Rule Subject to Appeal
The rule subject to appeal explicitly provides for a legal remedy to appeal a decision to defer the pronouncement of a sentence (HAGB).
Grounds for the Application
In summary, the application argues that, pursuant to Law No. 5271, HAGB decisions should not produce legal consequences; however, in recent years, laws and regulations have been enacted that attach consequences to HAGB decisions. Furthermore, reviews of objections to HAGB decisions are, as a rule, conducted based on the case file, and no substantive review of the decisions is carried out. that this situation violates the rights to a two-tiered trial, an effective remedy, and a fair trial; and that, consequently, HAGB decisions implying the belief that the individual committed a crime do not undergo a genuine legal process and should be subject to appellate review, thereby asserting that the provision is unconstitutional.
The Court’s Assessment
Although the HAGB institution is relatively new within the Turkish legal system, it has found a wide scope of application. According to data released by the General Directorate of Judicial Records and Statistics of the Ministry of Justice for the year 2020, HAGB decisions account for approximately one-fourth of all conviction decisions issued by criminal courts.
The mere existence of a remedy against HAGB decisions, which have found a very broad scope of application in the Turkish judiciary, is not sufficient in and of itself given the current manner of implementation; this remedy must also offer a realistic chance of success in practice. The absence of such a judicial review, which directly concerns the regime of restrictions on fundamental rights and freedoms, would mean that the rule justifying the intervention fails to provide the procedural safeguards of trial law, thereby leading to a violation of fundamental rights and freedoms.
In this context, in numerous individual application cases where it previously reached a finding of violation, the Constitutional Court has issued decisions stating that the appellate authorities failed to consider the applicants’ claims and evidence, made no effort to balance conflicting interests, and did not assess whether the intervention was consistent with the requirements of a democratic society or whether it was proportionate. Under the current system, it has been observed that the decisions issued by appellate authorities in response to appeals against HAGB rulings consist of uniform, file-based justifications—often limited to formal conditions—stating that no legal violations were found in the decisions issued by the first-instance courts and that the appeal was therefore dismissed.
The provision establishing the right to appeal HAGB decisions does not provide for a specific and effective means of review to ensure that the claims and evidence of those seeking this legal remedy are considered, that conflicting interests are balanced, and that the proportionality and compliance with the requirements of a democratic society of interventions in fundamental rights and freedoms are determined. This situation limits the individual’s right to demand that the opportunity to appeal to the competent authority be provided for the redress of interventions in fundamental rights and freedoms and to prevent arbitrary conduct by those exercising public power. Indeed, it is also observed that the rule cannot be applied in a manner that addresses the aforementioned issues. The absence of such a judicial review mechanism, which is directly related to the regime of restricting fundamental rights and freedoms, is incompatible with the right to an effective remedy.
The Constitutional Court, based on the aforementioned grounds, ruled that the provision is unconstitutional and ordered its annulment.