Constitutionality Review

Contested Provision

The contested provision stipulates that in cases where the accused person is sentenced to imprisonment for a term of up to two years or a judicial fine, the court may suspend the pronouncement of the judgment (the suspension procedure).

Grounds for the Request for Annulment

It was maintained in brief that the suspension procedure does not afford adequate safeguards against restrictive and arbitrary practices by public authorities in the field of fundamental rights and freedoms; that the contested provision leads to de facto impunity, in breach of the State’s positive obligations to ensure the effective exercise of the right to protect and improve one’s corporeal and spiritual existence; and that it undermines the deterrent effect of criminal sanctions in respect of persons exercising public power. It was accordingly asserted that the contested provision is unconstitutional, on the grounds that the damage sustained by victims cannot be effectively redressed, that it places a disproportionate restriction on the right to property, and that it is incompatible with both the right to seek judicial review of the decision and the principle of equality before the law.

The Court’s Assessment

The first sentence of Article 231 § 5 of Code of Criminal Procedure (Law no. 5271), which governs the suspension procedure, was annulled by the Court in its decision of 1 June 2023 (no. E.2022/120, K.2023/107). 

In its decision, the Court held that the suspension procedure, in connection with impunity, gave rise to issues under the right to life and the prohibition of torture and ill-treatment, and that it constituted an interference with several fundamental rights and freedoms, notably the freedom of expression and the right to hold meetings and demonstration marches. Nor did the suspension procedure afford adequate safeguards against arbitrary practices by public authorities. 

The Court further noted that the preclusion of the accused’s statutory opportunity to lodge an appeal, in the absence of a valid waiver, prior to the delivery of the judgment restricted both the right to seek judicial review of the judgment and the right of access to a court. The Court noted that a waiver relating to a particular legal remedy, made at a stage prior to the delivery of the judgment by the court, did not satisfy the constitutional requirements for a valid waiver, and that there was no procedural safeguard whereby the accused would be asked, following a conviction, whether he/she consented to the suspension of the pronouncement of the judgment. It accordingly concluded that the contested provision failed to fulfil the legality requirement and placed an excessive burden on the accused, thus being disproportionate.

The Court also observed that a confiscation order, which resulted in the transfer of the property to the State following the conclusion of the criminal proceedings, restricted the right to property. It noted that under the contested provision, the execution of such a confiscation order became possible along with the decision suspending the pronouncement of the judgment. It further found that the absence of adequate safeguards in the relevant legislation in this regard imposed an excessive burden on the property owners.  

On the other hand, the Court further stressed that a decision suspending the pronouncement of the judgment did not constitute a criminal conviction by its very nature, but placed the individual under the threat of a criminal sanction. It further noted that as established in the Court’s previous case-law, the application of the suspension procedure in cases of alleged ill-treatment would result in the accused not being subjected to an enforceable sentence. Considering that the application of this procedure did not require either the victim’s consent or the provision of any form of non-pecuniary redress, the Court held that such a decision could not afford the victim adequate and effective redress.

The Court also stated therein that in cases that treatment contrary to Article 17 of the Constitution was inflicted by third persons rather than by public officials, a more flexible approach may be adopted under the State’s positive obligations. However, where the perpetrator was a public official, it must be demonstrated that any unlawful and flagrant act cannot be tolerated under any circumstances. In this regard, the Court noted that the absence of any statutory provision precluding the application of the suspension procedure to offences committed by public officials in relation to their duties, and to offences regarded as torture, torment or ill-treatment under the relevant provision of the Constitution, as well as the absence of any mechanism in criminal courts to address this legal gap, was incompatible with the procedural obligation imposed on the State by Article 17 of the Constitution.

Turning to the contested provision in the present case, enacted subsequent to the Court’s above-mentioned annulment decision, the Court has noted that it likewise regulated the suspension procedure. With the amendment introduced by Law No. 7499 on Amendments to the Code of Criminal Procedure and Certain Laws, the legislator adopted a distinct procedural framework concerning confiscation under Article 231 of Law no. 5271. It further appears that, albeit the application of the suspension of the pronouncement of the judgment is not contingent upon the consent of the accused, paragraph 12 of the contested provision provides an avenue for lodging an appeal against a decision suspending the pronouncement of the judgment, thereby allowing appellate review also in respect of alleged unlawfulness on the merits. Accordingly, the contested provision does not contain any provision compelling the accused to waive the appellate remedy and other safeguards inherent in the right to a fair trial.

However, as stated by the Court in its previous annulment decision, no regulation has been introduced to exclude the application of the suspension procedure to the offences committed by public officials in relation to their duties, nor to offences classified as torture, torment, or ill-treatment under Article 17 of the Constitution. Given the absence of any such regulation in line with the findings set out by the Court in its annulment decision, it is evident that the contested provision gives rise to the same legal consequences as the annulled provision in respect of the very same offences. In this regard, the Court has concluded that the contested provision is incompatible with the State’s procedural obligation under Article 17 of the Constitution to ensure the imposition of penalties commensurate with the offenders’ actions and provision of suitable redress to victims.

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