Turkey: Historic Judgement From The Constitutional Court: The Provision For Suspended Sentences Is Scrapped

In a landmark decision, Turkey's Constitutional Court ruled that one of the most frequently used concepts in criminal procedure, namely the Article 231 of the Criminal Procedure Law titled "deferral of the announcement of the verdict", is unconstitutional. The provision will continue to be applied in proceedings until 1 August 2024, the date on which it will be officially repealed.

As per the provision, if the relevant crime stipulates for a prison sentence of two years or less, the criminal court/judge may decide to defer the prison sentence for a probationary period of 5 years, during which the sentence would not be specified under the regular judicial records of the defendant, but under a different record kept for this specific purpose. If the defendant does not commit a crime by intent during this supervisory period, the prison sentence would be deleted from all records and would be as if it has never existed.

In the judgement, the Constitutional Court ruled that this provision was unconstitutional based on a number of grounds. Firstly, the Constitutional Court opined that this provision hindered the right to a fair trial as the suspects are required to declare their decision on whether they would like to benefit from this provision in the beginning of the criminal proceedings. Since the deferral limits the defendant's right to appeal to the extent of the deferral decision itself and therefore the defendant cannot appeal the decision based on the merits of the court's decision, the Constitutional Court stressed that the suspect is effectively prevented from pursuing to be acquitted clear from the accusations. Secondly, the Constitutional Court expressed that the provision diminishes the deterrent effect of punishments for certain relatively smaller crimes as it leads suspects to think they would not have to serve any prison sentence. Further, the Constitutional Court ruled that public servants who commit serious crimes would get away without serving any prison sentence if they were allowed to benefit from this provision, as the provision did not provide for any exceptions for crimes committed by public servants. The Constitutional Court took the view that public servants should always, without any reservations, be held strictly accountable and therefore be punished for certain serious crimes they commit.

In light of the Constitutional Court's ruling, the government may attempt to pass a slightly amended provision through the Turkish Parliament in order to reinstitute the deferral option in a way that would address the flaws identified by the Constitutional Court in the current version of the provision. A less likely alternative would be to allow the provision to be cancelled once the Constitutional Court's decision enters into force which would mean that deferral of verdicts will no longer be an option.