Suspension of the Announcement of the Verdict – HAGB

Institution: Contemporary Legal and Constitutional Analysis of Conditions, Remedies, and the Presumption of Innocence

I. Introduction: Definition, Purpose, and Legal Nature of HAGB

Suspension of the Announcement of the Verdict – HAGB is a significant institution within Turkish Criminal Procedure Law (CMK), designed to grant the accused a second chance and individualize the punishment. Regulated under Article 231 of the Criminal Procedure Code (Law No. 5271), HAGB involves the court putting the verdict on hold, preventing it from producing legal effects, provided the defendant complies with their obligations during a determined probation period.   

The primary goals of the institution are to encourage the person who committed the crime to refrain from re-offending and to create a suitable environment for their rehabilitation and reintegration into society. If the defendant adheres to the rules during the probation period, the case is dismissed, and the verdict is nullified without producing any legal consequences.This suspension of criminal law intervention does not impose restrictions on the person’s civil, political, or private life.   

Legal Nature: Hybrid Structure and Doctrinal Debates

The HAGB institution possesses a hybrid legal nature due to its consequences. Its inclusion in the CMK indicates that it is essentially a criminal procedure institution. However, its outcomes generate results belonging to substantive law.   

While HAGB is a tool for individualizing punishment, it fundamentally differs from the suspension of the sentence. In the latter, the conviction is deemed to have been executed, whereas in HAGB, if the conditions are met, the court decides to dismiss the case at the end of the probation period. This means the termination of the legal relationship between the defendant and the conviction. The institution is also distinct from the pardon mechanism; a pardon grants unconditional rights, while HAGB requires the judge’s discretion and depends on the defendant’s compliance with obligations.   

Suspension of the Announcement of the Verdict – HAGB. A significant contradiction exists in the legal structure of the institution. Although the HAGB decision implies that the court’s judgment will not produce legal consequences for the defendant, for this decision to be rendered, the court must first find the defendant’s act constitutes a crime and that the commission of the crime is established (subut bulduğunu).This technically means the court makes a finding of guilt, even if it is not a finalized conviction. The existence of this finding forms the basis of legal disputes concerning the institution’s relationship with the Presumption of Innocence and its consequences in the administrative sphere, which will be examined in detail in subsequent sections.   

II. Objective and Subjective Conditions for an HAGB Decision

For an HAGB decision to be issued, specific objective and subjective conditions relating to both the crime and the defendant must be met simultaneously, pursuant to the relevant regulation (CMK Art. 231/6).   

A. Crime-Related Conditions

Suspension of the Announcement of the Verdict – HAGB. The imposed sentence must be a prison sentence of 2 years or less, or a judicial fine. The criterion here is the amount of punishment imposed by the court as a result of the trial, not the maximum penalty stipulated by the law.   

Certain types of crimes are excluded from the scope of HAGB application. Specifically, HAGB decisions cannot be issued for crimes related to the Revolution Laws protected under Article 174 of the Constitution (e.g., Hat Law, Law on Dervish Lodges and Tombs). Additionally, it has been noted that the disadvantage of non-application exists for certain catalogue crimes.   

B. Defendant-Related Conditions

1. Prohibition of Prior Intentional Conviction: The defendant must not have a finalized conviction for a previously committed intentional crime. In applying this condition, Supreme Court jurisprudence reinforces the principle of interpretation in favor of the defendant. It has been ruled that if the defendant’s previous conviction became final   after the date of the crime under trial, it would not constitute an impediment to an HAGB decision, as there was no finalized intentional conviction at the time of the offense. Similarly, criminal records where the conditions for erasure have been met do not impede an HAGB decision. This approach demonstrates that HAGB focuses on its purpose: preventing a person from losing the chance of rehabilitation due to past mistakes whose legal consequences have ceased or have not yet been finalized.   
2. Remedy of Damage: The damage suffered by the victim or the public due to the crime must be fully remedied. This remedy can be achieved through restitution in kind, restoration to the pre-crime state, or compensation. This condition shows that the goal is not solely defendant-focused rehabilitation but also incorporates elements of restorative justice into the criminal procedure process, accelerating victim redress. A detailed analysis of the damage remedy condition will be discussed in Section III.   
3. Court’s Conviction: The most subjective condition required for HAGB is that the court must form a positive conviction that the defendant will not re-offend. The court considers the defendant’s personality, social status, and attitude during the trial process when forming this conviction. If the court decides not to issue an HAGB decision, it must explicitly state its negative conviction with clear and specific justifications.   
4. Prohibition of Repeated HAGB: For crimes committed after June 28, 2014, an HAGB decision cannot be issued again for the same defendant if they commit an intentional crime during the probation period.   

C. Removal of Defendant Consent Condition (March 2024 Amendment)

A crucial change was made to the HAGB institution with the legal amendment dated March 12, 2024. The previous regulation required the defendant to accept the HAGB decision. This condition has been removed with the new regulation. Courts can now issue an HAGB decision ex officio, even without the defendant’s acceptance or request, if they are convinced that the conditions are met.   

Suspension of the Announcement of the Verdict – HAGB. This regulation has transformed HAGB from an optional right for the defendant into a tool for the individualization of punishment that the court is obliged to apply when the legal conditions are fulfilled. The lack of requirement for the defendant’s consent creates significant legal pressure on defendants who maintain their innocence and request acquittal. This is because the defendant is placed under a mandatory probation process upon the court’s finding of guilt, thereby potentially being deprived of substantive review remedies like Appeal (İstinaf) or Cassation (Temyiz). This situation has been a primary factor deepening the debate surrounding the Presumption of Innocence.   

HAGB Institution Application Conditions and Legal Developments

III. Comprehensive Analysis of the Condition for Remedying Damage

The remedy of damage, one of the objective conditions for an HAGB decision, plays a central role in protecting the rights of the victim. The scope of this condition requires legal clarity, particularly regarding the definition of damage and the status of non-pecuniary (moral) damage.

Scope of the Damage Concept

The concept of damage is considered under two headings: pecuniary (material) and non-pecuniary (moral) damage. The damage required to be remedied within the scope of HAGB is primarily pecuniary damage. Pecuniary damage includes actual loss (reduction in assets) and lost profit (partial or complete prevention of an expected increase in assets). The remedy of damage must be fully ensured through restitution in kind, restoration to the pre-crime state, or compensation.   

Non-pecuniary damage, however, refers to the moral pain and reduction in the enjoyment of life experienced as a result of an attack on a person’s personal rights. Although the legal text does not differentiate regarding the scope of damage, the doctrine debates whether moral damage is a mandatory condition for HAGB. In practice, requiring compensation for damage other than pecuniary damage as a mandatory condition creates uncertainties regarding how the measurement will be implemented.   

Exceptional Crime Types Where Damage is Not Sought and Judicial Interpretation

The jurisprudence of the Supreme Court has introduced flexibility regarding the damage condition to protect the applicability of the HAGB institution. For example, in crimes such as threat and insult, where there is no concrete material damage, it is legally impossible to require the defendant to remedy the damage. In such cases, if the other conditions are met, an HAGB decision should be issued. This interpretation ensures that the legal condition is interpreted proportionally to the nature of the crime; otherwise, the scope of the institution could be unduly narrowed.   

Another important exception is the crime of drug use. If the defendant has not previously been subject to supervised release or treatment measures, the HAGB decision is mandatory. This indicates that the legislator prioritizes rehabilitation and treatment measures over punishment for this type of crime.   

IV. Probation Period, Obligations, and Violation Scenarios

After an HAGB decision is issued, the defendant is subject to a determined probation period. This period is 5 years for adult defendants over the age of eighteen and 3 years for children induced to crime (CIC). During this period, the defendant must not commit a new intentional crime and must comply with the obligations related to the supervised release measures determined by the court (rehabilitation programs, regular reporting, etc.).   

Consequences of the Probation Period

1. Successful Completion: If the defendant acts in accordance with the rules during the probation period, the suspended verdict is nullified, and the court decides to dismiss the case. In this case, the verdict produces no legal consequences.   
2. Intentional Violation: If the defendant intentionally commits a new crime during the probation period or intentionally fails to comply with the obligations related to supervised release measures, the court pronounces the suspended verdict, and the sentence is executed. In this situation, the previously given verdict cannot be converted into alternative sanctions or suspended. Supreme Court jurisprudence accepts that pronouncing the initial HAGB decision is unlawful if the second crime alleged to have been committed during the probation period has not been finalized. This emphasizes that the principle of legal certainty and the defendant’s presumption of innocence regarding the second crime must be protected.   
3. Involuntary (Faultless) Violation: The fundamental principle of fault in criminal law is also applied in the enforcement regime of HAGB. If the supervised release measures cannot be fulfilled due to reasons beyond the defendant’s will, flexibility is granted to the court. In such cases, the court may decide not to execute up to half of the sentence, suspend the prison sentence if conditions are suitable, or convert the sentence to alternative sanctions such as a judicial fine or public service. This distinction ensures that the defendant is not punished due to obstacles arising without their fault.   

Probation Period Violation Types and Consequences

V. Legal and Administrative Effects of the HAGB Decision

The HAGB decision creates distinct and different effects on both criminal law and other judicial avenues.

A. Judicial Record and Penal Consequences

The HAGB decision does not appear in the Judicial Record (Criminal Record) because the sentence is not executed. These decisions are recorded in a separate system specific to these provisions. This facilitates the defendant’s social integration process and serves the goal of reintegration into society.   

HAGB signifies that the verdict, except for provisions regarding confiscation (müsadere), will not produce any legal consequences for the defendant. However, it does not impede the application of provisions regarding the confiscation of property related to the crime.   

B. Effects on Administrative Law and Civil Courts

The effect of HAGB decisions in the field of administrative law is vital, particularly for public officials. Law No. 657 on Civil Servants considers conviction for certain intentional crimes as a condition barring public service. However, since HAGB decisions do not constitute a final judgment, they   

do not constitute an impediment to public service. The established decisions of the Council of State (Danıştay) rule that an HAGB decision given against a public official cannot be considered a conviction that impedes public service, on the grounds that it does not produce a final outcome.   

For civil courts, HAGB decisions do not constitute a directly binding final judgment. However, civil courts have the right to evaluate the material facts and evidence in the criminal file in the cases they examine.   

VI. Legal Remedies Against HAGB Decisions and the Scope of Judicial Review

HAGB decisions have long been criticized within the scope of the right to a fair trial because they are generally closed to substantive review remedies such as Appeal (İstinaf) and Cassation (Temyiz), being subject only to the remedy of objection.

A. Objection Authorities and Expansion of Jurisdiction

The authority competent to review the objection against an HAGB decision is the superior court in the courthouse where the decision-making court is located (for example, the High Criminal Court (Ağır Ceza Mahkemesi) against a decision of the Criminal Court of First Instance (Asliye Ceza Mahkemesi)).   

Historically, the jurisdiction of the objection authority was limited to assessing whether the objective application conditions (formal conditions) of HAGB were met. However, recognizing that this situation could violate the right to an effective remedy and the right to seek justice, the Supreme Court Criminal General Assembly (CGK) made a significant change in jurisprudence. According to the CGK’s decisions (e.g., 2019/90 E., 2022/98 K.), limiting the objection authority to only formal review is contrary to law.   

In the current situation, the objection authority must also perform a review on the merits (subutu of the crime, legal qualification, etc.) and examine the legal violations in the content of the suspended verdict. This implies that the Supreme Court, especially after the removal of the defendant’s consent in March 2024, has virtually strengthened the objection remedy—the sole venue where the defendant can assert claims of innocence. This expanded review is a critical balancing mechanism for protecting constitutional guarantees.   

B. Legal Remedy Against the Pronouncement of the Verdict

The court judgment regarding the pronouncement of the HAGB decision due to a violation of the probation period is also generally subject to objection (itiraz), and the Appeal route is closed. However, general rules for legal remedies apply depending on the type and amount of the pronounced sentence.   

HAGB Decision Judicial Remedies and Review Authority

VII. HAGB and the Presumption of Innocence: Constitutional Court (AYM) Perspective

The most fundamental legal conflict area of the HAGB institution is its relationship with the Presumption of Innocence (the principle that no person can be considered guilty until guilt is established by a final verdict).   

Violation of the Presumption of Innocence

The Presumption of Innocence requires that not only the criminal trial but also all state institutions (administration, judicial organs) refrain from making insinuations or statements that suggest the person is guilty before a final judgment, in their actions and decisions.   

Although the HAGB decision does not produce consequences in the context of criminal law, administrative authorities have used this decision as evidence that the person is guilty, given that the court’s decision implicitly involves a finding that the commission of the crime is established. This led administrative bodies to impose disciplinary penalties or terminate contracts for persons (e.g., private security guards, civil servants, or employees) based on this decision.   

The Constitutional Court (AYM) accepted this practice as a violation of the Presumption of Innocence. According to the AYM, the rule’s mere attachment of a legal consequence to the existence of an HAGB decision means accepting persons whose verdict has not been finalized as guilty. The AYM emphasized that administrative authorities cannot assume a person is guilty and produce legal consequences based on a proceeding that did not result in a final conviction. For the administrative action to be lawful, the AYM stated that the administration must independently demonstrate the events and facts causing the termination with concrete evidence within its own procedural framework, separate from the criminal file.  

These decisions eliminate the negative effects of the HAGB institution outside the scope of criminal procedure, safeguarding the person’s Right not to be Stigmatized. Thus, HAGB is preserved as a suitable tool for rehabilitation, preventing it from becoming an institution that individuals would avoid (even after the removal of the consent condition) if it continued to produce adverse administrative consequences.

HAGB and Presumption of Innocence Violations

VIII. Evaluation, Conclusion, and Recommendations

Suspension of the Announcement of the Verdict – HAGB. The Suspension of the Announcement of the Verdict (HAGB) institution presents a crucial mechanism consistent with the goals of contemporary criminal law systems concerning the individualization of sentences and the defendant’s reintegration into society. The primary advantages offered by the institution include granting the defendant a chance for supervision instead of prison, avoiding a criminal record, and the prompt compensation of the victim’s damage.   

However, significant developments have occurred in the legal application of HAGB, especially in light of the March 2024 amendments and high judicial jurisprudence:

1. Mandatory Application and the Innocence Tension: The removal of the defendant’s consent has made HAGB a nearly mandatory decision for courts when the conditions are met. This compels the defendant, even if they claim acquittal, into a probation process where guilt has been established.
2. Judicial Safeguard Mechanisms: In response to this mandatory application, the Supreme Court Criminal General Assembly’s extension of the objection authority’s jurisdiction from merely formal review to full review of the merits, including the establishment of the crime (subutu) , provides a vital balance for protecting the right to a fair trial. This is a critical judicial reaction developed under constitutional pressure.   
3. Constitutional Protection and the Right Not to be Stigmatized: The Constitutional Court’s finding that administrative authorities violate the Presumption of Innocence by treating an HAGB decision as a final conviction, leading to adverse legal consequences such as disciplinary penalties or termination of employment , has limited the effects of HAGB outside the scope of criminal procedure. This limitation ensures that HAGB fully achieves its goal of promoting social reintegration and protecting the right not to be stigmatized.   

Suspension of the Announcement of the Verdict – HAGB. In conclusion, the HAGB institution, through legal amendments and active high judicial review, maintains a delicate balance between fulfilling the goal of individualizing punishment and protecting the rights of the defendant. The effectiveness of the institution depends on the full functionality of these balancing mechanisms, particularly the objection remedy.