Constitutionality Review

Contested Provision

The contested provision stipulates that the Law shall not be applicable to the cases pending by the date of its entry into force.

Ground for the Request for Annulment

It was maintained in brief that the contested provision precluded the retroactive application of new legal provisions that were more favourable to those accused of the offences committed when the abolished law had been in force. In this regard, it was claimed that the contested provision was in breach of Articles 2 and 38 of the Constitution.

The Court’s Assessment

The provision laid down in Article 38 of the Constitution, which provides that “… no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed …” prohibits the application of a less favourable law retroactively by virtue of the principle of legal certainty and security. In cases where an act no longer constitutes an offence or carries a lighter penalty according to the law that entered into force after the date of offence, the principle of application of the more favourable law, another sub-principle, comes into question.

Unlike the prohibition on the application of a less favourable law retroactively, Article 38 of the Constitution does not include an explicit provision regarding the retroactive application of a more favourable law. Nor does it include a provision which stipulates that the punishment prescribed by the law that was in force at the time of offence must definitely be imposed for that offence.

The Constitution explicitly prohibits the retroactive application of the law aggravating the prescribed penalty to the offences committed prior to its entry into force. This prohibition, which is a consequence of the principle of legal certainty and security, also requires the application of the subsequent law that is more favourable than the former law in force at the time of offence. As a matter of fact, in cases where an act constituting an offence at the material time no longer constitutes an offence or it carries a lighter penalty in accordance with the subsequently enacted law, application of the less favourable provisions included in the abolished law will result in an unpredictable punishment for the individuals. This falls foul of the principle of legality of crimes and punishments which aims at ensuring the constitutional guarantee of the individuals’ legal securities in the area of criminal law.

In addition, retroactive application of the more favourable criminal law is also a requirement of the principles of justice and fairness in conjunction with the rule of law. Imposition of a heavier penalty for an act, which no longer constitutes an offence or carries a lighter penalty in the face of developing social order and changing social needs, on the sole ground that it was previously committed does not comply with the principles of justice and fairness.

Considering the aforementioned issues together, it has been concluded that application of the more favourable law in the course of criminal proceedings is a constitutional obligation within the scope of the principle of legality of crimes and punishments which is enshrined in Article 38 of the Constitution.

As a matter of fact, the principle of application of the more favourable law is defined as “If there is a difference between the law in force at the time a criminal offence was committed and a provision subsequently brought into force, then the law which is more favourable to the offender is applied and enforced” in Article 7 of the Turkish Criminal Code, titled “Jurisdiction ratione temporis”, which is regulated in accordance with the aforementioned constitutional principle.

In this context, the contested provision precludes the application of the Law to the cases pending as of the date of its entry into force without any distinction between civil and criminal norms. This situation leads to different results in terms of the application of criminal provisions.

The contested provision does not allow for the determination of the more favourable provisions between the former and current ones regarding the offences committed when the former law was in force and against which criminal proceedings were initiated. Nor does it allow for the retroactive application of the current provisions even if they are more favourable to the accused. This situation is contrary to the principle of application of the more favourable law within the scope of the principle of legality of crimes and punishments.

Consequently, the contested provision has been found unconstitutional and therefore annulled.