After The Violation Of The Suspension Of The Explanation Of The Verdict, The Verdict Must Be Explained Exactly, No Changes Can Be Made Against The Verdict
Supreme Court Criminal General Assembly
2015/330 E.
2019/8 K.
Decision Issued by
Court of Cassation Chamber : 1st Criminal Chamber
Court :Serious Criminal
Number : 209-5
As a result of the trial in the public case filed against the defendant … for attempted intentional homicide, it was accepted that the defendant’s act constituted the crime of intentional injury and he was sentenced to 1 year 10 months and 15 days of imprisonment pursuant to Articles 86/1, 87/1-d, 29/1, 62/1, 53 and 63 of the TCC, deprivation of rights, set-off and deferment of the announcement of the verdict pursuant to Article 231/5 of the Code of Criminal Procedure, and the defendant was subjected to a five-year supervision period by the Kars Assize Court dated 03. After the finalization of the decision dated 06.06.2010 and numbered 130-141, the Kars Assize Court, which handled the case due to the fact that the defendant committed a new offense intentionally within the supervision period, decided on 10.01.2013 with the date of 10.01.2013 and numbered 209-5 to announce the verdict, to sentence the defendant to 3 years, 1 month and 15 days imprisonment in accordance with Articles 86/1, 86/3-e, 87/d-end, 62, 53 and 63 of the TCC, deprivation of rights and confiscation.
Upon the appeal of the verdict by the defendant’s defense, the 1st Criminal Chamber of the Court of Cassation, which examined the file, dated 10.12.2014 and numbered 1383-6074
“…Since the article of application was not specified during the reduction of the sentence due to unjust provocation, it was decided to approve the verdict by adding the phrase ‘in accordance with Article 29 of the Turkish Penal Code No. 5237’ to the relevant section”.
The Chief Public Prosecutor’s Office of the Court of Cassation, on the other hand, with the number 116123 dated 27.02.2015
“…Pursuant to Article 231/11 of the Code of Criminal Procedure No. 5271, it is understood that if the defendant commits a crime again within the trial period, the verdict should be announced and the old verdict should be established exactly the same, but in case the obligations are not fulfilled, the court may re-evaluate the situation and establish a new verdict. According to the practice accepted by the Criminal Chambers of the Court of Cassation, in the event that the defendant commits a new intentional crime within the trial period, the court should establish the old verdict exactly as it was without making any changes in the old verdict, and instead of deciding to reversal the verdict due to the excessive punishment assigned to the defendant, there is no injustice in the Special Chamber’s correction and approval of the verdict.”
The file, which was sent to the First Presidency of the Court of Cassation by the 1st Chamber of the Court of Cassation, which examined it pursuant to Article 308 of the Code of Criminal Procedure, with the number 1466-1573 dated 18.03.2015, on the grounds that the objection was not deemed appropriate, was evaluated by the Criminal General Assembly and decided on the grounds explained.
ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION
The verdicts of dismissal against the defendant … for intentional injury to the victim … and damage to property against the victim …..; against the defendant …… for intentional injury to the victim …, against the defendant ….. for intentional injury to the victims … and ……, against the defendant …… for intentional injury to the victim …, and against the defendant ….. for intentional injury allegedly committed on 25.08.2008 against the victim …, and against the defendant ….. for armed threat against the victim ….. and the conviction verdict rendered against the defendant …… for the offense of intentional injury committed on 21.12.2007 against the victim ….. was finalized by being approved by the Special Chamber, and according to the scope of the objection, the examination was limited to the conviction verdict rendered against the defendant … for the offense of intentional injury committed against the victim …..
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which must be resolved by the Criminal General Assembly, is about determining whether the previous verdict must be announced in the same way if the defendant, for whom the announcement of the verdict was decided to be deferred pursuant to Article 231 of the Code of Criminal Procedure, intentionally commits a new crime within the supervision period.
From the scope of the file examined;
A public case was filed against the defendant … with the allegation that he attempted to commit the crime of intentional murder against the victim … in the village of Ocaklı in the province of Kars on 25.08.2008,
In the report dated 25.08.2008 issued by Kars State Hospital on the victim …, it was stated that the victim complained of pain and tenderness in the right hand, that there was a cut in the left parietal region and a cut of approximately 0.5 cm in length on the left earlobe, that the injury endangered his life and could not be eliminated with a simple medical intervention,
In the report dated 17.02.2009 issued by the Kars Branch Directorate of the Forensic Medicine Institution for the victim, it was stated that the left parietal depression fracture had a grade 4 (severe) effect on vital functions, that the victim had a life-threatening injury, that the injury could not be removed with a simple medical intervention, and that there was no fixed scar on the face,
Understood.
The victim … told the police that on the day of the incident, on the way to his house in the village, he met the defendant and the non-examining defendant ….., and that Cengiz hit him on the head with the knife in his hand while the defendant was holding him,
In the court; on the day of the incident, they met the defendant … and witness ….. in the village, the argument between them turned into a fight, a person hit him in the head from behind during the fight, he did not see whether the person who hit him and ….. were at the scene of the incident, in his previous statements, he said that ….. may have hit him due to the shock of the incident and the enmity between them, he gave up his complaint,
Witness ….. Kaya told the police that on the day of the incident, he and the defendant were walking in the village in the evening, they met the victim, a fight broke out between the defendant and the victim when the victim swore, the victim had a knife in his hand, and he separated the fight,
In the court; when asked about the contradiction arising from the fact that the defendant … and the victim …, whom they met while walking around the village on the day of the incident, had a quarrel with the defendant, that he did not remember which side started the quarrel first, that they calmed the quarrel by intervening with other villagers, that he did not see a knife or a similar tool in anyone’s hands during the quarrel, that in his previous statements he said that he saw a knife in the hands of the victim … and that the parties hit each other with punches and kicks; that he declared that he did not see a knife in his statements at the investigation stage, that he did not know why his statement was written differently in the minutes,
The non-examining defendant ….., whose acquittal verdict was finalized; was not present at the scene of the incident, did not accept the accusation,
They testified.
The defendant … stated that the victim who attacked him by swearing had a knife in his hand, that he hit the victim’s hand and dropped the knife, that he hit the victim’s head with the stone he picked up from the ground during the struggle, that he did not have a knife during the incident,
In the Chief Public Prosecutor’s Office; on the day of the incident, while walking in the village with his friend witness ….. When they were walking with Kaya, they encountered the victim …, the victim insulted and attacked him with the knife in his hand, the victim hit his hand and dropped the knife to the ground, during the incident he struck the victim with his hand,
In the court; on the day of the incident, there was shouting between him and the victim, he did not see a knife in the victim’s hand, the victim did not insult him,
The defendant defended.
As a result of the trial, the Local Court accepted that the defendant’s action constituted the crime of intentional injury and sentenced him to 1 year 10 months and 15 days imprisonment in accordance with Articles 86/1, 87/1-d, 29/1, 62/1, 53 and 63 of the TCC, and decided to defer the announcement of the verdict in accordance with Article 231/5 of the CPC, and the decision became final on 02.12.2010 upon the rejection of the objection to the decision by the authority,
The defendant was sentenced to a definite judicial fine of 2.000 TL with the decision of Kars (Closed) 1st Criminal Court of Peace dated 19.03.2012 and numbered 1310-365 due to the crime of intentional injury committed on 04.05.2011 within the supervision period,
The Local Court, which reconsidered the case upon the denunciation made by Kars (Closed) 1st Criminal Court of Peace, decided on 10.01.2013 with the date of 10.01.2013 and number 209-5 to announce the verdict, and by amending the verdict, the defendant was sentenced to 3 years, 1 month and 15 days imprisonment in accordance with Articles 86/1, 86/3-e, 87/d-end, 62, 53 and 63 of the Turkish Penal Code for the crime of intentional injury with a weapon causing life-threatening danger,
It is understood that
The deferral of the pronouncement of the verdict was adopted for the first time in our law with Article 23 of the Child Protection Law No. 5395 for children, and with Article 23 of the Law No. 5560, which entered into force on 19.12.2006, paragraphs 5 to 14 were added to Article 231 of the Law No. 5271. By amending Article 23 of the Law No. 5395 with Article 40 of the same Law, juvenile offenders and adult offenders have been subjected to the same conditions in terms of deferment of the announcement of the verdict, except for the differences in the supervision period.
The deferment of the pronouncement of the verdict, which was initially accepted for adult defendants only for crimes subject to complaint and for sentences of imprisonment of one year or less or judicial fines, was amended by Article 562 of the Law No. 5728 and Article 231, paragraphs 5 and 14 of the Law No. 5271. With the amendment made to paragraphs 5 and 14 of Article 231 of the Law No. 5271 by Article 562 of the Law No. 5728, it was regulated to cover the crimes related to imprisonment sentences of two years or less or judicial fines, with the exception of the crimes included in the Revolutionary Laws guaranteed under Article 174 of the Constitution, and with Article 7 of the Law No. 6008 With Article 72 of the Law No. 6545, the sentence “In case the defendant does not accept, it is not decided to defer the announcement of the verdict” was added to the end of paragraph 6 of the article; and with Article 72 of the Law No. 6545, the sentence “During the supervision period, it cannot be decided to defer the announcement of the verdict again due to an intentional crime” was added to paragraph 8 of the article.
Considering the amendments made to Article 231 of the Criminal Procedure Code No. 5271 by Laws No. 5560, 5728, 6008 and 6545, in order for the announcement of the verdict to be deferred
1) Regarding the offense;
a- The sentence imposed as a result of the trial is imprisonment for a term of two years or less or a judicial fine,
b- The offense is not one of the crimes included in the Revolutionary Laws guaranteed under Article 174 of the Constitution,
2) Regarding the defendant;
a- The defendant has not been previously convicted of an intentional crime,
b- The intentional offense subject to the trial must not have been committed within the supervision period regarding the decision to defer the announcement of the verdict given for another crime committed by the defendant before,
c- The damage caused to the victim or the public by the commission of the crime shall be fully compensated by restitution, restitution or compensation,
d- The court should reach an opinion that the defendant will not commit a crime again, taking into account his personality traits and his attitude and behavior in the trial,
e- The absence of a statement by the defendant that he/she does not accept the deferment of the announcement of the verdict,
The conditions must be met.
In the presence of all these conditions, the court may decide to defer the announcement of the verdict and the defendants over the age of eighteen will be subject to probation for five years and the children dragged into crime will be subject to probation for three years.
If the defendant does not commit a new offense intentionally within the supervision period and acts in accordance with the obligations regarding the probation measure, the judgment deferred to be announced will be abolished and the case will be dismissed.
The institution of deferring the announcement of the verdict, which refers to the fact that the conviction of the defendant does not have any legal consequences and has a mixed characteristic in terms of its consequences, constitutes one of the reasons for dismissal, which ends the criminal relationship between the defendant and the state, since it results in the dismissal of the public case in accordance with Article 223 of the Code of Criminal Procedure No. 5271, in the event that a new offense is not committed intentionally within the supervision period and the obligations are complied with.
With the deferment of the announcement of the verdict, which means that the verdict established against the person does not have legal consequences, the legislator wanted to provide an opportunity for people not to be judicially stained for certain crimes they have committed, if certain conditions are met.
In this context, as it is clearly stated in many decisions of the Criminal General Assembly, the deferral of the announcement of the verdict, which constitutes a conditional reason for dismissal, must be evaluated by the court ex officio before the amendment made by Law No. 6008 in the presence of objective conditions (conviction, the nature of the crime and the amount of punishment, not being previously convicted of an intentional crime, compensation of the damage), and after this amendment, in the absence of a statement that the defendant does not accept the deferral of the announcement of the verdict, the court must be evaluated by the court before other personalization provisions such as conversion to alternative sanctions and postponement.
After these general explanations on the deferral of the announcement of the verdict, it is necessary to focus on the announcement of the verdict that is decided to be deferred.
Paragraph 11 of Article 231 of the Criminal Procedure Code No. 5271; “In the event that a person commits a new offense intentionally within the supervision period or violates the obligations regarding the probation measure, the court shall announce the verdict. However, the court, by evaluating the situation of the defendant who fails to fulfill the obligations imposed on him, may establish a new conviction by deciding not to execute a part of the sentence, which it will determine up to half of the sentence, or to postpone the imprisonment sentence in the judgment or to convert it into alternative sanctions if the conditions exist.”
As can be seen, one of the two conditions must be realized in order for the deferred sentence to be announced. Accordingly, if the defendant commits a new offense intentionally within the supervision period or fails to fulfill the obligations imposed on him/her by the court, the judgment will be announced.
In case a person is convicted of an intentional crime within the probation period, it is sufficient for this second crime to be committed within the probation period and to be an intentional crime in order for the verdict to be announced. The text of the article does not include an obligation for the second offense committed during the probation period to be finalized within this period. However, the court may announce the verdict after the finalization of the conviction decision given for the intentional crime committed by the defendant during the probation period. It does not matter whether the second offense is committed with direct or probable intent. The fact that the second offense is a crime subject to complaint or a crime investigated ex officio does not affect the result. Again, it does not matter whether the conviction for the second offense is a judicial fine or a prison sentence, as well as the fact that it has been converted into alternative sanctions under Article 50 of the TCC, nor does it matter whether it is final. The legislator has deemed it sufficient for the second offense to be an intentional offense and has not imposed any limitation on the nature of the conviction for the second offense. In case the second offense is committed with negligence, even if it is a conscious negligence, the verdict will not be announced.
On the other hand, pursuant to Articles 230 and 232 of the Code of Criminal Procedure No. 5271, in the judgment to be announced by the court in the event that the defendant intentionally commits a new offense within the supervision period or fails to fulfill the obligations imposed on him/her by the court, the court shall state “what the decision made pursuant to Article 223. What the decision rendered pursuant to Article 223, the articles of the law applied, the amount of the penalty determined and whether it is possible to apply for legal remedies” should be clearly indicated in a way that leaves no room for any doubt, first of all, in a way that allows for supervision, on the other hand, when finalized, it should establish a judgment that can be taken as a basis for execution without requiring the existence of another decision, and it should not be sufficient to refer to the judgment whose announcement was decided to be deferred.
In Article 231/11 of the Code of Criminal Procedure No. 5271, as to how the judgment, the announcement of which is deferred, will be announced and whether the judgment can be amended;
In the doctrine on whether the verdict, the announcement of which is deferred due to the commission of an intentional crime within the supervision period, will be announced in the same way or not;
“The question that needs to be answered here is whether the court can make a change in the previous judgment in cases where the court has to announce the judgment due to the fulfillment of the conditions, and whether it can decide on the postponement of the prison sentence or an alternative sanction within this framework. We are of the opinion that the court cannot make a change in its previous decision and therefore cannot decide on postponement or any other sanction at this stage.” (Bahri Öztürk-Durmuş Tezcan-Mustafa Ruhan Erdem-Özge Sırma-Yasemin Saygılar Kırıt-Özdem Özaydın-Esra Alan Akcan-Efser Erden, Nazari ve Uygulamalı Ceza Muhakemesi Hukuku, Seçkin, 10th Edition, 2016, p.636-637 .); “In case of committing a new offense intentionally within the supervision period or violating the obligations regarding the probation measure, the court shall announce the verdict. In the event that the judge who decides to defer the announcement of the verdict and the judge who announces the verdict are different, even if the judge who announces the verdict detects a violation of the law in the unannounced verdict or the paragraph of the verdict, he cannot change the verdict; he only announces it. This error can only be corrected on the legal remedy.” (Nur Centel-Hamide Zafer, Criminal Procedure Law, Beta, 14th Edition, 2017, p. 807.
According to Article 231/11 of the Code of Criminal Procedure; it is understood that the court is obliged to explain the verdict in full if the defendant intentionally commits a new crime within the supervision period or knowingly violates the obligations regarding the probation measure, and that the court may decide not to execute a part of the sentence up to half of the sentence or to postpone the imprisonment sentence or to convert it into alternative sanctions in the presence of conditions.
On the other hand, it is not possible to accept that a qualifying circumstance, which was not recognized or forgotten to be applied despite the conditions for its application in the first judgment, can be applied during the announcement of the judgment and a heavier sentence can be imposed on the defendant. In cases where the deferment of the pronouncement of the verdict is applied, which is an opportunity for people not to be judicially stained for certain crimes they have committed and in this sense means a contract signed between the defendant and the State, the defendant undertakes not to commit an intentional crime again within the supervision period, while the State gives the defendant the right not to be stained and undertakes that the sentence will be reduced if he does not commit another intentional crime within a certain period of time. In the event that the defendant does not keep his promise to the State and commits an intentional offense within the supervision period, the legislator has envisaged the sanction of the full disclosure of the deferred sentence. Therefore, it is obvious that deciding to punish the defendant more by amending the deferred sentence would be a kind of violation of the contract and would cause the people’s trust in the State and justice to be shaken. On the other hand, considering the possibility that the illegalities in the first judgment may be the subject of vested rights by the defendant in the future, it should be accepted that any issue that is forgotten or unnoticed by the court can only be eliminated through appeal or appeal if there is an application against it, and that the judgment cannot be corrected or changed, especially to the detriment of the defendant.
When the subject of the dispute is evaluated in the light of these explanations;
The defendant … was sentenced by the Local Court to 1 year 10 months and 15 days of imprisonment pursuant to Articles 86/1, 87/1-d, 29/1, 62/1, 53 and 63 of the TCC for the offense of intentional injury causing life-threatening danger, and the sentence regarding deprivation of rights and set-off was deferred to be announced pursuant to Article 231/5 of the Code of Criminal Procedure, and the sentence deferred to be announced due to the defendant committing a deliberate crime within the supervision period was announced pursuant to Article 231/11 of the Code of Criminal Procedure. In the case where the defendant was sentenced to 3 years 1 month and 15 days of imprisonment, deprivation of rights and confiscation in accordance with Articles 86/1, 86/3-e, 87/d-last, 62, 53 and 63 of the Turkish Penal Code for the offense of intentional injury with a weapon causing life-threatening danger; in accordance with the mandatory provision in Article 231/11 of the Code of Criminal Procedure. Since the verdict deferred to be announced pursuant to the mandatory provision in Article 231/11 of the Code of Criminal Procedure must be announced exactly as it is, there is no accuracy in the Local Court’s judgment regarding the determination of a heavier sentence to the detriment of the defendant by making an amendment to the verdict deferred to be announced.
On the other hand, it is contrary to the procedure and the law that the application clause when applying the provision of unjust provocation against the defendant and the discount rate when applying the discretionary discount provision are not shown.
In this respect, the objection of the Chief Public Prosecutor’s Office of the Court of Cassation should be accepted, the decision of the Special Chamber to approve with correction should be reversed, and the conviction of the Local Court established against the defendant … for the offense of intentional injury to the victim … should be reversed due to the inaccuracies of not considering that the verdict, the disclosure of which is deferred pursuant to Article 231/5 of the Code of Criminal Procedure, should be disclosed exactly as per Article 231/11 of the Code of Criminal Procedure and not specifying the application clause regarding the unfair provocation provision and the discount rate regarding the discretionary discount provision.
CONCLUSION:
For the reasons explained
1- Acceptance of the objection of the Chief Public Prosecutor’s Office of the Court of Cassation,
2- The decision of the 1st Criminal Chamber of the Court of Cassation dated 10.12.2014 and numbered 1383-6074 to approve with correction is hereby annulled,
3- The judgment of Kars 1st Assize Court dated 10.01.2013 and numbered 209-5,
a) Establishing a verdict to the detriment of the defendant by amending the verdict, without considering that the previous verdict should be announced exactly as it is, due to the fact that the defendant, for whom it was decided to defer the announcement of the verdict pursuant to Article 231 of the Code of Criminal Procedure, intentionally committed a new crime within the supervision period,
b) Failure to indicate the article of application when applying the unjust provocation provision and the rate of reduction when applying the discretionary reduction provision,
DISMISSAL due to injustice,
4- It was unanimously decided at the meeting held on 15.01.2019 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to its neighborhood.