Rule Subject to Objection
The rule subject to objection stipulates that the announcement of the judgement may be deferred for the defendant sentenced to imprisonment for two years or less or to a judicial fine.
Application Justification
In the application decision, in summary, it was argued that the rule is unconstitutional by stating that the issuance of a Leniency Decision does not provide adequate redress for the victims, leads to the exemption of the perpetrators from punishment and that the state cannot fulfil its obligation to protect and improve the material and moral existence of individuals
The Court’s Assessment
HAGB refers to the postponement of the announcement of the judgement of conviction to be given at the end of the criminal proceedings, subject to certain conditions. The defendant is asked whether he/she accepts the application of the HAGB before the judgement stage and based on the possibility that the defendant will be convicted in the future. In the rule subject to the objection, the conformity of the said institution with the constitutional guarantees regarding fundamental rights and freedoms has been evaluated, taking into account the previous findings of the Constitutional Court regarding the functioning of the HAGB institution.
For the defendants who accept the application of Leniency at the beginning of the trial, the control of whether the guarantees of the right to a fair trial are provided by the court of first instance in the later stages of the trial cannot be carried out in the appeal remedy and this situation may lead to violations of rights. A trial that is foreseen to be subject to the appeal remedy becomes subject to the appeal remedy when the defendant accepts the Leniency Judgement. The defendant waives his/her right to appeal by accepting a Leniency Judgement. It is understood that the will to waive a certain legal remedy expressed at a stage prior to the establishment of the court judgement does not meet the constitutional validity conditions.
It has been evaluated that the HAGB institution also contains some deficient regulations in terms of confiscation procedures. There is no clear legal provision regarding the stage at which confiscation proceedings will be executed in the event of a HAGB decision. It has been observed that there is uncertainty in the time of execution, which may lead to the execution of the confiscation decision together with the Leniency Decision by suspending the possibility to apply to the legal remedy of appeal regarding the restriction of the property right through confiscation, and it has been concluded that the rule imposes an excessive burden on the owners, considering that sufficient guarantees are not provided.
On the other hand, the HAGB decision issued against the person does not constitute a punishment, but consists of placing the person under the threat of punishment. Considering this nature of the Leniency Decision, the Constitutional Court, in many of its previous decisions, has considered that the application of the Leniency Institution in terms of allegations of ill-treatment results in the defendant not receiving an enforceable sentence and that the application of this institution does not require the consent of the victim or the provision of a moral compensation for the victim, and that the aforementioned deferral decision does not provide an adequate and effective remedy for the victim.
Another evaluation of the Leniency Programme is related to the cases where the perpetrator is a public official. In cases where the perpetrator is a public official, it should be taken into consideration that an unlawful and extremely serious act cannot be tolerated in any way. In this context, a public official who is found to have committed torture or ill-treatment should not be left unpunished. It has been observed that there is no legal regulation stipulating that the Leniency Law shall not be applied to the offences committed by the public official due to his/her duty and considered as torture, torture and ill-treatment within the meaning of Article 17 of the Constitution; and it has been understood that the practices of the criminal courts cannot solve this problem. This situation is incompatible with the obligation imposed on the state by the Constitution to impose punishments proportionate to the acts of the perpetrators and to provide appropriate redress for the victims.
For the reasons explained above, the Constitutional Court has decided that the rule is unconstitutional and should be cancelled, the other provisions of Article 231 of the Law No. 5271 regulating HAGB, which are no longer applicable, should be cancelled due to the cancellation of the rule, and the cancellation provisions should enter into force one year after the publication of the decision in the Official Gazette.