by the invalidation.
The court’s holding was limited to article 231/12 of the CPC and did not affect the rest of the institution of the SPJ. In invalidation actions, the court is limited to the claims made in the constitutional challenge but may rule on matters beyond what is sought by the petitioner. In this case, the petitioner was a criminal trial court, which brought the case before the Constitutional Court via the “concrete norm review” procedure, whereby a court of ordinary jurisdiction may refer to the Constitutional Court for constitutional review a statute or provision of a presidential decree that it must apply if the court itself suspects its constitutionality or finds the constitutional challenge to the applicable provision raised by one of the parties to the pending dispute to be well grounded. (Constitution art. 152/1.) In the concrete norm review procedure, only a legal provision applicable in the pending case may be challenged.
The judgment of the Constitutional Court has led to an academic debate with an exchange of scholarly commentary among prominent Turkish legal scholars. Kemal Gözler, a constitutional law scholar and a legal positivist, argued that the court’s invalidation of article 231/12 on the grounds that courts were deficient in applying the article’s procedural rule was not a proper exercise of constitutional review because the Constitutional Court in the Turkish constitutional system is tasked with reviewing only the concordance of a norm with constitutional norms, not the norm’s application, and the article 231/12 provision, on its face, is not constitutionally defective. Moreover, Gözler argued that the legislature’s failure to make a law that is constitutionally desirable does not provide grounds for the court to invalidate that law. Gözler also pointed out that the legislature was under no constitutional obligation to make a law within the nine-month postponement period granted to the legislature by the court to avoid having a gap created by the invalidation of the law, and that should the legislature fail to make a new law, it would lead to a worse outcome, effectively replacing badly functioning judicial review with no judicial review.
Responding to Gözler’s commentary, Kerem Altiparmak, a human rights scholar, in a blog article written in support of the Constitutional Court’s judgment, argued that the application of a rule is contained in the content of the rule, and that the Constitutional Court should review the constitutionality of rules in light of their application in practice. Altiparmak also argued that the failure of the legislature to make a law insofar as it created a normative result should itself be considered a norm, and that the Constitutional Court could properly invalidate a law when doing so is based on the normative result of the nonexistence of the constitutionally requisite rule.Tolga Sirin, another constitutional scholar, contributed to this debate with a blog article that provided an overview of the theories of unconstitutionality by legislative omission, arguing that the Constitutional Court could invalidate an existent rule that is constitutionally insufficient. Sirin also argued that judicial practice (even if nonprecedental) should be considered as incorporated in the content of the norm even under a positivist perspective, and therefore the Constitutional Court should be able to invalidate a law on the basis of its unconstitutional application by courts.
Kayahan Cantekin, Law Library of Congress
October 28, 2022
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