Prohibition Of Reversal
T.C.
JUDICIARY
CRIMINAL GENERAL ASSEMBLY
E. 1992/5-190
K. 1992/237
T. 28.9.1992
– Prohibition Of Reversal
– VESTED RIGHT IN TERMS OF PENALTY AMOUNT
– Inaccuracy in the Determination of the Nature of the Crime (Prohibition of reversal against)
1412/m.326/2, 291, 307, 308, 325, 343
765/m.421/2
SUMMARY : If there is an inaccuracy in the definition of the crime in the judgment that is examined on appeal, this issue will be made a reason for reversal even if there is no appeal against it. There can be no vested right in the qualification of crime. However, in this case, the principle of vested right in terms of the type and amount of punishment will come to the fore.
Otherwise, this would lead to different application of the rules of law throughout Turkey.
CASE AND DECISION : The judgment of the Kadıköy 3rd Criminal Court of First Instance dated 17.12.1991 and numbered 592975, sentenced the defendant Kazım to 5 months imprisonment pursuant to Articles 421/2 and 59 of the Penal Code by accepting that his act constituted the crime of indecent assault, was appealed by the defendant’s defense counsel, and the 5th Criminal Chamber of the Court of Cassation, which examined the file, sentenced the defendant Kazım to 5 months imprisonment pursuant to Articles 421/2 and 59 of the Penal Code on 13.5.1992 and numbered 12461548;
(According to the scope of the file, although the act constitutes the offense of indecent assault, its acceptance as molestation is not a reason for reversal since there is no counter-appeal, and the verdict, which is in accordance with the procedure and the law in other aspects, is approved).
The members who voted against argued that the verdict should be reversed pursuant to Article 326/2 of the Code of Criminal Procedure, since there can be no vested right from the nature of the crime.
The Chief Public Prosecutor’s Office of the Court of Cassation, with the number 570541 on 3.6.1992;
In line with the opinions of the members of the Special Chamber who voted against, with the opinion that there can be no vested right in the qualification of the crime, the Court of Cassation requested that the decision of the Special Chamber be reversed.
The file was sent to the First Presidency, and it was read, discussed and considered by the Criminal General Assembly:
DECISION OF THE CRIMINAL GENERAL ASSEMBLY OF THE JUDICIARY:
According to the file examined;
The dispute between the Special Chamber and the Local Court is whether the verdict can be overturned in the event that there is no (counter-appeal) against the defendant, in the event that there is an inconsistency in the verdict in terms of the nature of the crime, in other words, whether there will be a vested right in terms of the nature of the crime.
During the discussion of the question in the Criminal General Assembly, it was discussed whether, if the appeal case is filed only by the defendant or by the C. Prosecutor in his favor or by the persons described in Article 291 of the CYUY.nin, the appeal examination can be made in all aspects without making any distinction between the pros and cons, and therefore whether the reversal can be made against the pros and cons.
As a result of this, the concepts of the obligation not to overturn against and the vested right in terms of the amount of the penalty have been emphasized. To take a look at these concepts;
1 The obligation of non-reversal: Appeal is an ordinary legal remedy against the decisions rendered by the local courts. When the appeal is filed only by the defendant or by the above-mentioned interested parties in his/her favor, the principle of not making corrections that aggravate the result, in other words, that would result in an unfavorable result, is called the obligation of non-reversal.
2 Vested Right in terms of the Amount of Penalty: When an appeal is filed by the defendant or the relevant parties stipulated in the trial law, the punishment and the result determined by the judgment re-established upon the favorable reversal is not heavier than the punishment and result determined by the previous judgment.
If we summarize the concepts after defining them in this way, the obligation not to overturn the judgment in favor is a procedural rule that determines the point of view at the beginning of the appellate review of the judgment. The vested right in terms of the amount of punishment, on the other hand, is a principle of judicial law that determines the limit of the amount of punishment in the stage after the favorable reversal. Both of them are procedural institutions that have the same purpose, are close to each other and originate from the same legal opinion, but have different legal structures and different stages of application.
0 In that case, if the verdict is appealed in favor of the defendant by the defendant or by the Public Prosecutor or the relevant parties, should a reversal decision be made when an erroneous application is detected in terms of the nature of the crime. Or is it sufficient to criticize this issue?
The duty of the Court of Cassation is to supervise whether the laws are applied in accordance with the law throughout Turkey, and to ensure unity in the application of laws and legal rules within the country through its case law. In this respect, if the Court of Cassation determines an inaccuracy in the qualification of the offense in the judgment under appeal, it will make this issue a reason for reversal, even if there is no appeal against it. However, this would lead to the application of the principle of vested right in terms of the type and amount of punishment, which cannot be considered compatible with the purpose of the establishment of the Court of Cassation and the principle of equality. For, let us assume that two defendants were tried in different courts for the same or similar acts, one of them was convicted of embezzlement under Article 202 of the Turkish Penal Code and the other one was convicted of misconduct in office under Article 240 of the Turkish Penal Code and both decisions were appealed in favor of the defendants. In this case, the Court of Cassation will uphold the conviction for embezzlement as it is in accordance with the law. What will the Court of Cassation do when it sees that the verdict established for the offense of abuse of office is contrary to the law? Of course, by emphasizing that the act constitutes the crime of embezzlement because the nature of the crime was determined incorrectly, and by stating that the principle of vested right must be complied with in terms of the type and amount of the penalty, it will decide to overturn the verdict. This is because the duty of the Court of Cassation is to ensure unity in the application of the laws within the country. In fact, acceptance to the contrary leads to the fact that the person convicted of embezzlement among those who committed the same act suffers consequences such as (Penalty statute of limitations, deprivation of civil service, loss of the right to be elected, facing different situations in the face of a possible amnesty law … ), while the person convicted of the crime of abuse of office due to the wrong determination of the nature of the crime does not face the consequences described above, which is not in accordance with the principle of equality and the sense of right and justice.
0 In that case, upon the favorable appeal, if the Court of Cassation determines that there is a mistake in the definition of the crime, it should decide to overturn the illegal judgment, reserving the vested right in terms of the type and amount of the punishment.
For this reason, the objection of the Chief Public Prosecutor’s Office of the Court of Cassation should be accepted and the decision of the Special Chamber should be reversed since the act of the defendant constitutes the crime of rape.
The President of the rule and the members of the board who voted against; The application for appeal, which is the ordinary remedy, is a lawsuit. Therefore, filing an appeal is a right granted to the defendant. If it is adopted that the exercise of this right by the defendant or by the Public Prosecutor or other interested parties on his behalf may result in consequences against the defendant, the defendant or the interested parties who may resort to this path on his behalf will hesitate to file an appeal and will have to settle for a verdict that they believe to be unjust. In order to eliminate this drawback, the principle of “reforrnatio in Peius”, which states that if there is no appeal against the defendant, the verdict cannot be reversed against the defendant, and that the verdict can only be reversed in favor of the defendant, except in cases of absolute contradiction to the law (Article 308 of the Code of Criminal Procedure), has been included in the trial laws as a procedural rule.
As a matter of fact, Article 358 of the German Code of Criminal Procedure of 1887, which is the source of the Code of Criminal Procedure, does not allow for an adverse correction in case of a favorable application. For this reason, our trial law, as in the source law, does not allow for an adverse correction in case of a favorable application (except for the cases of legal absolute contradiction in Article 308 of the Code of Criminal Procedure).
The defendant who files an appeal, or those who appeal on his behalf, act with the aim of having the judgment corrected in favor of the defendant. Ignoring this aim and allowing the correction against the defendant is contrary to the reasoning of Article 326 adopted by the Istanbul Commission, which states that “… as a result of the appeal in favor of the convict, the imposition of a heavier penalty than the penalty determined by the previous judgment is not compatible with the concepts of reasonableness and the right of acquittal.” In that case, at the moment of appeal in favor of the defendant, the issues against the defendant constitute a vested right for him.
On the other hand, since making a correction against the defendant, even though the appeal was filed in favor of the defendant, would mean making a reversal in favor of the other party, it would result in making a judgment about the case that was not filed and making an involuntary decision.
As a matter of fact, the prohibition of reversal in favor of the opposing party has been put into practice as a judicial rule in different areas. As it is known, one of the most important conditions for filing an appeal is to have the right. For this reason, acquittal verdicts cannot be examined upon the appeal of the abstract defendant because he does not have the right. In such cases, the verdict cannot be reversed even if there are reasons for reversal of the verdict against the defendant.
On the other hand, pursuant to Article 325 of the Code of Criminal Procedure, if the verdict is reversed in favor of one of the defendants when it is appealed against, it also extends to the defendants who do not appeal, while in cases of reversal against, it does not extend to the defendants who do not appeal. Since the circulation is only in favor and they are not affected by the reversal against them, not complying with the prohibition of reversal against the appellant in favor is also contrary to the accepted purpose of the circulation institution.
Furthermore, Article 294 of the Code of Criminal Procedure clearly states that in the event of an appeal against the C. Prosecutor, the judgment may be reversed in favor of the defendant. If it had been adopted as a rule that a reversal can be made against the appellant, there would have been no need to enact a provision such as the provision that a reversal can be made in favor of the defendant, who is the opposing party, in the appeal of the C. Prosecutor.
As it is known, the written order regulated in Article 343 of the Code of Criminal Procedure is an extraordinary remedy and this remedy can be applied against the decisions that have become final without appeal. In the examination made in this way, only the unfavorable ones are determined and the favorable ones have legal consequences. If the obligation not to overturn a judgment against the defendant is not complied with in an appeal case, which is an ordinary remedy, the defendant will not appeal a judgment that contains both favorable and unfavorable reasons for overturning, and the judgment will become final without passing through the Court of Cassation. Thereafter, the written order remedy will be triggered, and since only the favorable reversal will result in this remedy, the defendant who chooses the extraordinary remedy will face a milder consequence, while the defendant who appeals through the ordinary remedy will face a more severe consequence. It is inconceivable that the legal system would allow such a situation.
It should also be explained that Article 307 of the Code of Criminal Procedure defines the cases of legal opposition as grounds for appeal. This regulation is related to the relative grounds of appeal. Article 308, on the other hand, includes absolute grounds of appeal. While in Article 307, in case of the existence of the relative grounds of appeal, the obligation not to overturn against the opponent will be valid, in case of the existence of the absolute grounds of appeal written in Article 308, the prohibition not to overturn against the opponent will not be valid, and in that case, the principle of vested right in terms of the type and amount of the punishment will come to the fore. To give an example; let us assume that one of the two defendants, whose acts are the same, is charged with embezzlement at the Assize Court and the other is charged with abuse of office at the Criminal Court of First Instance. Let’s assume that both courts have ruled for misconduct in office. In the event that these verdicts come to the Court of Cassation upon a favorable appeal case; if the Court of Cassation determines that the acts do not constitute misconduct in office but constitute the crime of embezzlement, it will consider the principle of vested right in terms of the type and amount of the punishment, while reversing the decision of the Criminal Court of First Instance due to the violation of the rule of duty in Article 308 of the CYUY.
0 In this case, since the principle of the obligation not to overturn against the adverse party must be taken into consideration upon the favorable appeal case, the objection should be rejected.
CONCLUSION : For the reasons explained, it was decided by majority of votes in the second discussion to accept the objection of the Chief Public Prosecutor’s Office of the Court of Cassation, to lift the decision of the Special Chamber Approval and to consider the principle of vested right in terms of the amount of punishment.