Appeal and Cassation in Criminal Cases — A Guide to the Avenues of Appeal

A comprehensive legal guide to appeal and cassation in criminal cases: how to file, the time limits, the procedure after a quashing decision and the extraordinary avenues of appeal.

Appeal and Cassation in Criminal Cases — A Guide to the Avenues of Appeal

The avenues of appeal available against decisions given in criminal proceedings are among the fundamental guarantees of the right to a fair trial. Code of Criminal Procedure no. 5271 (CPC) provides for appeal and cassation as ordinary avenues of appeal, and for retrial and quashing in the interests of the law as extraordinary ones. With the regional courts of appeal that began operating in 2016, Turkish criminal procedure acquired a three-tier system. This article examines all the avenues of appeal, the filing deadlines, the procedural rules and the legal consequences in detail.

What Is an Appeal and Against Which Decisions May It Be Brought?

As a rule, the verdicts of first-instance criminal courts may be appealed. CPC art. 272 treats certain judicial fine verdicts of low amounts, and certain acquittals given in respect of offences carrying only a judicial fine, as final. Because the monetary threshold may change, it must be checked against the current provision. Verdicts imposing fifteen years' imprisonment or more are reviewed by the regional court of appeal of its own motion.

An appeal permits review both of the facts and of compliance with the law. The right to appeal is determined according to the capacity of the prosecutor, the accused, defence counsel, the intervening party and the persons designated by the statute; whether the appeal is brought in favour of or against a person affects the consequences.

On appeal, the regional court of appeal may examine not only unlawfulness but also the facts and the assessment of the evidence. Depending on the nature of the decision, the options are dismissal on the merits on the papers, correction of the unlawfulness, or the opening of a hearing and the entering of a fresh verdict. Where the appeal is brought solely in favour of the accused, the prohibition of reformatio in peius is also observed.

What Is the Time Limit for Filing an Appeal and How Is It Calculated?

Under CPC art. 273, the period for appeal is two weeks from service of the reasoned decision. The former seven-day period running from pronouncement has not been current since 1 June 2024. The appeal is filed with the court that gave the verdict, by petition or by statement to the court clerk; a detained person may apply to the prison administration by the procedure laid down in the statute.

The period begins on the day following service and, where the last day falls on a holiday, the CPC's rules on time limits apply. Where the period has been missed without fault, the conditions for restitutio in integrum are assessed separately; no automatic extension is granted on account of counsel's excuse.

How Does the Regional Court of Appeal Conduct Its Review?

The regional court of appeal first examines the appeal as to procedure within the framework of CPC arts. 279-283, then proceeds to the merits and reviews both the facts and the legal assessment; where it considers it necessary it may open a hearing, hear witnesses, conduct a site inspection and gather fresh evidence. In this respect appeal goes beyond being a mechanism of legal review only, unlike cassation.

The principal decisions the regional court of appeal may give can be summarised as follows. The sub-paragraphs and exceptions in the statute must also be checked as at the date of the decision:

Where the regional court of appeal conducts proceedings by opening a hearing, it has the power to hear witnesses, obtain an expert report and conduct a site inspection. In this respect appellate proceedings may amount to a fresh trial. The parties may be present at the appeal hearing and present their defence.

An appeal on points of law lies against the decision of the regional court of appeal. Some decisions, however, are final and cannot be taken to cassation. This is regulated in detail in CPC art. 286.

How Is an Appeal on Points of Law Filed and Which Decisions May Be Taken to Cassation?

Cassation is the review for unlawfulness carried out by the Court of Cassation against those decisions of the regional courts of appeal that CPC art. 286 leaves open to it. The decisions that cannot be taken to cassation involve a great many exceptions; one-line summaries such as “anything under three years is final” or “an acquittal below ten years cannot be taken to cassation” are not reliable. The offence, the first-instance verdict, the type of decision given by the regional court of appeal and the resulting sentence must be examined together.

Under CPC art. 291, the period for cassation is two weeks from service of the reasoned decision; the former fifteen-day period is no longer current. The petition must show the source of the unlawfulness. The absolute grounds of unlawfulness in CPC art. 289 are also observed.

The cassation petition must show which act or provision the unlawfulness in the regional court of appeal's decision arises from. The system of finality and exceptions in CPC art. 286 cannot be reduced to the amount of the resulting sentence alone; the type of offence, the first-instance verdict and the verdict entered by the regional court of appeal are read together. The absolute grounds of unlawfulness in CPC art. 289 are also observed by the Court of Cassation.

How Does the Procedure Work After the Court of Cassation Gives a Quashing Decision?

Upon a quashing decision of the Court of Cassation, the file is transmitted, by the remittal procedure laid down in the statute, to the regional court of appeal or the first-instance court that gave the quashed verdict. Those concerned are asked for their submissions on the quashing; where a more severe outcome may follow for the accused after the quashing, the rights of the defence are particularly protected.

The court may comply with the quashing decision or may, on the conditions in CPC art. 307, persist in its earlier verdict. If a decision to persist is taken to cassation, the file is first examined by the chamber of the Court of Cassation that gave the decision; if the chamber does not find the decision to persist well founded, the file is sent to the Criminal General Assembly of the Court of Cassation. The decision of the General Assembly must be complied with.

Quashing in favour of the accused and vested rights, the scope of the quashing, appeals concerning only a particular accused, and the extension of the quashing to others are examined separately within the framework of CPC arts. 306-307. For that reason it should not be said that, after a quashing, every file follows the same court and the same sequence of steps.

How Does Retrial Work as an Extraordinary Avenue of Appeal?

Retrial is an extraordinary avenue of appeal against a final judgment, available only on the grounds exhaustively listed in CPC arts. 311 and 314. Grounds such as a forged document or false testimony, a culpable act amounting to an offence by a judge who took part in the verdict, the setting aside of another judgment on which the verdict was based, and a new fact or new evidence in favour of the accused are assessed on the conditions laid down in the statute.

No general time limit is prescribed for most of the grounds in favour of the accused. By contrast, an application under CPC art. 311/1-f based on a final judgment of the European Court of Human Rights finding a violation must be made within one year of that judgment becoming final. Completion of the sentence or the death of the convicted person does not in every case prevent a request for retrial, on the conditions laid down in the statute.

Retrial against the accused is subject to narrower grounds. The situations set out in CPC art. 314, such as a credible confession after acquittal, the forgery of a document on which the verdict was based, false statements by a witness or expert, or an offence committed by a judge in office, are examined. A mere allegation that new facts or evidence exist that would lead to a heavier sentence is not a general ground for retrial against the accused.

The request is submitted to the court that gave the verdict. The court first considers admissibility, then conducts the stages of gathering evidence and holding a hearing in accordance with CPC art. 318 and the following articles. A request for retrial does not of itself stay execution; the court may order a stay or postponement.

What Is Quashing in the Interests of the Law and When May It Be Sought?

Under CPC art. 309, quashing in the interests of the law is an application made to the Court of Cassation by the Office of the Chief Public Prosecutor at the Court of Cassation, upon the written request of the Ministry of Justice, in respect of unlawfulness in a decision of a judge or court that has become final without passing through appeal or cassation review. It is not an ordinary avenue of appeal used directly by the parties; although individuals may make a request to the Ministry, the right to ask that an application be made does not guarantee the outcome.

The consequences of the quashing are regulated separately in CPC art. 309/4 according to the type of unlawfulness and of decision. In some cases the court that gave the decision conducts a fresh examination and no outcome more severe than the earlier sentence may be imposed; in certain unlawful convictions the Court of Cassation may decide directly to set aside the sentence or to impose a lighter one. Not every quashing in the interests of the law sets aside a final judgment in the same way.

Detention, judicial control, jurisdiction, the rights of the defence or other unlawfulness in a final judgment may form the subject of this avenue. Whether another ordinary or extraordinary avenue is open, and whether the decision has previously passed through appeal or cassation review, must be checked from the file.

Summary of the Time Limits to Watch in the Avenues of Appeal

Since 1 June 2024 the basic general periods in criminal procedure are as follows: objections within the scope of CPC art. 268, two weeks from the decision coming to the applicant's knowledge; appeal and cassation, two weeks from service of the reasoned decision. Special statutes and special procedures may prescribe different periods.

There is no single period covering all grounds for retrial. A request based on a final judgment of the European Court of Human Rights finding a violation is made, under CPC art. 311/1-f, within one year of that judgment becoming final. Quashing in the interests of the law, by contrast, is not an ordinary application made directly by a party.

Filing in time is not on its own sufficient; whether the decision is amenable to the avenue chosen, the capacity of the applicant, the prohibition of reformatio in peius and the requirement of reasons must also be examined.

What Is the Role and Strategic Importance of Defence Counsel in the Avenues of Appeal?

The role of defence counsel in filing an appeal is of critical importance; supporting the appeal and cassation petitions with legal reasons, observing the time limits and choosing the correct avenue directly affect the outcome of the case. Counsel assesses which avenue will be more effective in the circumstances of the particular case.

The appeal petition must set out, with concrete reasons, the unlawfulness in the first-instance court's decision. Matters such as errors in the assessment of the facts, gaps in the assessment of the evidence and miscalculation of the sentence must be stated in detail. Unreasoned, boilerplate appeal petitions seriously weaken the effectiveness of the application.

The cassation petition must clearly show why the verdict is unlawful and state the grounds of cassation. Cassation is the review for unlawfulness under CPC art. 294 and the following articles; the unlawful assessment of evidence, the absence of reasons and the absolute grounds of unlawfulness in CPC art. 289 must be made concrete.

Under CPC art. 261, defence counsel may pursue an avenue of appeal provided this is not contrary to the express wish of the accused. Withdrawal of an application is assessed under CPC art. 266 and according to the nature of the appointment; counsel appointed under CPC art. 150/2 may not withdraw an application contrary to the express wish of the accused. The requirement of consent is not the same for every counsel; it is determined according to the particular situation.

• Important note: This content is for general information and does not constitute legal advice. The time limits for pursuing an avenue of appeal are strict, and professional support from a criminal defence lawyer is strongly recommended in order to avoid losing your rights.

Official sources: Code of Criminal Procedure no. 5271, Law no. 7499, Law no. 5235 on First Instance Courts of Justice and Regional Courts of Appeal