The period for applying for an appeal path is 7 days. If this period is against the face of the disclosure of the provision, it begins from the date of its disclosure. If the disclosure of the provision has been made in absentia, the period must begin from the date of notification of the provision. By making the application for appeal within the period of time, the finalization of the provision will be prevented.
ADMISSIBILITY REVIEW OF THE FILE
The application for appeal is submitted to the court of first instance, which issues the judgment. The court of first instance, which makes the decision, first conducts an admissibility examination, called an initial examination, on the basis of an application for appeal. The admissibility examination aims to determine the situations where there is no possibility to apply for an appeal in some respects and to reject the request for an appeal without sending it to the District Court of Justice.
276 of the Code of Criminal Procedure. according to the article, the court of first instance, which makes the decision, rejects the request for appeal after the admissibility review in the following cases:
Submission of the application by passing the 7-day legal period,
Filing an application against a provision that cannot be appealed against,
Filing an appeal by a person who does not have the right to this application,
in their case, the court of first instance decides on the rejection of the request for appeal. As a result of the admissibility review; If the request is rejected, the interested parties may apply to the District Court of Justice within 7 days from the date of notification of the rejection decision to them and request that a decision be made on this issue.
If the first instance court that issued the decision does not reject the appeal request as a result of the admissibility review, the case file will be sent to the District Court of Justice. A sample of the petition of appeal is notified to the counterparty, and the counterparty can respond in writing within 7 days from the date of notification. It should also be noted that appeals in criminal cases are not subject to charges.
HOW IS THE EXAMINATION CONDUCTED IN THE DISTRICT COURT OF JUSTICE?
After the file passes the admissibility examination by the court of first instance, it is transferred to the relevant criminal department of the District Court of Justice. But here, too, a preliminary examination is performed on the file before entering the merits of the file. As a result of the preliminary examination decision;
If it is understood that the district court of justice is not authorized, an unauthorized decision is made and the file is sent to the authorized district court of justice.
If it is understood that the application has not been made within the period of time, the decision is one of the decisions that the district court of justice does not have the authority to review, and the applicant does not have the right to apply, the appeal application is rejected. There is a way to appeal against the refusal decision.
As a result of the preliminary examination, in cases where a decision of unauthorized or refusal has not been made, the main examination is carried out. Essentially, during the examination, the files and evidence are examined by the district court of justice and various decisions can be made as a result of the examination.
280 of the Code of Criminal Procedure. in its article, the decisions that the District Court of Justice can 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 that it will conduct:
Refusal of the application for appeal from the merits (approval),
Correction of violations of the law and rejection of the application for appeal,
At the end of the appeal review, CMK m.289 if there is a reason for the violation of the law specified in the da (such as the exact reason for the violation of the law-the absolute reason for the violation), the provision will be overturned and the file will be sent to the local court for a re-decision,
In other cases, after taking the necessary measures, it may be decided to reopen the case and start preparing for the hearing.
REFUSAL OF THE APPLICATION FOR APPEAL FROM THE MERITS (APPROVAL)
As a result of its substantive examination of the District Court of Justice;
There is no violation of the law in the decision of the court of first instance,
There are no deficiencies in the evidence and transactions,
In terms of proof, the evaluation is in place,
if it comes to its opinion, it decides to reject the application for appeal on the basis of merits. The decision of the court of first instance to reject the application on the basis of appeal shall be approved by the District Court of Justice.
If the appeal application is rejected on the basis of the file, the person requesting the appeal may apply to the Supreme Court for a criminal case if they have the 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 is finalized by the decision of the District Court of Justice.
CORRECTION OF THE VIOLATION OF THE LAW AND FUNDAMENTAL REJECTION OF THE APPLICATION FOR APPEAL
As a result of the examination conducted by the District Court of Justice, if an illegality has been found, but this illegality has been considered a simple mistake that will not require a retrial, in this case, the District Court of Justice will correct the illegality and decide to essentially reject the appeal application.
The aim here is to complete the trial within a reasonable time by ensuring that the decision is finalized without the need for a retrial of the case due to simple errors. It is possible that the violation of the law can be corrected and the decision to reject the appeal application can be made in the following cases: (CMK m.303)
If an acquittal or a dismissal of the case is required before the case needs to be clarified further, or if a fixed sentence without lower and upper limits is required to be imposed,
If the elements, nature and punishment of the crime deemed fixed by the court are shown correctly in the judgment, but only if the article number of the law is written incorrectly,
If the law entered into force after the verdict has reduced the punishment for the crime and the court has not adopted a reason for increasing it in determining the punishment to be given to the accused, or if the act has been removed from being a crime by a new law, if a lesser punishment should be imposed in the first case and no punishment should be imposed in the second case,
If the necessary discount has not been made or the wrong discount has been given in determining the punishment to be given according to the defendant’s clearly determined dates of birth and crime,
If a material error has been made in determining the length or amount of the penalty to be issued as a result of an increase or discount,
If incomplete or excessive punishment has been given due to non-observance of the ranking in Article 61 of the Turkish Criminal Code,
If there is a contradiction between the provisions of the Fees Law and the trial expenses and the fee tariff regulated in accordance with the Lawyer’s Law,
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 for an appeal,
In cases that require less punishment or a decision that there is no room for punishment depending on the personal reasons or reasons of personal impunity that abolish the punishment without the need for other research or require a reduction in the punishment,
In cases where it is necessary to decide on the dismissal of the case without the need for further investigation of the incident or to correct the erroneous decision on security measures
The District Court of Justice may issue a decision on the correction of the violation and the rejection of the appeal application (correction and approval).
THE DECISION TO OVERTURN THE PROVISION
The decision to overturn the provision indicates the presence 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 decision, the file is sent to the first instance court or to another first instance court in its jurisdiction that it deems appropriate to re-examine and re-establish the judgment.
The reasons for the illegality of the decision to overturn the provision are as follows:
The fact that the court was not formed in accordance with the law,
Participation of a judge prohibited by law from performing a judge’s duty in a ruling,
A request for refusal has been put forward due to valid suspicion, and although this request has been accepted, the judge has joined the decision, or this request has been rejected contrary to the law and the judge has joined the decision,
The court considers itself obliged or authorized to consider the case in violation of the law,
Holding a hearing in the absence of the public prosecutor or other persons who must be present at the hearing by law,
Violation of the rule of openness in the provision issued on a trial basis,
The fact that the judgment is based on evidence obtained by unlawful methods.
284 of the Code of Criminal Procedure. According to its article, the court of first instance has a ban on resisting decisions made by the District Court of Justice. In other words, in cases where a decision is made to overturn the provision, the court of first instance cannot resist not applying the decisions made by the District Court of Justice and the correctness of its own decision. He needs to re-establish a provision on this issue.
THE DECISION ON THE RETRIAL OF THE CASE
If the District Court of Justice considers it possible for him to make a decision again with a prosecution that he will make without the need to overturn the decision of the local court as a result of the appeal review he has made, it is decided that the case will be re-heard after the necessary measures have been taken. In cases where a decision has been made to re-hear the case, the district court of justice prepares for the hearing and re-sees the trial within its own structure.
At the stage of preparing for the hearing, the day of the hearing is determined and the necessary calls are made for the hearing. If it is deemed necessary by the court, it may also be decided to listen to witnesses and experts and make a discovery. The fact that the main purpose of the appeal law path is to reveal the material truth also allows witnesses and expert witnesses to be heard and made discoveries 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.
