23/9/2022

Press Release No: Constitutionality Review 45/22

Press Release concerning the Decision Annulling the Provision Allowing for A Challenge against Decisions of Suspension of the Pronouncement of Judgment

The Constitutional Court, at its session dated 20 July 2022, found unconstitutional and annulled (12) paragraph of Article 231 of Criminal Procedure Code (the Law no. 5271), added by Article 23 of the Law no. 5560 and held that the relevant decision would be effective after nine months as from the date of its publication in the Official Gazette (file no. E.2021/121).

Contested Provision

The contested provision clearly envisages a remedy to challenge the decisions of suspending the pronouncement of judgment.

Ground for the Request for Annulment

It was maintained in brief that the impugned provision was unconstitutional since pursuant to the Law no. 5271, the decisions of suspension of the pronouncement of judgment should not yield legal consequences; despite this fact, laws and regulations have been enacted that enables the decisions of suspension of the pronouncement of judgment to have legal consequences; the examinations as to the challenges against the decisions of suspension of the pronouncement of judgment was in principle are conducted over the case file and no examination as to the merits has been carried out; in this case, the right to appeal, right to an effective remedy and right to a fair trial were violated; and in this respect, the decisions of suspension of the pronouncement of judgment indicating that the relevant individual committed an offence were not subjected to a legal remedy in the real sense and these decisions should be subjected to an appeal examination.

The Court’s Assessment

Although the decisions of suspension of the pronouncement of judgment are an institution recently introduced into the Turkish legal system, they have become a widely practised institution. According to data of 2020 disclosed by the Ministry of Justice General Directorate of Criminal Records and Statistics, about one fourth of the conviction decisions ruled by the criminal courts consists of the decisions of suspension of the pronouncement of judgment.

The existence of a possibility to challenge the decisions of suspension of the pronouncement of judgment, a remedy that has been widely employed in the Turkish legal system, remain insufficient on its own due to the manner of its current implementation. In addition to this possibility, the remedy to challenge must also offer prospects of success in practice. The lack of such a procedure concerning the regime of direct restriction on the fundamental rights and freedoms amounts to the failure to provide the procedural guarantees as to the procedural law of the provision from which the interference derives from.

Having found violations in the individual applications filed within this context, the Constitutional Court assessed in these decisions that the appellate authorities had not considered the applicant’s allegations and evidence; had not exerted efforts to struck a balance between conflicting interests; and had not assessed whether the interference had been necessary in a democratic society and whether it had been proportionate. It has been observed that the appellate authorities in the current system render their decision regarding the challenges against the decisions of suspension of the pronouncement of judgment over the case file in a uniform manner and provide formalistic grounds for their decisions by simply indicating that the decisions of the first instance courts were not in breach of the law and therefore the challenge should be dismissed.

The regulation allowing for a challenge against the decisions of suspension of the pronouncement of judgment also foresees a certain and effective judicial review in ensuring the assessment of the allegations of the applicants making use of this remedy and the evidences, striking balance the competing interests, and determining whether the impugned interference with the fundamental rights and freedoms is compatible with the requirements of a democratic society and proportionate. This matter restricts the individuals’ right to request to apply to a competent authority in order to redress the interference with the fundamental rights and freedoms and to prevent arbitrary conducts of those entitled to use the public authority. As a matter of fact, it is observed that the provision in question could not be put into practice in a way that satisfies the above-mentioned aspects of the provision. The lack of such a procedure concerning the regime of direct restriction on the fundamental rights and freedoms is incompatible with the right to an effective remedy.

Consequently, the contested provision has been found unconstitutional and therefore annulled. 

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.