What is the Restoration of Prohibited Rights?
The restoration of prohibited rights, also known as the restoration of prohibited rights, is a criminal law institution that eliminates prohibitions imposed on a convict by laws other than the Turkish Penal Code due to a conviction.
Turkish Penal Code No. 5237, currently in effect, states that upon the execution of the sentence, the individual will regain all prohibited rights. However, some special laws outside the Turkish Penal Code contain provisions that prevent a convict from exercising certain rights due to their conviction. For example, while a convict has served their sentence under the Turkish Penal Code, they are prohibited from practicing professions such as lawyers, members of parliament, financial advisors, or civil servants by the specific laws of those professions. To overcome this prohibition, the convict must also apply to the court and obtain a decision to restore prohibited rights (restoration of prohibited rights).
In short, the restoration of prohibited rights is designed to eliminate the negative consequences attached to criminal convictions by laws other than the Turkish Penal Code.
Conditions for the Restoration of Prohibited Rights (Restoration of Prohibited Rights)
According to Article 13/A added to the Criminal Records Law No. 5352, three conditions must be met to request the restoration of prohibited rights:
1- The first condition for the restoration of prohibited rights is the execution of the sentence. Execution of the sentence does not refer to the convict’s conditional release from prison. It refers to the conditional release of the convict, who completes the period of supervision outside the prison and serves the entire sentence specified in the criminal court’s judgment of conviction. For example, if a convict is sentenced to 8 years by a criminal court and is conditionally released after serving 6 years in prison, the sentence will be executed after serving the remaining 2 years outside the prison. A convict whose sentence has been served may request the restoration of prohibited rights.
2- The second condition for the restoration of prohibited rights is that a period of three years has elapsed since the execution of the sentence. If three years have not passed since the execution of the sentence, no request for the restoration of prohibited rights can be made.
3- The third condition for the restoration of prohibited rights is that the convict has not committed any new crimes during this period, starting from the execution of the sentence and including the three-year period following the execution of the sentence, and that the court is satisfied that the convict has maintained a good conduct. In practice, courts consider a convict to be of “good conduct” if the convict has not committed a crime and has no clearly known negative characteristics.
To request the restoration of prohibited rights, a petition must be filed with the competent court. Requests for the restoration of prohibited rights can also be submitted to the court through a criminal defense attorney or any other attorney.
Competent Court for the Restoration of Prohibited Rights
There are two courts authorized to decide on the restoration of prohibited rights:
1. The court where the convict was tried can decide on the restoration of prohibited rights. Because the court that issued the verdict has easier access to the content of the conviction, the most appropriate court to request the restoration of prohibited rights is the court that issued the original judgment.
2. If the convict resides in a place other than the court that issued the verdict, they can apply to a court of the same rank as the court that issued the conviction and request the restoration of prohibited rights. For example, if a person tried and convicted by the Antalya 1st High Criminal Court resides in Izmir, they can apply to the Izmir High Criminal Court on Duty to request the restoration of prohibited rights. In this case, the court in Izmir will request the conviction and relevant documents from the court in Antalya to decide whether the prohibited rights should be restored.
It should be noted that the convict has the right to choose either of these two courts. However, the court issuing the conviction can make a decision more easily when all the documents are in place.
Restoration of Defective Rights and Civil Servants
Article 48/A-5 of Law No. 657 on Civil Servants contains a specific provision stipulating that those sentenced to imprisonment of one year or more for a deliberately committed crime will not be accepted into civil service, even if the periods specified in Article 53 of the Turkish Penal Code have expired. The same law stipulates that those who commit certain disgraceful crimes, even if pardoned, lose their right to civil service.
If a decision is made to restore the prohibited rights against a convicted person, they will regain all their prohibited rights. A decision to restore the prohibited rights also removes obstacles to civil service. Regardless of the conditions of civil service, a person who has decided to restore the prohibited rights will be granted the right to civil service. However, due to open appointment rules, the administration has discretion in whether to accept a convicted person into civil service, within the framework of Article 92 of Law No. 657. This discretion is not excessive and is subject to administrative judicial review.
Restoration of Defective Rights and Parliamentary Membership
According to Article 11 of the Parliamentary Election Law, citizens sentenced to a total of one year or more in prison are not eligible to be elected as a Member of Parliament, even if their sentence is pardoned. The only way to qualify for parliamentary election is to obtain a decision to restore the prohibited rights. Citizens wishing to exercise their right to be elected in parliamentary elections must obtain a decision to restore the prohibited rights within the application period.
Professions Where a Decision to Restore Defective Rights Is Ineffective
Some professions have specific professional rules. Even if a convict receives a decision to restore prohibited rights, the ethical rules of some professions may not permit them to practice these professions. The relevant professional organization may reject a convict’s application for admission to the profession. The Council of State’s decisions on this matter are listed below:
1- A financial advisor was sentenced to one year in prison for using forged documents. After serving his sentence, he applied to TÜRMOB, the relevant professional organization, for admission to the profession after obtaining a court order reinstatement of his prohibited rights. TÜRMOB rejected his application for admission to the profession. The Council of State ruled that a decision to reinstate prohibited rights could eliminate incompetence under Article 4, paragraph (d), of Law No. 3568. However, due to the clause in paragraph (f) of the same article, which states “not having any circumstances incompatible with the honor and dignity of the profession,” TÜRMOB was justified in rejecting his application for admission to the profession (Council of State, 8th Chamber – Case No: 2008/3215, Decision No: 2010/5022, Date: October 6, 2010).
2- A citizen was convicted of murder. After serving his sentence, he obtained a decision from the relevant court to reinstate prohibited rights. After graduating from law school, he applied for an internship at the Konya Bar Association to become a lawyer, but the bar rejected his request. Although the decision to reinstate the prohibited rights had eliminated his incompetence under Article 5/a of the Attorneyship Law, the Council of State ruled that his incompetence continued due to the provision of “attitudes and behaviors unbecoming of the legal profession being known to others” under Article 5/c of the same law, and thus justified the bar association’s rejection of his application for admission to the legal profession (Council of State, 8th Chamber – Case No: 2006/4018, Decision No: 2007/16, Date: January 15, 2007).
Restoration of Defective Rights and Criminal Records
According to the Criminal Records Law, the decision to reinstate prohibited rights is recorded in the individual’s criminal record. This facilitates access to the court decision regarding the reinstatement of prohibited rights.
A decision to restore rights is removed from the criminal record when a decision to expunge the criminal record is made.
A decision to restore rights is a crucial court decision for convicts, as it allows them to exercise many of their citizenship rights. It is essential that these decisions be made immediately after the sentence is served.