Decision to Resist Annulment (CMK Article 307/4)

1. Introduction

In criminal proceedings, the decisions of the Court of Cassation following the appeal review are binding on the first instance courts and the appellate courts. However, the concept of "resistance to reversal" is often confused. In particular, the resistance (referring the case to the General Assembly of Law) as stipulated in the Code of Civil Procedure differs from its application in criminal proceedings.

Article 307/4 of the Code of Criminal Procedure directly regulates the "prohibition of adverse modification." This provision is one of the most important grounds preventing the issuance of a decision resisting reversal in criminal proceedings.

2. Is Resistance Possible in Criminal Proceedings?

• According to the Code of Criminal Procedure: In criminal proceedings, local courts do not have the authority to resist.

• The local court is obliged to comply. This is a consequence of the principle of binding judgment in criminal procedure.

• The institution of resistance exists only in legal proceedings (Code of Civil Procedure).

3. Article 307/4 of the Code of Criminal Procedure – Prohibition of Amendment to the Detriment of the Deserving

Article 307/4 of the Code of Criminal Procedure contains the following provision:

"If the appeal is filed only by the defendant or by the public prosecutor acting on their behalf, the judgment cannot be overturned to the detriment of the defendant."

This means:

• If the appeal is filed solely in favor of the defendant , the Court of Cassation cannot issue a reversal decision against the defendant .

• Even if the court complies with the reversal decision, it is not possible for the defendant to receive a harsher sentence.

• Thus, in criminal proceedings, the prohibition against adverse reversal, , ensures the protection of the accused.

4. Consequences of the Annulment Decision for the Local Court

• The local court to implement the reversal decision in its entirety .

• If the court decides to resist, this decision will be procedurally invalid and will be overturned again by the Supreme Court.

• Although some courts may issue decisions that appear to be defiant in practice, the Court of Cassation overturns such decisions on procedural grounds, of the obligation to comply with the grounds for reversal .

5. Comparison with Civil Procedure

• According to the Code of Civil Procedure: The local court can resist the Supreme Court's reversal, and the case goes to the General Assembly of Civil Chambers.

• According to the Code of Criminal Procedure: The local court has no right to resist; the reversal decision is binding.

• This difference to protect the rights of the accused and speed up the trial .

6. Supreme Court Case Law

• The Supreme Court's Criminal General Assembly has repeatedly emphasized that a decision to resist appealing is not possible in criminal proceedings.

• Example: The local court's insistence on issuing the same decision after a reversal was deemed procedurally irregular, and the case was reversed again.

7. Conclusion

• In criminal proceedings, there is no resistance to reversal.

• Article 307/4 of the Code of Criminal Procedure protects the defendant by prohibiting reversal to the detriment of the defendant

• The Supreme Court's reversal decision is definitively binding.

• The institution of resistance, which exists in civil proceedings, does not apply in criminal proceedings.

                                                                                                                                                  Ada Ceren KENDİGELEN