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Deferral of the announcement of the verdict (HAGB) is a procedural institution encountered in criminal proceedings in cases where the court is satisfied that a conviction is warranted, and it is frequently debated in practice. In this article we discuss the origins of the institution, the conditions for its application, its consequences and the problems arising in practice.
Currency note
This article was prepared in accordance with the legislation and practice in force on its date of publication. In particular, regarding the legal remedy available against decisions deferring the announcement of the verdict and the review of objections, there may have been significant changes since then owing to Constitutional Court decisions and subsequent legislative amendments. You are advised to consult a lawyer for the current position.
If, at the end of the trial stage of a public prosecution, the court reaches the conclusion after deliberation that the defendant should be convicted, two kinds of decision may be given. The first is the operative part of the judgment in the form of a conviction (short decision) or the reasoned decision (judgment). The second is the deferral of the announcement of the verdict.[1]This second decision, the deferral of the announcement of the verdict (HAGB), was first introduced on 15/7/2005 in Child Protection Law No. 5395. Subsequently, by the amendment of 06/12/2006, it was incorporated into paragraphs 5 to 14 of Article 231 of Code of Criminal Procedure No. 5271 and began to be applied to adults as well. Following a number of necessary amendments over time, the institution took its final form in 2014.
Birinci karar
Operative part of the judgment in the form of a conviction (short decision) or the reasoned decision (judgment)
Second decision
Deferral of the announcement of the verdict (HAGB)
An HAGB decision is a procedural institution which, subject to the statutory conditions being met, allows the announcement of the conviction rendered against the defendant to be deferred for five years and, if the defendant does not commit an intentional offence during this period, allows the conviction, as a rule, to produce no legal consequences, with a decision to discontinue the case being rendered.[2]
Looking at the reasoning given for this institution when it was enacted: “While establishing the guilt and culpability of the defendant, the judge defers the imposition of a penalty and keeps him under supervision for a certain period. If his conduct during the supervision period to which he is subject is found to be positive, no conviction is delivered against the offender. Thus, an offender who has successfully completed the probation period is removed from the stigmatisation process and does not become the subject of a judicial decision. This institution is a practice that achieves one of the aims of modern criminal law, namely to avoid stigmatising the individual as far as possible and to secure his reintegration into society.” was the justification put forward for the necessity of the institution.[3] However, it is evident that one of the underlying reasons was also to lighten the workload of the Court of Cassation, because, as a result of applying the HAGB institution, no appeal on points of law can be lodged against the conviction. For this reason, many files were resolved by way of HAGB, which in a sense prevented a backlog of files at the Court of Cassation.
For a HAGB decision to be given in respect of a defendant, the following conditions must be met:
Here, the actual sentence the defendant receives at the end of the trial must not exceed two years. The defendant may perhaps be tried for an offence with a minimum of four years and a maximum of six years. However, the defendant may have benefited from the reduction for unjust provocation. Ultimately, for this institution to be applied, it is essential that the sentence imposed does not exceed two years.
Where cases are joined and heard together, whether HAGB will be applied is determined by considering the penalty prescribed for each offence separately.[4] Indeed, Article 99/1 of the Law on the Execution of Penalties and Security Measures also points to this issue by stating: “Each penalty imposed on a person is independent of the others and they retain their existence separately”.[5] In other words, in such cases a separate judgment is given for each offence, and each HAGB decision is given independently of the others. HAGB may be granted for one offence but not for another.
Finally, on this subject it should be noted that where both imprisonment and a judicial fine are prescribed together for an offence, it is not possible to give a HAGB decision.
The last sentence of sub-paragraph (c) of Article 231/6 CCP states that the defendant's consent is required, by providing: “if the defendant does not accept, no decision to defer the announcement of the verdict may be given.”. However, in practice, legal problems arise in relation to the timing of obtaining the defendant's consent. This matter will be explained separately in the following sections and the problems that arise will be examined.
As provided in sub-paragraph (a) of Article 231/6 CCP, the defendant must not have been convicted of an intentional offence. In other words, if the defendant has previously been convicted of a negligent offence, he may still benefit from this institution.
Under sub-paragraph (b) of Article 231/6 CCP; “The court, taking into account the personality traits of the defendant and his attitude and behaviour at the hearing, reaches the conviction that he will not commit an offence again” is laid down as a condition. In reaching this conviction, as also stated in the provision, the court must first consider the defendant's personality traits and then his attitude and behaviour at the hearing. Reaching the conclusion that the defendant will not reoffend by taking into account any factor other than these two will have a negative effect on the fulfilment of the condition.
The damage referred to here is the damage suffered by the victim or the public as a result of the commission of the offence. It may be remedied by restitution in kind, restoration to the situation before the offence, or compensation for the damage. In addition, where the damage cannot be remedied immediately, the legislator has allowed it to be remedied in instalments (Article 231/9 CCP).
Nature of the damage
The important point here concerns the nature of the damage. The type of damage is not specified in the statutory provision. It should therefore be accepted that the damage covers both pecuniary and non-pecuniary damage.[6] However, the settled case law of the Court of Cassation interprets the term damage in the statutory provision as pecuniary damage only. The problems in this regard will also be addressed under a separate heading.
Pursuant to Article 231/14 CCP, “The provisions of this Article on the deferral of the announcement of the verdict shall not apply to offences contained in the reform laws protected under Article 174 of the Constitution.” As so provided, the offence committed must not be one of the offences contained in the relevant laws.
If the conditions mentioned above are satisfied in respect of the offence committed and the defendant, the HAGB institution may be applied.
The most important consequence of a HAGB decision being given in respect of the defendant is that the judgment delivered produces no legal consequences for the defendant.
The limits of this rule in practice are discussed below under the headings of problems arising from the defendant’s perspective and charging costs to the defendant.
As a result of the introduction of the HAGB institution into our judicial system, a number of problems arise because of certain conveniences it provides and the way in which the statutory text has been framed. In my view, it would not be wrong to address these problems from the perspective of the defendant, the victim and the court. Addressing the problems both from a legal perspective and in terms of the psychological situations involved would be appropriate for the reliability and effectiveness of this institution.
The problems examined in the article are as follows:
Looking at the HAGB phenomenon in the light of judicial attitudes and behaviour, it can be seen that the file is an object that occupies the judge and, as a product of human nature, the judge tries to get past this preoccupation easily.[7] Nor can a HAGB decision be taken before a review mechanism such as an appeal on points of law. Judges resort to this route because, in a sense, no quality control of the judgment they deliver can be carried out. In other words, relying on a selfish consideration rather than the pursuit of justice, they do not want, so to speak, any headaches.
The reasons underlying judges' decisions to grant HAGB may be listed as follows;
-The fact that the route of appeal on points of law is closed [relieves] judges' minds of the occurrence of a serious sanction such as imprisonment
-Laxity may occur in procedural matters such as the collection of evidence and the hearing of the defendant and witnesses. In cases that are not easily clarified, a deviation in the substantive characterisation of the offence is also possible.
-The judge may wrongly interpret the defendant's consent to HAGB as an admission of a minor offence.[8]
In the light of all this, it is quite natural for judges to be inclined to give a HAGB decision. However, this will result in a violation of the right to a fair trial under the ECHR.[9]
As we stated above, the requirement to remedy the damage suffered by the victim or the public, which is one of the conditions of the HAGB decision, is not applied in line with the statutory provision. The statutory provision refers only to "damage" and makes no distinction as to the nature of the damage. The Court of Cassation, however, has held in its settled case law that damage covers only pecuniary damage. The basic rationale of the Court of Cassation here is that the HAGB institution is intended to reduce the workload of the criminal courts and of the Court of Cassation, and that, since damage calculations are not within the expertise of the criminal courts, pecuniary damage is easy to determine, whereas calculating non-pecuniary damage would prolong the proceedings and thus delay the administration of justice. The Court of Cassation takes the view that a separate action for non-pecuniary damages should be brought before the civil courts.[10] These grounds may have brought consistency to practice, but they are not in harmony with the legal provision. If the legislator had such an intention, it should have specified as a condition not the remedying of damage in general, but only the remedying of pecuniary damage.[11] In terms of practice, there is no problem as a result of the case law established on this issue. However, the legislator should have laid down a provision consistent with the purpose of the statutory article. The purpose and wording of laws must be consistent with each other so that problems of this kind do not arise.
The defendant's consent is also required for a HAGB decision to be given, because "no one shall be considered guilty until proven guilty by a court judgment." (Article 38 of the Constitution)[12] The defendant will act on the belief that he is innocent and, if he is fully confident that he will be acquitted, a HAGB decision will work to his detriment. For this reason, it is important that his consent is sought.
The manner and timing of asking for consent give rise to problems here. Unfortunately, in practice the defendant's consent to a HAGB decision is sought not at the end of the trial stage but at the moment his statement is taken by the judge or while the hearing is still in progress. Asking the defendant for his consent at a time when the trial stage has not been completed, witnesses have not been heard and the evidence has not been fully presented will not create a sound situation in terms of securing justice, because at this stage the defendant will have been forced to make a decision about his future in a state of uncertainty. One reason pushing the judge towards this situation may be a request that the defendant be exempted from attending the hearing under Article 196 CCP.[13]
When the defendant accepts the HAGB offer under these circumstances, he will in a sense have admitted his offence before the court. After all, the judge is also a human being acting with feelings and thoughts, and may be influenced by this. Moreover, the offences for which a HAGB decision may be given are mostly minor offences below the threshold for appeal on points of law. That being so, conversely, faced with a HAGB offer put at the beginning of the trial stage, the defendant may reject it in the belief that he will be acquitted. If this type of offence is also below the threshold for appeal on points of law, the decision will be enforced following its announcement. In that case, the only thing the person, now having the status of convict, can do is to seek a reversal in the interest of the law.[14] This is because a procedural step restricting the right of defence may be involved here (Article 309/4-b CCP).
View in the article · Timing of obtaining consent
In conclusion, the defendant's consent to a HAGB decision should be sought at the end of the trial stage, immediately before the judgment is announced. In other cases, undesirable situations may arise for both the judge and the defendant. It should not be forgotten that: "The defendant is not a combination of year and number on a pink cardboard file, nor a task to be finished as quickly as possible. The defendant is a human being. Criminal procedure is no longer the name of a process in which memorised rules are applied one after the other, but of a process in which the human being bearing the status of defendant is tried soundly and fairly."[15]
Even though it is understood from the statutory provision that a HAGB decision produces no legal consequences, it is an indisputable fact that it creates problems with respect to certain public service posts. While continuing in public service, a person being tried as a defendant for such an offence may at the same time be undergoing a disciplinary investigation. For this reason, the statement that it produces no legal consequences is not entirely accurate. Indeed, on entry into certain public service posts, checks are also carried out through the special register system in which HAGB decisions are recorded.
By this decision, the defendant has been neither convicted nor acquitted. He is in an intermediate position; there is a supervision period and, if he does not comply with it, his sentence will be enforced. That being so, the problems arising from the defendant's psychological state should not be overlooked. Especially if the defendant is in fact innocent, he will probably feel excluded by his family, social circle and working environment as a result. It would not be wrong to say that he may even lose his job and that, if he is married, his marital union and family will suffer.
It falls to judges to make the right decisions, always bearing these circumstances in mind with regard to the defendant, and to the legislator to make the necessary regulations.
Where the offence has been proven, a HAGB decision in a sense functions as an acquittal for the defendant. In that case, the offence goes unpunished and the victim remains unsatisfied. In addition, the fact, discussed above in relation to damage, that only pecuniary damage is determined by the criminal courts results in impunity, particularly for offences which by their nature cause harm to a person's non-pecuniary interests. Some of these offences are threats, insult and sexual harassment regulated in the Turkish Criminal Code. For these offences, it is not possible to determine the damage. Since non-pecuniary damage cannot be determined for these offences when a HAGB decision is given, the victim will not have obtained satisfaction.
Although Article 231/5 CCP states that the HAGB decision produces no legal consequences, the decisions given on matters such as confiscation, trial costs and, within this scope, attorney's fees carry the effects of a final judgment. This is also regulated separately with respect to the HAGB decision in Article 325/2 CCP, and these costs are imposed on the defendant.[16] In the Constitutional Court's decision on the subject;
“… The rule subject to the objection, concerning the imposition of trial costs on the defendant in a decision on the deferral of the announcement of the verdict, which, within the legislator’s margin of discretion and with a view to ensuring social peace, removes first-time offenders whose offence has been established from the process of becoming convicts, contains no aspect contrary to the principle of the rule of law set out in the Constitution. An objection remedy is provided against the decision on the deferral of the announcement of the verdict, and furthermore, review on appeal on points of law is possible, together with the main judgment, of the decision to be rendered at the end of the probation period on dismissal or on non-compliance with the conditions of deferral. In the rule subject to the objection, concerning the imposition of trial costs on the defendant in a decision on the deferral of the announcement of the verdict, which is rendered with the defendant’s consent after a conviction has been established and against which legal remedies may be sought, there is no breach of the principle of equality.”
The application for review was concluded in these terms.
If the verdict is announced, a hearing will be held so that the defendant can defend himself. The first problem here is whether the court that will announce the verdict can carry out steps that were overlooked in the first judgment but which are necessary to establish the material truth. As a result, situations may arise in which the court ought to acquit because the course of the proceedings has changed owing to, for example, a witness heard for the first time or the outcome of an expert report. This poses a problem: can the court acquit or not? The Court of Cassation takes the view that the court announcing the verdict may deliver a conviction under Article 231/11 CCP.[17]
Another problem is the uncertainty that arises where, at the time the verdict is to be announced, the type of offence in question has been decriminalised, provisions in favour of the defendant have been introduced, or, in the case of an offence prosecuted upon complaint, the complaint is withdrawn at the time the verdict is to be announced.[18] In such cases, particularly where the defendant has committed an offence during the supervision period, it may be argued that the verdict should be announced as it stands, and the court may wish to defer acting under the new provisions until after a Court of Cassation decision or adaptation proceedings. However, there is no doubt that, in addition to their negative consequences, these practices, which pave the way for proceedings exceeding a reasonable time, will lead to findings of violation by the ECtHR.[19]
Article 231/12 CCP provides that an objection may be lodged against a HAGB decision. The Court of Cassation previously held that, in an objection, the objection authority could examine the objective conditions on which the HAGB decision was based. As a result of the problems arising in this respect, the Plenary Criminal Chambers of the Court of Cassation, by its decision dated 22/01/2013 and numbered 2012/10-534 E. – 2013/15 K., accepted that the decision to defer the announcement of the verdict may be examined by the objection authority both on the facts and on the law. Although this removed certain uncertainties regarding the earlier problems, it has given rise to other problems.
The first of these problems arises from the provision of Article 271/2 CCP on the objection procedure: "if the objection is found to be well-founded, the authority shall at the same time decide on the subject matter of the objection" Can a decision be given on this basis in objections concerning HAGB? Although there is no express bar here, if, where the objection is found to be justified, there were an unlimited right to decide during the examination of the matter, this institution would be no different from the appeal (istinaf) procedure. For this reason, the limits of this matter should be drawn by legislation.
Another problem is whether the prohibition of reformatio in peius can apply following an objection against HAGB decisions. The subject of the prohibition of reformatio in peius is the type and severity of the penalty. Therefore, the prohibition has no connection with a change in the characterisation of the offence, security measures or institutions such as HAGB. However, the prohibition of reformatio in peius can be invoked in respect of the institution of suspension.[20] Since HAGB is also regarded as a form of suspension, the applicability of this prohibition may become a matter of debate.
Another problem is whether the prohibition of reformatio in peius can be applied where, following an objection, the judgment of the first instance court is appealed on points of law and comes before the Court of Cassation. In other words, can the Court of Cassation reverse the judgment on the ground that a heavier sentence should have been imposed? In this regard, under Article 306 of the Code of Criminal Procedure (former Code), which remains in force, "Decisions given before the judgment and forming the basis of the judgment may also be appealed on points of law together with the judgment." By this provision, we touch upon the following point in this respect: there is no doubt that, where the decision given by the trial court following the decision of the objection authority is appealed on points of law, it may be examined by the Court of Cassation without any restriction. The Court of Cassation has also expressed the following view on this subject: "since the judgment to be delivered at the end of the proceedings by the court rendered competent and having jurisdiction, following the setting aside of the decision objected to by the objection authority, will be regarded as a new judgment, the routes of objection or appeal on points of law will be open against this judgment. Accordingly, neither the local court continuing the proceedings nor, if the decision is appealed on points of law, the Court of Cassation will be bound by the characterisation of the offence determined by the objection authority …" it has stated its view in these terms.
As can be seen, the introduction of the HAGB institution into the legal system has brought with it problems in many areas. The need for the legislator to make regulations in line with its purpose is evident. We are of the opinion that the reliability of the justice system will increase if it is used as an institution adhering more strictly to the reasons stated in its legislative rationale.
For current procedural rules on judicial control and detention, Recent Amendments to the Code of Criminal Procedure you may refer to our article.
[1] See CENTEL/ZAFER, Ceza Muhakemesi Hukuku, p. 837
[2] See KARAKEHYA, Ceza Muhakemesi Hukuku, p. 560
[3] See KAYA, İnsan Hakları Açısından Hükmün Açıklanmasının Geri Bırakılması, Ankara Barosu Dergisi 2013/3, p. 414
[4] See KARAKEHYA, Ceza Muhakemesi Hukuku, p. 564
[5] See CENTEL/ZAFER, Ceza Muhakemesi Hukuku, p. 840
[6] See KARAKEHYA, Ceza Muhakemesi Hukuku, p. 567
[7] KAYA, İnsan Hakları Açısından Hükmün Açıklanmasının Geri Bırakılması, Ankara Barosu Dergisi 2013/3, p. 417
[8] KAYA, İnsan Hakları Açısından Hükmün Açıklanmasının Geri Bırakılması, Ankara Barosu Dergisi 2013/3, p. 418
[9] See also ECHR Article 6, first sentence: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
[10] See also Plenary Criminal Chambers of the Court of Cassation (CGK), 03.02.2009, 13-11/250
[11] KARAKEHYA, Ceza Muhakemesi Hukuku, p. 568
[12] See also ECHR Article 6/2, Presumption of Innocence
[13] See also TANER, Hükmün Açıklanmasının Ertelenmesinin (Geri Bırakılmasının) Hukuki Niteliği ve Ertelemeyi Kabul Edip Etmediğinin Sanığa Duruşma Devresinin Sona Ermesinden Önce Sorulmasının Hukuka Aykırılığı Üzerine, Ankara Barosu Dergisi 2011/4, p. 294
[14] See also TANER, Hükmün Açıklanmasının Ertelenmesinin (Geri Bırakılmasının) Hukuki Niteliği ve Ertelemeyi Kabul Edip Etmediğinin Sanığa Duruşma Devresinin Sona Ermesinden Önce Sorulmasının Hukuka Aykırılığı Üzerine, Ankara Barosu Dergisi 2011/4, p. 295
[15] See also TANER, Hükmün Açıklanmasının Ertelenmesinin (Geri Bırakılmasının) Hukuki Niteliği ve Ertelemeyi Kabul Edip Etmediğinin Sanığa Duruşma Devresinin Sona Ermesinden Önce Sorulmasının Hukuka Aykırılığı Üzerine, Ankara Barosu Dergisi 2011/4, p. 295
[16] GÜRÜHAN, Hükmün Açıklanmasının Geri Bırakılmasına İlişkin Güncel Sorunların Yargıtay Kararları Işığında İncelenmesi, TBB Dergisi 2014/111, p. 144
[17] See the decision of the 13th Criminal Chamber of the Court of Cassation dated 13/03/2013, Docket No. 2011/33993 – Decision No. 2013/6087
[18] The Court of Cassation takes the view that, provided that it is made in accordance with the procedure, a decision to discontinue the public prosecution may be given on the basis of petitions withdrawing the complaint submitted after the judgment. See the decision of the 4th Criminal Chamber of the Court of Cassation dated 09/04/2013 and numbered 2011/23948 E. – 2013/10504 K.
[19] One of the criteria taken into account in assessing trial within a reasonable time, which is one of the elements of the right to a fair trial under Article 6 of the European Convention on Human Rights, is the conduct of the competent authorities. For this reason, courts are obliged to apply provisions in favour of the defendant promptly. Osman Doğru – Atilla Nalbant, İnsan Hakları Avrupa Sözleşmesi Açıklama ve Önemli Kararlar, Joint Project on Strengthening the Role of the High Judicial Institutions with regard to European Standards, Council of Europe – Presidency of the Court of Cassation of the Republic of Türkiye, Şen Matbaa, Vol. 1, 1st ed., Ankara 2012, p. 635; on the State's responsibility for delays attributable to judicial authorities, see D.J. Harris – M. O’Boyle, – E.P. Bates – C.M. Buckley, Law of the European Convention on Human Rights, Joint Project on Strengthening the Role of the High Judicial Institutions with regard to European Standards, Oxford University Press, 2009 – Council of Europe 2013, Şen Matbaa, First Turkish edition, p. 283
[20] Decision on the Unification of Case Law of the Court of Cassation dated 07/06/1976 and numbered 3-4/3
Related page: Serious Crimes Lawyer in Ankara (Assize Court) — investigation, pre-trial detention, assize court trials and legal remedies
Related legislation: Code of Criminal Procedure No. 5271 (mevzuat.gov.tr)
HAGB is the deferment, for five years, of the announcement of a conviction rendered against the accused where the statutory conditions are met. If the accused does not commit an intentional offence during this period, a decision to dismiss the case is issued and, as a rule, the conviction produces no legal consequences.
According to the article, the sentence imposed must be two years or less of imprisonment or a judicial fine, the accused must consent, must not have previously been convicted of an intentional offence, there must be a conviction that they will not reoffend, the damage must be compensated, and the offence must not fall under the Reform Laws (inkılap kanunları).
Under the last sentence of Article 231/6-c of the Code of Criminal Procedure (CMK), if the accused does not accept it, deferment of the announcement of the verdict cannot be ordered.
Makaleye göre CMK m.231/6-a’daki koşul, sanığın daha önce kasıtlı bir suçtan mahkûm olmamasıdır. Bu nedenle daha önce taksirli bir suçtan mahkûm olmuş sanık kurumdan yararlanabilir.
Kanunda zararın türü belirtilmemiştir. Yargıtay’ın yerleşik içtihadı zararı yalnızca maddi zarar olarak kabul etmekte, manevi zarar için hukuk mahkemesinde ayrıca dava açılması gerektiğini belirtmektedir; makalede bu yorumun kanun metniyle uyumlu olmadığı görüşü savunulmaktadır.
As a rule, the judgment rendered produces no legal consequences. However, the article states that decisions on confiscation, litigation costs and attorney's fees carry the effects of a final judgment, and that HAGB decisions are checked in the special registry system for entry into certain public service positions.
Makalede HAGB kararına itiraz edilebileceğinin CMK m.231/12’de belirtildiği aktarılmaktadır. Yine makaleye göre 22/01/2013 tarihli Yargıtay kararıyla itiraz merciinin HAGB kararını hem maddi hem hukuki yönden inceleyebileceği kabul edilmiştir.
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