The Decision That The Law Has Given The Chief Public Prosecutor’s Office The Right Of Discretion To Decide On Postponement And Interruption Of Execution
T.C. JUDICIARY
8th Criminal Chamber
Basis: 2013/12392
Decision: 2013/24256
Date of Decision: 03.10.2013
CRIME OF OPPOSITION TO LAW NO. 6136 – THE LAW GRANTS THE RIGHT OF DISCRETION TO THE PUBLIC PROSECUTOR’S OFFICE CONDUCTING THE EXECUTION TO DECIDE ON POSTPONEMENT AND INTERRUPTION OF EXECUTION – THE EXECUTION JUDGE DOES NOT HAVE THE AUTHORITY TO REVIEW THE OBJECTION AND THEREFORE THE REQUEST SHOULD BE REJECTED
SUMMARY: Article 5275 of the Law No. 5275 on the Execution of Criminal and Security Measures titled <Postponement of Execution at the Request of the Convicted Person> gives the Chief Public Prosecutor’s Office, which carries out the execution, the right of discretion in terms of deciding on postponement and interruption of execution, Since there is no legal remedy against the positive or negative decision made by the Chief Public Prosecutor’s Office on the request for the postponement of the execution, and since the Execution Judge does not have the authority to examine the objection, considering Article ½ of the Law No. 4675, it required a reversal to decide on “postponement of the execution” while the request should be rejected.
(5275 S. K. art. 17)
Case and Decision: During the execution of the decision of Diyarbakır 1st Criminal Court of First Instance dated 11.10.2011 and numbered 2010/121, 2011/760, sentencing the defendant C. T. to 10 months imprisonment and a judicial fine of 500,00 Turkish Liras pursuant to Article 13/1 of the aforementioned Law and Articles 62 and 52 of the Turkish Penal Code No. 5237, during the execution of the decision of Diyarbakır 1st Criminal Court of First Instance dated 11.10.2011 and numbered 2010/121, 2011/760, the convict’s request to postpone the execution of the prison sentence for 6 months pursuant to Article 17 of the Law on the Execution of Criminal and Security Measures No. 5275 was rejected. Regarding the approved execution file containing the decision of the Diyarbakır Execution Judge dated 21.03.2013 and numbered 2013/923, 2013/985 on the acceptance of the objection to the decision of the Diyarbakır Chief Public Prosecutor’s Office dated 12.03.2013 and numbered 2013/2-226 regarding the rejection of the request to postpone the execution of the prison sentence for 6 months in accordance with Article 17 of the Law on the Execution of Criminal and Security Measures No. 5275;
Article 17 of the Law No. 5275 on the Execution of Criminal and Security Measures titled <Postponement of Execution at the Request of the Convicted Person>. Article 17 of the Law on the Execution of Criminal and Security Measures No. 5275 stipulates the conditions under which finalized sentences of conviction can be postponed, and the Chief Public Prosecutor’s Office conducting the execution is given the right of discretion in terms of making a decision on postponement or suspension of execution, and if the Chief Public Prosecutor’s Office conducting the execution has decided positively or negatively on the convict’s request for postponement of execution, since there is no legal remedy against this decision, it is stated that the execution judge did not see the decision to postpone the execution upon objection. Pursuant to Article 309 of the Law on the reversal of the aforementioned decision in accordance with Article 309 of the Supreme Ministry of Justice, General Directorate of Criminal Affairs’ request for reversal for the benefit of the law dated 29.05.2013 and numbered 34378 was submitted to our department with the notification of the Chief Public Prosecutor of the Court of Cassation dated 11.06.2013 and numbered KYB/2013-199269 and examined.
On behalf of the Turkish Nation
The necessary matters have been discussed and considered:
Article 17 of the Law No. 5275 on the Execution of Criminal and Security Measures titled <Postponement of Execution at the Request of the Convicted Person>. Article 17 of the Law on the Execution of Criminal and Security Measures No. 5275 titled <Deferral of Execution upon the Request of the Convicted Person> has given the Chief Public Prosecutor’s Office, which conducts the execution, the right of discretion to decide on postponement and suspension of execution, and since there is no legal remedy against the positive or negative decision made by the Chief Public Prosecutor’s Office on the request for postponement of execution, and since the Execution Judge does not have the authority to examine the objection, considering Article ½ of the Law No. 4675, the request should be rejected, while the request should be rejected, to decide <postponement of execution> as written,
Conclusion Since it is contrary to the law and the content of the notification of the Chief Public Prosecutor of the Court of Cassation based on the request of the Ministry of Justice for Reversal in Favor of the Law is deemed appropriate in this respect, it was unanimously decided on 03.10.2013 to revoke the decision of the Diyarbakır Execution Judge dated 21.03.2013 and numbered 2013/923-985 in accordance with Article 309 of the Code of Criminal Procedure, to fulfill the subsequent proceedings by the court, and to submit the file to the Chief Public Prosecutor of the Court of Cassation to be sent to its neighborhood.