SUSPENSION OF THE PRONOUNCEMENT OF THE JUDGMENT (HAGB) INSTITUTION

HAGB is the abbreviation of the term “Suspension of the Pronouncement of the Judgment” (Hükmün Açıklanmasının Geri Bırakılması). In cases where the court decides on HAGB, the sentence imposed on the defendant does not produce legal consequences during a certain supervision period. If the defendant does not intentionally commit a crime within the five-year supervision period and complies with other HAGB conditions, the judgment imposed against the defendant is annulled. In such a case, although it is established that the defendant committed the crime, the judgment of conviction does not produce any legal consequences. In other words, HAGB suspends the legal intervention into the defendant’s life.

For the court to decide on HAGB, the following conditions must be met:

• The defendant must not have previously been convicted of an intentional crime,

• The imposed sentence must be two years or less imprisonment or a judicial fine,

• The defendant must not have previously benefited from an HAGB decision,

• The court must reach the conclusion that the defendant will not commit another crime,

• Any damage caused to the public or the victim(s) due to the crime must have been compensated,

• The defendant must accept the HAGB decision.

Upon an HAGB decision, the defendant is subject to supervision for a period of five years. If the defendant does not intentionally commit a crime during this period and complies with the imposed obligations, the conviction is removed and the case is dismissed in a manner that does not appear in the defendant’s criminal record.

If the defendant intentionally commits a crime or violates the obligations during this five-year period, the court terminates the HAGB decision and pronounces the judgment against the defendant. In other words, the judgment previously rendered but suspended from producing legal consequences becomes effective upon termination of the HAGB decision, and the sentence imposed on the defendant is executed. Such sentence cannot be postponed or converted into alternative sanctions.

CONSTITUTIONAL COURT DECISION NO. 2022/120 E. AND 2023/107 K. REGARDING THE ANNULMENT OF THE SUSPENSION OF THE PRONOUNCEMENT OF THE JUDGMENT (HAGB) INSTITUTION

The Trabzon 2nd Criminal Court of First Instance applied to the Constitutional Court with the following allegations:

“The decision of HAGB does not provide sufficient compensation for victims, leads to perpetrators being exempted from punishment, and prevents the State from fulfilling its obligation to protect and develop individuals’ material and spiritual existence; therefore, the relevant provision is contrary to the Constitution.”

Following the Constitutional Court’s examination of these allegations, it was decided to annul paragraphs 5 to 14 of Article 231 of the Criminal Procedure Code (“CPC”), which regulate the Suspension of the Pronouncement of the Judgment (HAGB) institution.

The annulment decision of the Constitutional Court, published in the Official Gazette dated 01.08.2023, will enter into force on 01.08.2024.

GROUNDS OF THE ANNULMENT DECISION

The Constitutional Court determined that, pursuant to Article 231/12 of the Criminal Procedure Code, the fact that only the objection remedy was available against HAGB decisions and that the defendant could no longer apply for appeal (istinaf) once he/she accepted the HAGB decision issued by the court resulted in the defendant being effectively forced to waive this right in advance.

The Constitutional Court concluded that this situation violates the “Right to a Fair Trial” regulated under Article 36 of the Constitution.

Furthermore, the Constitutional Court stated that the fact that the victim’s consent is not required for an HAGB decision and that no mechanism is provided for moral compensation from the victim’s perspective does not provide an adequate and effective remedy for the victim.

Therefore, the Court determined that this situation violates the “Right to Protect and Develop the Material and Spiritual Existence of the Individual” regulated under Article 17 of the Constitution.

The Constitutional Court also examined the application of the HAGB institution in cases where the perpetrator is a public official. The Court determined that the absence of any legal regulation preventing the application of HAGB to public officials, and the inability to resolve this issue through judicial practice, is incompatible with the State’s obligations to:

• provide effective remedies for victims, and

• impose penalties on perpetrators proportionate to their acts.

Finally, regarding confiscation (müsadere) procedures, the Constitutional Court stated that there is no specific legal provision determining at which stage confiscation decisions should be executed in cases where an HAGB decision is issued.

Therefore, it was determined that it is not possible to assess through the appeal process whether restrictions imposed on property rights through confiscation are arbitrary, disproportionate, or unlawful.

The Constitutional Court concluded that the HAGB institution, in this respect, violates Article 13 of the Constitution, which regulates the principles regarding the limitation of fundamental rights and freedoms.

CONCLUSION

Based on the reasons explained above, the Constitutional Court annulled the provisions regulating the Suspension of the Pronouncement of the Judgment (HAGB) institution under Article 231/5-14 of the Criminal Procedure Code.

The annulment decision will enter into force one year after its publication in the Official Gazette, on 1 August 2024.

Submitted for your information and consideration.