Appeal Examinations In Criminal Procedure
The time limit for filing an appeal is 7 days. If the judgement is pronounced face to face, this period starts from the date of pronouncement. If the announcement of the judgement was made in absentia, the period must start from the date of notification of the judgement. By filing the appeal application within the time limit, the finalisation of the judgement is prevented.
ADMISSIBILITY REVIEW OF THE FILE
The petition for appeal shall be submitted to the court of first instance that rendered the judgement. Court of first instance that rendered the judgement first conducts an admissibility examination, called the first examination, on the petition of appeal. The admissibility review aims to reject the appeal request without sending it to the Regional Court of Appeal by determining the situations that cannot be appealed in some respects.
According to Article 276 of the Code of Criminal Procedure, the court of first instance, which renders the judgement, rejects the request for appeal after the admissibility examination in the following cases
The application is made by exceeding the 7-day legal period,
T.he application is made against a judgement against which an appeal cannot be filed,
The appeal is lodged by a person who is not entitled to lodge such an appeal,
In such cases, the court of first instance decides to reject the appeal request. As a result of the admissibility examination; if the request is rejected, those concerned may apply to the Regional Court of Justice within 7 days from the notification of the rejection decision and request a decision on this matter.
If the court of first instance that rendered the judgement does not reject the request for appeal as a result of the admissibility examination, the case file shall be sent to the Regional Court of Justice. A copy of the petition of appeal is notified to the other party and the other party may respond in writing within 7 days from the date of notification. It should also be noted that appeals in criminal cases are not subject to fees.
HOW IS THE EXAMINATION CARRIED OUT AT THE REGIONAL COURT OF JUSTICE?
After the file passes the admissibility examination by the court of first instance, it is referred to the relevant criminal department of the Regional Court of Justice. However, here, a preliminary examination is conducted on the file before entering the merits of the file. As a result of the preliminary examination decision;
If it is understood that the regional court of justice is not competent, the file shall be sent to the competent regional court of justice by issuing a decision of lack of jurisdiction.
If it is understood that the application is not made within the time limit, that the judgement is one of the decisions that the regional court of appeal is not authorised to review, or that the applicant does not have the right to apply, the appeal application is rejected. There is an appeal against the rejection decision.
In cases where the preliminary examination does not result in a decision of lack of jurisdiction or rejection, the substantive examination shall proceed. During the substantive examination, the file and evidence are examined by the regional court of justice and various decisions may be made as a result of the examination.
.
Article 280 of the Code of Criminal Procedure regulates in detail the decisions that the Regional Court of Appeal may make. According to the said article, the Court of Appeal may make the following decisions as a result of the appeal examination:
Rejection of the appeal application on the merits (approval),
To dismiss the appeal by correcting the illegalities,
At the end of the appeal examination, if there is a reason of illegality specified in Article 289 of the Code of Criminal Procedure (such as a definite reason of illegality-absolute reason for reversal), the judgement shall be reversed and the file shall be sent to the local court for a new decision,
In other cases, after taking the necessary measures, the court may order that the case be retried and that the trial preparation proceedings be commenced.
REJECTION OF THE APPEAL ON THE MERITS (UPHOLDING)
As a result of the examination on the merits by the Regional Court of Appeal;
There is no violation of law in the decision of the court of first instance,
There is no deficiency in the evidence and procedures,
That the assessment is appropriate in terms of proof,
If it reaches the opinion of the Court of First Instance, it decides to reject the appeal application on the merits. With the decision to reject the appeal on the merits, the judgement of the court of first instance is approved by the Regional Court of Appeals.
In the event that the appeal application is rejected on the merits, the person requesting appeal may apply for an appeal to the Court of Cassation for the criminal case, if there are conditions. However, if the decision of the Court of Appeal is one of the decisions that cannot be appealed, the decision of the local court becomes final with the decision of the Regional Court of Appeal.
REJECTION OF THE APPEAL APPLICATION ON THE MERITS BY CORRECTING THE VIOLATION OF LAW
If, as a result of the examination made by the Regional Court of Appeal, a violation of law has been determined, but this violation of law is considered as a simple error that does not require a retrial, in this case, the Regional Court of Appeal decides to reject the appeal application on the merits by correcting the violation of law.
The aim here is to complete the proceedings within a reasonable time by ensuring the finalisation of the decision without the need for a retrial due to simple errors. The decision to reject the appeal application by correcting the violation of law is possible in the following cases: (Article 303 of the Code of Criminal Procedure)
If it is necessary to acquit or dismiss the case without further clarification or to impose a fixed penalty with no lower or upper limit,
If only the article number of the law is written incorrectly, although the elements, nature and penalty of the offence found fixed by the court are shown correctly in the judgement,
İf the law that entered into force after the judgement has reduced the penalty for the offence and the court has not accepted the reason for the increase in determining the penalty to be imposed on the defendant or if the act has been decriminalised by a new law, a lesser penalty should be imposed in the first case and no penalty should be imposed in the second case,
In the determination of the sentence to be imposed according to the clearly established dates of birth and offence of the accused, the necessary reduction has not been made or the wrong reduction has been made,
If a material error has been made in determining the duration or amount of the penalty to be imposed as a result of the increase or reduction,
.
İf an incomplete or excessive sentence is imposed due to failure to observe the order in Article 61 of the Turkish Penal Code,
If there is a violation of the provisions of the Law on Fees and the provisions regarding the costs of the proceedings and the fee tariff regulated according to the Law on Attorneys,
In the event that the public prosecutor considers it appropriate to apply the lowest degree of the penalty written in the law for the offence subject to conviction in accordance with the reason for the application for appeal,
İn cases requiring a lesser penalty or a decision not to impose a penalty due to personal reasons or personal reasons for impunity that require a reduction in the penalty or a reduction in the penalty without the need for further investigation,
In cases where the case should be dismissed without further investigation of the case or the erroneous decision regarding security measures should be corrected
The Regional Court of Appeal may issue a decision to reject the appeal application by correcting the violation of law (corrected approval).
REVERSAL OF JUDGEMENT
The decision to overturn the judgement indicates the existence of a definite contradiction to the law in the judgement rendered by the court of first instance. In cases where a decision is made to overturn the judgement, the file shall be sent to the court of first instance that rendered the judgement or to another court of first instance that it deems appropriate in its own jurisdiction in order to be re-examined and a judgement shall be rendered.
The reasons for the violation of law for which a decision to overturn the judgement shall be given are as follows
The court was not constituted in accordance with the law,
Participation in a judgement by a judge who is prohibited by law from exercising his/her judicial functions,
The judge participates in the judgement even though a request for recusal on the grounds of valid suspicion has been put forward and this request has been accepted, or this request has been rejected in violation of the law and the judge participates in the judgement,
The court considers itself competent or authorised to hear the case contrary to the law,
Hearing in the absence of the public prosecutor or other persons who are legally required to be present at the hearing,
Violation of the rule of clarity in the judgement rendered after a hearing,
The judgement is based on evidence obtained through unlawful methods.
According to Article 284 of the Code of Criminal Procedure, the court of first instance is prohibited from resisting the decisions of the Court of Appeal. In other words, in cases where the verdict is reversed, the court of first instance cannot not apply the decisions of the Court of Appeal and cannot resist the correctness of its own decision. It is required to re-establish a new judgement on this issue.
DECISION ON RETRIAL OF THE CASE
If the Regional Court of Appeal, as a result of the appeal examination, deems it possible to make a new decision by itself through a prosecution without the need to overturn the decision of the local court, it is decided to retry the case after the necessary measures are taken. In cases where a decision is made to retry the case, the regional court of appeal shall prepare for the hearing and retry the proceedings within its own structure.
In the trial preparation stage, the date of the hearing is determined and the necessary calls are made for the hearing. If deemed necessary, the court may also decide to hear witnesses and experts and to conduct discovery. The fact that the main purpose of the legal remedy of appeal is to reveal the material truth allows the hearing of witnesses and experts and discovery at this stage.
At the hearing stage in the Regional Courts of Appeal; the examination report of the assigned member, the reasoned judgement of the court of first instance, the minutes containing the statements of the witnesses heard in the court of first instance, the minutes of the discovery and the expert report, the evidence and documents collected during the trial preparation phase of the Regional Court of Appeal, the minutes and reports regarding the discovery and expert explanations, if any, are explained and the witnesses and experts who are decided to be heard are called.
.
In addition, as regulated by the 1st Judicial Package, which entered into force on 17.10.2019, “In the event that the defendant, defence counsel, participant and his/her attorney do not come to the hearing despite the notification of the invitation, the trial may be continued and the case may be concluded in their absence by explaining the minutes of the defendant’s interrogation. However, without prejudice to the provisions of Article 195, if the penalty to be imposed on the defendant is heavier than the penalty imposed by the court of first instance, the defendant must be heard in any case.”
If the decisions rendered by the regional court of appeal are in favour of the defendant, if there is the possibility of applying these matters to other defendants who have not filed an appeal, these defendants shall also benefit from the decisions rendered as if they had filed an appeal. Thus, other defendants will also benefit from the favourable regional court of justice decision.
WHERE SHOULD THE APPEAL APPLICATION BE MADE?
The application for appeal shall be made to the court that rendered the judgement. However, applying to another court by mistake does not cause loss of rights. That court must send the application to the court that issued the judgement. The statement made to the minutes clerk is recorded in the minutes. The record must also be approved by the judge.
PROHIBITION OF CHANGE AGAINST IN APPEAL
At the end of the hearing, the regional court of appeal may decide to dismiss the appeal on the merits, or may annul the judgement of the court of first instance and re-establish a new judgement. According to the prohibition called the prohibition of reversal in case of re-establishing a new judgement; if the application for appeal has been made only in favour of the defendant, the new sentence cannot be heavier than the sentence determined in the previous judgement.
You can access our other article examples and petition examples by clicking here.