Judge’s Recusal Court Of Cassation Decision
Court of Cassation 2nd Criminal Chamber 2021/767 E., 2021/8659 K. “Case Law Text”
Refusal and Abstention of the Judge
Article 22-30 of the Code of Criminal Procedure
The decision of the Denizli 1st Criminal Court of First Instance dated 31.01.2019 and numbered 2018/121, based on 2018/121, 2019/87, dated 18.04.2019 and numbered 2019/608, 2019/1031 of the 7th Criminal Chamber of the Antalya Regional Court of Appeal dated 18.04.2019 and numbered 2019/608, 2019/1031 of the 7th Criminal Chamber of the Antalya Regional Court of Appeal on the sentence of 1 year 6 months 22 days and 10 months imprisonment in accordance with Articles 142/2-h, 143, 35, 116/4 and 62 of the Turkish Penal Code No. 5237. 2019 dated 31.01.2019 and numbered 2018/121, 2019/87 became final as a result of the Antalya Regional Court of Justice 7th Criminal Chamber’s decision dated 18.04.2019 and numbered 2019/608, 2019/1031 to reject the appeal application on the merits, the Denizli 1st Criminal Court of First Instance’s decision dated 15.06.2019 regarding the rejection of the request for renewal of the trial made by the convict. Based on the request for reversal in favour of the law dated 07.12.2020 and numbered 17256-2020 dated 07.12.2020 and numbered 17256-2020 given by the Supreme Ministry of Justice against the decision of Denizli 5th Assize Criminal Court dated 02.07.2020 and numbered 2020/522 different business, the case file was sent to our office with the notification of the Chief Public Prosecutor of the Court of Cassation dated 07.01.2021 and numbered 2020/112250 and read.
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In the notification requesting reversal in favour of the law;
The decision of the Denizli 1st Criminal Court of First Instance dated 31.01.2019 and numbered 2018/121 Esas, 2019/87, dated 31.01.2019 and numbered 2018/121, 2019/87 of the Denizli 1st Criminal Court of First Instance to sentence the defendant … to 1 year, 6 months, 22 days and 10 months imprisonment in accordance with Articles 142/2-h, 143, 35, 116/4 and 62 of the Turkish Penal Code No. 5237, was decided by the Antalya Regional Court of Appeal 7th Criminal Chamber on 18.04. 2019 dated 18.04.2019 and numbered 2019/608, 2019/1031 of the 7th Criminal Chamber of the 7th Criminal Chamber of the Antalya Regional Court of Justice, the file covering the decision of the Denizli 5th Assize Court dated 02.07.2020 and numbered 2020/522 different business dated 02.07.2020 regarding the rejection of the objection made against the additional decision of the Denizli 1st Criminal Court of First Instance dated 15.06.2020 and numbered 2018/121 Esas, 2019/87 regarding the rejection of the request for renewal of the trial made by the defendant was examined.
Article 23/3 of the Code of Criminal Procedure No. 5271 states that “In case of renewal of the trial, the judge who served in the previous trial cannot take part in the same work” and Article 318/1 of the same Law states that “The request for renewal of the trial is submitted to the court that issued the judgement. This court decides whether the request is worthy of acceptance or not.” In the face of the regulations in the form of “This court decides whether the request is worthy of acceptance or not”, the judge who made the first decision may be under the influence of his previous opinion and opinion in his decision on whether the request is worthy of acceptance or not at the retrial stage or at this stage, and for this reason, as an extension of the right to a fair trial,
Since it is necessary for a different judge, who is completely foreign to the case, to examine the request for renewal of the trial, it is not deemed correct to reject the objection in writing instead of accepting the objection in this respect, without taking into account that Judge Necmettin Öter, who took part in the first trial in the concrete case, also took part in the decision on the rejection of the request for renewal of the trial. Pursuant to Article 309 of the Code of Criminal Procedure No. 5271, the necessity of reversal of the aforementioned decision has been notified based on the request for reversal in favour of the law.
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Considered:
The case to be resolved in the face of the request for reversal in favour of the law is related to the determination of whether the court that issued the finalised judgement subject to the request should make a decision on the acceptability, whether there is a legal obstacle in this regard.
In the Criminal Procedure Code on the subject; The cases where the judge cannot hear the case are listed in Article 22. Article 23 titled “Judge who cannot participate in the trial” reads as follows: “(1) A judge who participates in a decision or judgement cannot participate in the decision or judgement to be rendered by the higher court in relation to this judgement. (2) A judge who has served in the investigation phase in the same case cannot serve in the prosecution phase. (3) In case of renewal of the trial, the judge who served in the previous trial cannot take part in the same case. “.
In the justification for paragraph 3 of Article 23; “In case of a request for renewal of the trial, it has been added to the third paragraph that the judge who served in the previous trial cannot take part in the same work. Thus, by preventing the judge who has previously expressed his/her opinion on the same dispute from serving in the renewal process of the trial, the impartiality of the judge was wanted to be ensured in this aspect and it was accepted as Article 23.” Article 30 of the Code of Criminal Procedure reads as follows:
“(1) When a judge abstains on the grounds of reasons requiring his/her prohibition, the authority shall assign another judge or court to hear the case. (2) When a judge abstains on the grounds of reasons that may cast doubt on his/her impartiality, the authority shall decide whether the abstention is appropriate or not. If the recusal is found to be appropriate, another judge or court shall be assigned to hear the case. (3) The provision of Article 29 shall apply to the works performed in cases of delay.”
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Paragraph 318/1 of the Criminal Procedure Code on the subject; “(1) The request for renewal of the trial shall be submitted to the court that issued the judgement. This court decides whether the request is worthy of acceptance or not.” In the face of these regulations; in case of a request for renewal of the trial, the judge who took part in the previous trial subject to the request cannot take part in the same work, as well as the decision on whether the request to be submitted to the court that rendered the judgement in accordance with paragraph 318/1 of the CPC is worthy of acceptance and the subsequent proceedings cannot be carried out by the judges who took part in the previous trial, and they cannot take part in the committee.
İn view of the fact that paragraph 23/3 of the Criminal Procedure Code is regulated in the section titled “Inability of the judge to hear the case and his/her recusal” in the Criminal Procedure Code, and that Article 30 of the Criminal Procedure Code regulates the issue of “recusal of the judge and the examination authority”, in cases to be determined by the formal examination of the civil registry records such as the marriage bond, blood-sibling bond, etc. listed in Article 22 of the Criminal Procedure Code, as well as in cases of prohibition arising from paragraph 23/3.
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In case of prohibition arising from paragraph 23/3, if the judge who receives the request is the judge who makes the decision or if he/she is a member of the committee, he/she must ensure that the process is processed by sending the file to the authority in accordance with the procedure specified in the “Fifth Section” of the Criminal Procedure Code by issuing a “decision of abstention” stating this issue in accordance with Article 30/1 of the Criminal Procedure Code. The fact that it is accepted as a state of prohibition and regulated in the “Fifth Section” of the CPC requires the resolution of the dispute with the decision in accordance with the procedure in this section.
Within this framework, the decision on whether the request for renewal of the trial is worthy of acceptance must be made by the same court, but by a committee formed by judges other than the judge, chairman and members who made the original decision. The judge who made the previous decision has formed his/her opinion about the case, his/her opinion has become clear with the first judgement, he/she may be influenced by his/her previous opinion and opinion in the retrial phase or in the decision he/she will make on whether the request that will lead to this phase is worthy of acceptance or not, for this reason, as an extension of the right to a fair trial, it would be correct for the committee/judge, which is completely unfamiliar with the case and which includes a different judge, to examine the request for renewal of the trial.
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In the face of the above determinations, acceptances and evaluations; In the concrete case; Since the judge who issued the sentence of conviction subject to the renewal request is the judge who decided to reject the request for renewal of the trial, Denizli 5th Assize Court should decide to accept the objection in accordance with the provisions of the above-mentioned law, while it should decide to reject it in writing, since the request for reversal in favour of the law is deemed appropriate, the request for reversal in favour of the law is deemed appropriate due to the decision of the (DENİZLİ) 5th Assize Court dated 02.07. 2020 dated 02.07.2020 and numbered 2020/522 Amended Business, in accordance with paragraph 3 of Article 309 of the Code of Criminal Procedure No. 5271, in accordance with subparagraph a of paragraph 4 of the same article, the next actions shall be fulfilled by the authority in the neighbourhood, the file shall be sent to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the court, it was decided on 20.04.2021 with the dissenting votes of our Chamber members … and … that the same judge can conduct the acceptability examination and with the majority of votes.
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