Request For Reversal In Favor Of The Law – Decision On Postponement Of Execution Upon The Request Of The Convict
T.C. JUDICIARY
10th Criminal Chamber
Main: 2014/2577
Decision: 2014/2611
Date of Decision: 14.04.2014
CRIME OF TRAFFICKING IN NARCOTIC SUBSTANCES – REQUEST FOR REVERSAL IN THE INTEREST OF THE LAW – POSTPONEMENT OF EXECUTION UPON THE REQUEST OF THE CONVICT – NEED TO DECIDE TO REJECT THE APPEAL AGAINST THE DECISION OF THE EXECUTION JUDGE – JUDGMENT REVERSED
SUMMARY: In 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>, the Chief Public Prosecutor’s Office, which carries out the execution, is given the right of discretion in deciding on the request for postponement of execution, and no legal remedy is foreseen against the decisions made by the Chief Public Prosecutor’s Office on the request for postponement of execution, without taking into account that the convict’s defense counsel H… While the objection against the decision of the Execution Judgeship should have been rejected, the acceptance of the objection and the decision to postpone the execution of the prison sentence of the convict is contrary to the law and the request for reversal in favor of the law is therefore deemed appropriate.
(5237 S. K. art. 52, 62, 188, 191) (5275 S. K. art. 17, 98) (5271 S. K. art. 309) (12th CD. 14.11.2011 T. 2011/11301 E. 2011/4822 K.)
Case: Upon the request of the Supreme Ministry of Justice for the reversal of the decision dated 07.11.2013 and numbered 2013/1054 different business dated 07.11.2013 regarding the acceptance of the objection made by the Hatay 2nd Assize Court during the execution phase of the verdict against Y.H., convicted of the crime of drug trafficking, it was understood that the file was sent to our Chamber in the annex of the notification letter of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 07.02.2014.
The file was examined.
The Necessity was discussed and considered:
Decision: From the examined file;
a) The convicted Y.H. was sentenced to 2 years and 1 month imprisonment and 1000 TL judicial fine by Hatay Heavy Penal Court on 03.05.2007 with the number 2007/104 main and 2007/422 decision, pursuant to Articles 188/3, 191/3, 62 and 52 of the Turkish Penal Code, for the crime of drug trafficking, and the verdict became final,
b) During the execution phase, the convict’s request for the postponement of the execution of the prison sentence for 6 months in accordance with Article 17 of the Law No. 5275 was rejected by the Hatay Chief Public Prosecutor’s Office on 26.09.2013 with the decision numbered 2013/1458,
c) Upon the objection of the defense counsel of the convicted person to the decision of rejection of the request for postponement of execution, Hatay Execution Judgeship decided on 11.10.2013 with the decision number 2013/2151 main and 2013/2136 decision on 11.10.2013 that since there is no legal remedy against the decision of rejection of the request for postponement of execution given by the public prosecutor, it is not necessary to decide on the request of the defense counsel of the convicted person,
d) Upon the objection of the convict’s defense counsel to the decision of the Hatay Execution Judgeship, the Hatay 2nd Assize Court accepted the objection on 07.11.2013 with the number 2013/1054 different work and decided to annul the decision of the Hatay Execution Judgeship dated 11.10. 2013 dated 11.10.2013, the rejection decision of Hatay Chief Public Prosecutor’s Office dated 26.09.2013 in line with the request of the convict’s defense counsel was lifted and it was decided to postpone the execution of the convict’s prison sentence of 2 years and 1 month from 28.09.2013 until 28.03.2014 in accordance with Article 17/1 of the Law No. 5275.
It is understood that
In the request for reversal in favor of the law and the notification letter, <As stated in the decision of the 12th Criminal Chamber of the Court of Cassation dated 14/11/2011 and numbered 2011/11301, 2011/4822 As stated in the decision of the 12th Criminal Chamber of the Court of Cassation on a similar issue dated 14/11/2011 and numbered 2011/11301, 2011/4822, the provision of Article 98/1 of the Law on the Execution of Criminal and Security Measures No. 5275, which states that <If there is a hesitation in the interpretation or execution of the sentence of conviction, it is claimed whether the sentence will be partially or completely fulfilled, 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>, the provision of Article 17 of the same Law. Article 17 of the same Law does not cover the objections to the rejection decisions given by the prosecutor’s offices on the requests for postponement of execution, which is granted to convicts sentenced to imprisonment for three years or less, 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. Article 98 of the Law No. 5275 does not require a decision from the court, and the rejection decisions given by the prosecutor’s offices regarding the rejection of the request for postponement of execution will not be objectionable, it was not deemed inappropriate to decide to reject the objection as written instead of accepting it.>, and it was requested that the decision of Hatay 2nd Assize Court dated 07.11.2013 be reversed for the benefit of the law.
In the request for reversal in favor of the law; although it is stated that it is not deemed inappropriate for the authority to decide to reject the objection, it is understood that the objection was accepted in the concrete case.
Conclusion In 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>, the Chief Public Prosecutor’s Office, which carries out the execution, is given the right of discretion in deciding on the request for postponement of execution, without considering that no legal remedy is foreseen against the decisions made by the Chief Public Prosecutor’s Office on the request for postponement of execution, the convict’s defense counsel’s objection to the decision of the Hatay Execution Judgeship dated 11.10. 2013 dated decision of the Hatay Execution Judgeship, it is against the law to accept the objection and decide to postpone the execution of the convict’s prison sentence, and since the request for reversal in favor of the law is therefore deemed appropriate; The decision of the Hatay 2nd Assize Court dated 07.11.2013 and numbered 2013/1054 amended numbered decision of the Hatay 2nd Assize Court dated 07.11.2013 and numbered 2013/1054 amended numbered decision in accordance with paragraph 3 of Article 309 of the Code of Criminal Procedure No. 5271. It was unanimously decided on 14.04.2014 to send the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be forwarded to the said Court in order to take the necessary actions in accordance with subparagraph (a) of paragraph 4 of Article 309 of the same Law.