What is HAGB Decision? Does it work on criminal record? Conditions, Consequences and Ways of Appeal
In our legal system, there are various institutions in order to give the defendant a second chance and to reintegrate him/her into society, especially in light and medium offences. One of these institutions is the “Suspension of the Announcement of the Judgement” (HAGB) decision regulated in Article 231 of the Code of Criminal Procedure (CPC). HAGB means that although the court has established a conviction against the defendant, this judgement does not have legal consequences for a certain period of supervision. However, it is often wondered what HAGB is, under what conditions it is given, its effect on the criminal record and what consequences it will have if a new offence is committed during the supervision period. In this article, we will discuss the HAGB decision in all aspects and explain in detail its conditions, legal consequences and ways of objection.
Definition and Purpose of HAGB: HAGB is the postponement of the announcement of this judgement for a certain period of time (supervision period), although the court has established a judgement of conviction as a result of the trial against the defendant. If the defendant complies with the conditions specified in the law within this period, the judgement is deemed never to have been announced and the case is dismissed. The main purpose of HAGB is to deter the defendant from re-offending, to reintegrate him/her into society and especially to eliminate the negative effects (criminal record, exclusion from society, etc.) that short-term prison sentences may cause. The Constitutional Court also evaluated the Leniency Decision within the scope of the penal policy of the legislator and stated that such regulations are compatible with the principle of the rule of law (See: CONSTITUTIONAL COURT DECISION E. 2022/18, K. 2022/16).
Conditions for Granting Leniency (Article 231/6 of the Code of Criminal Procedure): The following conditions must be present together in order for a leniency decision to be made:
- The Limit of the Sentence: The sentence imposed on the defendant must be a prison sentence of two years or less or a judicial fine. A HAGB decision cannot be made for sentences above this limit.
- Not having been convicted of an intentional offence before: The defendant must not have been sentenced to imprisonment for an intentional offence before. Sentences for negligent offences or HAGB decisions do not constitute an obstacle to this condition.
- Opinion that he/she will not re-offend: The court must reach a positive conclusion that the defendant will not re-offend, taking into account his/her personal characteristics and his/her attitude and behaviour in the trial. This is a subjective assessment within the discretion of the judge.
- Restitution of Damage: The damage caused to the victim or the public by the commission of the offence must be fully compensated by restitution in kind, restoration of the situation before the offence or compensation. This condition is one of the most important practical application conditions of HAGB and is usually fulfilled through reconciliation or payment.
- Acceptance of the Accused (2024 Amendment): With the 2024 legal amendment, the condition of the defendant’s acceptance has been abolished in order to make a HAGB decision . Now, the court may ex officio (spontaneously) decide on HAGB in the presence of other conditions. This amendment has widened the application area of HAGB.
Offences for which a Leniency Decision cannot be made: In some offences, a Leniency Decision cannot be given due to their importance in terms of public order and security. For example, HAGB is not applied in certain crimes such as crimes against the constitutional order and the functioning of this order, terrorist crimes. In addition, there may be explicit provisions in special laws that HAGB will not be applied.
Legal Consequences of the HAGB Decision:
- Supervision Period: A supervision period of five years for adults and three years for children is determined for the defendant who is given a Leniency decision. This period starts to run from the date the judgement is finalised.
- Non-Disclosure of the Judgement: During the supervision period, the judgement of conviction is not announced and does not have any legal consequences. The defendant does not become a “convicted person” during this period.
- Effect on Criminal Record: The HAGB decision does not appear in the criminal record (criminal record). This decision is recorded in a special system and can only be used by the investigation and prosecution authorities to determine whether the conditions of HAGB have been violated. This situation aims to minimise the negative effects on the person’s business and social life.
- Committing a New Offence or Violation of Obligations during the Supervision Period:
- Committing a New Intentional Offence: If the defendant commits an intentional offence during the supervision period, the suspended sentence is announced by the court. In this case, the judgement of conviction previously given against the defendant enters into force with all its legal consequences and the execution of the sentence begins.
- Failure to Comply with Probation Measures: The court may impose certain obligations (e.g. probation measures, practicing a certain profession, participating in a training programme) on the defendant during the supervision period. In case the defendant violates these obligations, the suspended judgement may be announced.
- Execution of the sentence in case of pronouncement of the judgement: In case the judgement is announced, the sentence imposed on the defendant is executed. This penalty is entered in the criminal record and has other legal consequences.
- Successful completion of the supervision period: If the defendant does not commit a new intentional offence during the supervision period and complies with his/her obligations, the case is dismissed at the end of the supervision period. In this case, the deferred judgement is cancelled with all its consequences and there is no record of any conviction against the defendant.
Legal remedies against the HAGB decision: An objection can be lodged against the Leniency Decision within seven days following the announcement (reading to the face) or notification of the decision (Article 231/12 of the Code of Criminal Procedure). The objection is lodged to the heavy penal court within the jurisdictional circle of the court that rendered the decision. The objection authority examines the decision in terms of both substantive and legal aspects and makes a decision. The way of appeal or appeal against the HAGB decision is closed.
The Effect of the HAGB Decision on Other Branches of Law: While the HAGB decision has certain consequences in terms of criminal law, its effects in other branches of law are also important:
- Civil Courts: A leniency decision does not constitute a final judgement for civil courts (e.g. compensation cases). The civil court can re-evaluate whether the act in the criminal case took place and the fault with its own evidence.
- Administrative Law: A HAGB decision does not usually constitute an obstacle to entry into the civil service or other public office, as the person has not become a convicted person. However, there may be different regulations in some special laws.
Legal Changes in 2024: As mentioned above, with the legal amendment made in 2024, the condition of the defendant’s acceptance has been abolished in order to make a HAGB decision . This amendment has expanded the scope of application of the Leniency Decree and allowed the courts to make this decision ex officio. In addition, it is also regulated that the provisions on confiscation can be applied together with the Leniency Decision.
Suspension of the Announcement of the Sentence (HAGB) is an important institution in Turkish criminal law that gives the defendant a second chance and aims to reintegrate him/her into society. Especially in light and medium offences, if the defendant complies with the rules during the supervision period, the disappearance of the conviction with all its consequences offers a great opportunity for the future of individuals. However, in the event that a new intentional offence is committed during the supervision period or the obligations are violated, there are also serious consequences such as the announcement of the suspended sentence. For this reason, it is of vital importance that persons who have been granted a Leniency Decision or who have the potential to benefit from this decision should understand all the details of the process and their legal obligations well and, if necessary, seek legal advice from an expert criminal lawyer. This is a critical step to prevent loss of rights and to achieve a fair outcome.