T.R. COURT OF CASSATION 16th PENAL CHAMBER
Basis No: 2017/2491 Decision No: 2017/5658 Date: 20.12.2017
MANDATORY ELEMENTS TO BE INCLUDED IN THE FINAL OPINION ON THE MERITS (It is Accepted as Mandatory for the Public Prosecutor to State Their Final Opinion on the Merits Regarding All Offenses Subject to the Trial and, in the Event This Opinion is Towards Conviction, to Include the Laws and Articles Requested to be Applied)
FINAL OPINION LACKING THE NAMES OF OFFENSES AND THE ARTICLES OF LAW REQUESTED TO BE APPLIED (Taking the Final Defense of the Defendant and Establishing a Judgment of Conviction in This Manner Restricts the Right of Defense – It is Accepted as Mandatory for the Public Prosecutor to State Their Final Opinion on the Merits Regarding All Offenses Subject to the Trial and, in the Event This Opinion is Towards Conviction, to Include the Laws and Articles Requested to be Applied)
RESTRICTION OF THE RIGHT OF DEFENSE (Establishing a Judgment of Conviction by Taking the Defendant’s Final Defense Based on a Final Opinion Disclosed by the Public Prosecutor in the Session Attended by the Defendant, Which Does Not Include the Names of Offenses and the Articles of Law Requested to be Applied, Constitutes a Restriction of the Right of Defense)
Relevant Articles: Criminal Procedure Code (CPC) Art. 216, 225/1.
SUMMARY: Since it is accepted as mandatory for the Public Prosecutor to disclose their final opinion on the merits regarding all offenses subject to the trial and, in the event this opinion is towards conviction, to include the laws and articles requested to be applied; the restriction of the right of defense by establishing a judgment of conviction after taking the defendant’s final defense based on an opinion disclosed in the session attended by the defendant which, as explained above, did not include the names of offenses and the articles of law requested to be applied, has required a reversal.
LAWSUIT: The file was examined and the following was considered:
DECISION: 1-) In the decision of the General Assembly of Penal Chambers of the Court of Cassation dated 27.05.2014, Basis No. 2013/1-76, Decision No. 2014/282, which is also adopted by our Chamber;
“In order to reveal the concrete truth, which is the aim of criminal proceedings, the phase of drawing conclusions from the evidence, namely the discussion phase, begins after the evidence is presented at the hearing. Thus, the parties will be given the floor regarding the evidence presented according to the order specified in Article 216/1 of the CPC No. 5271 and an opportunity for discussion will be provided. After the discussion phase is completed, first the participant (katılan) and their counsel representing the individual prosecution, and then the Public Prosecutor representing the public prosecution shall declare their opinion on the merits. The prosecution office, which is responsible for preparing the indictment based on the conclusion reached from the evidence obtained during the investigation phase, thereby determines the boundaries of the prosecution phase pursuant to Article 225/1 of the CPC. At the end of the prosecution phase, the prosecution office will present its claims regarding the merits through its final opinion by evaluating the evidence brought to the hearing and discussed, and the defendant or their defense counsel will be able to make their defense regarding this. This is a necessary and mandatory condition for reaching a sound decision as a result of the trial, which is a process in which the result (i.e., the judgment) is reached through the conflict between the thesis (i.e., the prosecution) and the antithesis (i.e., the defense).
…The Public Prosecutor must disclose their final opinion on the merits in a clear and understandable manner regarding each offense subject to trial before the decision is rendered, based on the evidence collected, and if their opinion is towards conviction, by indicating the laws and articles contained in the legislation.
…In the ECHR Ozerov v. Russia (18.05.2010-64962/01) decision; while emphasizing the importance of the indictment prepared before the trial, it was accepted that the non-participation of the prosecutor in criminal proceedings constitutes a violation of the ‘right to a fair trial’ under Article 6 ends of the ECHR.”
Within the framework of the explanations made above, when it comes to the concrete case;
Since it is accepted as mandatory for the Public Prosecutor to disclose their final opinion on the merits regarding all offenses subject to the trial and, in the event this opinion is towards conviction, to include the laws and articles requested to be applied; the restriction of the right of defense by establishing a judgment of conviction after taking the defendant’s final defense based on the opinion disclosed in the session dated 28.05.2015 attended by the defendant, which did not include the names of offenses and the articles of law requested to be applied as explained above,
2-) According to the acceptance and implementation; a-) Due to the fact that some regulations in Article 53 of the TPC were annulled by the annulment decision of the Constitutional Court dated 08.10.2015, Basis No. 2014/140, Decision No. 2015/85, published and entered into force in the Official Gazette dated 24.11.2015 and numbered 29542, there is a necessity to establish a judgment in line with this decision, b-) The writing of the name of the offense in the title of the reasoned decision as being a member of an organization established for the purpose of committing a crime instead of committing a crime on behalf of an organization without being a member of an armed terrorist organization,
CONCLUSION: As the appeal objections of the defendant are found justified in this respect as they are contrary to the Law, it was unanimously decided on 20.12.2017 to REVERSE the judgments, for which other aspects were not examined, for these reasons.