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Appeal and Other Remedies

İstinaf ve Diğer Kanun Yolları

Feridun YENİSEY, Salih OKTAR

Errare humanum est; Judges are human beings, and there might be errors in their decisions and judgements. Correction of such errors by the Executive would diminish the Rule of Law. The term ‘judicial review’ is an overall concept, and the term ‘legal remedies’ refers to the review of rulings of independent courts by a higher court. Legal remedies are considered as a foundation of the Rule of Law. as defined in Article 14(5) of the Covenant on Civil and Political Rights is one of the “new” rights. This provision is also incorporated into Article 2 of the seventh Protocol of the European Convention on Human Rights.

Legal Remedies in Comparative Criminal Procedure Law, Correction of Material and Judicial Errors, The Ordinary Legal Remedies, The Exra - Ordinary Legal Remedies, The Objection, The Appeal, The Cassation.

“Errare humanum est” Hakimler de insandır, kararlarında ve değerlendirmelerinde hatalar olabilmektedir. Bu tür hataların yürütme tarafından düzeltilmesi hukukun üstünlüğünü zedeleyecektir. ‘Yargı denetimi’ terimi genel bir kavramdır ve “kanun yolları” terimi, bağımsız mahkemelerin kararlarının bir üst mahkeme tarafından incelenmesini ifade eder. Kanun yolları, Hukuk Devletinin temeli olarak kabul edilir. Medeni ve Siyasi Haklar Sözleşmesi’nin 14(5) maddesinde tanımlanan ceza davalarında temyiz hakkı “yeni” haklardan biridir. Bu hüküm aynı zamanda Avrupa İnsan Hakları Sözleşmesi’nin yedinci protokolünün 2. maddesinde de yer almaktadır.

Karşılaştırmalı Ceza Muhakemesi Hukukunda Kanun Yolları, Maddi ve Hukuki Hataların Düzeltilmesi, Olağan Kanun Yolları, Olağan Üstü Kanun Yolları, İstinaf, İtiraz, Temyiz.

I. Introduction

In this article our intention is to give an overview of the appeal process in general, providing our own definitions of the concepts related to the processes of the legal remedies. Differences between various European countries’ procedures are noted to demonstrate the variety of approaches, and the procedures in Türkiye that are quite different from the other systems will be identified.

Errare humanum est;1 Judges are human beings, and there might be errors in their decisions and judgements.2 Correction of such errors by the Executive would diminish the Rule of Law. The term ‘judicial review’ is an overall concept,3 and the term ‘legal remedies’ refers to the review of rulings of independent courts by a higher court.4

An appellate system in the form of review by the governor has a long history such as in the Code of Hammurabi or in ancient Roman Law; review by the Senate (provocatio ad populum) or by the emperor has existed for many millennia.5 Appeal in the sense of judicial control of decisions of the court of first instance by a higher court, where parties request the correction of an error done by the trial judge through clarification of the facts and interpretation of the law, or by interpreting the law only, did not exist until the 19th century.

Today the right to appeal in criminal cases is considered as a foundation of the Rule of Law.6The right to appeal in criminal cases as defined in Article 14(5) of the Covenant on Civil and Political Rights is one of the “new” rights. This provision is also incorporated into Article 2 of the seventh Protocol of the European Convention on Human rights:7Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. This right may be subject to exceptions regarding offences of a minor character, or where the person was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.

The Rome Statute of the International Criminal Court (ICC) has also acknowledged the right of appeal. Prior to that, the Nuremberg Charter, in contrast, had not recognized the defendants’ right to appeal. At the War Crimes Tribunal in Tokyo, the Supreme Commander for the Allied Powers was entitled to ‘reduce or otherwise alter the sentence, except to increase its severity’, thus implicitly recognizing a right of appeal. In the International Criminal Court appeal procedures are available: The grounds of appeal are procedural error, error of fact, error of law, the disproportion between crime and sentence, and “any other ground”.8

In addition to rights of appeal and cassation, citizens of Türkiye have a right to petition to the Grand National Assembly, which is regulated in the Constitution (Article 74, AY): “Everyone has the right, individually or jointly with others, to address requests or complaints in writing to the competent authorities and to the Parliament which can be used to pursue not only one’s own interests but also general interests.” This subjective public right is aimed at examination of facts in detail, and petitions are dealt with by a Petitions Committee which may refer the petition to the government for information or consideration.9 Additionally, the Ombudsman Institution attached to the Grand National Assembly (Article 74, AY), and the Human Rights and Equality Institution of Türkiye, both with public legal entity status and administrative and financial autonomy, have the duty to advocate individuals’ rights against the administration as well as to protect and to promote human rights.10 Although these rights may be intertwined to some extent, we will not address further the right to petition.

Legal remedy in a strict sense is the generic term for opposition, appeal, and cassation.11 Decisions of executive authorities of an administrative nature are not subject to legal remedies but are subject to ‘judicial review’. Legal remedies are applicable only against judicial rulings which may be rendered by a judge during the preliminary investigation phase, such as pre-trial arrest, or search and seizure warrant, or by the court as an outcome of the main hearing in the prosecution phase. Decisions rendered by a judge are subject to opposition, whereas the rulings of the court which are rendered in the form of judgement are subject to appeal or cassation. There are two types of appeal: ‘trial de novo appeal’ (Berufung), where the party seeks redress for legal errors committed at trial, and ‘appeals for errors of law’(Revision), where the party requests a new trial before a higher court.12 Once judgement is pronounced, it cannot be corrected by the trial court itself, absent an admissible appeal and directive of the appeals court for the trial court to review its decision. If the public prosecutor or the defendant wants to challenge the judgement, they must pursue remedies provided for by law.

Legal remedies in a strict sense may be divided into ordinary and extraordinary legal remedies.13 In Türkiye, as in Germany, ordinary legal remedies are available against not finalized rulings. Opposition (Beschwerde), fact and law appeal (Berufung) and law only cassation (Revision) are ordinary legal remedies,14 whereas re-opening of criminal proceedings (Wiederaufnahme des Verfahrens), and reinstatement to the previous status (in integrum restitutio; Wiedereinsetzung in den vorigen Stand) are extraordinary legal remedies.15 There is a different distinction between ordinary and extraordinary remedies in France. If the higher court inspects both fact and law issues, they consider it as a regular or ordinary legal remedy, but if only legal issues may be addressed, it is considered extraordinary.16

Judicial review, or legal remedies in a broad sense17 includes individual application to the Constitutional Court (Verfassungsbeschwerde),18 individual application to the European Court of Human Rights,19 and formal and informal requests that are resolved in the same legal process, such as objection (Einspruch), reminder (Erinnerung), counter-presentation (Gegenvorstellung), refusal, or counter-notifications.

Constitutional Courts in Europe have jurisdiction to determine the constitutionality of laws (norm control).20 This judicial review process is a consequence of separation of powers, under which the executive, legislative and administrative actions are subject to review by the judiciary. The Constitutional Court may invalidate laws, acts, and governmental actions.21 In countries with strong attachment to the idea of legislative supremacy such as the United Kingdom however, judges do not have the power to strike down statutes.

In addition to the norm control power, the Constitutional Court, upon filing of a constitutional complaint, may also control all measures of public authority, including judicial rulings.22 In Germany, the constitutional complaint is not available for violations of rights under the European Convention on Human Rights, but it is possible to bring an individual complaint to the European Court of Human Rights under Art.25 ECHR. The Basic Law allows ‘any person alleging that one of his basic rights has been infringed by public authority’ to file a complaint directly with the court.23 In Türkiye a constitutional complaint against legal norms (laws, legal ordinances, statutes) is excluded, but it is admissible in Germany under certain circumstances. In both countries, the constitutional complaint can in principle only be raised when domestic legal remedies have been exhausted. In the case of constitutional complaints against court decisions, the Constitutional Court only examines whether the trial court has observed fundamental rights and standards, whether a decision is “objectively arbitrary”, but not the correctness of the application and interpretation of domestic criminal law or procedural provisions. Therefore, it is not a “super-cassation body”.

The individual complaint to the ECtHR can be raised after domestic legal remedies have been exhausted. The ECtHR is not to be seen as a next instance of appeal from national courts since it is not focused on whether the conviction was free of factual or legal errors and does not overturn the conviction. The Court calls this principle the ‘fourth instance doctrine.24

Objection is a legal remedy in the broad sense where the request of petitioner is decided in the same instance. For example, objection is a right during the trial against decisions of the trial judge during cross-examination; one of the parties may object against a biased question of the other party (Article 201, CMK).

In France the Chambre de l’instruction is empowered to examine the regulation of all proceedings and annul acts of the examining magistrates which have been carried out in breach of the law. This procedure is analogous to the exclusionary rule in the common law system. There are two types of annulment: The first nullité textuelle refers to specific requirements of the Criminal Procedure Code, such as procedures for searches and seizures or formalities on interrogation, compliance with which is required. A failure to read a defendant his rights or to notify counsel of an interrogation may result in annulment by the Chambre de l’instruction. The second type, nullité substantielle, is related to all procedural acts carried out by the police, prosecution, or the examining magistrate which are in breach of the law. For example, an illegal entry into a suspect’s home or unlawful deception or undercover investigations practiced by the police, are subject to annulment.25 The effects of a nullité differ according to the nature of the procedural error. If the error is related to competence or the rights of the defense, the whole procedure related to the error is annulled. If the error concerns search and seizure powers of the police, only the irregular act of investigation is annulled.26

In Germany, in proceedings before a criminal court judge and in proceedings within the jurisdiction of a court with lay judges, a fine or disqualification of some rights as a sanction may be imposed by the Public Prosecution Office by a written summary penalty order, without a main hearing. If the indicted accused has defense counsel, imprisonment for a term not exceeding one year may also be imposed, provided its enforcement is suspended on probation. The penalty order must refer to specific legal consequences (Article 407, StPO). The defendant may lodge an objection against a summary penalty order at the court which issued it, either in writing or orally to be recorded by the registry, within two weeks following service of the summary penalty order.27 The objection may be limited to certain points of complaint. If objections to the summary penalty order are not lodged in time, the order is equivalent to a judgement which has entered into force (Article 410/3, StPO).28 This legal provision was also regulated in the repealed Criminal Procedure Code in Türkiye until June 2005. In essence, it constituted an example of sentencing without trial. The authority to issue a penalty order lay with the judge of the so-called “peace court”, i.e., the lowest level criminal court in the former legal justice system, with special competence for the judicial overview of the investigation phase. This court also had the authority to decide, if a misdemeanor was charged for that required a prison sentence of 3 months or less and/or a fine. It was possible to file an opposition against a penalty order issued in this way. The current law did not adopt the penalty order29 but introduced mediation,30 speedy trial procedure and simple trial procedure:31

Mediation in criminal law is the process in which the victim and the perpetrator of the crime negotiate to resolve the dispute before an impartial mediator during the criminal investigation or the trial (Article 253/1, CMK). According to the Criminal Procedure Code, the mediation agreement is reached at the end of the negotiation process.32 The Public Prosecutor determines that the conciliation reached by the parties was with their free will, and he agrees to the legality of the consideration (i.e., the action that the perpetrator agrees to undertake to reach a conciliation) and approves it. If the perpetrator has already performed the consideration decided upon in the settlement or when he performs it in the future following the settlement, the public prosecutor decides not to prosecute or postpones the initiation of a public lawsuit.33 If during a trial, the court finds that the crime is subject to mediation, it shall send the file to the mediation office. If the parties reach a compromise and the defendant performs the consideration that was decided upon, the court issues a verdict to dismiss the case. If there is no settlement or if the defendant does not fulfill his obligation, the public case will be heard, and a decision made. Depending on whether the mediation was finalized by the prosecutor’s office or the trial court, it is possible to file an opposition or appeals, and if the conditions are met, cassation can also be applied for.

According to the speedy trial procedure,34 if the suspect accepts the prosecutor’s offer related to one of the crimes listed in Article 250, CMK, in the presence of his lawyer, the prosecutor determines the penalty by reducing the penalty by half, and files a corresponding request with the court in charge by means of a request letter. The court then hears the suspect in the presence of his lawyer. If the judge accepts and determines that the act is subject to speedy trial, he makes a judgement in line with the request. Otherwise, the request will be rejected, and the investigation will be carried out in accordance with the general provisions. Pursuant to the request of the public prosecutor, the court’s decision is subject to objection, which results in a limited scrutiny.

Simple trial procedure (Article 252, CMK): The criminal court of first instance may decide to apply a simple trial procedure for crimes that require a judicial fine and or have an upper limit of 2 years or less imprisonment after the indictment is accepted. When the decision is made to apply the simple trial procedure, the accused, the victim, and the complainant are notified of the indictment and their written statements and defenses are requested within 15 days. It is stated in the notification that a verdict can be rendered without a hearing. At the end of that period, the court can decide without a hearing, and when there is a conviction, the resulting sentence is reduced by one fourth. The procedure of objection against this judgement and the results of the objection are also declared with the decision. If no objection is made in due time, the decision becomes final. If an objection is made, the court will hold a hearing and decide according to the general provisions.35 If the objection is withdrawn prior to the hearing, the hearing will not take place and the objection is deemed not to have been made. If persons other than the accused object, the reduction in penalty is retained. It is possible to oppose the decision of the court made without a hearing, in which case a hearing will be held. At the end of the hearing, a judgement will be rendered, and it will be subject to appeal (Article 268/2, CMK).