The deadline for applying to the appeal is 7 days. If this period is against the face of the disclosure of the judgment, it starts from the date of disclosure. If the announcement of the judgment was made in the absence, the period must begin from the date of notification of the judgment. When the application for appeal is made within the time limit, the finalization of the judgment is prevented.
ADMISSIBILITY REVIEW OF THE FILE
The petition for application for appeal is submitted to the court of first instance, which issues the verdict. The court of first instance, which makes the decision, first conducts an admissibility examination, called the first examination, on the petition of the application for appeal. The admissibility examination aims to determine the situations in which there is no possibility to apply for an appeal in some respects and to reject the appeal request without sending it to the Regional Court of Justice.
276 of the Code of Criminal Procedure. the court of first instance, which makes the decision according to the article, rejects the request for appeal after the admissibility examination in the following cases:
Making the application by passing the 7-day legal period,
Making an application against a provision that cannot be appealed against,
The application for appeal is made by a person who does not have the right to this application,
in such cases, the court of first instance shall decide on the rejection of the request for appeal. As a result of the admissibility examination; In case of rejection of the request, the interested parties may apply to the Regional Court of Justice within 7 days from the notification of the rejection decision to them and request a decision on this issue.
If the court of first instance that made the decision does not reject the request for appeal as a result of the admissibility examination, the case file is sent to the Regional Court of Justice. A copy of the petition of appeal is notified to the other party and the other party may respond in writing within 7 days from the date of the notification. It should also be noted that appeals in criminal cases are not subject to charges.
HOW IS THE EXAMINATION CARRIED OUT IN THE DISTRICT COURT?
After the file has passed the admissibility examination by the court of first instance, it is submitted to the relevant criminal department of the Regional Court of Justice. However, here, too, a preliminary examination is carried out on the file before entering the basis of the file. As a result of the preliminary examination decision;
If it is understood that the regional court of justice is not authorized, a decision of non-authorization is made and the file is sent to the authorized regional court of justice.
If it is understood that the application was not made within the time limit, that the decision is one of the decisions that the regional court of justice does not have the authority to review, that the applicant does not have the right to apply, the application is rejected. There is a way to appeal against the rejection decision.
In cases where no authorization or rejection decision is made as a result of the preliminary examination, the examination is carried out on the merits. As a matter of fact, during the examination, the files and evidence are examined by the regional court of justice and various decisions may be made as a result of the examination.
280 of the Code of Criminal Procedure. in the article, the decisions that the Regional Court of Justice may make are regulated in detail. According to the article in question, the District Court of Justice may make the following decisions as a result of the appeal review it will make:
Rejection of the application for appeal on the merits (approval),
Correction of violations of the law and rejection of the application for appeal,
At the end of the appeal examination, CMK m.if there is a reason for violation of the law specified in Article 289 (for example, the exact reason for violation of the law- the absolute reason for violation), the verdict will be overturned and the file will be sent to the local court for reconsideration,
In other cases, after taking the necessary measures, it may be decided to re-examine the case and start trial preparation proceedings.
REJECTION OF THE APPLICATION FOR APPEAL ON THE MERITS (APPROVAL)
As a result of the examination of the merits of the Regional Court of Justice;
There is no violation of the law in the decision of the court of first instance,
There is no lack of evidence and transactions,
In terms of proof, the evaluation is in place,
if he comes to his conclusion, he decides to reject the appeal application on the merits. With the decision of rejection of the application of appeal on the merits, the judgment given by the court of first instance is approved by the Regional Court of Justice.
If the application for appeal is rejected on the merits over the file, the person requesting the appeal may file an appeal to the Supreme Court for the criminal case, if there are conditions. However, if the decision of the court of appeal is one of the decisions that cannot be appealed, the decision of the local court becomes final with the decision of the Regional Court of Justice.
FUNDAMENTAL REJECTION OF THE APPEAL APPLICATION BY CORRECTING THE VIOLATION OF THE LAW
If, as a result of the examination conducted by the Regional Court of Justice, a violation of the law has been determined, but this violation has been assessed as a simple error that will not require a retrial, then the decision to correct the violation of the law and reject the appeal application on the merits is made by the Regional Court of Justice.
The aim here is to complete the trial in a reasonable time by ensuring that the decision is finalized without the need to re-examine the case due to simple errors. It is possible to correct the violation of the law and make a decision to reject the appeal application in the following cases: (CMK m.303)
If it is necessary to acquit or drop the case before the incident needs to be clarified further, or if a fixed sentence without a lower or upper limit should be sentenced,
Although the elements, nature and punishment of the crime, which are fixed by the court, are shown correctly in the judgment, only if the article number of the law is written incorrectly,
Provisions of the law, which was enacted after the crime and the defendant by the court reduced the penalty to be given to determining the punishment that have not been considered to cause the increase in crime or if it is a verb with a new law from being removed in the first case, hukmolunmas of a lesser sentence and in the second case, if no penalty is required to be hukmolunmam,
If the necessary discount has not been made or the wrong discount has been made in determining the punishment to be given according to the clearly determined dates of birth and crime of the accused,
If a material error has been made in determining the penalty period or amount to be given as a result of an increase or reduction,
If incomplete or excessive punishment has been imposed due to non-observance of the order in Article 61 of the Turkish Penal Code,
If there is a violation of the fee schedule regulated in accordance with the Law on Fees and the provisions on trial expenses and the Law on Advocacy,
If the public prosecutor deems it appropriate to apply the lowest degree of punishment written in the law for the crime subject to conviction in accordance with the reason for applying to the appeal,
In cases that remove the penalty without the need for other research or require a reduction in the penalty, or require a decision to impose a lesser penalty or decide that there is no place to impose a penalty depending on personal reasons or reasons for personal impunity,
In cases where it is necessary to decide to dismiss the case without the need for further investigation of the incident or to correct the erroneous decision regarding security measures
The Regional Court of Justice may make a decision to reject the application of appeal by correcting the violation of the law (approval by correcting it).
THE DECISION TO OVERTURN THE VERDICT
The decision to overturn the judgment indicates the existence of a definite violation of the law in the decision made by the court of first instance. In cases where a decision is made to overturn the judgment, the file is sent to the court of first instance that issued the judgment for re-examination and judgment to be established, or to another court of first instance that it deems appropriate in its jurisdiction.
The reasons for the violation of the law to be decided to overturn the provision are as follows:
The fact that the court was not formed in accordance with the law,
Participation of a judge who is prohibited by law from performing the duties of a judge in the judgment,
A request for refusal has been put forward for him due to valid doubt, and although this request has been accepted, the judge has joined the verdict, or this request has been rejected in violation of the law and the judge has joined the verdict,
The court considers itself responsible or authorized to deal with the case in violation of the law,
Conducting a hearing in the absence of the public prosecutor or other persons who must necessarily be present at the hearing by law,
Violation of the rule of openness in the judgment given at the hearing,
The fact that the verdict is based on evidence obtained by unlawful methods.
284 of the Code of Criminal Procedure. According to the Article, the court of first instance has a prohibition to resist the decisions made by the Regional Court of Justice. In other words, in cases where a decision is made to overturn the judgment, the court of first instance may not resist not applying the decisions made by the Regional Court of Justice and the correctness of its own decision. He needs to re-establish a judgment on this issue.
THE DECISION TO RECONSIDER THE CASE
If the Regional Court of Justice considers it possible for it to make a decision again with a prosecution that it will do without the need to overturn the local court decision as a result of its appeal review, it will be decided to re-hear the case after the necessary measures have been taken. In cases where a decision is made to re-hear the case, the district court of justice prepares the hearing and re-sees the trial within its own body.
At the stage of trial preparation, the day of the hearing is determined and the necessary calls for the hearing are made. In cases deemed necessary by the court, it may also be decided to listen to witnesses and experts and to make discoveries. The fact that the main purpose of the legal way of appeal is to reveal the material truth also allows witnesses and experts to be heard and discovered at this stage.
During the trial phase in the Regional Justice Courts; seconded member’s review report, the reasoned judgment of the court of first instance, the court of First Instance in whose voice is heard, including witness statements, transcripts and expert reports with discovery records, court documents and the evidence collected during the preparation for the Regional Justice trial, discovery, and expert witness disclosures and reports are made to the minutes and heard witnesses and experts discusses the decision to be called.
In addition, 1, which entered into force on 17.10.2019, 1. As arranged by the Judicial Package, “If the defendant, the defense counsel, the participant and his attorney do not come to the hearing despite the notification of the invitation, the hearing can be continued and the case can be concluded in their absence by telling the minutes of the defendant’s interrogation. However, without prejudice to the provisions of Article 195, if the penalty to be imposed on the accused is more severe than the penalty imposed by the court of first instance, in any case, the accused must be heard.”
If the decisions made by the regional court of justice are in favor of the defendant, if these issues can also be applied to other defendants who have not filed an appeal, these defendants also benefit from the decisions made as if they had filed an appeal. Thus, the other defendants will benefit from the decision of the regional court of justice given in favor.
WHERE SHOULD THE APPLICATION FOR THE LEGAL WAY OF APPEAL BE MADE?
The application for a legal remedy of appeal is made to the court that issued the verdict. However, applying to another court by mistake does not cause loss of rights. That court must send the application to the sentencing court. The declaration made to the police clerk is recorded in the minutes. The report must also be approved by the judge.
PROHIBITION OF CHANGING THE APPEAL AGAINST
At the end of the hearing, the regional court of justice may decide to reject the appeal application on the merits or may re-establish the judgment by removing the judgment of the court of first instance. In case of re-establishment of the sentence, according to the prohibition called the prohibition of breaking against; If an application has been made to the appeal only in favor of the accused, the new sentence to be given cannot be more severe than the penalty determined in the previous sentence.
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