In a 9–5 judgment (E.2022/120, K.2023/107, June 1, 2023) published in Turkey’s Official Gazette on August 1, 2023, the Constitutional Court of Turkey struck down certain provisions of article 231 of the Criminal Procedure Code (CPC) that established the institution of “suspension of the pronouncement of the judgment” (SPJ) (or “deferment of the announcement of the verdict”). An SPJ decision allows criminal trial courts to suspend the pronouncement of a guilty verdict under certain circumstances. The court held that the first sentence of article 231/5 establishing SPJ was unconstitutional and annulled that sentence together with the rest of the paragraph and the following paragraphs that provided details of the SPJ procedure, finding that these provisions were not severable from the unconstitutional provision.
Overview of SPJ Decisions and Background to the Judgment
The SPJ was introduced by amendments made to the CPC in December 2006. According to article 231/5 of the CPC and its following paragraphs, a criminal trial court may decide to suspend the pronouncement of a sentencing judgment that imposes 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 not 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 to be granted the SPJ.
An SPJ decision suspends the filing of a conviction and any direct or collateral effects of a conviction for a mandatory five-year probationary period. The court may impose certain measures on the defendant for up to one year within the probationary period, such as requiring the defendant to attend occupational trainings and other programs and engage in supervised work, or prohibiting the defendant from entering a certain place. If the defendant does not commit an intentional crime within the five-year probationary period and complies with any measures the court has imposed, the court cancels the verdict and dismisses the case. If the defendant commits an intentional crime or violates the imposed measures, the court announces the verdict and the conviction becomes effective.
One important feature of the SPJ is that the trial court cannot issue an SPJ decision without the consent of the defendant. If the defendant does not consent to an SPJ decision, the court will pronounce its original sentence. (CPC art. 231/6.) The law does not specify at what point of the process the defendant must declare their consent, and the Constitutional Court noted that the law allows the trial court to require the defendant to declare their choice before the full presentation of the evidence in trial, or at least before the court reaches a verdict. (Judgment §§ 37–38.)
Another important feature of the SPJ is that SPJ decisions are not appealable, but only reviewable through the objection procedure under the CPC, meaning that they are reviewed by another first instance court instead of an appeals court. Originally, the reviewing court could review the SPJ decision only on procedural grounds. In a previous judgment (E.2021/121, K.2022/88, July 20, 2022), the Constitutional Court had unanimously struck down as unconstitutional the provisions of article 231/12 regarding the verdict review procedure on the grounds that it violated article 40 of the Turkish Constitution, which enshrines the right to apply before a competent authority for relief against violations of fundamental rights and freedoms. The court had postponed the annulment of the statute for nine months to give the legislature time to remedy the gap in the law that would be created by the annulment.
In response, the legislature amended article 231/12 to require the reviewing first instance court to review the SPJ decision on the merits. The amendment entered into force on April 5, 2023.
Judgment of the Constitutional Court
The majority of the court found that the institution of the SPJ as a whole violated the constitutional right to a fair trial enshrined in article 36 of the constitution, the right to property provided for in article 35, and the constitutional right to personal inviolability and protection of corporeal and spiritual existence enshrined in article 17, which incorporates the right not to be subjected to torture and inhuman or degrading treatment.
With regard to the right to a fair trial, the court found that while in principle a defendant may waive their rights to access to courts and to judicial review, the practice of trial courts to require the defendant’s consent to applying the SPJ to their case may cause the defendant to be pressured into uninformedly waiving their rights at a stage of the procedure where not all doubts regarding the material facts of the case have been resolved. Such uninformed and potentially forced consent to the application of the SPJ, the court found, does not satisfy the constitutional standard required from a waiver of the right to judicial review of the trial court’s judgment. (Judgment §§ 37–39.)
Regarding the right to property, the court found that the CPC’s provisions regarding the SPJ did not provide sufficient guidance about the disposition of property subject to criminal forfeiture during the suspension period. Combined with the unavailability of appeal, this lack of guidance resulted in a situation where SPJ decisions could interfere with the constitutional right to property without necessary guarantees in place. (Judgment §§ 46–48.)
Finally, with regard to the right not to be subjected to torture or inhuman or degrading treatment, the court found that because the law did not preclude the application of the SPJ in cases concerning torture or inhuman or degrading treatment perpetrated by public officials in connection with the performance of their official duties, this could lead to impunity for such offenses, which, according to the court, the state has a positive duty to prevent and remedy. Further, the court found that in practice, trial courts generally did not use their discretion to limit the application of the SPJ in such cases. The court concluded that under these circumstances, the SPJ rule violated the right not to be subjected to torture or inhuman or degrading treatment under article 17 of the constitution. (Judgment §§ 50–55.)
Accordingly, the court annulled article 231/5 and its following paragraphs establishing the institution of the SPJ. The court postponed the annulment of the provisions for a year from the judgment’s publication in the Official Gazette to give the legislature time to replace the SPJ before the annulment becomes effective.
Five justices dissented in a joint opinion arguing that the amendment to article 231/12 of the CPC requiring the reviewing court to review on the merits had cured the constitutional deficiency regarding the right to a fair trial under article 36 of the constitution. Furthermore, the justices argued that the application of the SPJ in a case could not be considered “impunity” under the relevant case law of the European Court of Human Rights, and that article 17 of the constitution did not require a casuistic exception for offenses concerning torture or inhuman or degrading treatment because penal policy decisions properly fall within the prerogative of the legislature. As the risk that the availability of the SPJ would sap the criminal law of its force as a deterrent against the abuse of police authority could be alleviated through proper use of discretion by trial courts, it did not give rise to a constitutional defect requiring annulment. (Dissenting opinion §§ 36, 43–45.)
Kayahan Cantekin, Law Library of Congress
August 18, 2023
Read more Global Legal Monitor articles.