BASIN DUYURUSU

15/02/2019

Plenary Assembly 4/19

Press Release Concerning the Decision Annulling the Provision Precluding the Appeal of Imprisonment Sentences of Up to Two Years Ordered for the First Time by the Court of Appeal

The Constitutional Court, at its session dated 27 December 2018, annulled the sub-paragraph (d) −which was amended by Article 78 of Law no. 6545 and dated 18 June 2014− of Article 286 § 2 of the Code of Criminal Procedure no. 5271 and dated 4 December 2004, which was amended by Article 20 of Law no. 7035 and dated 20 July 2017 (file no. E.2018/71).

Contested Provision

In the impugned provision, it is set forth that any kind of decisions rendered by the court of appeal in respect of offences that are within the jurisdiction of the first instance courts and punishable by imprisonment sentence with an upper limit of two years as well as judicial fines imposed in relation thereto cannot be appealed.

Grounds for the Requests for Annulment

In the petition, it is maintained that conviction decisions rendered by the penal chamber of the court of appeal on appeal of the acquittal decision given by the first instance court are unappealable, which precludes recourse to appeal remedy against the initial conviction decision. It is therefore claimed that the provision is unconstitutional.  

The Constitutional Court’s Assessment

The right to legal remedies safeguarded by Article 36 of the Constitution is the primary indispensable legitimate means aiming at the protection of rights. The right to legal remedies also safeguards the right to request judicial review of the verdict which guarantees the opportunity to request review and control, by another judicial authority, of a verdict given to the detriment of a person.

It is within the legislator’s discretionary power to decide whether the judicial review will be limited to only ascertaining whether the provisions of law have been implemented accurately or will also cover the assessment of material facts. In this respect, there is no constitutional obligation prescribing that judicial review of a verdict shall also cover the assessment of material facts. Vesting the judicial authority to carry out such review with the authority to inspect whether the provisions of law have been accurately implemented may be considered sufficient for the fulfilment of the constitutional obligation concerning the right to request judicial review of the verdict.

This right may be made subject to certain restrictions by the legislator provided that they are in compliance with the criteria set out in Article 13 of the Constitution.

Besides, it must be noted that the scope and limit of the right to request judicial review of the verdict in the field of criminal law will not be same with its scope and limit in the other fields. Accordingly, this right is widely applicable in the field of criminal law where there are more severe interferences with individuals’ fundamental rights and freedoms, whereas it may be implemented in a more flexible manner in the other fields.  

Pursuant to subparagraph (d) where the contested provision is set out, any kind of decisions rendered by the court of appeal in respect of offences that are within the jurisdiction of the first instance courts and punishable by imprisonment sentence of up to two years as well as in respect of judicial fines imposed in relation thereto cannot be appealed. The phrase “any kind of decisions rendered by the court of appeal” included in the provision indicates that there is no distinction in respect of the nature of the decisions. Accordingly, the contested provision both precludes the opportunity to appeal the upholding decision rendered upon the conviction decision of the first instance court and excludes, from the scope of appeal remedy, the upholding or conviction decisions rendered upon the acquittal decision.  

The appellate review to be conducted by the court of appeal on appeal of the conviction decisions rendered by the first instance court and concerning offences punishable by imprisonment sentence of up to two years and judicial fines imposed in relation thereto affords a guarantee for the right to request judicial review of the verdict. Through this remedy, an individual may have a first instance decision against him reviewed by an upper court. Accordingly, not providing the accused with the opportunity to appeal the decision rendered by the court of appeal does not constitute a restriction for the right to request judicial review of the verdict.  

However, that is not the case where the court of appeal renders a conviction decision against the accused upon the appeal of the acquittal decision rendered by the first instance court. In this case, there is no conviction decision that has been already rendered by the first instance court.

At a stage where there is not yet an unfavourable verdict, safeguards inherent in the right to request judicial review of verdict shall not be applicable. Safeguards afforded by this right shall become effective only when an unfavourable verdict is given for the first time. Therefore, in cases where the acquittal decision is quashed by the court of appeal and the accused’s conviction is ordered for the first time, the accused becomes entitled to the right to request judicial review of the verdict by another court.  In this sense, it is obvious that making the initial conviction decision against the accused not subject to appeal restricts the right to request judicial review of the verdict.

The right to request judicial review of the verdict, which is safeguarded by Article 36 of the Constitution, is not for sure an absolute right which can in no way be restricted. This right may be restricted by virtue of the rights and freedoms enshrined in the other articles of the Constitution as well as duties imposed on the State. However, legal arrangements introducing restriction on this right must not infringe upon the very essence of the right as well as must comply with the grounds of restriction prescribed in the Constitution and be proportionate.

It appears that the intent of the contested provision, which entails that any kind of decisions rendered by the court of appeal in respect of offences that are within the jurisdiction of the first instance courts and punishable by imprisonment sentence of up to two years as well as in respect of judicial fines imposed in relation thereto cannot be appealed, is to ensure the conclusion of proceedings within a reasonable time and to comply with the principle of procedural economy.

It is of great importance that verdicts restricting liberty must be subject to review. As a matter of fact, certain verdicts ordering conviction may also result in the accused’s deprivation of enjoying certain rights including becoming a civil servant. However, final nature of the convictions imposed on account of petty offences may be considered as a proportionate restriction in respect of the right to request judicial review of the verdict. Nevertheless, offences punishable by a sentence restricting liberty cannot be said to be petty.

It is obvious that even if for concluding the proceedings within a reasonable time and ensuring procedural economy, making the conviction decisions involving imprisonment sentence not subject to judicial review will put an excessive burden on the accused. The individual interest to be obtained through the review of the conviction decision restricting liberty is not outweighed by the right to a trial within a reasonable time and the principle of procedural economy.

In this respect, it has been concluded that the lack of opportunity to ensure review of the initial conviction decisions rendered by the court of appeal and restricting liberty imposes a disproportionate restriction on the right to request judicial review of the verdict.

The contested provision precludes appeal of not only the court of appeal’s decisions upholding the acquittal decision of the first instance court, which does not restrict the right to request judicial review of the verdict, but also of its decisions which quash the acquittal decision of the first instance court and orders the accused’s initial conviction.

Accordingly, the provision −which sets forth that any kind of decisions rendered by the court of appeal in respect of offences punishable by imprisonment sentence of up to two years (including two years) and judicial fines imposed in relation thereto cannot be appealed, without making any distinction between the decisions upholding the conviction decision of the first instance court and the decisions ordering initial conviction upon the quashing of the acquittal decision− must be annulled as a whole.

For the reasons explained above, the Court found the impugned provision in breach of Article 36 of the Constitution and accordingly annulled it.     

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