What is the Postponement of the Announcement of the Verdict (HAGB)?

Entrance

The postponement of the announcement of the verdict (HAGB), regulated in Article 231 of the Code of Criminal Procedure (CMK) , is one of the important and controversial institutions of Turkish criminal justice. Essentially, it is a tool of execution and punishment policy where, despite the defendant being found guilty, the court, under certain conditions, refrains from announcing the verdict and subjects the defendant to a probationary period. If the defendant complies with certain obligations during this period, the case is dismissed. HAGB aims to protect the right of individuals to avoid stigmatization and, in particular, to facilitate the reintegration of first-time offenders into society.

The Legal Nature and Purpose of Suspended Sentence

(HAGB) is not technically a deferment ; deferment is the postponement of the execution of a declared sentence. In a HAGB, the sentence itself is not declared. This means that even if a conviction has been handed down against the defendant, the legal consequences of that sentence are postponed for a certain period. The HAGB decision is not recorded in the defendant's criminal record, thus preventing the individual from acquiring "convicted" status and protecting the principle of not being stigmatized.

The primary purpose of the Suspended Sentence (HAGB) is to eliminate the negative effects (social exclusion, job loss, recidivism, etc.) resulting from the execution of short-term prison sentences and fines. Especially in cases of minor to moderate crimes, the aim is to encourage rehabilitation and reintegration into society by giving the offender a second chance instead of sending them to prison. This institution also offers practical benefits such as reducing the workload of the judicial system and alleviating overcrowding in correctional facilities.

Conditions for Suspended Sentence (CMK m.231/5-6)

In order for a suspended sentence to be issued, a number of conditions specified in Article 231 of the Code of Criminal Procedure must be met cumulatively:

1. Sentence: The sentence imposed on the defendant imprisonment for two years or less, or a judicial fine . This amount of punishment is the basic criterion that determines the scope of the suspended sentence.
2. Previous Conviction: The defendant must not have previously been convicted of an intentional crime. This condition emphasizes that the Suspended Sentence is an institution intended for "good-faith" and "first-time offenders." Sentences received for negligent crimes are not considered within this scope.
3. Court's Opinion: The court must be convinced that the defendant will not re-offend, taking into account the defendant's personality traits and demeanor during the trial . This is based on the court's subjective assessment and involves broad discretionary power. The defendant's remorse, efforts to redress the harm caused by the crime, past life, and social status are all factors that influence this conviction.
4. Compensation for the Victim's Damages: The damage suffered by the victim or the public as a result of the crime must be fully remedied through restitution, restoration to the pre-crime state, or compensation . This condition is a concrete step towards remedying the material consequences of the crime and ensures the compliance of the suspended sentence with the principle of fairness. If the damage is not remedied, a suspended sentence cannot be issued.
5. Defendant's Acceptance: The defendant accept the suspended sentence . This condition is a crucial element that makes the suspended sentence dependent on the defendant's consent. The defendant may choose not to be subject to the probationary period of the suspended sentence and may request that the verdict be pronounced. In this case, the court is obliged to pronounce the verdict and proceed with the execution of the sentence.

If all of the above conditions are met simultaneously, the court may issue a suspended sentence. The word "may" indicates that the court has discretionary power; that is, even if the conditions are met, the court is not obliged to issue a suspended sentence. However, in judicial practice, issuing a suspended sentence when the conditions are present is a common practice.

Consequences of a Suspended Sentence Decision: Probation Period (CMK m.231/8-10)

When a suspended sentence is given, a five-year probationary period is determined for the defendant . During this period:

• Obligations During the Audit Period: The court may impose a probation measure or specific obligations on the defendant during the probation period. These obligations may be determined similarly to those in Article 51/3 of the Turkish Penal Code (in the section on the suspension of sentence):
  • To enable a convict who does not have a profession or trade to acquire one, they must attend a training program
  • A convict who has a profession or trade is required to work for a specific period in a public or private institution
  • Prohibited from residing in a specific location or traveling to certain places. These obligations aim to facilitate the offender's reintegration into society and prevent recidivism.
• No New Offences: The defendant must not commit an intentional crime during the probation period. This is the most fundamental and important condition for a suspended sentence. Negligent offenses are not included in this scope.

Revocation of the Suspended Sentence Decision and Pronouncement of the Verdict (CMK Article 231/11)

If within the inspection period;

1. If the Defendant Commits a Deliberate Crime: If the defendant intentionally commits a new crime during the probation period, the court pronounces the sentence. In this case, the suspended sentence becomes final and is enforceable. That is, the sentence given to the defendant, but not yet pronounced, will now be executed.
2. If the Defendant Breaches Obligations: If the defendant persistently fails to comply with the probation measures or obligations determined by the court, the court may still pronounce the sentence. However, in this case, the court has the authority to first issue a warning to the defendant and give them another chance to comply with the obligations.

The verdict is recorded in the defendant's criminal record, and the defendant then acquires the status of a convicted person.

Annulment of Suspended Sentence Decision (CMK m.231/10)

If the defendant does not intentionally commit a new crime during the probation period and complies with the specified obligations, the case is dismissed. In this case, the judgment rendered by the court is considered null and void, with all its consequences. That is, the conviction against the defendant is treated as if it had never been issued. This situation is not recorded in the defendant's criminal record, and the individual has a completely clean record.

Exceptions to Suspended Sentence

For some crimes, a suspended sentence (HAGB) cannot be granted. Specifically, HAGB provisions do not apply to certain crimes explicitly defined in the Code of Criminal Procedure or special laws. For example, HAGB cannot be applied to crimes considered more serious from a societal perspective, such as crimes against the constitutional order (Articles 309 and onwards of the Turkish Penal Code) and crimes under the anti-terrorism law. These exceptions are made due to the gravity of the crime and concerns about public safety.

Appeals and Legal Remedies Against Suspended Sentence Decisions

An appeal against a suspended sentence decision may be filed within seven days of the date of pronouncement or notification of the decision . The competent authority to review the appeal is a higher court than the court that rendered the decision. The decision rendered upon appeal is final. Once a suspended sentence decision becomes final, it is no longer subject to ordinary legal remedies (appeal, cassation). However, if a decision to pronounce the sentence is made at the end of the probationary period, appeals and cassation may be filed against this decision.

Advantages and Criticisms of Suspended Sentence

Benefits:

• Right to a Clean Score: This protects the individual's right to a clean score by preventing the defendant's criminal record from being updated, thus preventing social exclusion.
• Rehabilitation and Social Reintegration: This allows individuals, particularly first-time offenders, to rehabilitate and reintegrate into society without going to prison.
• Reducing the Burden on the Judiciary: It reduces the burden on correctional institutions and speeds up judicial processes.
• Personalization of Sentences: This allows courts to create flexible solutions based on the defendant's circumstances.

Criticisms:

• Victim Rights: There are criticisms that in some cases, the victim's expectation of justice is not met.
• Risk of Recidivism: There are claims that even if an intentional crime is committed during the probation period, the probation mechanism may be insufficient and there is a risk of the crime being repeated.
• Judicial Discretion: It is argued that the broad discretionary power of courts can lead to discrepancies in decisions, potentially undermining the sense of justice.
• The State's Right to Punish: Some legal experts argue that the suspended sentence means the state waives its right to punish, and that this reduces its deterrent effect.

Conclusion

Suspension of the Announcement of the Verdict (HAGB) is an institution that holds a significant place in the Turkish criminal justice system, aiming to protect the individual's right to a clean reputation and facilitate their reintegration into society. Under certain conditions, the announcement of the verdict against the defendant is postponed for a specific probationary period, and if successful within this period, the case is dismissed. While it has benefits, it is an institution that has sparked debate regarding victim rights and the deterrent effect of crime. The correct and effective application of HAGB plays a critical role in achieving the goals of the criminal justice system.