Constitutionality Review

Contested Provision

The contested provision provides for the possibility of suspending the pronouncement of the judgment in the case of an accused person sentenced to up to a maximum of two years’ imprisonment or a judicial fine.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that the decision to suspend the pronouncement of the judgment did not provide an adequate remedy for the damage sustained by the victims, led to the impunity of the perpetrators and caused the State to fail in its obligation to protect and develop the corporeal and spiritual existence of the individual.

The Court’s Assessment

Suspension of the pronouncement of the judgment refers to the postponement, under certain conditions, of the pronouncement of the sentence (verdict of conviction) to be imposed at the end of the criminal proceedings. Before the verdict is delivered pending the proceedings, the accused is asked whether he/she consents to the suspension of the pronouncement of the judgment on the basis of his/her future conviction. In the contested provision, the conformity of the said institution with the constitutional guarantees relating to fundamental rights and freedoms has been assessed in the light of the Court’s previous findings on the functioning of the process whereby the pronouncement of the judgment is suspended.

The accused, who accepts the suspension of the pronouncement of the judgment at the beginning of the proceedings, cannot bring the question of whether the guarantees inherent in the right to a fair trial have been provided by the court of first instance before the appellate court for a review on points of fact and law in the later stages of the proceedings, which may lead to violations of rights. Proceedings which are intended to be subject to appeal on points of fact and law become subject to appeal if the accused accepts the institution of the suspension of the pronouncement of the judgment. By consenting to the decision to suspend the pronouncement of the judgment, the accused waives the right to appeal on points of fact and law. It has been understood that a waiver of a specific legal remedy at a stage prior to the pronouncement of the judgment does not meet the requirements of constitutional validity.

It has been assessed that the suspension of the pronouncement of the judgment also contains some incomplete provisions with regard to confiscation procedures. There is no clear legal provision as to the stage at which confiscation procedures will be carried out in the event of a decision to suspend the pronouncement of the judgment. It has been observed that there is uncertainty as to the timing of execution, since the execution of the confiscation order will become possible by the decision to suspend the pronouncement of the judgment, which suspends the possibility of filing an appeal on points of fact and law against the restriction of the right to property by confiscation. Accordingly, it has been concluded that this provision imposes an excessive burden on property owners, as it does not provide sufficient guarantees.

Furthermore, the decision to suspend the pronouncement of the judgment does not constitute a punishment, but merely places the person under the threat of punishment. Given this nature of the decision to suspend the pronouncement of the judgment, the Court has held in many of its previous judgments that the application of the suspension of the pronouncement of the judgment in relation to allegations of ill-treatment results in the accused not receiving an enforceable sentence and that, since the application of this institution does not require the consent of the victim or the provision of non-pecuniary redress to the victim, the said decision to suspend the pronouncement of the judgment does not provide an adequate and effective remedy for the victim.

Another assessment of the suspension of the pronouncement of the judgment concerns cases where the perpetrator is a public official. In cases where the perpetrator is a public official, it should be borne in mind that an unlawful and extremely serious act cannot be tolerated in any way. In this context, a public official who is found to have committed torture or ill-treatment should not go unpunished. It has been observed that there is no legal provision stating that the suspension of the pronouncement of the judgment does not apply to offences committed by a public official in the exercise of his/her duties, which are considered to be torture, inhuman or degrading treatment within the meaning of Article 17 of the Constitution. It has also been understood that the practice of the criminal courts has not been able to resolve this problem. This situation is incompatible with the obligation imposed on the State by the Constitution to impose penalties commensurate with the gravity of the acts committed by the perpetrators and to provide an adequate remedy for the victims.

In the light of these considerations, the Court has declared the contested provision unconstitutional and therefore annulled it, as well as the other provisions of Article 231 of Law no. 5271 regulating the decision to suspend the pronouncement of the judgment, which are no longer applicable as a result of the annulment of the contested provision, and has held that the annulled provisions would enter into force one year after the publication of the decision in the Official Gazette.