Decision On The Decision That The Request For Postponement Of Execution Is Not A Situation That Causes A Pause In The Calculation Of The Penalty To Be Served.
T.C. JUDICIARY
12th Criminal Chamber
Main: 2011/11301
Decision: 2011/4822
Date of Decision: 14.11.2011
THE CRIME OF CAUSING DEATH BY CONSCIOUS NEGLIGENCE – APPEAL AGAINST THE DECISION OF THE PUBLIC PROSECUTOR – POSTPONEMENT OF EXECUTION OF THE SENTENCE – THE REQUEST FOR POSTPONEMENT OF EXECUTION IS NOT A SITUATION THAT CAUSES HESITATION IN THE CALCULATION OF THE SENTENCE TO BE SERVED
SUMMARY: It is understood that the request of the convict’s defense counsel for the postponement of the prison sentence for six months, citing the school situation of the convict’s children, was rejected by the Chief Public Prosecutor’s Office, that the request for postponement of execution is not a situation that causes hesitation in the calculation of the sentence to be served and does not require a decision from the court specified in Article 98 of the Law No. 5275.
(5237 S. K. art. 22, 85) (5275 S. K. art. 17, 98)
During the execution of the sentence of 2 years and 6 months imprisonment imposed on the convicted O…. A… for the crime of causing death by conscious negligence, his objection against the decision of the Public Prosecutor not to accept his request for a 6-month postponement of the execution of the judgment against him according to Article 17/1 of the Law No. 5275 on the Execution of Criminal and Security Measures was rejected by the Public Prosecutor on the grounds that the decision of the execution prosecutor was not objectionable. Regarding the decision of the Kadıköy 1st Assize Criminal Court dated 14/12/2010 and numbered 2010/1391 müteferrik dated 14/12/2010 of the Kadıköy 1st Assize Criminal Court regarding the rejection of the objection made against the decision of the Criminal Court of First Instance dated 04/11/2010 and numbered 2010/209 değişik is;
Article 98/1 of the Law No. 5275 on the Execution of Criminal and Security Measures states that <If there is a hesitation in the interpretation or execution of the sentence, it is claimed whether the sentence will be fulfilled partially or completely, or if the law that comes into force afterwards is in favor of the convict, a decision is requested from the court that issued the sentence to eliminate the hesitation or to determine the sentence to be fulfilled>. In the face of Article 98/1, the rejection decisions given by the prosecutor’s offices on the requests for postponement of execution, which are granted to convicts sentenced to imprisonment for three years or less in Article 17 of the same Law, cause hesitations in the execution of the mentioned prison sentences and should be evaluated within the scope of Article 98. It is understood that it will be necessary to be evaluated within the scope of Article 98 and a decision will have to be made by the court that rendered the verdict in order to overcome the hesitation, and that it was not deemed inappropriate to decide to reject the objection to the rejection decision given by the prosecutor’s offices on the basis that the decisions regarding the postponement requests in question would not be appealable without going into the merits, instead of accepting the objection in this respect, in written form, in accordance with Article 309 of the Criminal Procedure Law No. 5271. Pursuant to Article 309 of the Criminal Procedure Law No. 5271, the reversal of the aforementioned decision has been notified to the department by the notification of the Supreme Court of Cassation Chief Public Prosecutor’s Office dated 29.06.2011 and numbered 215518, referring to the request of the Supreme Ministry of Justice for reversal in favor of the law dated 28.05.2011 and numbered 2011/30605, and the case documents have been submitted;
The file was examined and considered:
The request of the defender of the convict for the postponement of the prison sentence for six months, citing the school situation of the convict’s children, on the grounds that it would cause a heavy damage to the convict’s family outside the purpose of the conviction, was rejected by the Kadıköy Chief Public Prosecutor’s Office on 21.10.2010, the request for postponement of execution is not a situation that causes hesitation in the calculation of the sentence to be served and the request for a decision from the court specified in Article 98 of the Law No. 5275. Since it is understood that it is not obligatory to request a decision from the court specified in Article 98 of the Law No. 5275, it was unanimously decided on 14.11.2011 to reject the request for reversal in favor of the law, and to refer the file to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals for further action.