07 Jun Notification Of Time Attitude Petition Without Justification
Criminal Division 2018/1923 E. , 2018/4741 K.
“Case Law Text”
Court: Criminal Department
Crime: becoming a member of an armed terrorist organization
Provision: Law No. 314/2, 3713 of TCK 5/1, TCK 62, 53, 58/9, 63. fundamental rejection of the appeal for conviction established in accordance with its articles
District Court ruling reviewed on appeal;
NEED TO BE DISCUSSED AND CONSIDERED:
While it does not require that the legislator, who has adopted a new understanding of judicial procedure with the inclusion of the courts of Appeal in the Turkish judicial system, is obliged to show cause in the application for appeal, which will carry out both material event and legal supervision (5271 sy. CMK article 273/4), on the way of Appeal whose review is limited to legal supervision (CMK article 294/2) ; from the Cmuk of mülga 1412 (article 305.) in the appellate petition that opens and limits the appellate case (CMK article 294/1) stipulates that the appellant must show the reasons for the appeal (CMK article 294/1) and that if the appellate reasons are not shown in the appellate application, an additional petition containing these reasons shall be submitted to the District Court of Appeals whose provision is Contain the reasons for the appeal of the appeal petition and the case; just the application is not made within the period, or if the verdict cannot be appealed an appeal as duly opened in the absence of this right of Appeal is not mentioned since the case of the request to be rejected for appeal (article 298 of CMK) ordered (F.Yenisey-A.Nuhoğlu, Criminal Procedure Law sh. 923, Centel-victory Criminal Procedure Law sh. 826, C.Falcon-N.Göktürk Criminal Procedure Law sh. 278) to be, mentioned law
289. to the extent that its article constitutes an exception to the “principle of limited review” of a duly filed appellate case (F. Yenisey-A. Nuhoğlu, age sh. 905), provided that the terms and procedure are clearly set out (ECtHR Galstyan/Armenia application no; 26986/03 15.01.2007 t.) that the refusal of the application for legal procedure due to failure to comply with the prescribed procedural requirements will not result in violation of this right (ECtHR Sjöö/Sweden application no; 37604/97), as well as the acceptance of stable judicial decisions.; the defendant’s defense appealed against the face of the defendant on 13.12.2017 without citing the decision dated 15.12.2017 remittance deadline with a petition of attitude, on the notice of the reasoned decision to him on 08.01.2018 CMK 295/1. after the legal period of 7 days stipulated in Article 22.01.2018 on the reasoned appeal petition is understood to have been given; appeal request 5271 No. 298 of CMK. in accordance with the article, the rejection was decided on 03.12.2018 by the vote of the members … and …against and by a majority of votes.
VOTE AGAINST:
Mr. majority ” the defendant’s defense of the period dated 15.12.2017 attitude petition does not contain the reasons for appeal and reasoned decision within the period from the notification of the appeal petition 298 CMK’nin understood that the petition. he did not participate in his opinion on” rejection ” in accordance with the article.
From the scope of the file under review;
Kayseri Public Prosecutor’s office on 06.01.2017 and 2017/1080 on the basis of the indictment of the accused” Fatah/PDY to be a member of armed terrorist organization ” has committed the crime of betle 5237 TCK’nin 314/2, 53, 58/9, 62 and 3713 TMK’nin 5. as a result of the trial of the public case, a public case was opened with the request to be punished in accordance with the Articles 2. 21.03.2017 and 2017/112 E. of the High Criminal Court – 2017/110 K. the sentence was established for the defendant to be sentenced to 6 years and 3 months imprisonment for the crime of “being a member of an armed terrorist organization” with the Decree No., the defendant and the defendant’s defense against this decision within the period of appeal by the way of law on the Ankara District Court of Justice 4. The criminal Department’s date of 13.12.2017 and 2017 / 147E. – 2017 / 489K. the court of Cassation 16, where the decision on the “rejection of the appeal application on the basis” was decided, the defendant’s defense appealed the decision on 13.12.2017 by issuing a petition for the stay, but the reasoned appeal was submitted after the legal period of 7 days after the notification of the reasoned decision but before the review of the Court of Cassation.By the majority of the criminal Department, ” the defendant’s defence of the period dated 15.12.2017 does not include the reasons for appeal of the attitude petition and within the period from the notification of the reasoned decision
CMK’s 298th request for an appeal by the defendant’s defence, citing” he did not submit a petition of reasoned appeal. it is understood that provision for rejection was established under the clause.
The subject of the debate that constitutes the concrete dispute is the issue of” whether the defendant or the defender who has applied for an appeal with a non-cause of Appeal can submit an additional appeal petition before the court of Cassation review, after a period of seven days after the notification of the reasoned decision, or whether an appeal audit can be carried out within the scope
In a state of law based on human rights, it is important to implement all kinds of structural and institutional legal reforms necessary to ensure the rule of law. One of the important elements of ensuring the rule of law is the implementation of all guarantees of the right to a fair trial and access to justice.
Access to justice is recognized as a right. Since access to justice is a right, the interpretation, comprehensibility and therefore enjoyment of the law must be ensured through the exercise of this right, and case law must be established in this way. Recognition of Rights is not enough, and effective use of the right must be ensured.
Jurisdictions do not have evasive powers in distributing Justice. Our Constitution has regulated this in the form that “no court may refrain from looking into the case within its mandate” (m. 36/2). Avoiding the distribution of justice means avoiding surrendering the right.
The right to access justice guarantees the right to appeal to the judiciary (to sue), to apply to the legal ways that constitute assurance, and to seek to ensure the enforcement of judicial decisions. The appellate way of law ensures that the right of access reaches its peak in fair judgment (Coulon, Jean-Marie/Roche, Marie-Anne Frison, p. 443).
The right to a fair trial, to seek his right before independent and impartial judicial authorities, to be a plaintiff or defendant, to have procedural safeguards during the trial, to conduct the trial in a reasonable time, to provide effective legal control mechanisms against court decisions.
2 of the Constitution. the rule of law, which is considered among the qualities of the Republic, is the state which is based on Human Rights, which protects and strengthens these rights and Freedoms, which maintains a legal order in every field of action and operations in accordance with the law by developing it, which takes into account the measures of justice and fairness in the rules laid down, facilitates the
36 of the Constitution. in the first paragraph of the article, “Everyone has the right to a fair trial by claiming and defending as a plaintiff and defendant before the judicial authorities by making use of legitimate means and means” is included in the provision. The freedom to seek rights and the right to a fair trial, which is guaranteed by the article, is one of the most effective safeguards that ensure the proper enjoyment and protection of other fundamental rights and freedoms, as well as its character as a fundamental right.
The purpose of criminal proceedings is to investigate and find material truth worthy of human dignity. As a matter of fact, in the resolutions of the Penal General Assembly dated 23.02.2016 and dated 2014/5.MD-98 dated 2016/83 and dated 10.12.2013 and numbered 2013/359,“…the purpose of Criminal Procedure is to determine the material truth without any doubt in accordance with the principles foreseen by the procedures and rules.
In Civil Procedure Law, the judge investigates the material truth without being satisfied with the evidence put forward by the parties, whereas in Criminal Procedure Law, the parties are bound by the events, norms, evidences and wishes put forward and must be satisfied with the truth that they reveal. In criminal procedure, the legal evidence system is very exceptional (for example, the minutes of the trial; what happens in the trial can only be proved with it), except that it is not unlawful, and everything else can be put forward as evidence.
The appeal, which is one of the safeguards to provide effective legal control mechanisms against court decisions which are included in the rights to a fair trial and access to justice, is governed by the provisions of the criminal departments of the District Court Court, the interim decisions of those departments which constitute the basis for the verdict, and the international law on judicial cooperation on Criminal Matters No. 6706 Dec. in accordance with the article, it is an ordinary course of law which is applied against decisions made by heavy criminal courts regarding extradition requests.
Appeals are arranged among the usual law routes within the CMK Systematics. It is extremely important that decisions made by a judicial body are supervised by another authority. Through appeals, a stable, identical interpretation and application of the rules of law in a country is ensured. Through appeals, the legality of decisions previously made by a judicial authority is checked.
In the appellate review, only the legal aspect of the dispute, i.e. the situation of the material event determined by the first instance or the District Court, is considered against the legal norms and it is examined whether the legal norm is applied properly to the material event.
“Contents of the appeal” of CMK No. 5271 entitled 294/1. substance;
“The appellant must show on appeal that he wishes the provision to be overturned for cause”,
295 of the same law entitled “grounds for appeal”. if the substance is,
“If the reasons for appeal are not shown in the appeal application, an additional petition containing these reasons shall be submitted to the District Court of appeal within seven days of the expiration of the period set for the appeal application or the notification of the reasoned decision.”
Arranged in the form of.
In the light of these explanations and legal regulations;
When looking at the above mentioned legal regulations, it is necessary to focus on the difference between the appeal application (petition, request) and the reasoned appeal petition (appeal application, additional petition). These petitions, as a single petition
it is also possible to be given together. However, since the fifteen-day appeal period begins in practice mostly with the tefhim of the short decision, it is necessary to first apply for an appeal (submission of an appeal application) to avoid missing the deadline. The practitioners call this petition “duration attitude petition”. This very common misconception feeds a misconception, as does the time of Appeal with the petitioner. However, with this petition being granted, the appeal takes place and the time issue is eliminated.
The reasoned appeal petition (additional petition, appellate appeal) is the petition in which the reasons for the appeal are shown. Prior to the enactment of the provisions of CMK No. 5271 on the way of Appeal Act, it was not mandatory for this petition to be granted. Zira Cmuk’s 314/2. on the basis of the ruling in the article “that the failure to show the reasons for appeal will not interfere with the review of Appeals”, the Supreme Court was able to re-observe the reasons for appeal. Following the enactment of the provisions of CMK No. 5271 on the ways of law as a whole, it became important to the extent to which this petition should be submitted.
In a sense, we can say that the legislator risked finalizing an unlawful decision, even if on the grounds of “not just showing cause of Appeal”, in order to speed up judgment and prevent the Supreme Court from facing unnecessary workload, whose main purpose is to ensure stable, identical interpretation and application of the rules of law in the country.
However, when the provisions in question are examined for the right to a fair trial and access to justice, the acceptance that the appeal petition “which does not demonstrate in a concrete way what illegalities are based” or the additional appeals issued later should be rejected in the face of the aforementioned legal regulations, both in the Constitution 2 and 36. it is difficult to say that its articles are in line with the criteria set out in the case law of the ECtHR as well as with the purpose of investigating and finding the material truth in a manner worthy of human dignity.
Although the law states that “additional petitions shall be granted within seven days”, the petition that reaches the Supreme Court must also be accepted after the passing of this period but before the examination of the Supreme Court. Once an appeal has been requested, there is no obstacle to the granting of petitions or petitions until the Supreme Court begins its review, stating new reasons of Appeal that are not already stated in these petitions. An admission to the contrary, as in the case of civil procedure, brings the criminal trial to a purely formal trial.
As a result, once an appeal has been requested, there is no obstacle to the granting of petitions or petitions until the court of Cassation begins to examine them, and the reasons for new appeals that are not stated in advance in these petitions. The additional petitions and the reasons for the appeals shown in the run-up to the Supreme Court’s review must also be examined and supervised by the Supreme Court. Of course, it is necessary that the petition in question be submitted to the court which gives the verdict in a timely manner, indicating all the reasons for the appeal. If, during the Supreme Court’s review, it is understood that no cause of Appeal was included in the appeal, then only then
the request for appeal must be rejected.
With these measures, it is understood that the majority “appeal petition does not contain the reasons for appeal and did not submit the reasoned appeal petition within the period from the notification of the reasoned decision, the request for appeal was submitted by CMK 298. it has not been possible to agree with his opinion on the” rejection ” under the clause.
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