Decision On No Legal Remedies Against The Positive Or Negative Decision On The Request For Postponement Of Execution
T.C. JUDICIARY
8th Criminal Chamber
Main: 2015/12273
Decision: 2015/21050
Date of Decision: 07.09.2015
THE OFFENSE OF UNAUTHORIZED POSSESSION AND EXCHANGE OF DANGEROUS SUBSTANCES – NO LEGAL REMEDY IS FORESEEN AGAINST THE POSITIVE OR NEGATIVE DECISION ON THE REQUEST FOR POSTPONEMENT OF EXECUTION – REJECTION OF THE REQUEST FOR REVERSAL IN FAVOR OF THE LAW
SUMMARY: Article 17 of the Law No. 5275 on the Execution of Criminal and Security Measures titled “Postponement of Execution at the Request of the Convict” has granted the right of discretion to the Chief Public Prosecutor’s Office conducting the execution in terms of deciding 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 conducting the execution against the request for postponement of execution, and since the Execution Judge does not have the authority to examine the objection in accordance with Article 1/2 of the Law No. 4675, the decision of the Karaman Execution Judge dated 04. Considering that the decision dated 06.06.2015 is devoid of legal basis, the decision of the Karaman Assize Court dated 19.06.2015 with the amended work number 2015/413 is deemed to be correct and since the content of the notification issued by the Chief Public Prosecutor of the Court of Cassation based on the request of the Ministry of Justice for Reversal in the Interest of Law is not deemed appropriate, it has been decided to reject the request for Reversal in the Interest of Law.
(5275 S. K. art. 17) (5271 S. K. art. 309) (4675 S. K. art. 4, 5) (7th CD. 01.12.2014 T. 2014/17363 E. 2014/20586 K.)
Case and Decision: I. At. Ü., convicted of the offense of unauthorized possession and exchange of dangerous substances, was sentenced to the Ermenek As. Ü., during the execution of the sentence of 2 years and 6 months imprisonment imposed by the judgment of the Ermenek Criminal Court of First Instance dated 09.01.2013 and numbered 2010/107, 2013/12, upon the request of the convict’s attorney to postpone the execution, the execution of the convict had been postponed twice before, and he did not meet the conditions specified in Article 17/4 of the Law No. 5275 on the Execution of Sentences. The Karaman Chief Public Prosecutor’s Office’s decision dated 18.05.2015 and numbered 2014/3360 regarding the rejection of the objection to the decision of the Karaman Execution Judge dated 04. 06.06.2015 dated 2015/258 main, 2015/268 numbered decision was objected by the convict’s attorney, regarding the file covering the decision of the (KARAMAN) Assize Court dated 19.06.20.5 and numbered 2015/413 different business dated 19.06.20.5 that there is no need to make a decision on the objection, since Article 17 of the Law No. 5275 does not regulate a legal remedy against the decisions taken by the prosecutor’s office regarding the postponement requests, and the decision of the execution judge does not have legal effect;
As stated in the decision of the 7th Criminal Chamber of the Court of Cassation dated 01.12.2014 and numbered 2014/17363-20586 due to a similar incident, according to Article 17/4 of the Law No. 5275 on the Execution of Sentences, after the execution of the sentence is started, in the compulsory and urgent cases listed in the paragraph, there is a regulation that the Chief Public Prosecutor’s Office may interrupt the execution for periods not exceeding 6 months, but there is no specific regulation on whether this decision can be appealed against if the request is rejected, and if so, which authority can be appealed. In Article 4, paragraph 2 of the Law No. 4675 on the Execution Judgeship, the duty of examining and deciding on the complaints regarding the execution of the sentences of the convicts … is listed among the duties of the execution judgeship, according to Article 17/4 of the Law No. 5275 on the Execution of Sentences. According to Article 17/4 of the Law No. 5275 on the Execution of Sentences, after the execution of the sentence is started, in case the request for suspension of execution is rejected by the Chief Public Prosecutor’s Office in the compulsory and urgent cases listed in the paragraph, a complaint can be filed to the execution judge in accordance with Articles 4 and 5 of the Law No. 4675, which is in the nature of a general provision against this transaction, in Article 6/5-6 of the same Law titled decisions made on the complaint “against the decisions of the execution judge, the complainant or the relevant Public Prosecutor may file an urgent appeal against the decisions of the execution judge within one week from the notification in accordance with the provisions of the Code of Criminal Procedure.
The objection shall be filed to the heavy criminal court in the place where the execution judge’s office is established, or to the chamber numbered (2) if the heavy criminal court has more than one chamber. If the execution judge is also a member of this court, he/she cannot participate in the decision regarding the objection.” Since the provisions in the form of provisions are included, it is not seen to be inaccurate to make a decision in the written manner, without considering that the authority should decide on the objection, it is mentioned that it is not seen to be in accordance with Article 309 of the Code of Criminal Procedure No. 5271. Pursuant to Article 309 of the Code of Criminal Procedure No. 5271, the need for reversal of the aforementioned decision was examined with the notification of the Chief Public Prosecutor of the Court of Cassation dated 26.08.2015 and numbered KYB/2015-299016, referring to the request of the Supreme Ministry of Justice General Directorate of Criminal Affairs for Reversal in Favor of the Law dated 19.08.2015 and numbered 54234.
The matter was discussed and considered:
Conclusion Article 17 of the Law No. 5275 on the Execution of Criminal and Security Measures titled “Postponement of Execution at the Request of the Convict” gives discretion to the Chief Public Prosecutor’s Office conducting the execution in terms of deciding 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 conducting the execution against the request for postponement of execution, and since the Execution Judge does not have the authority to examine the objection in accordance with Article 1/2 of the Law No. 4675, the decision of the Karaman Execution Judge dated 04. Considering that the decision dated 06.06.2015 is devoid of legal basis, the decision of the Karaman Assize Court dated 19.06.2015 with the amended work number 2015/413 is deemed correct and since the content of the notification issued by the Chief Public Prosecutor of the Court of Cassation based on the Ministry of Justice’s request for Reversal in the Interest of Law is not deemed appropriate, the request for Reversal in the Interest of Law is rejected, the file is sent to the Chief Public Prosecutor of the Court of Cassation to be sent to the Ministry of Justice, it was decided unanimously on 07.09.2015.