Restoration in criminal procedures

As clearly stated in the article of the law, the legislator requires perfection in order to request reinstatement. What should be understood from perfection should be emphasized here. In cases where the deadline cannot be complied with due to force majeure, that is, due to an external force that is not the result of the perpetrator's consciousness and will and that the perpetrator cannot resist or prevent, or as a result of events such as accident, coincidence, or financial pressure that the perpetrator cannot avoid, the perpetrator is considered to be blameless.

CMK, unlike CMUK, does not limit the request for reinstatement only to force majeure. Thus, it has been regulated that the perpetrator can request reinstatement in cases where he is perfect and the limit has been expanded. The presence of fault on the part of the perpetrator requires rejection of the request for reinstatement. According to Article 28 of the Turkish Penal Code; "Any person who commits a crime as a result of force and violence that he cannot resist or escape from, or an absolute and severe intimidation or threat, will not be punished. In such cases, the person who uses force and violence, intimidation and threat is considered the perpetrator of the crime." If there are circumstances that eliminate the fault regulated here, the perpetrator may request reinstatement.

But it is necessary to add force majeure and unexpected situations to the situations that eliminate fault.

It is possible that the perpetrator missed the deadlines due to illness. This situation is also considered within the scope of perfection and causes the request for restoration to be accepted to the extent documented. It does not matter at what point in the process the cause of perfection occurs. For example, if the person who will benefit from the period falls ill on the last day of the period, it is not investigated why he did not apply on the remaining days. Because leaving it to the last day is not a fault.

In the 2nd paragraph of Article 40 of the CMK; "The person is deemed to be blameless even if he is not informed of his right to take legal action." The provision is included. Here, it is further and clearly stated that failure to notify the legislator of his rights is grounds for reinstatement. Notification is made by notification or notification method. Disputes regarding this issue arise mostly from the point of whether the notification was made in accordance with the procedure. In cases where irregular notification is made, it is assumed that the person does not know about a decision to which he/she can appeal by law or appeal. While investigating whether the notification was made in accordance with the procedure, Articles 32 and 36 of the Notification Law No. 7201 must be examined. If the notification is made contrary to these articles, it will be considered invalid and a request for reinstatement will be appropriate. An example Supreme Court decision on the subject is as follows:

"The signature of the defendant is not included in the report prepared regarding the notification of the conviction verdict dated 03.05.2012 to the defendant who was not present at the hearing, and since the notification of the same date made without considering the requirement of the defendant's signature in accordance with Article 36 of the Notification Law is invalid, according to the scope of the file, it is understood that he was not aware of the first conviction verdict and its content until the notification of the adaptation decision dated 09.04.2013. "It should be accepted that the defendant's appeal request dated 13.05.2013 is for the unfinalized conviction dated 03.05.2012 and that the adaptation decision lacks legal value."

Again, the legal remedy and duration to be applied must be stated in the notification. Because, as stated in the decision of the Supreme Court of Appeals CGK No. 2006/169 K.; According to Article 40 of the Constitution, the state is obliged to inform the legal remedies and authorities to be applied by the relevant persons in its transactions and the deadlines. The Code of Criminal Procedure also stipulates that the decisions must specify the legal remedy, duration and authority that can be applied for. In the judgment paragraph, the decision made, the applicable law articles, the amount of the penalty imposed, whether there is a right to apply for legal remedies, and if there is an opportunity to apply, the duration and authority should be clearly stated without any doubt. While pronouncing the verdict, the legal remedy, duration and authority to be applied should be explained. A person who has spent a period of time without fault may request reinstatement. This situation is a reason for reinstatement, as the person who is not informed of the right, time and authority to apply for legal remedies will be deemed to be blameless. If the notification does not include these, an application for reinstatement can be made. The opinion of the Supreme Court on the subject is as follows:

"In the additional decision given in the absence of the convict through the file, it is understood that there are hesitation in the conditions such as the method and time period regarding the applicant and the application regarding the law that can be applied, this deficiency must be eliminated first in order to avoid violation of rights. These deficiencies are the reason for reinstatement according to Article 40 of the CMK." Y6CD. K. 2017/955

In another decision, the following provision was made:

"Failure to include the appeal authority, which should be included in the legal remedy notification shown in the decision notified by the local court, in a way that does not leave room for hesitation, is a reason for reinstatement in accordance with Article 40 of the CMK, and by accepting that the defendant's petition submitted after the legal period is in the nature of a request for reinstatement, the local court's decision to reject the appeal request should be annulled and the appeal should be examined." Y4CD. K. 2016/2249

On the other hand, as can be seen from the decision below; It has been jurisprudence that the institution of restitution cannot be applied if the application method is not shown:

"Although it has been claimed in the decision that the legal remedy notification was incomplete due to the fact that it was not stated that an appeal would be made to another court of law, and that the appeal was made within due time, with this situation being accepted as a reason for reinstatement, according to the established jurisprudence of the Supreme Court, the mere absence of the application form will not prevent the "legal remedy period" from starting to run. Even if the application form is not shown or shown incorrectly, the appeal periods will count and the appeal made after the period will not be accepted." YCGK 2019/216 K.

The starting date of the period must also be clearly stated. A Supreme Court decision on the subject is as follows:

"In the notification regarding the legal remedy to be applied for in the judgment given in the face of the defendant, who is present in the absence of the defendant's defense counsel, the beginning of the period is shown as "declaration and notification", causing hesitation as to whether the period will start from "declaration" or "notification". Therefore, it is not possible to accept that the beginning of the appeal period is the date of announcement of the verdict to the defendant, and the beginning of the period is notified to the defense of the defendant. It must be accepted that there is a notification date." YCGK

CAN REINSTALLATION BE REQUESTED IF THE DECISION IS NOTIFIED TO THE DEFENDANT INSTEAD OF THE DEFENDANT?

As a rule, in cases where the person is represented by a lawyer, notifications are made to the lawyer. However, there is an exception to this rule in terms of criminal law. In criminal cases, decisions must be notified to the defendant as well as to the defense counsel. Appeal, appeal etc. When calculating the periods, the date of notification to the defendant is taken as basis. The Constitutional Court explained this situation as follows in its decision with application number 2021/34076 and dated 14/1/2025 and deemed the rejection of the appeal application due to the decision not notified to the defendant as a violation of rights:

"In the concrete case, the Criminal Chamber evaluated that, in accordance with Article 11 of Law No. 7201, the appeal period started to run on 1/6/2021, when the Chamber's decision to reject the decision on the merits was notified to the applicant's defense counsel, and therefore rejected the requests for reinstatement and appeal filed on 5/7/2021 against the Chamber's decision by the applicant, who was not notified of the decision, and the other defense attorney authorized by power of attorney. (see § 8).

35. With the amendment made in Article 11 of Law No. 7201 by Law No. 3220, the reason why the provisions of the Criminal Procedure Law No. 1412 dated 4/4/1929, which was in force at that time, regarding the notification of decisions to the defendants were reserved from the general rule regarding notification to the attorney, was included in the justification of the said Law, which was also conveyed in the General Assembly decisions. In the justification for the amendment made by Law No. 3220, it was emphasized that it is not necessary to notify the defendants of the decisions in criminal cases and that considering the notification made to their defense counsel as valid would not be compatible with the principles of justice (see § 13). Based on this, it should be noted that, as stated in the General Assembly decision, there are rules in Law No. 5271, which came into force after Law No. 1412, that stipulate the notification of decisions to the relevant parties in terms of legal remedy applications, contrary to the general rule in Article 11 of Law No. 7201 (see § 9). On the other hand, in cases where the decisions are only communicated to the defense counsel, but the defense counsel does not apply for an appeal within the legal period and the defendants later request an appeal, the Supreme Court of Appeals has also evaluated in its jurisprudence, in line with the justification of Law No. 3220, that the date on which the period for applying for the appeal remedy begins is the date on which the decision is learned by the defendant, and in this context, the decision should also be notified to the defendant (see §§ 13,14).

36. At this point, although it is stated in the first sentence of paragraph (1) of Article 11 of Law No. 7201 that notification will be made to the attorney in matters pursued by proxy, in the fourth sentence of the same paragraph, as an exception to this rule, the provisions of Law No. 1412, which provides for the notification of decisions to the defendants, have been reserved. In addition, in the justification of Law No. 3220, where the mentioned exception was introduced, it was emphasized that notification of the decisions to the attorney instead of the defendants would not be sufficient. In addition, in the trial process regarding the concrete incident, which came into force after the Law No. 1412, and in the Law No. 5271, which is still in force, regulations stipulating the notification of the decisions to the relevant party were included, and in judicial jurisprudence, it was accepted that Article 11 of the Law No. 7201 should be interpreted in accordance with the justification of the Law No. 3220, and that the decisions should also be notified to the parties in terms of the time periods for legal remedy applications (see. §§ 13,14).

37. Therefore, when Article 11 of Law No. 7201, the justification for the amendment made by Law No. 3220, the provisions of Law No. 5271 and the stabilizing practice of the Supreme Court are evaluated together, it is understood that the will of the legislator is to take into account the date on which the defense counsel, as well as the relevant party, learns about the decision subject to these applications, if there is a decision subject to these applications, in determining the date on which the application period for appeal and appeal legal remedies in criminal cases begins. On the other hand, in the concrete case, it was observed that the interpretation made by the Criminal Chamber of the rule regarding application to legal remedies was not clear enough to be foreseen by people and contradicted the letter of the law. In this case, despite the clear legal regulation, legal justification and Supreme Court precedent, the Criminal Chamber's assessment that the appeal period for the Chamber decision dated 5/7/2021, on which reinstatement and appeal is requested, started on 1/6/2021, when the said decision was notified to the applicant's defense counsel, instead of 30/6/2021, when the applicant was caught within the scope of the execution of the final judgment because this decision was not communicated to him. It was concluded that the intervention had no legal basis.

38. "For the reasons explained above, it must be decided that the right of access to court, within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution, has been violated."

WHERE AND HOW TO APPLY FOR RESTORATION? - PETITION FOR RESTORATION

The request for reinstatement is made with a petition.

CMK 41/1. According to the article; The petition for reinstatement is submitted to the court, which will carry out the procedural procedures within seven days from the removal of the obstacle, if the period is met.

The petitioner explains the facts showing that he has no fault in the expiration of the period, including documents, if any. Procedures that cannot be carried out regarding the procedure are also carried out at the time the petition is submitted. (CMK 41/2)

The authority to which the petition will be submitted is CMK 42/1. It is determined according to the article. Accordingly; If the procedural action had been carried out within the prescribed period, the court that would have ruled on the merits will also decide on the petition for reinstatement.

For example, if objection to the arrest decision is to be made, the petition for reinstatement is submitted to the authority that will review the objection to detention. If an appeal is to be made, the petition must be sent to the relevant criminal chamber of the Supreme Court of Appeals. The following sample decision of the Supreme Court will help understand the issue:

"Since the duty to decide on the petition of reinstatement dated 08.03.2007 addressed to the local court by the defendant's defense counsel, who missed the one-week appeal period following the pronouncement of the local court's verdict, belongs to the relevant criminal chamber of the Supreme Court, the decision to reject the appeal given by the local court regarding this request is devoid of legal value.

In this respect, it should be decided that the decision of the Special Chamber, which decided to REVERSE the decision of the local court by removing the decision given by the local court on 09.03.2007, rejecting the appeal dated 09.03.2007, upon the petition of the defendant defense counsel dated 08.03.2007, requesting reinstatement, should be removed, and the file should be sent to the Special Chamber to first make a decision on the request for reinstatement." YCGK 2011/300 K.

Yet another decision follows:

"Without considering that the authority to decide on the reinstatement requested by the defendant together with the appeal of the verdict given in absence, belongs to the Supreme Court, which is responsible for reviewing the verdict on appeal in accordance with Article 42/1 of the CMK, the additional decision regarding the rejection of the request dated 05.05.2011, accepting the request as reinstatement, lacks legal value and was submitted by the son of the defendant's defense counsel with the petition dated 17.02.2010. It was understood that ... was declared dead, the court decided in the absence of the defendant because he could not be reached, and the notification of the reasoned decision was irregular, and the appeal was accepted within due time; Y8CD. K. 2017/6653

One more important point needs to be mentioned here. The defendant must also submit a petition containing his request along with the time he missed. For example, the defendant who missed the appeal period must have submitted the petition containing the appeal request to the court in addition to the reinstatement petition.

DECISION TO BE MADE ON THE PETITION FOR RESTORATION

According to Article 42 of the CMK;