Law No. 7242 Amending the Law on the Execution of Sentences and Security Measures and Some Laws (“Law”), which is told to be aiming at preventing the spread of the COVID-19 in prisons, known as the “execution law” by the society and enacted as a “bag law” was published in the Official Gazette No. 31100 and dated April 15, 2020 and entered into force.
Significant amendments have been made to the Law No. 5607 on Anti-Smuggling (“ASL”) through the Law. Said amendments will have a remarkable influence on the pending criminal proceedings and on the execution of finalized criminal verdicts.
Amendments with the Law
Between the Articles 61 and 63 of the Law, amendments were made regarding the ASL and a provisional article was added to the ASL.
I. Remission on the Grounds of Scantiness of the Value of the Goods
Article 3 of the ASL, amended by the Law, in essence, is the provision in which the normative principles of smuggling offences are regulated. According to the previous version of Paragraph 22 of Article 3 of the ASL, if the value of goods that constitute the subject of the offences defined in the other paragraphs of Article 3 of the ASL is illicit, the penalties to be imposed would be increased from half to on fold. With the sentence added to Paragraph 22 of Article 3 of the ASL, it is arranged that if the value of the goods is low, the penalty will be reduced by up to half; if the value of the goods is “very low”, the penalty will be reduced by up to one third.
By this means, it is thinkable to say that, by abating the penalty in case the value of the goods is low on the contrary to increasing the penalty in case the value of the goods is high, balance in sentencing and criminal justice are intended to be achieved.
II. Effective Remorse in the Prosecution Phase
Another significant amendment brought by the Law relates to the concept of effective remorse regulated in the ASL. With the amendment in Paragraph 2 of Article 5 of the ASL, final penalty of the person who has committed one of the crimes situated in Article 3 of the ASL will be reduced, in case the person satisfies the conditions of effective remorse and if the twice of the bonded value of the goods subject to the crime paid to the Treasury. If the suspect pays the said amount until the end of the investigation phase, the penalty will be reduced by half. If the defendant pays the said amount until the verdict given by the judge(s) at the prosecution phase, the penalty will be reduced by one third.
The abovementioned remission clause for effective remorse shall not be applied for the repeat offenders and in cases where the crime is committed within the framework of organizational activities. Likewise, the effective remorse remission regulated in Paragraph 2 of Article 5 of the ASL, shall not be applied in the case of the importation of import-prohibited goods.
With the given amendment, the concept of effective remorse, previously held only in the investigation phase, has also been recognized for the prosecution phase.
III. Effective Remorse in the Execution Phase
With the Provisional Article 12 added to the ASL by the Law, application of Article 5 of the ASL related to effective remorse at the investigation and prosecution phases is also made possible for the files that are finalized and at the execution phase.
According to the said regulation, for the convicts whose cases were decided and in the execution phase, if the twice of the bonded value of the goods subject to the crime paid to the Treasury within 90 days from the date April 15, 2020, the penalty will be reduced by one third.
According to Paragraph 2 of Provisional Article 12 of the ASL, within the files that were in legal remedy assessment at the enforcement date of the Law, which is April 15, 2020, a decision of reversal, in favor of the defendant, will be given about the files that need to be evaluated. The files, which are in the General Prosecution Office of the Supreme Court of Appeal, will be sent back to the courts of first instance of which they previously came from.
With this regulation, it was intended to answer the questions about how to ensure the transition between the old regulation and the new regulation brought by the Law on effective remorse.
The Law came into force on April 15, 2020, at the date of publication and will be enforced by the President.
The full text of the Law can be accessed here.
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Adar UÇAR (Attorney at Law)
Uçar Law & Consultancy Office