REPUBLIC OF TÜRKİYE COURT OF CASSATION 6th Criminal Chamber
Basis No: 2018/891
Decision No: 2018/1606
Date: 28.02.2018
OFFENSES: Theft and Injury – Reversal of the Judgment and Alleged Violation of the Rule of Acquired Rights (Kazanılmış Hak) – Necessity of providing an opinion on whether a Written Order (Yazılı Emir / Kanun Yararına Bozma) has been requested regarding this violation – Requirement to return the file to the Office of the Chief Public Prosecutor of the Court of Cassation.
S U M M A R Y
The file must be returned to the Office of the Chief Public Prosecutor of the Court of Cassation for an opinion on whether a “Written Order” request has also been made regarding the violation of the rule of acquired rights concerning the judgment rendered following the reversal.
Legal Context: Adana 9th High Criminal Court initially sentenced the defendant for theft and intentional injury. Following a reversal by the 2nd Criminal Chamber (reclassifying the acts as aggravated robbery and chain theft), the local court rendered a new sentence. In doing so, it applied the rule of acquired rights pursuant to Article 326/last of the CCP (since only the defendant/defense had appealed the initial judgment) and determined a final sentence of 8 years and 18 months.
The Dispute: The Chief Public Prosecutor’s Office requested a reversal via “Written Order” (Art. 309 CCP), arguing that under the current Turkish Penal Code (No. 5237), sentences for different crimes maintain their independence at the sentencing stage. Unlike the former code (No. 765), joinder (summing up) of sentences is now a matter pertaining strictly to the execution phase (Law No. 5275 Art. 99).
However, the 6th Criminal Chamber noted that it must first be clarified whether the request for reversal also addresses the potential violation of the acquired right rule in the new judgment. Thus, the file is RETURNED to the Prosecutor’s Office for further clarification.