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Rule Subject to Objection
The rule subject to objection explicitly foresees the legal remedy of appeal against the decision to defer the announcement of the judgement (HAGB).
Grounds for Application
In summary in the application decision; According to Law No. 5271, HAGB decisions should not have legal consequences, however, in recent years, laws and regulations have been enacted that bind the results of HAGB decisions, objection examinations regarding HAGB decisions are made on the file in principle, and an examination on the merits of the decisions is not carried out, It has been argued that the rule is unconstitutional by stating that this situation violates the rights to a two-tier trial, effective application and fair trial, and in this respect, the HAGB decisions, which contain the conviction that the person has committed a crime, do not go through a real legal remedy and these decisions should be subject to appeal examination.
Evaluation of the Court
Although the HAGB institution is a new institution in the Turkish legal system, it has found a wide application area. According to the 2020 data announced by the Ministry of Justice General Directorate of Judicial Registry and Statistics, approximately one fourth of the convictions given in criminal courts are HAGB decisions.
The possibility to appeal against Leniency Decisions, which have found a wide application area in the Turkish judiciary, is not sufficient alone in terms of its current implementation, and this path should also offer a chance of success in practice. The absence of such a judgement, which is directly related to the regime of limitation of fundamental rights and freedoms, will lead to the violation of fundamental rights and freedoms, as it will mean that the rule on which the intervention is based cannot provide the procedural guarantees of the trial law.
In this framework, in many individual application files in which the Constitutional Court has previously concluded that there has been a violation, the Constitutional Court has ruled that the appeal authorities did not take into account the claims and evidence of the applicants, did not make an effort to balance the conflicting interests, did not evaluate whether the intervention was proportionate and whether the intervention was in accordance with the requirements of the democratic social order. In the current system, it has been observed that the decisions of the appeal authorities on the objection to the HAGB decisions consist of one sentence of reasoning, which states that there is no violation of the law in the decisions of the first instance courts and therefore the objection is rejected.
The rule stipulating that the appeal against the HAGB decisions is open does not foresee a specific and effective way of control in taking into account the claims and evidence of the applicants to this legal remedy, balancing the conflicting interests, determining the conformity and proportionality of the interference with fundamental rights and freedoms to the requirements of the democratic social order. This situation limits the individual’s right to request the possibility to apply to the competent authority in order to eliminate the interferences with fundamental rights and freedoms and to prevent the arbitrary behaviour of those who use public power. As a matter of fact, it is observed that the rule cannot be applied in a way to meet the aforementioned issues. The absence of such a judgement, which is directly related to the regime of limitation of fundamental rights and freedoms, is incompatible with the right to effective application.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
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