Conditions for Postponement of the Announcement of the Verdict (HAGB)
Entrance
The fundamental aim of criminal procedure is to determine whether an act committed is truly a crime, and if so, to identify the perpetrator, thereby achieving a fair outcome. However, the execution of the sentence is not always necessary in the criminal justice system. Sometimes, considering the perpetrator's personality, lack of prior criminal record, the severity of the crime, and future expectations, alternative institutions that postpone or completely reduce the sentence are needed. In Turkish law, one of the most important institutions introduced for this purpose the postponement of the announcement of the verdict (HAGB) .
Suspended Sentence (HAGB) represents a chance for the defendant and, for society, the rehabilitation of the offender. Certain specific conditions must be met for this institution to be applied. Article 231 of the Code of Criminal Procedure regulates the scope, conditions, and consequences of HAGB. It is impossible to fully understand this institution without understanding its conditions. Below, we will examine these conditions one by one, but in detail and in an article-like style.
Condition Regarding the Amount of Penalty
The first condition for applying a suspended sentence (HAGB) is that the sentence given to the defendant must be below a certain limit. The legislator has set this limit imprisonment of two years or less and a judicial fine . Therefore, if the court has sentenced the defendant to more than two years of imprisonment, a suspended sentence is not applicable. The aim here is primarily to create a second chance, especially for minor offenses.
In practice, judges often consider the possibility of a suspended sentence when determining the amount of punishment. For example, in a case where a sentence of 2 years and 6 months is possible, imposing the lower limit of 2 years opens the door to a suspended sentence. The Supreme Court also takes this into account and reviews whether a suspended sentence can be applied.
Conditions Regarding the Defendant's Criminal Record
The second condition for a suspended sentence is that the defendant must not have been previously convicted of an intentionally committed crime. A distinction is made here between intentional and negligent crimes. If the defendant has previously been convicted of a negligent crime, this does not prevent a suspended sentence. However, if there is a final conviction for an intentionally committed crime, a suspended sentence cannot be granted.
This regulation shows that the suspended sentence is essentially an opportunity granted to first-time offenders. The offender's criminal record is one of the most important criteria in determining whether they are worthy of reintegration into society.
Condition for Compensation for Damages
The third condition for a suspended sentence is the compensation of damages resulting from the crime. If there is a victim of the crime, the damage suffered must be fully compensated or the victim must be restored to their previous state. This condition is important in criminal law to protect the rights of the victim and strengthen the sense of justice.
For example, in a case of property damage, if the victim's vehicle is scratched, a suspended sentence may be applied if the defendant compensates for the damage. If the defendant does not compensate for the damage, the possibility of a suspended sentence is closed. This condition encourages the perpetrator to reconcile with the victim and compensate for the damage.
Condition Relating to the Judge's Opinion
For a suspended sentence to be granted, the court be convinced that the defendant will not re-offend . This conviction is formed based on criteria such as the defendant's personality, demeanor and behavior in court, remorse, and their relationship with the victim after the incident. The judge has broad discretionary power in evaluating this condition.
This condition demonstrates that suspended sentence is not an automatic right, but rather a discretionary institution of the court. Many Supreme Court decisions also emphasize that suspended sentence is not a right of the defendant, but depends on the judge's judgment.
Condition for the Defendant's Admission
Another important condition for a suspended sentence is that the defendant accepts. If the defendant does not accept, the court cannot issue a suspended sentence. This is because a suspended sentence has certain consequences for the defendant. The defendant may be subject to certain obligations during the probation period. Furthermore, if the defendant commits an intentional crime during the probation period, the previously unannounced sentence will be announced and the punishment will be carried out. Therefore, a suspended sentence cannot be applied without the defendant's consent.
In practice, some defendants may choose not to accept the suspended sentence and instead exercise their right to appeal. This is a strategic choice and varies depending on the defendant's circumstances.
Audit Period and Obligations
When a suspended sentence is given, the defendant a five-year probationary period . During this period, the defendant must not commit an intentional crime. Furthermore, the court may impose certain obligations on the defendant during the probationary period. These may include obligations such as performing community service, participating in an educational program, or refraining from contact with the victim.
The probation period is one of the most critical elements of a suspended sentence. Because if the defendant successfully completes this period, the case is dropped and the verdict is never announced. This ensures that the defendant's record remains clean.
Criminal Record and Suspended Sentence
Suspended sentencing decisions are not recorded in the criminal record. They are only in the judicial archives . This is a great advantage for the defendant, as a criminal record is critically important in many areas, from employment to public service. Thanks to suspended sentencing, the defendant's criminal record appears clean.
However, judicial archive records are not entirely confidential. Courts and prosecutors can access these records. This allows the suspended sentence decision to be reconsidered if a crime is committed again in the future.
The Court of Cassation's Opinion
The Supreme Court has clarified the conditions and consequences of suspended sentences in numerous rulings. According to the Supreme Court, suspended sentences are not a right for the defendant, but rather an institution dependent on the court's discretion. Furthermore, the Supreme Court emphasizes the need for a thorough examination of the defendant's criminal record.
The Constitutional Court has also stated that suspended sentence decisions can be reviewed through appeals and has examined claims that the right to appeal has been restricted.
For example;
For example, the defendant, Mehmet, was sentenced to one year in prison for the crime of insult. He has no prior criminal record, and the victim suffered no harm. The court, believing that Mehmet regretted his actions and would not commit another crime, issued a suspended sentence. If Mehmet does not commit a new crime during the probation period, the case will be dropped, and Mehmet's criminal record will remain clean.
Conclusion
Suspension of the announcement of the verdict (HAGB) is one of the most important institutions of Turkish criminal law that grants individuals a second chance. However, certain strict conditions must be met to apply for this institution. These conditions primarily include a low penalty, the defendant's lack of a criminal record, compensation for damages, the judge's conviction, and the defendant's acceptance.
Suspended Sentence is a great opportunity, especially for first-time offenders who show remorse and are deemed suitable for reintegration into society. This allows the defendant to continue their life without going to prison, keeping their record clean and securing their future.
Law Faculty Student Ada Ceren KENDİGELEN
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