Ceza Hukukunda Yeni Boyutlarıyla Erteleme

Abstract

This study is about different types of deferment at different stages of criminal proceedings. The objective is to investigate, in view of comparative law and Turkey?s national legislation, the structure, implementation and consequences of deferment, which offers an effective tool of criminal policy. In its broadest sense, deferment at different stages of criminal proceedings is suspending the filing of a criminal case against the perpetrator, postponing trial, suspending the sentence, or if sentence has already been passed, suspending the execution of that sentence, deeming that no conviction has been entered or deeming that the sentence has been served, provided that the perpetrator demonstrates good conduct during the specified probation period. This definition covers ?stay of proceedings? (suspension of the filing of a criminal case), ?postponement of trial?, ?deferment of judgment/? and ?deferment of sentence?. Although they involve different conditions and implementation methods, all of these are eventually mechanisms of deferment. These mechanisms resulted from efforts to find alternatives to imprisonment, which was regarded as the best sanction until the end of the 19th century but was eventually seen not to be as effective as thought in terms of reforming criminals. In this context, it didn?t take long to recognize that especially relatively short prison sentences imposed for minor offenses did not reform the perpetrators, and even turned them into recidivists and labeled criminals who commit more aggravated crimes. Deferment at different stages of criminal proceedings aims to keep away persons with a clean criminal record who have committed their first intentional crime and were sentenced to short prison terms from the unfavorable environment of prisons, which are also known as ?schools for crime?, to relieve the state of the burden of execution, and to reduce the caseload of courts. Deferment also is a good criminal policy tool that can serve the general and specific preventive objectives of punishment. As a result of the ?restorative justice? that is inherent in them, deferment mechanisms also contribute to social peace by re-focusing on the victim, who has usually been neglected in criminal law vis-à-vis the defendant, and by ensuring the recovery of the losses arising from the crime. Stay of proceedings and deferment of judgment have their origins in the Anglo-American legal system, and are part of criminal procedure law. On the other hand, suspension of sentence has its origins in the legal system of Continental Europe, and is part of criminal law. These mechanisms differ from each other in terms of their conditions, properties, implementation methods and consequences. Stay of proceedings is decided during the investigation stage, and by the prosecutor, who possesses both administrative and judicial qualities. Deferment of judgment and suspension of sentence, on the other hand, are decided after the investigation stage, and by courts, who have a purely judicial nature. There are studies in the literature claiming that deferment is a third track within the system of criminal sanctions, alongside punishment and security measures. In addition to diversion mechanisms, suspension of sentence (which is one type of deferment at different stages of criminal proceedings, and shares some features with public punishment) is not unknown in Turkish criminal law. This mechanism has been part of the Turkish legal system since the enactment of the Turkish Criminal Code No. 765 (annulled). However, this is not the case for Stay of proceedings and deferment of judgment. These concepts were introduced into the legal system of Continental Europe in the middle of the 20th century, and for the first time appeared in Turkish legislation in the middle of 2005, with the enactment of the Law on the Protection of Children. Another major improvement in Turkish criminal law was the mechanism known as ?probation?, which was introduced simultaneously with, and is of special importance for, the above-mentioned types of deferment at different stages of criminal proceedings. This study has shown that implementation has failed to keep pace with the rapid development in legislation on different types of deferment at different stages of criminal proceedings and the probation system. These mechanisms can make significant contributions to society, to victims and to perpetrators and can reduce the caseload of courts, and we believe that efforts should be made to set up the framework required for their effective use and to train enforcers. Keywords: Suspension of Sentence, Suspension of the Filing of a Criminal Case / Stay of Proceedings, Deferment of Judgment, Restorative Justice, Probation.