The Rules Following the Constitutional Court's Annulment of the Deferral of the Announcement of the Verdict (HAGB): Is the HAGB Era Over?

ASSESSMENT OF THE CONSTITUTIONAL COURT’S DECISION ANNULLING THE HAGB

HAS THE HAGB ERA COME TO AN END?

Murat Volkan Dülger^* & Şaban Cankat Taşkın^*

The practice which makes it possible to give the decision known as the deferment of the pronouncement of the judgment (“HAGB”) entered our system of criminal procedure by a subsequent amendment made to the Code of Criminal Procedure (“CMK”) in 2006, and from that date until today it has been applied while mostly being the subject of incomplete and erroneous assessments. However, the HAGB provision, which has been applied without interruption for approximately seventeen (17) years, was annulled by the decision of the Constitutional Court (“AYM”) dated 01.06.2023 and numbered E. 2022/120, K. 2023/107, published in the Official Gazette of 01.08.2023, No. 32266, and it was decided that the annulment decision would enter into force one year after its publication in the Official Gazette.

Below we wish to refer briefly to the reasons for this annulment decision and, in a short reading, to touch upon the salient points of this decision of the AYM, which is extremely important in terms of both its reasoning and its consequences.

The HAGB in General and the Criticisms Levelled at the Practice of HAGB

The practice of HAGB has been exposed to a wide variety of criticisms since 2006, when the amendment was made; the basic problem in practice is that, where the formal conditions for giving an HAGB decision are met, the decision has come to be applied virtually automatically, without any assessment whatsoever of whether it really ought to be applied, that is to say without individualisation, which is its true purpose.

The two basic reasons for the emergence of the HAGB are to protect the perpetrators of offences of comparatively lesser wrongfulness from the adverse effects of short-term imprisonment and to prevent unnecessary costs from falling on the public on account of the execution of sentences. It must be accepted that these needs are entirely appropriate and correct. However, because the habit of applying formulas automatically, without interpretation, without command of the details of the concrete situation, without giving the matter any thought and without pursuing the aim of doing justice, has taken root in our country’s practice of criminal procedure, this well-intentioned institution has taken a turn for the worse and has given rise to certain fundamental problems.

The first of these is that the HAGB leads to a “phenomenon of impunity”, both among the general public not involved in crime and among perpetrators and victims who are in some way connected with crime. For, for the reasons we have stated above, this decision is applied in every dispute, “as if it were virtually a right granted to accused persons”, whenever the conditions laid down in the law are met, without any regard at all to the event being tried or to the situation of the accused. Since, as a result of this decision, nothing is entered in the perpetrator’s criminal record either, this is understood as nothing other than a perception or phenomenon of impunity.

As a similar problem, emphasis must be placed on the fact that perpetrators who commit offences that differ greatly from one another in terms of their wrongfulness and degree of culpability are subjected to the same sanction. For this situation has greatly damaged the sense of justice and equity in the practice of criminal procedure. Let us think, for example, on the one hand of A, who in the course of an argument utters an insulting remark to the person with whom he is arguing, and on the other hand of B, who, for no reason other than that he does not much like him, injures a friend whom he meets in the street and causes him to be treated in hospital. In this situation it is beyond dispute that B presents the greater dangerousness in terms of the events in question, that the wrongfulness of his act and of its result is greater, that there is no circumstance affecting his culpability, that he caused greater harm both materially and morally, that A’s victimisation is greater, and that, in conclusion, A and B ought to be subjected to different sanctions. Yet because of the practice of HAGB, A and B have come to be subjected to the same sanction. This is, above all, incompatible with the sense of equity. More importantly, it increases the perpetrator’s motivation to commit offences. For a person who is contemplating an offence acts in the belief that, even if he goes one step further and commits a more serious offence than the one planned, he will face the same sanction anyway, and so he commits the more serious offence.

Another of the problems arising from the practice of HAGB is that the fact that accused persons are confronted with this question at the very beginning of the trial, before the evidence has yet been discussed and before any procedural act relating to the merits of the trial has been carried out, has virtually the effect of a shock on them. During the trial the HAGB is presented to accused persons as follows: either accept the HAGB and be done with it, or play a kind of gamble with your own future. And, accordingly, if you choose the gamble, forgo the remedy of appeal on facts and law, which is a genuine review procedure, and content yourself with objection, a remedy which in reality does not work!

The Decision of the AYM Annulling the HAGB Provision

The HAGB, which had previously come before the Constitutional Court many times for the annulment of various of its provisions, with the applications for annulment being dismissed, and which, on the last occasion, was found contrary to the Constitution in respect of the method of examination of the remedy of objection, the relevant provision being annulled and the entry into force of the decision deferred to a later date, did not pass the AYM’s review this time. It was annulled in its entirety, essentially for the reasons which we have set out above and with which we too agree.

In its decision dated 01.06.2023 and numbered E. 2022/120, K. 2023/107, published in the Official Gazette of 01.08.2023, No. 32266, the AYM annulled the first sentence of paragraph 5 of Art. 231 CMK; it ruled that the annulment decision would enter into force one year after the publication of the decision in the Official Gazette.

In the reasoned decision it was decided that, since the annulment of Art. 231(5), sentence 1, CMK left no possibility of applying sentences 2 and 3 of paragraph 5 and paragraphs 6, 7, 8, 9, 10, 11 and 13, these paragraphs too were to be annulled and the annulment decision was to enter into force one year after its publication in the Official Gazette; and that paragraphs 12 and 14 of the article were also to be annulled. In this way the AYM has in fact brought to a close the HAGB era, which had held a place in the system of criminal procedure for a very long time.

The annulment decision in question may give rise to certain debates from the standpoint of constitutional law. The debates on this matter should be left to constitutional lawyers. Our assessment of the decision from the standpoint of criminal law and the law of criminal procedure is as follows:

1. The decision pointed out that practices similar to the HAGB exist in various countries as well and that the creation of institutions of this kind lies within the discretion of the legislature (paras. 26, 27), but stated that the provision in its present form leads to numerous violations, including of the right to a fair trial.

2. The most striking point in the reasoning of the decision is the ground that the failure of the law to specify when the accused’s opinion on whether or not the HAGB decision is to be applied must be obtained plunges the accused into uncertainty and places the accused in a weak position at the very outset of the proceedings (paras. 36 to 39 and also 43, 44).

We too agree with this reasoning of the AYM. For in practice the courts, without explaining to the accused what the HAGB is and what its consequences will be, virtually force the accused to accept this institution. And the accused, thinking that in the event of conviction the decision will be entered in his or her criminal record, accepts the HAGB. In this respect the annulment decision is in conformity with the law.

3. The decision pointed out that no effective remedy is provided against the HAGB and that the accused’s waiver of remedies from the outset would be incompatible with the right to a fair trial and the principle of the rule of law. In this context reference was made to the previously annulled provision of Art. 231(12) CMK, under which an objection may be lodged against HAGB decisions, and it was pointed out that the new rule introduced does not provide sufficient legal protection either, because the HAGB means that the accused waives the remedy of appeal on facts and law from the very outset (paras. 40, 44).

Indeed, as noted in the reasoning, the fact that the HAGB decision may also be examined on the merits by the authority hearing the objection pursuant to Art. 231(12) cannot be an effective avenue, because the accused is not asked from the very outset for his or her decision on the matter. Although it was stated in the dissenting opinion (p. 23, para. 36) that the fact that the authority hearing the objection will go into the merits of the case and that the HAGB decision can always be reversed means that the right to a fair trial and the rules of the rule of law are not violated, in our opinion, as we have also stated above, asking the accused for his or her view on the HAGB at the very beginning of the proceedings, before the evidence has been gathered and the witnesses heard, puts pressure on an accused who does not yet understand what this institution means. Thereafter the accused is unable to go back on that decision, for fear of being convicted if he or she forgoes the HAGB decision.

4. The annulment decision also noted that the HAGB decision will create uncertainty in execution as regards the stage at which confiscation is to be applied, and that this violates the right to property (para. 47). Likewise, the decision pointed out that the stage at which confiscation is to be applied must be determined in accordance with Art. 35 of the Constitution and that the law must make provision to that effect (para. 48).

5. The annulment decision also pointed out that the HAGB decision causes penalties to be far from deterrent, because it prevents the imposition of the effective and sufficient punishment that is needed, particularly in the case of offences such as torture committed by public officials against civilians, in order to punish more effectively and to prevent the phenomenon of impunity (paras. 55, 56).

We too agree with these reasons. For both in order to determine when the institution of confiscation is to be applied and in order that serious offences such as torture can be punished more effectively, the conditions under which and the manner in which the HAGB is to be applied must be stated clearly in the statute. The fact that the provision is to be applied to offences carrying imprisonment of up to 2 years (2 years included) and/or a judicial fine does not mean that the provision is, for that reason alone, proportionate and commensurate. For that reason we do not agree with the view to this effect in the dissenting opinion (para. 12).

The Effect of the Annulment Decision on the Operation of Criminal Procedure

1. The annulment decision will enter into force one year later. Pursuant to Art. 153(5) of the Constitution, annulment decisions do not have retroactive effect. Having regard to the fact that the decision was published in the Official Gazette of 01.08.2023 and will enter into force one year later, the date of its entry into force will be 01.08.2024. Accordingly, in respect of all judgments to be given until 01.08.2024, the HAGB provisions may be applied if their conditions are met, and an objection may be lodged against those judgments pursuant to Art. 231(12) CMK. This is because the AYM did not order that the operation of the provision be suspended. Accordingly, it is legally possible for the courts to give HAGB decisions for one year. We think, however, that when judges consider giving an HAGB decision within this one-year period, they should also take into account the criticisms levelled at the HAGB by the AYM. For it is appropriate that a transitional period of one year was granted, since the criminal justice system will not be able to adapt to this annulment decision from one day to the next. Nevertheless, it would also be wrong knowingly to allow the same unlawfulness to continue and new grievances to arise within this one-year period. Therefore, even though there is no rule imposing this obligation, the necessary care and attention should be shown out of a lawyer’s sense of responsibility.

2. Within one year the Grand National Assembly of Türkiye (TBMM) must enact a new rule concerning the annulled provisions of Art. 231 CMK. If it does not, it will not be legally possible for the courts to give HAGB decisions, since the annulment decision will have entered into force. In that case, however, there is nothing to prevent the courts, if the conditions are met, from ordering the sanctions alternative to short-term imprisonment under Art. 50 of the Turkish Criminal Code (TCK) or the suspension of the sentence under Art. 51 TCK.

3. In the same way, Art. 23 of the Child Protection Law (“ÇKK”), which concerns the HAGB, will also remain in force during the one-year period with regard to children driven to crime; if the necessary rule is not enacted in Art. 231 CMK by the end of the year, the provision of Art. 23 ÇKK will continue to be a valid provision, since it has not been annulled. However, because Art. 23 ÇKK refers to Art. 231 CMK, it will not be possible to apply Art. 23 ÇKK in practice.

4. In the same way, the provision in Art. 251(4) CMK on the simplified trial procedure, “a decision on the deferment of the pronouncement of the judgment may be given provided that the accused does not oppose it in writing”, will also become inapplicable if the TBMM does not enact a new rule.

5. If no rule is enacted within one year, the rule in Art. 254(2), sentences 2 and 3, CMK, “Where performance of the obligation is deferred to a later date, is made payable in instalments or is of a continuing nature, a decision on the deferment of the pronouncement of the judgment shall be given in respect of the accused without the conditions in Article 231 being required. The limitation period shall not run during the period of deferment. Where, after a decision on the deferment of the pronouncement of the judgment has been given, the requirements of the settlement are not fulfilled, the judgment shall be pronounced by the court without the conditions in the eleventh paragraph of Article 231 being required.” will also become inapplicable. This may, in particular, expose an accused who, in the victim–offender mediation process at the prosecution stage, has undertaken to perform an obligation at a later date to the danger of being unable to benefit from the safeguard of the HAGB once the annulment has entered into force.

By contrast, since a decision to postpone the public prosecution may be given pursuant to Art. 253(19) CMK in respect of a suspect who has undertaken to perform an obligation at a later date at the investigation stage, of two persons in the same situation (perhaps even two persons who have undertaken the same obligation) the accused at the prosecution stage will be deprived of the safeguard of the HAGB, whereas the suspect at the investigation stage will benefit, in the victim–offender mediation process, from the shield of the decision to postpone the public prosecution.

In order that all these legal debates may be avoided, we think that the institution of HAGB must be regulated anew, in line with the reasons indicated by the AYM in its annulment decisions, in such a way that criminal justice and certainty are also ensured.