Acceptance Of The Filing Of The Petition After The Legal Deadline Upon Notification Of The Reasoned Decision Due To The Unjustified Appeal Of The Time Limit Petition
Criminal Chamber 2018/1923 E. , 2018/4741 K.
“Case Law Text”
Court :Criminal Chamber
Crime : Being a member of an armed terrorist organization
Sentence : Rejection of the appeal against the conviction established pursuant to Article 314/2 of the TPC, Article 5/1 of the Law No. 3713, Articles 62, 53, 58/9, 63 of the TPC
The decision given by the Regional Court of Appeals was examined upon appeal;
REASONED JUDGMENT:
While the legislator, who adopted a new understanding in the legal remedy proceedings with the inclusion of the Courts of Appeal in the Turkish judicial system, does not foresee the obligation to show a reason in the appeal application, which will conduct both material fact and legal control (Article 273/4 of the Code of Criminal Procedure No. 5271), in the appeal path, whose examination is limited to legal control (Article 294/2 of the Code of Criminal Procedure); unlike the abrogated Code of Criminal Procedure No. 1412 (Article 305. ), and stipulated that the appellant is obliged to show the reasons why he/she wants the judgment to be reversed/reasons for appeal in the appeal petition/pleading that opens and limits the appeal case (Article 294/1 of the CPC), and if the reasons for appeal are not shown in the appeal application, an additional petition containing these reasons must be submitted to the district court of appeal within seven days after the expiration of the period specified for the appeal application or the notification of the reasoned decision. In the event that the petition of appeal does not include the grounds for appeal, just as in the cases where the application is not filed within the time limit, the judgment is not appealable or the appellant does not have the right to appeal, it is not possible to talk about a duly filed appeal case and the appeal request is rejected (Article 298 of the Criminal Procedure Code) (F.Yenisey-A.Nuhoğlu, Criminal Procedure Law sh. 923, Centel-Zafer Criminal Procedure Law sh. 826, C.Şahin-N.Göktürk Criminal Procedure Law p. 278), Article 289 of the aforementioned Law
constitutes an exception to the “principle of limited review” of a duly filed appeal case (F. Yenisey-A. Nuhoğlu, age p. 905), provided that the conditions and procedure are clearly set out (ECtHR Galstyan/Armenia Application No; 26986/03 15. 01.2007 t.), the rejection of the legal remedy application due to non-compliance with the prescribed procedural requirements will not result in a violation of this right (ECtHR Sjöö/Sweden Application No; 37604/97), as it has been accepted by stable judicial decisions; the defendant’s defense counsel’s statement against the defendant’s face on 13. 12.2017 against the defendant’s face, and the defendant’s defense counsel appealed the verdict pronounced against the defendant’s face on 13.12.2017 with a time limit petition dated 15.12.2017, and upon the notification of the reasoned verdict to him on 08.01.2018, it is understood that he filed a reasoned appeal petition on 22.01.2018 after the 7-day legal period stipulated in Article 295/1 of the Code of Criminal Procedure; it was decided on 03.12.2018 with the dissenting vote of Members … and … and with the majority of votes that the appeal request was rejected in accordance with Article 298 of the Code of Criminal Procedure No. 5271.
VOTE AGAINST
The opinion of the majority regarding the rejection of the appeal request pursuant to Article 298 of the Code of Criminal Procedure, since it is understood that “the defendant’s defense did not include the reasons for appeal in the petition for time limit dated 15.12.2017 and did not submit a reasoned appeal petition within the period from the notification of the reasoned decision”, is not shared.
From the scope of the file examined;
With the indictment of Kayseri Chief Public Prosecutor’s Office dated 06.01.2017 and numbered 2017/1080, a public case was filed against the defendant with the request for punishment in accordance with Articles 314/2, 53, 58/9, 62 of the Turkish Penal Code No. 5237 and Article 5 of the TMK No. 3713, on the grounds that he committed the crime of “being a member of the FETÖ/PDY armed terrorist organization”, and as a result of the trial of the public case, Kayseri 2. High Criminal Court dated 21.03.2017 and numbered 2017/112 E. – 2017/110 K., the defendant was sentenced to 6 years and 3 months imprisonment for the crime of “being a member of an armed terrorist organization”, and upon the application of the legal remedy of appeal against this decision by the defendant and the defendant’s defense counsel in due time, the 4th Criminal Chamber of the Ankara Regional Court of Justice decided on 13.12.2017. Criminal Chamber of the Ankara Regional Court of Appeals dated 13.12.2017 and numbered 2017/147E. – 2017/489K. with the decision dated 13.12.2017 and numbered 2017/147E. – 2017/489K., the defendant’s defense appealed the aforementioned decision by submitting a time limit petition dated 13.12.2017, but submitted the reasoned appeal petition after the 7-day legal period from the notification of the reasoned decision but before the Court of Cassation examination, and the Court of Cassation 16. It is understood that the majority of the Criminal Chamber of the 16th Criminal Chamber of the Court of Cassation, on the grounds that “the defendant defense did not include the grounds for appeal in the time limit petition dated 15.12.2017 and did not submit a reasoned appeal petition within the time period from the notification of the reasoned decision”, and a judgment was established for the rejection of the defendant defense’s appeal request in accordance with Article 298 of the Code of Criminal Procedure.
The subject of the discussion that constitutes the concrete dispute; “whether the defendant or the defense counsel, who applied for an appeal with a time attitude petition that does not contain a reason for appeal, can submit an additional appeal petition after the seven-day period from the notification of the reasoned decision has passed but before the Supreme Court of Appeals examination is made, and whether the appellate review can be made within the scope of this additional petition”.
In the rule of law based on Human Rights, it is important to realize all kinds of structural and institutional legal reforms necessary to make the rule of law prevail. One of the important elements of ensuring the rule of law is the realization of the right to a fair trial and access to justice with all its guarantees.
Access to justice is recognized as a right. Since access to justice is a right, through the exercise of this right, the interpretation, comprehensibility and therefore the utilization of the law should be ensured and jurisprudence should be established in this way. It is not enough to recognize rights; it is also necessary to ensure their effective use.
Judicial organs do not have the power to avoid dispensing justice. The Constitution stipulates that “no court shall refrain from hearing a case within its jurisdiction” (Art. 36/2). Refraining from dispensing justice means refraining from delivering justice.
The right of access to justice guarantees the right to apply to the judiciary (to file a lawsuit), to resort to legal remedies that constitute a guarantee, and to demand the enforcement of judicial decisions. The right of appeal ensures that the right of access reaches its peak in a fair trial (Coulon, Jean-Marie/Roche, Marie-Anne Frison, p. 443).
The right to a fair trial includes fundamental guarantees such as the right to seek justice before independent and impartial judicial authorities, to be able to be a plaintiff or defendant, to have procedural guarantees during the proceedings, to have the proceedings held within a reasonable time, and to provide effective legal review mechanisms against court decisions.
The rule of law, which is listed among the qualities of the Republic in Article 2 of the Constitution, is a state that is based on human rights, protects and strengthens these rights and freedoms, establishes and maintains a legal order in all areas whose actions and transactions are in accordance with the law, takes into account the measures of justice and equity in the rules set, facilitates the acquisition of rights, makes the law dominant over all state organs, considers itself bound by the Constitution and laws, is open to judicial review and removes obstacles to the freedom to seek rights.
The first paragraph of Article 36 of the Constitution stipulates that “Everyone has the right to claim and defend himself as a plaintiff or defendant before the judicial authorities and to a fair trial by making use of legitimate means and remedies”. The freedom to seek justice and the right to a fair trial guaranteed by the article, besides being a fundamental right in itself, is one of the most effective guarantees that ensure the proper enjoyment and protection of other fundamental rights and freedoms.
The purpose of criminal proceedings is to investigate and find the material truth in a manner befitting human dignity. As a matter of fact, in the decisions of the Criminal General Assembly dated 23.02.2016 and numbered 2014/5.MD-98 Esas 2016/83 and dated 10.12.2013 and numbered 2013/359; “…The purpose of the Criminal Procedure is to determine the material truth beyond all doubt in accordance with the principles stipulated by the procedures and rules.
Whereas in Civil Procedure Law, the judge is bound by the facts, norms, evidence and requests put forward by the parties and has to be satisfied with the truth revealed by them, in Criminal Procedure Law, he investigates the material truth without being satisfied with the evidence put forward by the parties. In criminal procedure, the system of legal evidence is very exceptional (e.g. the trial transcript; what happened in the trial can only be proved with it), other than that, anything can be put forward as evidence, except that it is not contrary to the law.
Appeal, which is one of the guarantees of the rights to a fair trial and access to justice and the provision of effective legal review mechanisms against court decisions, is an ordinary legal remedy against the judgments rendered by the criminal departments of the regional court of justice, the interim decisions of these departments that constitute the basis of the judgment, and the decisions rendered by the heavy criminal courts regarding extradition requests pursuant to Article 18 of the Law No. 6706 on International Judicial Cooperation in Criminal Matters.
Appeal is regulated among the ordinary legal remedies within the systematic of the Criminal Procedure Code. It is of utmost importance that the decisions rendered by a judicial body are reviewed by another authority. Through appeal, it is ensured that the rules of law in a country are interpreted and applied in a consistent and uniform manner. Appeals check the legality of decisions previously rendered by a judicial authority.
In the appellate review, only the legal aspect of the dispute, that is, the status of the material event determined by the court of first instance or the regional court of appeal against the legal norms, is examined and it is checked whether the legal norm is correctly applied to the material event.
Article 294/1 of the Code of Criminal Procedure No. 5271 titled “Content of the Appeal Application”;
“The appellant must show in the appeal application why he wants the judgment to be reversed”,
Article 295 of the same law titled “Grounds for Appeal”,
“If the grounds for appeal are not shown in the appeal application, an additional petition containing these reasons shall be submitted to the district court of justice whose judgment is appealed within seven days from the expiration of the period specified for the appeal application or the notification of the reasoned decision.”
It is regulated as follows.
In the light of these explanations and legal regulations;
When the aforementioned legal regulations are examined, first of all, it is necessary to emphasize the difference between the appeal application (petition, istida) and the reasoned appeal petition (appeal layihası, additional petition). It is also possible to file these petitions together
as a single petition. However, in practice, since the fifteen-day appeal period starts with the pronouncement of the short judgment, it is first necessary to file an application for appeal (petition for appeal) in order not to miss the time limit. Practitioners refer to this petition as the “time limit petition”. This incorrect term, which is extremely common, also feeds a misconception that the appeal period stops with the filing of the petition. However, with the filing of this petition, the appeal is realized and the question of time no longer exists.
A reasoned petition of appeal (additional petition, appeal layihası) is a petition in which the grounds of appeal are shown. Before the provisions of the Code of Criminal Procedure No. 5271 on the legal remedy of appeal entered into force, it was not mandatory to file this petition. This was because the Court of Cassation could consider the grounds of appeal ex officio, based on the provision in Article 314/2 of the Code of Criminal Procedure stating that “failure to show the grounds of appeal shall not prevent the appellate examination”. Following the entry into force of the provisions of the Code of Criminal Procedure No. 5271 on legal remedies as a whole, the issue of up to which stage this petition should be submitted has gained importance.
In a sense, we can say that the legislator has taken the risk of finalizing an unlawful decision, even if only on the grounds of “failure to show a reason for appeal”, in order to speed up the proceedings and to prevent the Court of Cassation, whose main purpose is to ensure that the rules of law in the country are interpreted and applied in a stable and uniform manner, from facing unnecessary workload.
However, when the provisions in question are analyzed in terms of the right to a fair trial and access to justice, it is difficult to say that the acceptance that the petition of appeal “which does not concretely show which unlawfulnesses are relied upon” or the additional petitions of appeal submitted later should be rejected in the face of the aforementioned legal regulations is compatible with both Articles 2 and 36 of the Constitution, the criteria in the case law of the ECtHR and the purpose of the criminal proceedings to investigate and find the material truth in a manner befitting human dignity.
Although the Law states that “an additional petition shall be submitted within seven days”, the petition that reaches the Court of Cassation after the expiry of this period but before the Court of Cassation’s review should also be accepted. Once a timely request for appeal has been filed, there is no obstacle to the filing of a petition or petitions until the Court of Cassation begins its examination, and there is no obstacle to stating new grounds of appeal not previously stated in these petitions. An acceptance to the contrary would render the criminal proceedings, as in civil proceedings, a purely formal proceeding.
As a result, once a timely appeal is filed, there is no obstacle to the filing of a petition or petitions until the Court of Cassation begins its examination, and to the submission of new grounds of appeal not previously stated in these petitions. The additional petition and the grounds of appeal submitted until the Court of Cassation’s review must also be examined and supervised by the Court of Cassation. Of course, the petition in question should be submitted to the court that rendered the judgment in a timely manner, indicating all the grounds of appeal. If, during the examination of the Court of Cassation, it is understood that the petition of appeal does not include any grounds of appeal, only then
the request for appeal should be rejected.
For these reasons, it was not possible to agree with the opinion of the majority that “since it is understood that the petition of appeal did not include the grounds of appeal and that the petition of appeal was not submitted within the time limit from the notification of the reasoned decision, the appeal request was rejected in accordance with Article 298 of the Code of Criminal Procedure”.