What does Deferred Pronouncement of the Verdict mean?
Deferred Pronouncement of Judgment (Article 231 of the Criminal Procedure Code)
Deferred pronouncement of judgment refers to the situation where no legal consequences arise from the sentence imposed on the defendant, and the judgment is annulled, provided that the defendant does not commit another offense and complies with the obligations during the probation period. This decision is considered a second chance offered to the convict if it creates the impression that they can become a law-abiding individual, feel remorse for the offense committed, and will not commit another crime.
The legislator regulates the deferred pronouncement of judgment as follows:
● Article 231/5 of the Criminal Procedure Code (CMK):
“If the sentence imposed as a result of the trial for the offense charged against the defendant is imprisonment for two years or less, or a judicial fine, the court may decide to defer the pronouncement of the judgment. Provisions regarding reconciliation remain reserved. The deferred pronouncement of judgment means that, with the exception of provisions concerning confiscation, the judgment rendered shall not have any legal consequences for the defendant.”
● Article 231/6 of the Criminal Procedure Code (CMK):
“In order for a decision of deferred pronouncement of judgment to be rendered:
a) The defendant must not have been previously convicted of an intentional offense,
b) The court must be convinced, considering the defendant’s personality traits and behavior during the hearing, that they are unlikely to commit another offense,
c) The damage caused to the victim or the public as a result of the offense must be fully compensated through restitution, restoration to the previous state, or payment of damages.”
● Article 231/7 of the Criminal Procedure Code (CMK):
“In a judgment for which the pronouncement has been deferred, the imposed prison sentence cannot be suspended, nor can it be converted into alternative sanctions, even if it is of short duration.”
● Article 231/8 of the Criminal Procedure Code (CMK):
“If a decision to defer the pronouncement of the judgment is made, the defendant shall be subject to a probation period of five years. During this probation period, a second decision to defer the pronouncement of a judgment cannot be issued against the person for any intentional offense.
Within this period, for a duration not exceeding one year as determined by the court, the defendant may be subjected to probation measures, including:
a) If the defendant does not have a profession or trade, participation in a training program aimed at acquiring one,
b) If the defendant has a profession or trade, working under the supervision of someone engaged in the same profession or trade, either in a public institution or privately, in return for payment,
c) Being prohibited from going to certain places, being required to attend specific locations, or fulfilling another obligation deemed appropriate by the court.
The statute of limitations for prosecution is suspended during the probation period.”
● Article 231/9 of the Criminal Procedure Code (CMK):
“If the condition specified in subparagraph (c) of the sixth paragraph cannot be fulfilled immediately, a decision to defer the pronouncement of the judgment may still be rendered on the condition that the defendant fully compensates the damage caused to the victim or the public by making monthly installment payments throughout the probation period.”
This is how the provision is regulated.
What Are the Requirements for Rendering a Decision of Deferred Pronouncement of Judgment?
1.The Offense Must Not Be Among the Crimes for Which Deferred Pronouncement of Judgment Is Not Permitted
Crimes for which a decision of deferred pronouncement of judgment cannot be rendered are specified in special laws. These include:
- Disciplinary offenses within the scope of the Disciplinary Courts Law, Article 63/2,
- The crime of issuing a dishonored check,
- The crime of causing environmental pollution,
- Offenses specified in the Enforcement and Bankruptcy Law,
- Violation of alimony obligations,
- Acts requiring disciplinary or coercive imprisonment,
- Offenses listed in the revolutionary laws protected under Article 74 of the Constitution (Article 231/14 of the Criminal Procedure Code), etc.
2.The Defendant’s Prison Sentence Must Not Exceed 2 Years
In order for this decision to be rendered, the condition that the prison sentence must be 2 years or less also applies to offenders under the age of 18. Furthermore, except for the exceptional offenses listed above, the nature of the crime, whether it was committed intentionally or through negligence, is not important.
3.The Defendant Must Not Have Been Previously Convicted of an Intentional Crime
If the defendant has a final conviction for an intentional crime previously committed, a decision for the deferred pronouncement of judgment (HAGB) will not be rendered. However, if the period required for the application of recidivism provisions has passed, the previous conviction for an intentional crime will not prevent the defendant from receiving a decision for HAGB.
4.Having Been Directly Sentenced to a Judicial Fine or a Judicial Fine Along with Imprisonment
It should be noted that the judicial fine must be direct in relation to this matter. A decision for the deferred pronouncement of judgment will not be rendered for a defendant who has been sentenced to a judicial fine converted from a prison sentence.
5.Compensation for the Harm Suffered by the Victim
If the victim, whether a natural or legal person, has suffered harm due to the defendant’s crime, the compensation of this harm is a requirement for obtaining a decision for deferred pronouncement of judgment (HAGB). The harm referred to in this context is solely material damage and does not include moral damage.
6.The Court’s Belief That the Defendant Will Not Commit Another Offense
The judge’s opinion is formed based on the defendant’s personality traits and behavior, resulting from objective evaluations (Article 231, Paragraph 6 of the Criminal Procedure Code). Therefore, if there is no negative behavior recorded in the hearing transcripts or any previously known negative personality trait, a decision for deferred pronouncement of judgment (HAGB) can be made. The Court of Cassation’s Criminal Chamber stated the following in its decision dated 19.02.2008, case no. 2006/346, decision no. 2008/25, regarding this condition:
“It should be noted that, during the period when the Turkish Penal Code No. 765 was in force, crimes committed under this law were applied with favorable consideration, and under Article 6 of Law No. 647, the defendant’s ‘tendency to commit a crime’ was negatively evaluated, and if the sentence was not postponed, it is no longer possible to render a decision for the deferred pronouncement of judgment for this defendant.”
7.The Defendant Has Not Previously Been Given a Decision for Deferred Pronouncement of Judgment (HAGB)
The legislator has prohibited the issuance of a second decision for deferred pronouncement of judgment (HAGB) for the same defendant during the probation period. The relevant provision is found in Article 231/8 of the Criminal Procedure Code (CMK):
“In the case of a decision for deferred pronouncement of judgment, the defendant will be subjected to a probation period of five years. During this probation period, no decision for deferred pronouncement of judgment can be made again for the defendant due to an intentional crime. Within this period, for no more than one year, and for a period determined by the court, the defendant may be subjected to the following measures as part of probation:
a) If the defendant does not have a profession or craft, they may be required to attend a training program to acquire a profession or craft,
b) If the defendant has a profession or craft, they may be required to work for a public institution or under the supervision of someone practicing the same profession or craft privately, for a salary,
c) The defendant may be prohibited from going to certain places, obligated to attend certain places, or required to fulfill another duty as determined. During the probation period, the statute of limitations is suspended.”
As a result of the finalization of the decision for deferred pronouncement of judgment (HAGB), both the probation period will begin for the defendant and the statute of limitations will be suspended. Additionally, it should be noted that the monitoring and probation period specified in the law is 5 years if the defendant is an adult, and 3 years if the defendant is a minor under 18 years old.
What Happens If a Crime Is Committed During the Probation Period in a Decision for Deferred Pronouncement of Judgment?
Depending on whether the defendant commits another crime or not during the monitoring and probation period specified in the law (5 years for adults, 3 years for minors), two outcomes arise:
- If the defendant does not commit an intentional crime during the probation period and complies with the obligations set by the judge, the decision for deferred pronouncement of judgment (HAGB) will be lifted, and the case will be dismissed.
- If the defendant commits an intentional crime during the probation period or fails to comply with the obligations set by the judge, the decision for deferred pronouncement of judgment will be pronounced by the court without any changes to the original judgment. The Court of Cassation’s Criminal General Assembly stated the following regarding this situation in its decision dated 19.02.2008, case no. 2006/346, decision no. 2008/25: “In the case where the defendant commits a new intentional crime during the probation period or acts contrary to the obligations, the deferred pronouncement of judgment will be announced by the court. It is sufficient for the new crime to be committed during the probation period. Although the finalization of the second judgment will be required for the conviction condition to be met, the finalization date will not have any significant importance.”
Appeal and Cassation Procedures Against the Decision for Deferred Pronouncement of Judgment
The decision for deferred pronouncement of judgment can be appealed within two weeks from the notification of the decision. According to Article 273/1 of the Criminal Procedure Code (CMK), the appeal request is made either through a petition submitted to the court that issued the judgment or through a statement made to the court clerk. If this decision is made by a regional appellate court or the Court of Cassation in its capacity as the first-instance court, the case may be subject to cassation.
Additionally, decisions for deferred pronouncement of judgment (HAGB) made before June 1, 2024, were subject to the appeal process as per Article 231/12 and Article 267 of the Criminal Procedure Code. However, after the new regulation, decisions made after June 1, 2024, will be subject to the appellate procedure.
The Legal Process of Objection Against the Decision for Deferred Pronouncement of Judgment
a. If the HAGB decision is made by a Criminal Court of First Instance, the competent court to appeal this decision is the Criminal Court of High Criminal in that courthouse. If there is no Criminal Court of High Criminal in the relevant courthouse, the appeal can be made to the Criminal Court of High Criminal located within the jurisdiction of the Criminal Court of First Instance.
b. If the HAGB decision is made by a Criminal Court of High Criminal, the court authorized to review the appeal is the Criminal Court of High Criminal that follows the court that made the decision in the order of courts. In this regard, the party/parties may need a criminal lawyer, such as an Antalya criminal lawyer, to make the appeal.
Appeal for the Benefit of the Law Against the Decision of the Deferred Pronouncement of Judgment
Appeal for the Benefit of the Law is a legal remedy pursued against final court decisions that have not been appealed to a higher court. Therefore, an “appeal for the benefit of the law” can be pursued against a final decision of the deferred pronouncement of judgment.
Frequently Asked Questions
1.Does a Defendant Who Has Been Given a Deferred Pronouncement of Judgment Have the Right to Compensation?
With the decision to defer the pronouncement of the judgment, if the defendant completes the 5-year probation period in good standing and the case is dismissed, they will not have the right to any material or moral compensation regarding the protective measures imposed on them.
2.Is the Decision to Defer the Pronouncement of Judgment Recorded in the Criminal Record?
The decision to defer the pronouncement of judgment is not recorded in the criminal record, which can be accessed via the e-Government portal. This record is only used by judges and prosecutors during the investigation or prosecution phases for determining specific issues and does not harm the presumption of innocence of the defendant. These matters are outlined in Article 231 of the Criminal Procedure Code (CMK).
3.Does the Decision to Defer the Pronouncement of Judgment Affect Civil Service Employment?
The relevant decision, serving as a second chance for the defendant, does not have any impact on civil service employment. A person who has been granted a deferment of pronouncement of judgment (HAGB) will not face any restrictions based on this decision and can continue to carry out their profession without issues, regardless of their occupation. However, although the HAGB decision does not affect the individual’s criminal record, there are exceptional cases in the legislation where certain jobs or professions are seen as incompatible due to a criminal record. For example, in Article 10 of the Law No. 5188 on Private Security Services, which outlines the conditions for becoming a private security officer, it states:
“Even if the periods specified in Article 53 of the Turkish Penal Code No. 5237, dated 26/9/2004, have passed, or if the decision to defer the pronouncement of judgment has been made…”
1.Not having been sentenced to imprisonment for one year or more due to a deliberately committed crime.
2.Even if pardoned, not having been convicted of crimes against state security, the constitutional order and its functioning, private life and the secret areas of life, sexual inviolability, and crimes related to narcotics or stimulants, embezzlement, extortion, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy, interference with tenders, interference with the performance of obligations, money laundering from crimes, smuggling, and prostitution.
3.Not being under investigation or prosecution for crimes related to the constitutional order, its functioning, private life and the secret areas of life, sexual inviolability, and narcotics or stimulant crimes.
Additionally, according to Article 125/E of the Civil Servants Law, if a civil servant is convicted of a sexual crime and an HAGB decision is made, the defendant will be banned from their profession.
4.Is the Decision to Postpone the Pronouncement of Judgment Applicable in the Absence of a Detectable Harm?
As stated in the section outlining the conditions, the decision to postpone the pronouncement of judgment depends on the defendant compensating the victim for any material damage. However, if there is no existing material harm, the condition of “compensating the harm” will not be required, and if other conditions are met, the decision to postpone the pronouncement of judgment may still be granted to the defendant.
5.Can a defendant who has been given a decision to postpone the pronouncement of judgment obtain a firearm license?
A defendant who has not committed an intentional crime during the monitoring and supervision period after the decision of postponement of the pronouncement of judgment can obtain a firearm license by submitting a decision regarding the dismissal of the public case after the relevant period has ended.
Some Court of Cassation Rulings Regarding the Postponement of the Pronouncement of Judgment Decision
- “…In the case of an appeal against the Postponement of the Pronouncement of Judgment decision, the court of appeal will examine whether the objective conditions related to the crime and the defendant, as set out in Article 231, paragraph 6 of the Criminal Procedure Code (CMK), exist. If it finds any violation in both factual and legal terms, the court will annul the decision and send the case back to the lower court without taking any further action, simply indicating the reason for the annulment. The judge reviewing the case again will be limited to the grounds for annulment and, in accordance with the Court of Cassation General Assembly’s ruling of 22.01.2013, case 2012/10-534, decision 2013/15, will be able to change the judgment by making a decision on lack of jurisdiction, dismissal of the case, or that there is no need for a sentence.” (Court of Cassation 13th Criminal Chamber, Decision dated 29.12.2014, Case 2014/32524, Decision 2014/37202)
- “According to Article 231 of the Criminal Procedure Code No. 5271, when the judgment whose pronouncement has been postponed is reconsidered and the pronouncement of the judgment is decided due to the defendant committing a new crime during the probation period, in accordance with the eleventh paragraph of Article 231 of the same Law, the previous judgment must be pronounced as it is without any changes. However, if the defendant fails to fulfill the imposed obligations, the situation should be evaluated, and the punishment may be individualized by not enforcing a part of the sentence, which is determined up to half of the sentence, or, if applicable, by postponing the prison sentence or converting it into alternative sanctions. In other respects, the judgment cannot be changed. In the absence of a legal obligation, when it is understood that the defendant committed a crime during the probation period, the judgment must be pronounced as it is. However, in this case, by not adhering to this rule and changing the previous judgment, the long prison sentence in the postponed judgment was converted into a judicial fine in the pronounced judgment, which was found to be unlawful and deemed a reason for reversal.” (Court of Cassation 12th Criminal Chamber, Decision dated 01.11.2023, Case 2020/7694, Decision 2023/4635)
- “Although there is a responsibility for attorney fees and litigation costs arising due to the existence of a previously imposed and later completely annulled sentence, it should be accepted that such secondary obligations are not criminal in nature as intended by the legislator, and that the defendant should not benefit from the postponement of the judgment solely for this reason. Moreover, Article 2 of the Law No. 5560 amending Article 231 of the Criminal Procedure Code (CPC) stipulates that in cases of deferred pronouncement of judgment, litigation costs will be imposed on the defendants, indicating that utilizing this provision will not benefit the participating defendants. On the contrary, as the judgment is deferred, a 5-year probation period will be imposed, leading to a more unfavorable outcome.” (Court of Cassation Criminal General Assembly, Decision dated 18.03.2008, Case 2007/4-115, Decision 2008/53)
- “The Local Court decided not to apply Article 231 of the Criminal Procedure Code (CPC) to the defendant with the justification that ‘considering the defendant’s discourse and behavior reflected in all stages of the trial, his denial attitude, and perspective, the act attributed to the defendant was considered negligent, there was no moral conviction that he would not commit the same kind of negligence again, nor that he was remorseful, and due to the social impact caused by similar actions… the decision to defer the pronouncement of the judgment was not considered and deemed inappropriate. Furthermore, the payment of compensation to the relatives of the deceased during the trial period was evaluated as a mitigating factor in favor of the defendant.’ It is understood that the court decided not to apply Article 231 of the CPC to the defendant based on this reasoning. However, it must be noted that the defendant, who only attended one session during the trial, did not exhibit any negative behavior reflected in the case file, and had mitigating factors applied, did not have any conviction recorded in his criminal record. It was not taken into account that the social impact of the defendant’s negligent act could not be considered in the subjective assessment under Article 231/6-b of the CPC. The defendant’s ‘denial attitude and perspective’ should remain within the scope of the right to defense, and given that the defendant showed genuine remorse by compensating for the financial losses of the victim H., the deceased’s spouse, the Local Court should have made a decision by considering the defendant’s personality traits and attitude in court under Article 231/6-b, and assessing whether the defendant would commit another crime in the future. Therefore, the justification that the defendant was not remorseful, which was presented by the court as a reason for not applying Article 231, is not consistent with the case file, and the other justifications provided are not legal or sufficient.” (Court of Cassation Criminal General Assembly, Decision dated 15.01.2019, Case 2017/443, Decision 2019/4)
Some Council of State Rulings Regarding the Deferred Pronouncement of Judgment Decision
- “The plaintiff, who was a police officer, was dismissed from his position due to a final conviction for fraud. Following the plaintiff’s application for adaptation, a decision of deferred pronouncement of judgment was made. According to Article 98/b of the Civil Servants Law No. 657, the cause for dismissal of public servants is a conviction for a crime listed in Article 48, which is considered an obstacle to civil service, and a final court decision related to this conviction. In this case, since the plaintiff was convicted of a crime that does not constitute an obstacle to civil service, it is unlawful to reject the lawsuit filed for the annulment of the dismissal of the police officer plaintiff.” (Council of State 12th Chamber, Decision No. 2008/4502, Case No. 2007/2534, Dated 09.07.2008)
- “According to Articles 48/A-5 and 98/b of Law No. 657, the actions to be taken are entirely dependent on the outcome of the criminal proceedings, and since a final conviction exists for the plaintiff at the time of the action, the action in question was lawfully established. However, the conviction was adapted upon the plaintiff’s application, and a decision of deferred pronouncement of judgment was made for the plaintiff in accordance with the provisions of the Criminal Procedure Law No. 5271. Due to the decision of deferred pronouncement of judgment, the termination of the plaintiff’s civil service employment is unlawful.” (Council of State, 12th Chamber, Decision No. 2013/439, Case No. 2010/1591, Dated 12.02.2013)
- “Article 8(h) of the Police Vocational Higher School Entrance Regulation stipulates that even if the time periods specified in Article 53 of the Turkish Penal Code have passed, for intentional crimes with a prison sentence of one year or more, and for crimes listed in Article 48/A-5 of the Civil Servants Law No. 657, the following conditions must be met: a) the person must not have a conviction, even if their rights have been restored or forgiven, b) a decision for the deferred pronouncement of judgment must not have been made, c) there must be no ongoing prosecution or the prosecution must not have been concluded by reconciliation. In the present case, the plaintiff, who was prosecuted for purchasing, using, or possessing drugs and stimulants, had his connection to the Police Vocational Higher School severed on the grounds of “negative results in the security investigation.” Since the plaintiff was acquitted as a result of the trial, the termination of his connection based on the negative outcome of the security investigation is unlawful.” (Council of State, 8th Chamber, Decision No. 2013/3154, Case No. 2011/7930, Dated 15.04.2013)
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