Decision to defer the announcement of the judgment (HAGB)
HAGB institution, which was added to criminal law by Law No. 5560 dated 06.12.2006, was seen as an important change and started to be implemented. Additionally, changes were made in the field of application with the law no. 5728 dated 23.01.2008.
The institution of postponement of the announcement of the verdict has frequently been subjected to justified criticism since its introduction. Many of these criticisms were also included in the Constitutional Court's decision dated 05.07.2022 and application number 2016/1635, published in the official newspaper dated 22.09.2022 and numbered 31961. In this study, we will first touch on the conditions and legal regulations of the HAGB institution. In the meantime, we will make statements within the framework of the relevant decision of the Constitutional Court, which, in our opinion, has given an answer, albeit late, to the criticisms we have received in relevant places.
The institution of postponement of the announcement of the verdict (HAGB) is provided in Articles 5-14 of Article 231 of the Criminal Procedure. It is arranged in paragraphs. According to paragraph 5 of the relevant article; If the penalty imposed at the end of the trial for the crime charged against the defendant is imprisonment of "two years" or less or a judicial fine; The court may decide to postpone the announcement of the verdict. Provisions regarding reconciliation are reserved. Postponing the announcement of the verdict means that the verdict does not produce any legal consequences for the defendant.
As clearly stated in the article, the decision to postpone the announcement of the verdict (HAGB) is a type of decision that does not have any consequences for the defendant. The defendant for whom an HAGB decision is issued is subject to supervision. If he does not commit a new crime within the supervision period, the sentence is annulled and a dismissal decision is made. This institution, which is an innovation added to criminal law during the modernization process, contributes to the use of deprivation of liberty penalties as a last resort.
The Supreme Court says that the HAGB decision aims to protect the right not to be tarnished. However, the doctrine is criticized in the relevant decision. It may also be possible to say that the principle of compliance with interest is partially applied during the prosecution phase with the HAGB institution.
IS HAGB REMOVED? CANCELLATION DECISION OF THE CONSTITUTIONAL COURT
In our review, we mentioned that the HAGB institution has been frequently criticized since the date it was introduced and that we have an opinion that the rule should be abolished. Finally, the rule was annulled by the Constitutional Court. The Constitutional Court decision No. 2025/149 K. published in the Official Gazette dated 21.12.2025 annulled the rule for the following reasons:
"The first sentence of paragraph (5) of Article 231 of Law No. 5271, which regulates the HAGB institution, was annulled by the decision of the Constitutional Court dated 1/6/2023 and numbered E.2022/120, K.2023/107, and it was decided that the annulment decision would come into force one year after its publication in the Official Gazette. The decision in question It was published in the Official Gazette dated 1/8/2023 and numbered 32266.
In the said decision, it was stated that the HAGB institution was not established only by considering the interests and interests of the defendant, that the protection of public interest and public order was also aimed at a significant extent in the establishment of the institution, and that this and similar institutions were widely included in comparative law in terms of combating crime and criminality, preventing crime and deterrence. However, with reference to various individual application decisions, it has been stated that the institution in question causes problems regarding the right to life and the prohibition of torture and ill-treatment in connection with impunity, and that it also constitutes an intervention to many fundamental rights and freedoms, especially freedom of expression and the right to organize meetings and demonstrations, and that it does not contain protective measures against arbitrary practices of public authorities (AYM, E.2022/120, K.2023/107, 1/6/2023, §§ 27, 28).
In the said decision, it was also examined whether the said institution complies with the constitutional guarantees regarding fundamental rights and freedoms, taking into account the previous evaluations made by the Constitutional Court regarding the functioning of the HAGB institution. In this context, by making it impossible for the defendant to apply for the appeal to which he is legally subject, without a valid will to waive, before the verdict is established, it limits the right to request review of the verdict and the right to access the court, the will to waive a certain legal remedy declared by the court at a stage before the verdict is rendered does not meet the conditions of constitutional validity, and the verdict does not meet the requirement of legality, as there is no procedural guarantee to ask the defendant after the conviction whether he accepts the HAGB or not. It was concluded that it imposes an excessive burden and is not proportionate (AYM, E.2022/120, K.2023/107, 1/6/2023, §§ 32-44).
The decision also stated that the confiscation decision, which resulted in the transfer of the property to the public at the end of the criminal trial, limited the right to property, that the decision in question was in the nature of controlling the use of the property for the public benefit, that there was no clear provision of law as to at what stage the confiscation would be executed in case of a HAGB decision, that in accordance with the rule, the execution of the confiscation decision along with the HAGB decision was made possible, and that the decision would impose an excessive burden on the owners due to the lack of adequate guarantees in the law. It is stated why (AYM, E.2022/120, K.2023/107, 1/6/2023, §§ 47, 48).
On the other hand, in the decision, it was stated that the HAGB decision given by the court was not a criminal provision in nature and put the person under the threat of punishment, and that in the previous decisions of the Constitutional Court, the application of the HAGB institution in terms of maltreatment allegations resulted in the defendant not receiving an enforceable penalty, and that the consent of the victim or the provision of moral compensation for the victim was not required in the implementation of this institution, and that the suspension decision in question did not provide sufficient and effective compensation for the victim.
Again, in the decision, it is stated that while it is possible to act more flexibly within the scope of the positive obligations of the state in cases where acts contrary to Article 17 of the Constitution are carried out by third parties rather than by public officials, it must be shown that an unlawful and extremely serious act cannot be tolerated in cases where the perpetrator is a public official, and in this sense, there is no legal regulation stating that the HAGB institution will not be applied for crimes committed by a public official due to his duty and which are considered torture, torment and ill-treatment in the context of the said article of the Constitution, and punishment. It has been stated that the failure to solve this problem through the practices of the courts is incompatible with the procedural obligation imposed on the state by Article 17 of the Constitution (AYM, E.2022/120, K.2023/107, 1/6/2023, §§ 53-57).
The rule in question also includes a regulation regarding the HAGB institution. The legislator has foreseen a different procedure for confiscation in Article 231 of Law No. 5271, with the amendment made by Law No. 7499. Again, after the aforementioned amendment, although the implementation of the HAGB is not dependent on the acceptance of the defendant, it is understood that the possibility of legal review has been introduced in terms of allegations of illegality on the merits, by regulating that an appeal can be filed against the HAGB decision in paragraph (12) of the article where the rule is also included, and in this context, there is no provision requiring the defendant to waive the legal remedy and other guarantees of the right to a fair trial.
However, as stated in the annulment decision, there is no legal regulation stating that the HAGB institution will not be applied to crimes committed by a public official due to his duty and which are considered torture, torment and ill-treatment within the context of Article 17 of the Constitution. Therefore, it is clear that no regulation has been made by the legislature in this regard, taking into account the findings of the Constitutional Court in the said annulment decision, and that the rule will have the same consequences as the annulled provision in terms of crimes committed by the public official due to his duty and considered torture, torment and ill-treatment within the meaning of Article 17 of the Constitution. In this respect, the rule is incompatible with the procedural obligation imposed on the state by Article 17 of the Constitution, which is to impose penalties on perpetrators commensurate with their actions and to provide appropriate reparations for the victims.
For the reasons explained, the rule is contrary to Article 17 of the Constitution. It must be cancelled."
The implementation date of the cancellation decision was postponed 9 months after its publication. Therefore, from 31.12.2025 to 31.09.2026, the issues we mentioned in our review subject will remain in force and implementation will continue. If there are any changes in the law during this period, we will also include these changes here. However, until that date, our explanations below will continue to be valid.
WHAT ARE HAGB CONDITIONS?
The legislator has determined some criteria for the implementation of the HAGB institution. Some of these criteria are described as objective conditions and some as subjective conditions.
Conditions of the Crime
First of all, CMK 231/5. According to the article, the HAGB decision only comes into question in cases of imprisonment of 2 years or less or judicial fines. Therefore, HAGB decision cannot be given for prison sentences exceeding two years.
In terms of judicial fines, it is possible to make a HAGB decision regardless of the amount. There is another situation that should not be forgotten here. It's like; Conciliation conditions are reserved for the implementation of the HAGB institution.
Finally, it should be noted that; The crime must not be one of the crimes included in the Revolutionary Laws guaranteed in Article 174 of the Constitution.
Conditions Regarding the Defendant
a) The defendant has not been previously convicted of an intentional crime,
The existence of a conviction against the defendant prevents the application of HAGB. There is no difference whether the conviction is imprisonment or a judicial fine.
b) The court reaches the conclusion that the defendant will not commit a crime again, taking into account his personality characteristics and his attitude and behavior at the hearing,
c) The damage suffered by the victim or the public due to the commission of the crime must be completely compensated by returning it to the same state as before the crime or by compensation.
Here, full payment of the damage is required. Partial payments are not sufficient to implement HAGB. On the other hand, CMK article 231/9. According to the article; If it cannot immediately fulfill the condition specified in paragraph (c) of the sixth paragraph; It may also be decided to postpone the announcement of the verdict, provided that the defendant completely compensates for the damage he caused to the victim or the public by paying monthly installments during the supervision period.
The damages here are material and identifiable damages. For example, the defendant cannot be asked to pay under the name of moral compensation.
The damage must be determined by the judge. A research should be done for this. An example Supreme Court decision is as follows:
"In terms of the action of the defendant, which stated that public damage occurred due to the purchase of goods and services in the form of computers, printers, tables, chairs and internet installation needed by the Ardahan Provincial Directorate of Culture and Tourism, at prices higher than the market prices reported by the Ankara Chamber of Commerce, the preliminary examination report prepared by the Ministry of Culture and Tourism inspector Nuran Altunel and the expert report stated that although 1 computer was purchased from the company named Aktüel Bilgisayar and an invoice was issued for it, 8 In order to clarify the fact that computers were purchased, after determining the current prices by clearly determining how many computers were purchased from the relevant company, the defendant's defense that the prices reported by the Ankara Chamber of Commerce are the bare prices of the goods and services purchased, and that no transportation, labor and installation fees are included in these prices, determining whether there is a public damage and the amount, if any, and depending on the result, the postponement of the announcement of the verdict in accordance with Article 231/6 of the CMK. "It is wrong not to take into consideration that whether the conditions are met or not should be discussed and evaluated at the decision-making place." Y5CD. 2022/6688 K.
It does not matter whether the payment is accepted by the victim or not.
d) The defendant must accept HAGB.
In the past years, in order for the HAGB decision to be made, the defendant was required to accept (consent) this situation. In practice, asking the defendant whether he wanted HAGB while he was being interrogated was heavily criticized on the grounds that it pushed the defendant into a criminal psychology and damaged his right to a fair trial.
Finally, the legislator took these criticisms and the annulment decisions of the Constitutional Court into consideration and with the 8th Judicial Package (Law No. 7499) CMK art. It went through a radical change in 231. With this amendment, which came into force on 01.06.2024, the "acceptance of the defendant" requirement has been completely removed from the law. Now, in the presence of other objective and subjective conditions, the court can make a HAGB decision without asking the defendant. The defendant's protection against this decision is provided by making the decision subject to direct appeal.
CASES WHERE HAGB DECISION CANNOT BE MADE
CMK 231/5. According to the expression in the 2nd sentence of the article, the provisions regarding reconciliation are reserved in terms of the implementation of HAGB. According to the conclusion here, if the crime committed falls within the scope of reconciliation, the provisions regarding reconciliation must first be applied. According to Article 254 of the CMK:
After the public lawsuit is filed, if it is understood that the crime subject to prosecution is within the scope of reconciliation, the "prosecution file is sent to the conciliation office to carry out the conciliation procedures in accordance with the principles and procedures specified in Article 253." If the performance of the obligation is postponed to a later date, is made in installments or is continuous; It is decided to postpone the announcement of the verdict regarding the defendant, regardless of the conditions in Article 231. The statute of limitations does not run during the suspension period. After the decision to postpone the announcement of the verdict, if the requirements of the compromise are not met, the court will announce the verdict, without seeking the conditions in the eleventh paragraph of Article 231.
Another situation in which the HAGB decision cannot be given is the article 231/14 of the CMK. It is included in the article. Accordingly; The provisions of this article regarding the postponement of the announcement of the verdict do not apply to the crimes included in the reform laws protected in Article 174 of the Constitution.
In light of the ECHR decisions, the HAGB decision should not be implemented in some cases. It's like this:
"It is at the discretion of the first instance court to decide on HAGB. While exercising this discretion, it would be appropriate for the court to take into account the ECHR jurisprudence. In its Zeynep Özcan/Turkey decision, the ECHR stated that the HAGB application results in making the provision ineffective and does not comply with the convention's standard for protection from ill-treatment: "If the crime arises from the public official abusing his duty or exceeding his authority, especially if it involves torture and ill-treatment, an HAGB decision cannot be given." Constitutional Court In its decision upon the individual application, it accepted that issuing a HAGB decision against the person who committed the crime of sexual assault violated Article 17/3 of the Constitution. (Prof. Dr. Feridun Yenisey- Prof. Dr. Ayşe Nuhoğlu Criminal Procedure Law Seçkin Publishing 9th Edition p. 822)
CONSEQUENCES OF THE HAGB DECISION
As we stated above, a conviction must be established for the defendant before the HAGB decision is made. In one of its decisions, the General Criminal Assembly ruled that HAGB decisions given without a conviction were unlawful.
If the HAGB verdict is given, the conviction will not be announced unless the conditions are met. Therefore, this decision, which is not interpreted, will not have any legal consequences.
CMK 231/7. According to the article; In cases where it is decided to postpone the announcement, the prison sentence cannot be postponed and cannot be converted into alternative sanctions if it is short-term.
The defendant, for whom an HAGB decision is issued, is subject to supervision for five years. This period is determined as 3 years for children. During the supervision period, if the court wishes, it may impose a liability on the defendant for a period of not more than one year. The obligations to which the defendant may be subject are as follows:
- If he does not have a profession or art, he must continue an education program to enable him to have a profession or art,
- If he/she has a profession or art, he/she should be employed for a fee in a public institution or privately under the supervision of someone else practicing the same profession or art,
- He is prohibited from going to certain places, is obliged to attend certain places, or fulfills any other obligation that may be appreciated.
If the person deliberately commits a new crime or violates the obligations regarding the probation measure during the probation period, the court announces the verdict. However, the court evaluates the situation of the defendant who cannot fulfill the obligations imposed on him; It may establish a new conviction by deciding not to execute a portion of the sentence, up to half of which it determines, or, if conditions are met, to postpone the imprisonment sentence or to convert it into alternative sanctions.
LEGAL REMEDIES AGAINST HAGB DECISION
The legislator deemed it appropriate to appeal against the HAGB decision. However, due to the difficulties experienced in practice, the Constitutional Court annulled this provision. The cancellation decision came into force nine months later on 22.06.2023. Until this date, the legislator had to determine a new application method, but with the amended law, as of 01.06.2024, an appeal will be taken against HAGB decisions.
In appealed decisions, the authority authorized to object must examine the decisions in terms of both form and substance. Otherwise, it will not be possible to audit HAGB decisions. In fact, it has been emphasized in the decisions of the Supreme Court to date that the need for substantive review should be carried out. However, it is also seen that unity cannot be achieved in practice. Some sample Supreme Court decisions are as follows:
"The case is related to the crimes of insult, threat and injury. Upon the objection of the Senior Public Prosecutor to the decision to postpone the announcement of the verdict, the High Criminal Court decided to reject the objection on the grounds that the illegalities regarding the content of the verdict cannot be examined by the objection authority. (…) In the above-mentioned articles of the CMK regarding the objection, it is stated that the objection to the postponement of the announcement of the verdict will only be examined in terms of form, and the basis is There is no regulation stating that the case will be excluded from review. The case is about the crimes of insult, threat and injury. Upon the objection of the Supreme Public Prosecutor to the decision to postpone the announcement of the verdict, it is not correct for the High Criminal Court to reject the objection on the grounds that the illegalities regarding the content of the verdict cannot be examined by the objection authority. "There is no regulation regarding this." (JUDICIARY 4.CD, E.2016/18140, K.2017/484, T.5.1.2017)
"After the acceptance that the local court decision was subject to objection, the President of the General Criminal Assembly and some General Assembly Members stated that the scope of the examination to be carried out by the objection authority was stated to be evaluated, and this issue was evaluated. (…) Various opinions have been put forward in the doctrine regarding the examination procedure and scope of the objection authority. In this context: "Since the judicial authority, unlike the appeal, can address the financial problem as well as the legal problem, if necessary, the evaluation of this issue has begun. He may order the investigation procedures he deems to be carried out or carry out this investigation himself. Due to this investigation, for example, discovery is made or witnesses are heard. When examining the objection issue, the authority is not only bound by the file. He will also be able to do research on the subject." (Nurullah Kunter- FeridunYenisey- Ayşe Nuhoğlu, 16th edition, Beta, Istanbul, p. 1401) "The objection examination requires considering the decision from both material and legal aspects and checking its legality... The evidence and material facts that form the basis of a decision on the objection law and the legal situation that gives rise to it are evaluated together." (Erdener Yurtcan, Criminal Procedure Law, 12th edition, p. 481; E. Yurtcan, CMK Commentary, 5th edition, Beta, Istanbul, 2008, p. 923) "While examining the objection, both the material and legal aspects of the decision must be examined and its legality must be checked in every aspect... The authority that will examine the objection may use the regent judge or letter of rogatory as well as give orders to the law enforcement and prosecutor." Öztürk-Mustafa Ruhan Erdem, Applied Criminal Procedure Law, Seçkin Yayınevi, 11th edition, Ankara, 2007 p. 840), "Objection is an ordinary legal remedy and requires the decision to be examined one by one, both materially and legally" (Veli Özer Özbek, The Meaning of the New CMK, p. 1065), As can be seen, opinions are unanimously expressed in the doctrine. As accepted, since the objection authority can conduct an effective review on the merits, applications regarding the change of the nature of the crime can also be evaluated by the objection authority, regarding the objections made to the decisions to postpone the announcement of the verdict and the procedure for reviewing them, by the Criminal General Assembly dated 03.02.2009 and numbered 13-12;It has been accepted that "it should be limited to whether the objective conditions of application regarding the crime and the defendant in the paragraph are present or not" and this practice has been consistently maintained by the Special Chambers. However, in the objections made against the decisions to postpone the announcement of the verdict, it is seen that the practice of examining the decision limited to whether the objective conditions regarding the crime and the defendant are met or not is heavily criticized in the doctrine on the grounds that it does not provide a radical solution to the issues in dispute: It will not conduct an examination limited to whether the conditions are met or not. The objection authority will also be able to evaluate the evidence within the scope of this review. For example, since the defendant must be acquitted due to the fact that the crime charged has not been committed, a decision may be made to accept the objection, that is, to revoke the decision to postpone the announcement of the verdict. Likewise, the objection authority may decide to revoke the decision to postpone the announcement of the verdict due to a change in qualifications. For example, if it is decided to postpone the announcement of the verdict regarding the conviction of the defendant for an act defined as intentional injury; The objection authority may also decide to accept the objection by characterizing the act charged against the defendant as an attempt to commit intentional murder rather than the crime of intentional wounding. Again, for example, if it is decided to postpone the announcement of the verdict regarding the conviction of the defendant due to the crime of abuse of office; The objection authority may decide to revoke the decision to postpone the announcement of the verdict, on the grounds that the act charged to the defendant does not constitute the crime of abuse of office, but the crime of embezzlement or extortion through coercion." (İzzet Özgenç, Postponement of the Announcement of the Sentence, Criminal Justice System in its 3rd Year - Limits of Creation of Crime and Clarification of the Crime in the State of Law Symposium, Istanbul Kültür University, Seçkin, 2008, p.54-55; Cumhur Şahin- Neslihan Göktürk, Criminal Procedure Law, Ankara, Seçkin, Vol.2, p.159-161, 203)" (YCGK, E.2012/10-534, K.2013/15, T.22.1.2013)"The examination to be carried out by the appeal authority is only in Penal Code No. 5271 6 of Article 231 of the Code of Procedure.In the examination made by taking into account both the material event and the statement that it should be made in legal terms, not limited to whether there are objective conditions of application regarding the crime and the defendant in the paragraph, it was decided to reject the objection on the grounds that the objective and subjective conditions regarding the crime and the defendant were met, regarding the objection made by the public prosecutor of that place to the decision to postpone the announcement of the said verdict, on the grounds that the crime charged constituted the crime of drug trafficking. "There was no accuracy in granting it." (YARGITAY 20.CD, E.2016/2844, K.2016/6063, T.22.12.2016)
Evaluation of the Constitutional Court
Although the HAGB institution is a relatively new institution in the Turkish legal system, it has found a wide field of application. According to the 2020 data announced by the General Directorate of Criminal Records and Statistics of the Ministry of Justice, HAGB decisions constitute approximately one quarter of the convictions given in criminal courts.
The possibility of appealing against HAGB decisions, which have a wide application area in the Turkish judiciary, is not sufficient on its own in terms of its current implementation, and this method should also offer a chance of success in practice. The absence of such a judgment, which is directly related to the regime of limitation of fundamental rights and freedoms, will lead to the violation of fundamental rights and freedoms, as it will mean that the rule underlying the intervention cannot provide the procedural guarantees of the procedural law.
In this context, the Constitutional Court has previously concluded violations in many individual application files; It ruled that the objection authorities did not take into account the applicants' claims and evidence, did not make an effort to balance conflicting interests, and did not evaluate whether the intervention was in compliance with the requirements of the democratic social order and whether the intervention was proportionate. In the current system, it has been observed that the decisions made by the objection authorities on objections to HAGB decisions consist of reasons consisting of a sentence stating that there is no unlawfulness in the decisions given by the first instance courts and therefore the objection is rejected, in a uniform manner throughout the file and often only in terms of formal conditions.
The rule regulating that the right to appeal against HAGB decisions is open; It does not foresee a specific and effective audit method in taking into account the claims and evidence of those who apply for this legal remedy, in balancing conflicting interests, and in determining the conformity and proportionality of the interference with fundamental rights and freedoms with the requirements of the democratic social order. This situation limits the individual's right to request the opportunity to apply to the competent authority in order to eliminate interventions on fundamental rights and freedoms and to prevent arbitrary behavior of those using public power. As a matter of fact, it is seen that the rule cannot be applied to meet the mentioned issues. The absence of such reasoning, which is directly related to the regime of limitation of fundamental rights and freedoms, is incompatible with the right to effective remedy.
The Constitutional Court decided that the rule is unconstitutional and annulled it, for the reasons explained.
IMPACT OF THE HAGB DECISION ON THE CIVIL SERVICE
As we stated above, HAGB decisions do not have legal consequences. For this reason, these decisions do not prevent civil service. For this reason, security investigations cannot be concluded negatively. In its decision dated 31/03/2022 and application number 2018/19673, the Constitutional Court stated that the negative conclusion of the security investigation within the audit period violates the presumption of innocence.
NEW CRIMES DURING THE AUDIT PERIOD
If a new crime is committed within 5 years, which is the supervision period following the HAGB decision, the suspended sentence will be announced. The crime committed here must be one that can be committed intentionally. In cases of negligent crimes, the verdict does not need to be announced.
If no intentional crime is committed during the inspection period and the measures are followed, a dismissal decision will be made.
If a crime is committed, a hearing must be held to announce the verdict. An example Supreme Court decision is as follows:
"In accordance with Article 231/11 of the Criminal Procedure Code, if the defendant commits a new crime deliberately during the supervision period or fails to fulfill the obligations regarding the probation measure, following the opening of the hearing, the defendant is informed of the hearing with a lettered invitation containing the warning that if the defendant does not come to the hearing, the hearing will continue in his absence and the verdict will be announced, and after his defense is received, a letter is sent to the defendant, regardless of whether the verdict should be announced. "Although this statement is not included in the invitation, it is inappropriate to ignore this issue and make a written decision to continue the hearing without taking the defendant's defense." Y4CD. K. 2022/12985
Again, the verdict to be announced should not be turned into alternative sanctions:
"According to the regulation in Article 231/11 of the Criminal Code, while it should be sufficient to explain the previous verdict as it is for the defendant who has not been given any liability by the court and who committed a deliberate crime within the supervision period, as a result of re-evaluation, converting the prison sentence given for the crime of resisting not to perform the duty into a judicial fine and applying Article 43 of the TCK is inaccurate." Y4CD. 2022/12372 K.
Can the Deferred Judgment be Changed?
The answer to this question is given in the following decision of the General Criminal Assembly:
"In case of conviction for a deliberate crime during the probation period, it is sufficient for the second crime to be committed within the probation period and to be an intentional crime in order for the verdict to be announced. There is no obligation in the text of the article that the second crime committed during the probation period be finalized within this period. However, the court will be able to announce the verdict after the finalization of the verdict of conviction for the intentional crime committed by the defendant during the probation period. It does not matter whether the second crime is committed with direct or possible intent. The second crime is not included in the text of the article. Whether the crime is based on a complaint or investigated ex officio is not effective on the outcome. Again, it is not important whether the conviction for the second crime is a judicial fine or imprisonment, nor is it important whether it is converted into alternative sanctions in Article 50 of the Turkish Penal Code. The legislator has deemed it sufficient for the second crime to be an intentional crime and has not imposed any restrictions on the nature of the conviction for the second crime. If the second crime is committed by negligence, the verdict cannot be declared.
On the other hand, in accordance with Articles 230 and 232 of the Criminal Procedure Code, if the defendant deliberately commits a new crime within the supervision period or fails to fulfill the obligations imposed on him by the court, the verdict to be announced by the court will be "223. What the decision made according to the article is, the legal articles applied, the amount of penalty determined and whether it is possible to resort to legal remedies should be clearly shown without any hesitation. First of all, it should be established in a way that allows for auditing, and on the other hand, a provision should be established that can be taken as a basis for execution without requiring the existence of another decision when it becomes final, and it should not be enough to refer to the decision whose announcement has been decided to be postponed.
On the other hand, CMK 231/11. In the article and paragraph, the doctrine on how the provision whose announcement has been postponed will be explained and whether changes can be made in the provision;
"The question that needs to be answered here is whether the court can make a change in the previous sentence in cases where it needs to announce the verdict due to the conditions having been met later and whether it can decide to postpone the prison sentence or impose an alternative sanction within this framework. We think that the court cannot make a change in its previous decision and therefore cannot decide on a postponement or another sanction at this stage." ( Bahri Öztürk-D. Tezcan-M. Ruhan Erdem-Özge Sırma-Y. Saygılar Kırıt-Özdem Özaydın-Esra Alan Akcan-Efser Erden, Theoretical and Applied Criminal Procedure Law, Seçkin, 10th Edition, 2016, p.636-637); "In case a new crime is deliberately committed during the probation period or the obligations regarding the probation measure are violated, the court announces the verdict. If the judge who decides to postpone the announcement of the verdict and the judge who announces the verdict are different, the judge who announces the verdict cannot change the verdict even if he detects unlawfulness in the unannounced verdict or verdict paragraph; he only announces it. This mistake can only be corrected by legal means." There are opinions such as (N. Centel-Hamide Z., Criminal Procedure Law, Beta, 14th Edition, 2017, p. 807).
In accordance with the eleventh paragraph of Article 231 of the CMK, it is possible to make changes during the announcement of the verdict by evaluating the situation of the defendant who could not fulfill the obligations imposed on him during the supervision period, but there is no statement that changes can be made for the defendant who committed a deliberate crime during the supervision period. Despite the way the said provision is regulated, whether it is possible to change the provision based on reasons such as "the provision whose announcement has been postponed is erroneous, the amended provision is ultimately correct, procedural economy and preventing the prolongation of the case" must be resolved by interpreting it to the extent allowed by the Criminal Procedure Law.
There is no hesitation either in practice or in doctrine that the decision to postpone the announcement of the verdict is not a final judgment. However, the lack of a final judgment does not mean that there will be no legal consequences. Because, with the decision to postpone the announcement of the verdict, some obligations may be imposed on the defendant during the supervision period, and in case a crime is committed or the probation measure is not complied with during the supervision period, the sentence is announced and the suspended sentence becomes valid.
The ability to correct some errors made in decisions by complying with the procedural provisions is a result of the established practices of the Supreme Court Chambers and the Supreme Court Criminal General Assembly and the legal security provided to individuals by the "Rule of Law" principle. On the other hand, it is not possible to accept that a more severe penalty can be imposed on the defendant by applying a qualified situation that was not noticed or forgotten to apply despite the conditions for implementation in the first sentence, when the verdict was announced, or by correcting a mistake made during the determination of the penalty. In cases where the institution of deferment of the announcement of the verdict is applied, which is an opportunity for people to avoid being tainted judicially due to certain crimes they have committed, and in this sense, a contract signed between the defendant and the State, the defendant undertakes not to commit a deliberate crime again during the probation period, while the State, on the one hand, undertakes to ensure the right not to be tainted by dropping the public case if the trial period is passed without committing a crime, and on the other hand, if a crime is committed within the supervision period, the verdict whose announcement was postponed will be announced exactly as it is. Therefore, it is clear that deciding to punish the defendant with more punishment by making changes to the sentence whose announcement has been postponed may mean a kind of breach of contract and will also undermine people's trust in the State and justice. On the other hand, considering the possibility that the illegalities in the final judgment, which must be explained verbatim due to the commission of a deliberate crime within the supervision period, may become a matter of acquired rights for the defendant in the future, it should be accepted that any issue that is forgotten to be implemented or not noticed by the court can be resolved through appeal or appeal in case of an adverse application, and the verdict cannot be corrected or changed in a way that would be especially against the defendant." YCGK 2019/647 K.
CAN HAGB DECISION BE MADE A SECOND TIME?
CMK 231/8. According to the regulation added to the article in 2014; "During the probation period, it cannot be decided to postpone the announcement of the verdict again due to a deliberate crime against the person."
As can be clearly understood from the regulation, a HAGB decision cannot be given again due to a deliberate crime within the 5-year audit period that begins after the HAGB decision becomes final. After the audit period ends, it is possible to make a new HAGB decision.
There is another point that should not be forgotten here. If the crime date is 2014, that is, before the change, a second HAGB decision may be given against the defendant even if he is within the probation period. The following Supreme Court decisions are in this direction:
"Since the amendment in CMK article 231/8 is not in force as of the date of the crime, it does not constitute an obstacle to the implementation of CMK article 231. For this reason, it was decided that there was no need to postpone the announcement of the verdict, which is more favorable than the postponement provisions, with legal and insufficient justification, stating that the defendant, whose sentence was postponed due to remorse, could not be deferred from the announcement of the verdict again due to the intentional crime committed during the supervision period, necessitated reversal." Y4CD. 2021/29672 K.
"In terms of the verdict established against the defendant for the crime of violation of home immunity; the decisions in the criminal record of the defendant as of the date of the crime are related to the postponement of the announcement of the verdict and these decisions do not have the nature of final conviction, Article 231/8 of the CMK No. 5271, Article 72 of the Law No. 6545 dated 28.06.2014. Although the sentence "During the probation period, it cannot be decided to postpone the announcement of the verdict again due to a deliberate crime" has been added, in the face that the decisions to postpone the announcement of the verdict given before do not constitute an obstacle as of the date of finalization, when making a judgment on the defendant who is understood to have compensated for the damage, the personality characteristics of the defendant in subparagraph (b) of paragraph 6 of Article 231 of the CMK are taken into consideration and whether he will commit a crime again. While the opinion on the issue should be evaluated, it was decided to postpone the verdict by not applying the institution of postponing the announcement of the verdict, which is more favorable than the institution of postponement, on the grounds that "when the defendant's criminal record was examined, there was a verdict postponed to be announced about him", Y2CD. 2022/10769 K.
DOES THE HAGB DECISION APPLY TO THE CRIMINAL RECORD?
The decision to postpone the announcement of the verdict is recorded in a system specific to them. These records can only be used for the purpose specified in this article if requested by the public prosecutor, judge or court in connection with an investigation or prosecution. (CMK 231/13)
As stated in the above provision, the HAGB decision is recorded in a special system. Therefore, HAGB decisions do not appear in the criminal record.
HAGB DECISION AND CONFESSION
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