ABSTRACT
This study examines the reasons behind the Constitutional Court’s decision to annul the DAV institution and the societal, legal, and individual impacts of this decision.
I. INTRODUCTION
This study comprehensively examines the Turkish Constitutional Court’s (“Constitutional Court”) decision dated June 1, 2023, numbered 2022/120 E. and 2023/107 K., published in the Official Gazette numbered 32266 on August 1, 2023 (“Annulment Decision”), which annulled Articles 231/5 et seq. of the Code of Criminal Procedure (“CCP”) regulating the deferment of the announcement of the verdict (“DAV”). The study analyzes the legal grounds for the decision and its consequences.The legal nature of DAV, the grounds upon which the Constitutional Court based its decision, and the consequences of the decision’s implementation are analyzed in detail.
In Turkish Criminal Law, DAV has long served as a significant mechanism to prevent individuals convicted of lesser offenses from entering prison and to mitigate the risk of exposure to a negative prison environment that could potentially lead them toward more serious crimes. This provision aimed to rehabilitate individuals within society without imprisonment, thereby protecting public order and reintegrating individuals into the community. However, the Constitutional Court’s decision declared DAV unconstitutional and annulled it. This annulment has sparked significant debate regarding the principles of fair trial, legal certainty, and the presumption of innocence, while also marking the beginning of a new era for individual rights and the future of the judicial system.
The role of DAV within the criminal justice system is examined alongside the Turkish Constitutional Court’s justifications for its annulment. The impact of the annulment decision on the right fair trial, the principle of legal certainty, and victims’ rights is analyzed, evaluating the changes and consequences it brings to criminal procedure practices.
II. DEFERMENT OF THE ANNOUNCEMENT OF THE VERDICT INSTITUTION AND ITS LEGAL BASIS
DAV holds a significant place within the Turkish Criminal Justice System, serving as an impactful tool at both individual and societal levels. Regulated under Article 231 of the CCP, this mechanism stipulates that a conviction handed down by the court does not produce legal consequences if the defendant fulfills certain conditions. The Constitutional Court defines the deferment of the announcement of the verdict as “the court, having reached a conscientious conviction regarding the conviction, defers the announcement of the verdict for a specific period, during which the verdict does not produce any legal consequences for the defendant, and if, at the end of this period, the individual has not committed another crime, the deferret verdict is eliminated, and the case is dismissed”1.
The DAV mechanism, which defers the judicial and penal relationship between the individual and the state, aims to contribute to social peace in less serious criminal offenses, partially reduce the workload of courts, decrease prison overcrowding, and conditionally eliminate the negative impact of prison culture on individuals by providing a supervision period. Furthermore, it offers individuals a second chance by requiring them to demonstrate a commitment to rehabilitation before the execution of their sentence. The principle of mandatory prosecution is mitigated during the prosecution phase through the provision of DAV. From a broader perspective, the existence of mechanisms like DAV, with conditions clearly defined by law, is considered a concrete reflection of a humane penal policy approach2.
The DAV institution was first implemented in Turkish law with Article 233 of the Child Protection Law No. 5395 dated July 15, 2005, (“CPL”) for children in conflict with the law. Later, with amendments added to Article 231 of the CCP through Law No. 5560, its scope was broadened to include adults. Similar practices, particularly for first-time offenders and children in conflict with the law, originated in the American system (first offender - probation) as a product of the idea of rehabilitating offenders and mitigating the harmful consequences of imprisonment3.
For DAV to be applicable, the sentence must be 2 years or less, the defendant must not have been previously convicted of an intentional crime, and the court must be convinced that the defendant will not reoffend. Additionally, any damages resulting from the crime must have been compensated.
This court decision encompasses a 5-year supervision period. If the individual does not commit an intentional crime during this period and fulfills their obligations, the sentence is eliminated, and no record of the conviction appears in their criminal record. However, ifthe rules are not followed or a new crime is committed during the supervision period, the verdict is announced, and the sentence is executed. When deciding on DAV, it is crucial for courts to base their judgment on objective factors such as concrete evidence, the defendant’s demeanor during the trial, and the circumstances of the crime, to ensure justice and deterrence. Therefore, a detailed and careful evaluation by the courts is necessary during the application of DAV.
The phrase in the last sentence of Article 231/5 of the CCP “The deferment of the announcement of the judgment means that the established judgment does not produce any legal consequences for the defendant,” is the primary factor distinguishing the DAV from similar criminal law institutions. This phrase implies that a judgment, formed with all its elements for the defendant, is kept ready as if it were actually going to be applied. On the other hand, the DAV decision does not prevent the announcement of the conviction; however, it prevents it from having legal consequences. In contrast, DAV decisions, which do not have the nature of a final judgment, can be subject to judicial review together with the dismissal decision to be given if the conditions are met within the supervision period or with the main judgment which will become valid by being announced if the said conditions are not fulfilled4.
In a criminal case resulting in DAV, it is first and foremost essential that the investigation and prosecution phases are conducted and completed in accordance with legal procedural rules. As stated in the Annulment Decision: “For a DAV decision to be reached, it is first necessary to complete the trial by applying the trial procedure related to the prosecution, evaluating the allegations, the defense, and the evidence, and then determining that the alleged act was committed by the defendant, that the act constitutes a crime, and that the sentence to be imposed for this crime is imprisonment of two years or less, or a judicial fine. In other words, the possibility of applying DAV exists only if it is proven that the defendant committed the crime.”
If DAV is viewed as an alternative to conviction and a method for quickly concluding the judicial process without adhering to this system, the link between the deterrent effect of punishment and DAV will clearly be severed.
III. LEGAL CONSEQUENCES OF DEFERMENT OF THE ANNOUNCEMENT OF THE VERDICT
A. Effects on the Defendant
The legislator has stipulated a mandatory probationary period in DAV decisions, thus suspending the sentence against the defendant for a specific duration. This probationary period is generally five years (CCP Art. 231/8) and three years for children in conflict with the law (CPL Art. 23). During the probationary period, a new DAV decision cannot be issued for the same individual for an intentional crime (CCP Art. 231/8)5. Article 231/10 of the CCP states: “If no intentional new crime is committed during the probationary period and the obligations related to probation are complied with, the postponed verdict is eliminated, and the case is dismissed”. Article 231/11 of the CCP stipulates: “If a new intentional crime is committed during the probationary period or if the individual acts contrary to the obligations related to probation, the court announces the verdict”. These provisions primarily impose an obligation on the individual not to commit an intentional crime during the probationary period6.
The nondisclosure of a judgment after a conviction has been established is considered favorable to the defendant. This is because this judgment will not be included in the criminal record, nor will the prison sentence or judicial fine required by the judgment be executed. The only remaining aspect of the proven crime is the potential for rehabilitation under threat of punishment. Those who are not rehabilitated will be subject to the punishment they previously deserved. With DAV, the defendant is partially elevated to the position of a judge determining their own sentence. Described as a “conditional dismissal decision”, DAV offers the defendant a chance to choose between a favorable and unfavorable outcome7.
B. Effects on the Victim
While the application of DAV focuses on goals such as the reintegration of the defendant into society and the prevention of recidivism, it sparks various discussions regarding its impact on victims’ rights. The legal consequences of a DAV decision for the victim should be evaluated in terms of the realization of justice, compensation for damages, and the victim’s position in the judicial process. DAV decision may create the perception for the victim that justice has not been fully served. Exempting the defendant from serving a sentence may give the impression that an adequate sanction has not been applied for the injustice suffered by the victim. This can particularly damage the victim’s sense of moral satisfaction regarding the incident and undermine their trust in the judicial process. When the victim does not feel that justice has been served, both the achievement of social peace and the victim’s faith in legal processes are negatively affected. Seeing that the defendant has not been legally punished, the victim may abandon their efforts to seek redress in civil court. Moreover, although the defendant’s effort to compensate the victim for damages is stipulated as a condition in the DAV process, deficiencies in effective oversight in the implementation of this mechanism may prevent the victim’s losses from being fully compensated. Therefore, it is of utmost importance that courts meticulously consider victims’ rights when making decisions, ensure that the victim’s damages are compensated, and carry out the necessary oversight to ensure justice. Protecting victims’ rights in the application of DAV will contribute not only to individual justice but also to the establishment of social trust.
IV. THE CONSTITUTIONAL COURT’S DAV ANNULMENT DECISION
The Constitutional Court deemed the application of DAV unconstitutional and annulled it with its decision dated June 1, 2023. The Court stated that DAV conflicted with the right to a fair trial, the presumption of innocence, and the principles of legal certainty. This annulment decision is considered a significant turning point for ensuring justice and protecting individual rights during the application of DAV. The Constitutional Court addressed the following points in its Annulment Decision:
DAV refers to the deferment of the announcement of a conviction, which would be the outcome of criminal proceedings, subject to certain conditions. The defendant is asked whether they accept DAV while still in the trial phase and considering the possibility of a future conviction. In the challenged provision, the Constitutional Court evaluated the compatibility of this institution with constitutional guarantees regarding fundamental rights and freedoms, taking into account its previous findings on the application of DAV.
For defendants who accept DAV at the beginning of the trial, it becomes impossible to scrutinize the firstinstance court’s adherence to fair trial guarantees through appellate review in subsequent stages. This situation opens the door to rights violations. A trial that would normally be subject to appellate review transforms into an objection procedure upon the defendant’s acceptance of the DAV decision. Thus, when the defendant accepts DAV, they are considered to have waived their right to appeal. The constitutional validity of this waiver, concerning a specific legal remedy declared before the judgment phase of the trial, becomes a subject of debate.
Furthermore, it has been determined that the DAV institution contains deficient regulations regarding confiscation. There is no explicit legal provision regarding the stage at which confiscation procedures should be executed in cases where a DAV decision is issued. The deferment of the right to appeal regarding the restriction of property rights through confiscation, and the possibility of enforcing the confiscation order along with the DAV decision, creates uncertainty in terms of enforcement timing. Considering the lack of assurance, this situation imposes an excessive burden on owners.
Moreover, it is known that a DAV decision against an individual does not constitute a punishment itself, but keeps the individual under threat of punishment. In many previous decisions, the Constitutional Court has concluded that in cases involving allegations of illtreatment, the application of DAV does not lead to the perpetrator receiving an enforceable sentence. Because this decision is made without seeking the victim’s consent or requiring moral compensation, it does not provide adequate and effective redress for the victim.
Another consideration regarding the DAV institution concerns cases where the perpetrators are public officials. It is clear that extremely grave and unlawful acts committed by public officials can never be tolerated. Accordingly, a public official found to have committed torture or illtreatment must not go unpunished. However, it has been determined that there is no explicit legal regulation preventing the application of DAV for crimes considered torture, inhuman treatment, or illtreatment under Article 17 of the Constitution, and that practices in criminal proceedings have failed to address this gap. This situation is incompatible with the Constitution’s mandate to the state to impose penalties proportionate to the offense and to provide appropriate redress mechanisms for victims.
For all these reasons, the Constitutional Court ruled that the provision was unconstitutional and decided to annul it. Within the framework of this annulment decision, the other provisions of Article 231 of Law No. 5271, which regulate DAV, were also annulled as they could no longer be applied. The Court also decided that the annulment decisions in question would enter into force one year after their publication in the Official Gazette8.
A. Reasons for the Constitutional Court’s Annulment Decision
In the Constitutional Court’s decision to abolish DAV, it is evident that serious structural and legal deficiencies regarding the implementation of the mechanism played a significant role. The Constitutional Court found the lack of regulation on at what stage the defendant should be asked whether they accept DAV, and the absence of a clear legal provision on the stage at which confiscation should be executed in trials concluding with DAV, to be contrary to the principles of legal certainty and fair trial. Furthermore, it emphasized that within the scope of the state’s obligation to protect the material and moral existence of individuals, the responsibility to prevent torture, ill-treatment, and treatment incompatible with human dignity was not adequately fulfilled. The lack of a restrictive provision regarding the application of DAV in such crimes committed by public officials created a legal loophole. This situation was deemed to reinforce the perception of impunity, weaken deterrence, and jeopardize the protection of fundamental rights. All these deficiencies were decisive in the Constitutional Court’s decision to abolish DAV9.
The Annulment Decision also emphasized that because DAV defers the announcement of the defendant’s conviction subject to certain conditions, the practice conflicts with the right to a fair trial, the presumption of innocence, and the principles of legal certainty. It highlighted that exempting the defendant from serving a sentence, despite being found guilty, creates serious problems within the justice system.
The fact that the DAV practice does not provide adequate redress for victims was also identified as a significant reason for its annulment. The Court concluded that victims’ material and moral damages are not sufficiently compensated after a DAV decision is issued. This constitutes a failure on the part of the state to fulfill its obligation to protect the material and moral wellbeing of individuals.
In conclusion, the Constitutional Court determined that DAV creates legal uncertainties, inadequately protects victims’ rights, and causes significant deficiencies in the administration of justice, thus ruling that this provision is unconstitutional. This annulment is considered a milestone in Turkish Criminal Law and will serve as an important reference point for future legal regulations.
1. The Conflict Between DAV and the Right to a Fair Trial
One of the primary reasons for the annulment of the DAV application by the Constitutional Court is its conflict with the right to a fair trial.
Asking the defendant at the beginning of the trial whether they accept DAV can be considered a form of pressure to accept the more favorable option of DAV, considering the consequences of a conviction that should be delivered at the end of the trial according to general procedural rules10. For a truly innocent defendant, DAV has profound psychological implications. The defendant will feel doubly victimized, first by being accused and then by not being acquitted. The psychological impact experienced by a person in this situation, under internal and external factors, will create a certain burden. It is necessary to consider such matters where relevant and to examine the problems arising from the application. It can be debated whether the right to a fair trial and the presumption of innocence are compromised in relation to the specific case proceedings11.
Furthermore, legal scholars emphasize that the inability to substantively review DAV decisions during the five year supervision period, and consequently the inability to scrutinize potential legal violations that may have occurred during the proceedings, is clearly contrary to the right to a fair trial as enshrined in Article 6 of the European Convention on Human Rights (“ECHR”) and the “Right to a Second Degree of Jurisdiction in Criminal Matters” as provided in Article 2 of Protocol No. 7 to the ECHR (“Protocol”). Indeed, the incompatibility of the DAV provisions, in force before their annulment by the Constitutional Court, with Article 2 of the Protocol, has been reflected in the decisions of the Court of Cassation12 13.
In this context, the lack of clear and explicit regulations regarding confiscation in the application of DAV similarly leads to legal uncertainties, increasing the risk of violating the right to a fair trial. Confiscation refers to the seizure of assets or gains related to a crime by the state and is an important tool in criminal law aimed at eliminating the proceeds of crime. However, the absence of clear rules regarding the confiscation of assets or gains related to the crime in the DAV institution makes it difficult to scrutinize legal violations arising during the trial process and undermines individuals’ right to equal and transparent treatment in the proceedings, violating the right to a fair trial as enshrined in Article 6 of the ECHR. This deficiency plays a significant role among the reasons for the annulment of DAV.
Furthermore, the fact that the elements of the crime attributed to the defendant can only be examined through an appeal at the end of the supervision period increases the risk of incomplete investigation or tampering with evidence. Additionally, the prolonged validity of an unjust conviction and the implementation of restrictive measures such as probation lead to disruptions in the administration of justice. In this context, the review of an undisclosed conviction only at the stage of announcing the judgment, issuing a dismissal decision, or establishing a new conviction leads to delays in justice and violations of the defendant’s rights.
2. Insufficient Redress for Victims
The DAV institution has been criticized for failing to provide adequate redress for victims. As emphasized in the Constitutional Court’s annulment decision, the application of DAV falls short in protecting victims’ rights and leads to perpetrators being exempted from punishment. This situation reinforces the perception among victims that the crime goes unpunished and restricts their freedom to seek redress, creating a risk of violating the “Right to an Effective Remedy” guaranteed by Article 13 of the ECHR.
The fact that DAV fails to offer an effective mechanism for compensating victims’ damages means that the state is not fulfilling its obligation to protect the material and moral wellbeing of individuals.
These shortcomings of DAV create serious disadvantages for both victims’ and defendants’ rights and negatively impact the functioning of the criminal justice system.
B. Consequences of the Annulment Decision
All provisions regarding the DAV institution, regulated in Articles 231/5-14 of the CCP, were annulled by the Constitutional Court decision dated June 1, 2023, and numbered 2022/120 Main Case, 2023/107 Decision, upon the application of the Trabzon 2nd Criminal Court of First Instance to the objetion pathway. This decision was published in the Official Gazette on August 1, 2023. To prevent any gaps in application, it was decided that the Annulment Decision would enter into force one year after its publication in the Official Gazette.
Without waiting for the effective date of the abolition of DAV, the legislature published Law No. 7499, known as the 8th Judicial Package, titled “Law on Amending the Code of Criminal Procedure and Certain Other Laws,” in the Official Gazette numbered 32487 on March 12, 202414. (“8th Judicial Package”).
The 8th Judicial Package aimed to address the reasons for the annulment by amending all the provisions regarding DAV that were annulled by the Constitutional Court.
1. Impact on Confiscation Practices
The Constitutional Court criticized the lack of legal regulations regarding the enforcement of confiscation decisions issued alongside DAV decisions. To address this deficiency, the phrase “except for provisions relating to confiscation” was added to Article 231/5 of the CCP along with the aforementioned decision. With this amendment, a DAV decision, which does not have consequences for the defendant, will not prevent the execution of confiscation procedures. The competent authority will be able to directly implement the confiscation process, providing a legal basis for the confiscation of property or gains15.
2. The Defendant’s Acceptance Condition for DAV has been Abolished
The Constitutional Court stated that, according to Article 13 of the Constitution, any limitations on the right to a fair and impartial trial must be regulated by law. However, it found that the existing regulations lacked clarity regarding the stage at which the defendant should be asked whether they accept DAV. The Court considered that compelling the defendant to accept this institution out of fear of conviction, and thus waiving their right to appeal before evidence is gathered and the trial is completed, creates a lack of legal safeguards. Furthermore, considering the absence of a guarantee that the question of accepting or rejecting DAV would be posed after the conviction, the Court concluded that this regulation contradicts the principle of legality, imposes an excessive burden on the defendant, and constitutes a disproportionate measure. Following the Court’s assessments, the legislature, with the amendment included in the 8th Judicial Package, removed the provision “If the defendant does not accept, a decision to deferment the announcement of the verdict shall not be made” from Article 231/6 of the CCP.
3. Application to the Appellate Court Against the Decision
Before the amendment introduced by the 8th Judicial Package, only the objection pathway was available against DAV decisions. However, due to the limited scope of review, the objection pathway was often ineffective and yielded no results.
For this reason, the Constitutional Court found that the unavailability of the appeal pathway against DAV decisions violated the right to seek legal redress as enshrined in Article 36 of the Constitution, ultimately leading to the Annulment Decision. The Constitutional Court stated that reviews conducted through the objection pathway were limited to a file review and were superficial, thus failing to provide effective oversight.With the 8th Judicial Package, taking into consideration the Constitutional Court’s justification for the annulment, the appeal pathway against DAV decisions has been opened. This aims to enable a more comprehensive and detailed review of DAV decisions by the Regional Courts of Justice.
V. CONCLUSION
The DAV institution has been used as an important tool in our legal system for many years with the aim of rehabilitating offenders and increasing the efficiency of the criminal justice system. However, the Constitutional Court’s annulment decision revealed that, in its current form, this mechanism contains serious deficiencies in terms of both defendants’ and victims’ rights. The discussions following the decision have created an opportunity to evaluate the effects of DAV on the right to a fair trial, legal certainty, and social justice within a broader framework.
The new regulations introduced by the 8th Judicial Package aim to restructure the DAV institution and address existing problems. In particular, the changes allowing for appeals against DAV decisions, removing the requirement for defendant’s consent, and clarifying legal uncertainties will ensure a fairer and more effective application. However, the need for courts to meticulously evaluate DAV decisions to better protect victims’ rights and satisfy public conscience remains apparent.
These regulations have the potential not only to ensure justice but also to increase public trust in the law. Achieving this goal, however, will be possible not only through legal regulations but also through effective monitoring and supervision of the implementation. The future effects of DAV will be evaluated based on the extent to which it serves the principles of the rule of law and social peace. In this context, strengthening the place of DAV within the justice system will contribute not only to the protection of individual rights but also to the overall well-being of society.
BIBLIOGRAPHY
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FOOTNOTE
1 Constitutional Court, Kürşat Eyol Application, File No: 2012/665, Decision Date: 13.06.2013, p. 28. https://kararlarbilgibankasi.anayasa. gov.tr/BB/2012/665 (Access Date, 14.01.2025).
2 M. Emre Tulay, The Deferment of the Announcement of the Verdict: An Assessment of the Appropriateness of Legal Conditions and the Legal Effects of the Decision, Ankara Hacı Bayram Veli University Faculty of Law Journal, p. 481, 2021.
3 In this type of postponement currently practiced in American law, the charges against the defendant are dismissed if they comply with the conditions set by the court for a certain period outside of a correctional institution. (nolle prosequi/wish not to proceed) in Can Canpolat, A Review of the Deferment of the Announcement of the Verdict Institution in the Context of the Constitutional Court’s Annulment Decision, Sakarya University Faculty of Law Journal, Volume 11, Issue 2, 2023, p. 1272. https://dergipark. org.tr/tr/download/article-file/3474860 (Access Date, 13.01.2025).
4 Enes Yılmaz, An Evaluation of the Non-Effectiveness of the Deferment of the Announcement of the Verdict Decision Against the Defendant, Kırıkkale Law Review, Volume 1, Issue 2, 2021, p. 275.
https://dergipark.org.tr/tr/download/article-file/2193734 (Access Date, 13.01.2025).
5 Tulay, p. 499.
6 Tulay, p. 500.
7 Emir Kaya, Deferment of the Announcement of the Verdict from a Human Rights Perspective, Ankara Bar Association Journal, Issue 3, 2013, p. 415. https://dergipark.org.tr/en/download/article-file/398121 (Access Date, 13.01.2025).
8 Press Release of the Constitutional Court of the Republic of Turkey dated 01.08.2023 https://www.anayasa. gov.tr/tr/haberler/norm-denetimi-basin-duyurulari/hukmun-aciklanmasinin-geri-birakilmasi-hagb-kurumunu-duzenleyen-kuralin-iptali/ (Access Date Tarihi: 14.01.2025).
9 Canpolat, p. 1283
10 Canpolat, p. 1284.
11 Kaya, p. 422.
12 Ali Tanju Sarıgül, The Issue of Legal Remedies in the Review of Decisions to Deferment the Announcement of the Verdict, Union of Turkish Bar Associations Journal, 2016 Issue 125, 2016, p. 78, https://tbbdergisi.barobirlik.org.tr/m2016-125-1585 (Access Date 13.01.2025).
13 Court of Cassation 3rd Criminal Chamber, Decision dated 20.03.2013, File No. 2013/7150, Decision No. 2013/11495.
14 Law No. 7499 on Amending the Criminal Procedure Code and Certain Other Laws. https://www.resmigazete. gov.tr/eskiler/2024/03/20240312-1. htm (Access Date: 15.01.2025).
15 Ersan Şen, Potential Problems in the Application of DAV with the New Amendment. https://sen.av.tr/tr/ makale/yeni-degisiklikle-hagbnin-tatbikinde-ortaya-c%C4%B1kabilecek-sorunlar (Access Date: 13.01.2025).
