16. Criminal Department 2018/1923 E. , 2018/4741 K.
“text of jurisprudence”
Court : Criminal Chamber
Crime : Membership in an armed terrorist organization
Provision : Law No. 314/2 of the Turkish Commercial Code, Law No. 3713, Law No. 5/1, Law No. 62, Law No. 53, Law No. 58/9, Law No. 63. rejection of the application for appeal against the conviction established in accordance with the articles of association
The decision made by the District Court of Justice was examined on appeal;
IT WAS DISCUSSED AND THOUGHT OUT AS NECESSARY:
While the legislator, who has adopted a new understanding of law enforcement proceedings by including the Courts of Appeal in the Turkish judicial system, does not foresee the obligation to give reasons for the application for appeal, which will conduct both a material incident and a legal audit (5271 sy. CMK article 273/4), the examination of which is limited to legal supervision (CMK article 294/2) on the appeal path; according to CMUK No. 1412 (Article 305. also in a different way, the choice of ex officio abandon appeal with an appeal in the appellate petition and limiting opens the file/appeal because of distortion caused by the provision of pleadings/you want to show that you have reasons for appeal (article CMK 294/1) terms the reasons for the appeal and the appeal if it is shown he ran for an appeal within seven days of the receipt of the reasoned decision or the expiry of the stated period the participation of the Regional Justice Court to appeal the judgment contains an additional envisages the granting of the reasons for this petition. In the event that the appeal petition does not contain the reasons for the appeal; just as in the case when the application is not filed within the period of time, the decision cannot be appealed, or the appellant is not entitled to it, as in the case of a duly filed appeal case, he ordered the rejection of the appeal request (CMK article 298) (F.Yenisei-A.Nohoglu, Criminal Procedure Law sh. 923, Centel-Zafer Criminal Procedure Law sh. 826, C.Shahin-N.Göktürk Criminal Procedure Law sh. 278). in addition, the mentioned Law
- that its article constitutes an exception to the “principle of limited review” of a duly filed appeal case (F. Yenisei-A. Nuchoglu, A. sh. 905), provided that the terms and procedures are clearly set out (ECHR Galstyan/Armenia Application No.; 26986/03 15.01.2007 t.) in addition to the fact that the rejection of a legal application due to non-compliance with the prescribed procedural requirements will not result in a violation of this right (ECHR Sjöö/sWeden Application No; 37604/97) will also be accepted with judicial decisions that have stabilized; 295/1 of the CMK upon notification of the reasoned decision to him on 08.01.2018, in which the defendant’s defense appealed the decision made against the defendant’s face on 13.12.2017 without justification with a petition for attitude to the time period dated 15.12.2017. it is understood that he filed his reasoned appeal petition on 22.01.2018 after the 7-day legal period stipulated in the article; 298 of the CMK No. 5271 of the appeal request No. 5271. in accordance with the Article, its rejection was decided on 03.12.2018 by a majority of votes and a vote of the Members … and … against.
VOTE AGAINST:
“It is understood that the defendant’s defense petition dated 15.12.2017 does not contain the reasons for the appeal and does not submit the reasoned appeal petition within the period from the notification of the reasoned decision,”the majority said that the appeal request is 298 of the CMK. in accordance with the article, his opinion on the ”refusal” has not been participated in.
From the scope of the examined file;
According to the indictment dated 06.01.2017 and numbered 2017/1080 of the Kayseri Prosecutor General’s Office, the defendant has committed the crime of “being a member of a FETO / PDY armed terrorist organization” under the 5237 TCK No. 314/2, 53, 58/9, 62 and 3713 TMK No. 5. as a result of the trial of the public case, Kayseri 2. The date of 21.03.2017 and the date of 2017/112 E. of the Criminal Court – 2017/110 K. 4 of the Ankara Regional Courthouse Court, where a provision has been established for the defendant to be punished with a prison sentence of 6 years and 3 months for the crime of “being a member of an armed terrorist organization”, a request has been made by the defendant and the defendant’s defense against this decision to apply for a stay within the period of time. The date of 13.12.2017 of the Criminal Chamber and 2017/147E. – 2017/489K. according to the decision No. 13.12.2017, the defendant’s defense appealed the said decision by filing an attitude petition, but after a legal period of 7 days from the notification of the reasoned decision, the Court of Cassation issued the reasoned appeal petition only before the Supreme Court review, the 16th Supreme Court said that it was decided to “reject the appeal on the basis of the appeal”.“The defendant’s defense petition dated 15.12.2017 does not contain the reasons for the appeal and within the period from the notification of the reasoned decision,”the majority of the Criminal Chamber also said
298 of the CMK, citing that the defendant’s defense did not submit a reasoned appeal”. it is understood that a provision for refusal has been established in accordance with the article.
october The subject of the discussion that constitutes a concrete dispute is the question “whether the defendant or defense attorney who filed an appeal with a petition for an attitude that does not contain an appeal reason can submit an additional appeal petition after the seven-day period has elapsed since the notification of the reasoned decision, but before the Supreme Court review is conducted, and whether an appeal audit can be conducted within the scope of this october petition”.
In the state of law based on human Rights, it is important to implement all kinds of structural and institutional legal reforms necessary to master the principle of the rule of law. One of the important elements of ensuring the rule of law is that the right to a fair trial and access to justice are put into practice with all the guarantees.
Access to justice is recognized as a right. Since access to justice is a right, interpretation, comprehensibility and therefore usability of the law should be ensured through the use of this right, and case law should be established in this way. Recognition of rights is not enough, it is also necessary to ensure the effective use of the right.
Judicial bodies do not have the right to refrain from distributing justice. Our Constitution has regulated this in the form that “no court can refrain from considering a case within its jurisdiction” (m. 36/2). Avoiding the distribution of justice means avoiding the surrender of the right.
The right to access to justice guarantees the right to appeal to the judiciary (to sue), to apply to law enforcement agencies that create guarantees and to seek to ensure the implementation of judicial decisions. The appellate remedy ensures that the right of access reaches its peak in a fair trial (Coulon, Jean-Marie/Roche, Marie-anne Frison, p. 443).
The right to a fair trial includes the basic guarantees such as seeking the right to an independent and impartial judiciary, being a plaintiff or defendant, having procedural guarantees during the trial, conducting the trial in a reasonable time, providing effective legal supervision mechanisms against court decisions.
2nd Amendment of the Constitution in the article, which are among the qualities of the Republic, the rule of law, based on human rights, these rights and freedoms protect, strengthen, and establish order in every field operations is a legal action that is in compliance with the law and continuing to develop the metrics that consider the rules in justice and equity, rights to facilitate the obtaining of the sovereign makes law, all state organs, without considering himself bound by the Constitution and laws of the barriers and open to judicial review in the search of truth, freedom is the state.
Article 36 of the Constitution in the first paragraph of the article, the provision “Everyone has the right to a fair trial with claims and defense as a plaintiff and defendant before the judicial authorities by using legitimate means and means” is included in the first paragraph of the article. In addition to being a fundamental right, the right to freedom of expression and the right to a fair trial guaranteed by the Dec is one of the most effective guarantees that ensure the necessary enjoyment and protection of other fundamental rights and freedoms.
The purpose of the criminal trial is to investigate and find the material truth in a manner worthy of human dignity. As a matter of fact, in the decisions of the General Assembly of the Criminal Court dated 23.02.2016 and 2014/5.MD-98, numbered 2016/83 and numbered 10.12.2013 and numbered 2013/359;“…The purpose of Criminal Procedure is to strictly determine the material truth in a form that is free from any doubts in accordance with the principles set forth by the procedures and rules.
In Civil Procedure Law, the judge investigates the material fact in Criminal Procedure Law without being content with the evidence put forward by the parties, in response to the fact that the parties are bound by the events, norms, evidence and requests put forward by them and have to be content with the fact revealed by them. The legal evidence system in criminal procedure is very exceptional (for example, the minutes of the trial; what is happening at the trial can only be proved with it), except that everything can be put forward as evidence, except that it is illegal.
Contained within the rights of a fair trial and access to justice against decisions of the court of Appeals, which is one guarantees the provision of effective legal control mechanisms; as a rule, issued by the Regional Justice Criminal Division of the court with the provisions of these apartments for the provision of international judicial cooperation in criminal matters and decisions that form the basis of the law on Dec 18, No. 6706. in accordance with the article, it is the usual way of law to appeal against decisions made by the criminal courts regarding extradition requests.
The appeal is organized among the usual legal dec within the CMK system. It is extremely important that decisions made by one judicial body are supervised by another authority. Through appeals, a stable, uniform interpretation and application of the rules of law in a country is ensured. Through the appeal, the legality of decisions that have been previously made by a judicial authority is checked.
In the appellate review, only the legal aspect of the dispute is considered, that is, the situation of the material event detected by the first instance or the district court against the legal norms, and it is checked whether the legal norm is correctly applied to the material event.
294/1 of CMK No. 5271 entitled “The Content of the Appeal”. the substance;
“The appellant has to show in the appeal that he wants the verdict to be overturned for the reason that”,
295 Of the same law entitled “Grounds for Appeal”. item,
“If the reasons for the appeal have not been indicated in the appeal application, an october petition containing these reasons is submitted to the district court of justice, whose decision is appealed within seven days after the end of the period set for the appeal or the notification of the reasoned decision.”
It is arranged in the form of.
In the light of these explanations and legal regulations;
Dec At the mentioned legal regulations, it is necessary to first focus on the difference between an appeal (petition, request) and a reasoned appeal (october of appeal, additional petition). These petitions, as a single petition, are
it is also possible to give it together. However, in practice, since the fifteen-day appeal period begins, mostly with the interpretation of the short decision, an appeal must first be filed (an appeal petition must be filed) in order not to miss the deadline. Practitioners call this petition the “time attitude petition”. This erroneous statement, which is extremely common, feeds a misconception that the appeal period has stopped with the given petition, and so on. However, with the issuance of this petition, the appeal takes place and the problem of the remaining time is eliminated.
A reasoned appeal petition (additional petition, appeal layer) is a petition in which the reasons for the appeal are shown. before the entry into force of the provisions of CMK No. 5271 on the appeal code, the issuance of this petition was not mandatory. Because the CMUK has 314/2. based on the provision contained in the article “that the failure to show the reasons for the appeal will not interfere with the examination of the appeal”, the Supreme Court could re-consider the reasons for the appeal. after the entry into force of the provisions of CMK No. 5271 on the ways of law as a whole, the issue of to what stage this petition should be submitted has become important.
In a sense, we can say that the legislator risks finalizing an illegal decision on the grounds of “no mere reason for appeal” in order to speed up the reasoning and prevent the Supreme Court, whose main goal is to ensure a stable, uniform interpretation and application of the rules of law in the country, from facing unnecessary workload.
However, when considering these provisions in terms of the right to a fair trial and access to justice, it is accepted that an appeal petition or additional subsequent appeals petitions that “do not show in a concrete way what illegalities are based on” should be rejected in the face of these legal regulations, both October 2 and 36 of the Constitution. it is difficult to say that it is compatible with its articles both with the criteria contained in the case law of the ECHR and with the purpose of investigating and finding the material truth worthy of human dignity in criminal proceedings.
Although the Law says that ”an october petition is submitted within seven days”, the petition that reaches the Supreme Court must also be accepted after this period has elapsed, but before the Supreme Court’s review. Once an appeal has been requested during its period, there are no obstacles to submitting petitions or petitions until the Supreme Court begins to examine them, indicating new reasons for appeal that are not specified in these petitions in advance. On the contrary, an admission brings a criminal trial to a completely different type of trial, as well as a civil trial.
As a result, once an appeal has been requested during its period, there are no obstacles to submitting petitions or petitions until the Supreme Court begins to examine them, indicating new reasons for appeal that are not specified in these petitions in advance. The additional petition and the reasons for the appeal shown before the october of the Supreme Court should also be examined and audited by the Supreme Court. Of course, it is necessary that the petition in question is submitted to the court that issued the decision in a timely manner, indicating all the reasons for the appeal. If, during the review of the Supreme Court, it becomes clear that there are no grounds for appeal in the appeal petition, only then
the appeal request must be rejected.
With these complaints, it became clear that the “majority”did not include the reasons for the appeal of the appeal petition and did not submit the reasoned appeal petition within the period from the notification of the reasoned decision, 298 of the CMK of the appeal request. according to the article, it has not been possible to participate in the opinion regarding the ”refusal”.
