Özet:

The Turkish Penal Code (TPC) outlines the regulation of successive offences in Article 44/1 and covers the conceptual aggregation of offences of the same type in Article 44/2. Additionally, Article 44 of the TPC discusses the conceptual aggregate of various crime types. These provisions share the common feature of imposing a shared penalty for various violations as dictated by criminal policy. The legislature assumes that the crimes encompassed by the collection of offences will be tried together, either in the same court or under the same indictment. However, upon analysing the legislation’s regulations, it becomes evident that the legislature did not anticipate the possibility of separate trials for the aggregated offences in question. The Court of Cassation has endeavoured to rectify this legislative insufficiency through completion proceedings. This legal precedent states that the court tasked with the subsequent proceedings will determine the punishments for the offences that have not been tried yet as the first step. Then, it will establish a singular (shared) sentence to be enforced for all offences by recognising the prior judgement as its own. The sentence given by the previous court will be deducted from this sentence. However, the evaluation of comprehensiveness lacks a sound legal basis and raises various substantial issues on multiple levels. Additionally, this procedure contravenes the principle of non bis in idem, as well as conflicting with the court system’s framework. In practice, difficulties emerge when determining the appropriate penalty to be enforced when executing this decision. Furthermore, the above-mentioned legal doctrine is susceptible to criticism because of its potential impact on the preservation of judicial records and the prospect of generating inconsistencies in judgments. Accordingly, we recommend that the legislative body address this issue conclusively by enacting suitable legal provisions. Firstly, it may be relevant to consider including the prospect of conceptual aggregation as a reason for renewing trials against convicted or accused individuals. Additionally, it is essential to establish a regulatory framework that outlines the procedure for rejecting an indictment. Until a legal provision is enacted, the institution responsible for trial renewal should operate with reference to subsequent offences. In the context of conceptual aggregation, it would be incompatible with the principles of the rule of law to impose the consequences of a judgement not being executed promptly and diligently on the individual who has been convicted. Until suitable legal regulations are established, it is advisable for the state to accept the penalties previously imposed and refrain from imposing any further penalties through the completion trial, as it lacks legitimate justification.

Anahtar Kelimeler: