What is the Refund of Prohibited Rights?
Memnu is a criminal law institution that eliminates the prohibitions imposed by laws other than the Turkish Criminal Code due to the return of rights, in other words, the return of prohibited rights, the conviction of a criminal against a convict.
The timid Criminal Code No. 5237 in force states that with the execution of the sentence, the person will also regain all his prohibited rights. However, some special laws other than the Turkish Penal Code contain provisions that prevent a convict from exercising certain rights due to a conviction. For example, according to the Turkish Penal Code, the convicted person is prohibited by the special laws of related professions from practicing professions such as lawyer, deputy, financial adviser, civil servant, even if his sentence is executed. In order to get rid of this state of prohibition, the convict must also apply to the court and make a decision on the return of the satisfied rights (return of the prohibited rights).
In short, the restitution of civil rights has been arranged in order to eliminate the negative consequences of laws other than the Turkish Penal Code related to criminal convictions.
Conditions for the Return of Satisfied Rights (Return of Prohibited Rights)
According to Article 13/A added to the Deci-sional Registry Law No. 5352, three conditions must be present together in order to request the return of the rights satisfied:
1-The first condition for the return of the satisfied rights is the execution of the sentence sentenced. It is not meant that the convict is released from prison on conditional release from the execution of the sentence. Conditional release is the execution of the entire period of punishment included in the sentence of conviction of the criminal court by completing the period of supervision of the convict outside. For example, if the convict has been sentenced to 8 years by the decision of the criminal court, if he is released on parole after serving 6 years in prison, his sentence will be executed after spending the remaining 2-year period outside. A convicted person whose sentence has been executed may request the return of prohibited rights.
2-The second condition for the return of the satisfied rights is that a period of 3 years has elapsed since the execution of his sentence. If 3 years have not passed since the execution of the sentence, no request can be made to return the prohibited rights in any way.
3-The third condition for the return of the satisfied rights is that the convict does not commit a new crime during this period, including the period of 3 years that must be spent starting from the execution of the sentence and after the execution of the sentence, and establishes an opinion in court that he continues his life in a “good way”. In practice, the courts consider the convict to be “well-behaved” if the convict has not committed a crime and has no clearly known negative characteristics.
A petition must be submitted to the competent court to request the return of the satisfied rights. Requests for the return of prohibited rights can also be submitted to the court through a criminal lawyer or any lawyer.
The Competent Court for the Decision on the Restitution of Civil Rights
There are two courts authorized to issue a decision on the restoration of prohibited rights:
1-The decision on the restitution of the satisfied rights may be made by the court where the convicted person is tried. The court that issues the judgment is the most appropriate court for requesting the return of prohibited rights, since it can more easily access the contents of the conviction, the court that issues the original judgment is the court that issues the original judgment.
2-If the convicted person resides somewhere other than the sentencing court, he can apply to a court located at the place of residence and the same grade as the court that issued the conviction and ask for the return of prohibited rights. For example, Antalya 1. If the person who has been convicted by being tried in a Heavy Criminal Court has a place of residence in Izmir, he can also apply to the Izmir Sentry Heavy Criminal Court and request the return of prohibited rights. In this case, the court in Izmir will bring the conviction and the relevant documents from the court in Antalya and decide whether to return the satisfied rights.
Immediately let us note that the convict has the right to prefer either of these two courts. However, the court that issued the conviction decision can make a decision easier because all the documents are in place.
Restitution of Civil Rights and Civil Service
Article 48 / A-5 of the Civil Servants Law No. 657, Turkish Penal Code 53. even if the periods specified in the article have passed, it contains a special regulation that those sentenced to imprisonment for a year or more for a deliberately committed crime will not be admitted to the civil service. The same law states that those who commit some disgraceful crimes, even if they have been pardoned, lose their right to civil service.
If a decision is made to return the prohibited rights to the convict, he will receive all his prohibited rights. The decision on the restitution of civil rights also removes obstacles to civil service. Regardless of the conditions of public service, a person acquires the right to civil service if he has decided to restore his civil rights. However, according to the rules of open assignment, article 92 of law No. 657. within the framework of the article, the administration has the discretion whether to admit the convict to the civil service or not. Such discretion is not without measure and is subject to administrative judicial review.
Restitution of Civil Rights and Deputy Status
Article 11 of the Law on the Election of Deputies. according to the article, citizens who have received a total sentence of 1 year or more in prison have no right to be elected as deputies, even if their sentences are pardoned. The only way to win the right to be elected a deputy is to make a decision on the return of the rights that the convict is satisfied with. Citizens who wish to exercise their right to be elected in the election of deputies must take a decision on the restoration of prohibited rights within the application period.
Professions in Which the Decision on the Return of Civil Rights is Not Effective
Some professions have special occupational rules. Even if the convicted person decides to return his/her rights, the ethical rules of some professions may not allow him/her to perform these professions. The relevant professional organization may refuse the convict’s request for admission to the profession. The following are the decisions of the Council of State on this issue:
1-A financial advisor has been sentenced to 1 year in prison for using fake documents. After the execution of his sentence, he applied to the relevant professional organization, TÜRMOB, for admission to the profession by taking a decision to restore the prohibited rights from the court. TÜRMOB has rejected the application for admission to the profession. 4 of the Law No. 3568 of the Council of State, the decision on the restitution of civil rights. according to paragraph (d) of article (f) of the same article, TÜRMOB justified its refusal to apply for admission to the profession due to the phrase “not having situations that do not correspond to the honor and dignity of the profession” (Council of State 8. Apartment – Basis No: 2008/3215, Decision No: 2010/5022, Date: 6.10.2010 ).
2-A criminal conviction for manslaughter has been decided against a citizen. After executing his sentence, he was satisfied with the relevant court and decided to return the rights. Since he graduated from law school, he applied for an internship at the Konya Bar Association to become a lawyer, and this request was rejected by the bar association. Council; the decision of the person giving back rights of the law of the Forbidden 5/article according to qualifications is eliminated also, if articles of the same law 5/c according to the article, “attitudes and behaviors known to be late to the legal profession as she won” due to the provision of the qualifications for the profession of the bar and decided to continue to justify the rejection of the request has found ( 8 of the State Council. Apartment – Basis No: 2006/4018, Decision No: 2007/16, Date: 15.1.2007 ).
Restitution of Civil Rights and Judicial Registration
According to the Criminal Record Code, the decision on the return of civil rights is recorded in the person’s criminal record ( criminal record ). Thus, it becomes easier to reach a judicial decision issued against a person on the restoration of his prohibited rights.
The decision on the restitution of civil rights is removed from the records when a decision is made to delete it from the Judicial Register.
The decision on the restitution of civil rights is an important court decision that must be taken immediately after the execution of the sentence for convicts, as it allows a person to exercise many citizenship rights.
