The areas of review in appeal and cassation
Within the limits of the law, an appeal (istinaf) allows an assessment of both the material facts and lawfulness. A cassation appeal (temyiz), by contrast, is a legal review tied to the relevant grounds of cassation and to the provisions on finality. The same avenue of appeal is not open against every first-instance or regional court of appeal decision. The type of judgment in the file and the date of the decision matter.
Legal characterisation of the offence and the additional defence
A change of characterisation among Articles 102, 103, 104 and 105 TCK requires the statutory elements of the act to be determined correctly. In its judgment of 06.02.2023, E.2021/16460, K.2023/438, the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) treated as a ground for reversal the failure to grant the right to an additional defence (ek savunma) under CMK Article 226 where the court moved from an indictment for sexual abuse by way of indecent touching (sarkıntılık) to sexual harassment. This decision shows that even where the name of the offence becomes lighter, the guarantee of an additional defence may matter in the concrete case.
Assessment of evidence and incomplete examination
The recording from the Child Monitoring Centre (Çocuk İzlem Merkezi, ÇİM) or forensic interview room (Adli Görüşme Odası, AGO), witness and victim statements, forensic reports, digital records and other evidence must be examined together with their effect on the judgment. In its judgment of 23.10.2023, E.2023/10401, K.2023/6614, the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) shows the importance, in appellate review, of incomplete steps relating to the assessment of a child’s statement at the hearing.
Unlawful evidence and reasoning
CMK Articles 206, 217 and 230 are important for how evidence was obtained, whether it may be used as the basis of the judgment and the review of the reasoning. A methodological deficiency in an expert report or an unlawfulness relating to evidence must be shown together with the material element and the outcome of the judgment on which it had an effect.
Errors in calculating the sentence
The basic penalty, the special lower limit, aggravated forms, the order of steps under Article 61 TCK, the discretionary reduction and the enforcement regime must not be confused. In an appeal petition, it must be shown separately which paragraph was applied wrongly and why. The assessment of the more favourable law as at the date of the offence must not be overlooked.
Time limit for application and the relief sought
The time limits for appeal and cassation must be calculated under the current provisions of the CMK applicable on the date of the offence, and according to the procedure of service (tebliğ) or pronouncement (tefhim). The request must clearly state the ground for reversal or setting aside and the legal result sought. The capacity of the party applying, whether as to a conviction or an acquittal, must also be checked separately.
A file-specific list of defects in the appeal petition
General statements such as incomplete investigation or unlawfulness are not sufficient in an application. It must be explained one by one which witness was not heard, why which report is contradictory, which digital record affects which element and on what ground the court failed to assess them. The appeal request must be tied to the relevant part of the reasoned decision and to the concrete record of the file.
The relationship between first-instance and appeal decisions
A decision of the regional court of appeal (Bölge Adliye Mahkemesi) dismissing the appeal on the merits does not mean that every error in the first-instance reasoning is to be taken as correct without discussion. Whether a hearing was opened, whether missing evidence was completed, whether the legal characterisation changed and the limits of the applications of the defendant and the intervening party (katılan) must be examined together. In the cassation appeal, the kind of unlawfulness relied on must be clearly shown.
The prohibition on changing the sentence to the defendant’s detriment and the capacity of the parties
It matters who made the application, which part of the judgment it was directed against and what the rules are on changing the sentence to the defendant’s detriment. The intervening party’s (katılan) application against an acquittal and the defendant’s objection to a conviction cannot be written with the same strategy. The clarity and consistency of the requests in the application determine what the court is asked to set aside or reassess.
Making incomplete investigation concrete on appeal
The grounds for appeal or cassation should not be limited to a general claim of “incomplete examination”. The following questions must be answered one by one: which contradiction in the statements was not resolved, which report failed to explain which data, which evidence was obtained unlawfully and which element of the offence these affected. The request concerning the appeal should be directed at remedying specific unlawfulness built on the facts of the file.
Additional defence when the legal characterisation changes
In its judgment of 06.02.2023, E.2021/16460, K.2023/438, the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) found it unlawful that the right to an additional defence under CMK Article 226 was not granted when the court moved from an accusation of sexual abuse of a child by way of indecent touching (sarkıntılık) to sexual harassment of a child victim. Decision record. This decision shows that defence guarantees cannot be removed merely by saying that the legal characterisation of the offence has changed in the defendant’s favour or to his or her detriment.
The different aims of the applications of the intervening party and the defendant
The objection that the intervening party (katılan) directs against an acquittal and the grounds the defendant puts forward against a conviction are not the same. The capacity of the applicant, the part of the judgment under review and the provisions on the prohibition of changing the sentence to the defendant’s detriment may affect the relief sought. The appeal petition should be structured to suit the legal aim of the party.
The difference between review on appeal and review in cassation
While the regional court of appeal (Bölge Adliye Mahkemesi) may, under certain conditions, examine evidence, a cassation appeal is a legal review under the relevant statutory conditions. The finality limits in CMK Article 286 and the special provisions must be reassessed for each decision. The time limits, the pronouncement or service and the party to whom the avenue of appeal is open must be determined on the concrete file.
Legal consequences when the legal characterisation changes
A shift between sexual abuse at the level of indecent touching (sarkıntılık) and sexual harassment may affect not only the amount of the sentence but also the complaint requirement and the elements towards which the defence is to be prepared. Whether an additional defence must be granted should be examined within the framework of CMK Article 226. A judgment cannot be built on a new and undefended event without regard to the limits of the material act in the indictment.
The standard of an error affecting the judgment on appeal and in cassation
Not every writing or procedural deficiency requires the judgment to be reversed; the effect of the alleged unlawfulness on the outcome of the decision and the scope of statutory review must be discussed. By contrast, deficiencies that prevent the effective exercise of the defence, leave a decisive item of evidence undiscussed or wrongly determine the legal characterisation of the offence may have serious consequences. A clear link must be made in the application between the concrete documents of the case and the legal argument.
Failure to grant an additional defence on a change of legal characterisation
In its judgment of 06.02.2023, E.2021/16460, K.2023/438, the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) held contrary to CMK Article 226 that judgment was given for sexual harassment without an additional defence, despite an indictment for sexual abuse of a child by way of indecent touching (sarkıntılık). This decision shows that a shift between different types of offences affects not only the sentencing range but also the preparation of the defence. A claim that an additional defence was necessary must state in respect of which material act and which new legal element the opportunity to defend was reduced. Decision.
Review of material facts on appeal and of unlawfulness in cassation
Review on appeal and review in cassation are not conducted with the same scope. On appeal, an assessment of the evidence and, if necessary, a new hearing may come into play; in cassation, the statutory scope of the grounds of unlawfulness becomes important. The debate on proof in the intervening party’s (katılan) application against an acquittal and in the defendant’s application against a conviction may have different aims. The availability of the avenue of appeal, the time limits and the prohibition on changing the sentence to the defendant’s detriment must be examined separately according to the type of decision and the date of the offence.
A concrete matrix of effect on the judgment for a request for reversal
In the application, each procedural irregularity should not be left as a mere heading. It must be stated which record, report or statement was incompletely assessed; which element of the offence this deficiency affected; on what ground the court reached this result; and why that is unlawful. If a ÇİM recording was not viewed, it must be shown which disputed fact the recording could answer; if there is no additional defence, to which new legal characterisation the court moved; if the age determination is wrong, which lower limit of the sentence changes.
Conclusion
In assessments of appeal and cassation review in sexual offences, the relationship between the statutory elements of the offence or measure concerned and the concrete evidence must be established clearly. The reasoning of the court’s decision must address the decisive points of the prosecution and the defence, and the legislation applicable on the date of the offence must be taken into account. Protection of the victim and the guarantees of a fair trial are not opposed to each other; they are complementary obligations of a state governed by the rule of law.
Frequently Asked Questions
Does a change in the legal characterisation of the offence require an additional defence?
Yes, if the conditions of CMK Article 226 are met; the nature of the specific change is examined.
Can an acquittal be appealed?
It is possible if the relevant party and the conditions for application are met.
Is every appeal decision open to cassation?
No; CMK Article 286 and the special provisions are examined.
Can a missing expert report be a ground for reversal?
It may be argued on appeal where it affects the judgment and a necessary investigation was not carried out.
Sources and legal bases
- Turkish Criminal Code No. 5237 (relevant articles and general provisions)
- Code of Criminal Procedure No. 5271 (relevant provisions on evidence and procedure)
- Güneş & Güneş — Index of offences under the Turkish Criminal Code and special laws
- Court of Cassation 9th Criminal Chamber (Yargıtay 9. Ceza Dairesi), 06.02.2023, E.2021/16460, K.2023/438
- Court of Cassation 9th Criminal Chamber (Yargıtay 9. Ceza Dairesi), 23.10.2023, E.2023/10401, K.2023/6614