Trial in Criminal Procedure – There may be errors in the decisions made by the court. After the finalization of the verdict, it was accepted to renew the trial in order to eliminate the mistakes that were understood. Thus, it was possible to eliminate the actual errors related to the material problem in the provisions. The institution of retrial is regulated in Articles 311-323 of the Criminal Procedure Law (CMK) numbered 5271.
Since the purpose of the retrial is to investigate the truth in case of exceptional and limited situations in the law, and thus to protect the interests of the society and the accused, it will not be possible to take into account all kinds of renewal requests that are put forward as a final judgment and do not meet the necessary conditions.
Trial in Criminal Procedure
REASONS FOR RENEWAL JURISDICTION
In order for the trial to be renewed, a significant judicial error must have been made in the judgment. Since this mistake, which requires the retrial, may have been made in favor of or against the convict, in our law, the retrial is regulated as a legal remedy that can be applied both in favor of and against the convict.
A. REASONS FOR RENOVATION OF THE JURISDICTION IN FAVOR OF THE CONvicted
According to Article 311 of the Code of Criminal Procedure, a case that has resulted in a final judgment is heard again in favor of the convict, in the following written cases, by reopening the trial. For reasons other than this, it is not possible to request a retrial in favor of the convict.
It is understood that a document used in the trial and affecting the verdict is false,
It is understood that a witness or expert who was heard under oath gave false testimony or voted against the convict, intentionally or negligently, in a way that would affect the verdict,
If one of the judges participating in the sentence has failed to perform his duties in a way that necessitates a criminal prosecution against him or his conviction with a penalty, other than the fault caused by the convict,
The penalty sentence is based on a judgment of the Civil Court, but this provision is abolished by another judgment that has become final,
When new events or new evidence are brought forward and these are taken into consideration alone or together with the previously presented evidence, they are of a nature that would necessitate the acquittal of the accused or his conviction with the application of a provision of law that includes a lighter penalty,
In cases where it has been determined by the decision of the European Court of Human Rights that the sentence was given by violating the European Convention on Human Rights and its Protocols, it is re-examined by retrial in favor of the convict.
We will examine the reasons listed above in detail below.
I. If a document used in the hearings and affecting the judgment is found to be false, the convict may apply for a retrial in favor of the convict (CMK M.311/1-A).
In the sense of this article, the document should be interpreted broadly. Document; Writing, photographs, pictures, films etc. that testify to a reality. document is a document. forged document; It is a document that is arranged as if there is no real treatment or situation. A misleading document in terms of its content, on the other hand, is a document that is based on a real transaction or situation, but reflects this treatment or situation in an untrue way in terms of nature or amount.
However, in order to renew the trial in favor of the convict, the fake document must have been used at the hearing and had an effect on the verdict. Although the fake document is read at the hearing, if the judgment is taken as the basis, a request for a retrial cannot be made. There is no difference between the fact that the document has been forged from the beginning and that it has been forged afterwards (Erem, Criminal Procedure Law 6th Edition k.no.409/b).
Since the fake document is considered as the reason for the renewal of the proceedings in the Law, the document is not considered fake if it is not fake and only the content does not reflect the truth. In such a case, although it may be requested to renew the trial on the basis of new evidence and facts, it cannot be requested for a retrial (Özgen, Renewal of Criminal Procedure, 69.p.)
II. If it is understood that a witness or expert who was heard by taking the oath is found to have falsely testified or voted against the convicted person by willful or negligence in a way that would affect the verdict, he may apply for a retrial (CMK M.311/1-B).
In case of false testimony or expert testimony, retrial may be requested. Although it is not clearly stated in the law, it should be seen as an expert in the translator (Kantar, 409; Taner, 402.). The law speaks of false testimony, that is, false testimony.
“Silence of the witness, refusal to testify, does not count as making a false statement”.(Centel/Zafer Criminal Procedure Law, Renewed 3rd Edition)