Appealing a Regional Court Decision in Türkiye: Temyiz under CMK 286-307

Temyiz is the appeal on points of law in a Turkish criminal case. In this note, the Court of Cassation (Yargıtay) means the high court to which CMK 286-307 send the appeal; under article 154 of the Constitution, it is the court of last review for the decisions and judgments of the ordinary courts of justice that the law does not leave to another judicial body. The Chief Public Prosecutor's Office is the prosecutor's office attached to it. Under CMK 286/1, judgments of the criminal chambers of the regional courts of appeal, other than decisions to set aside (bozma), can be appealed by temyiz. CMK 286/1 thus starts from a decision of the regional court given after an istinaf appeal, and CMK 307/3, discussed below, adds the first-instance decision given after a reversal is followed; the istinaf stage is explained in the note on appealing a conviction to the regional court.

Under CMK 288/1, temyiz can be based only on the ground that the judgment is contrary to law, and under CMK 288/2, the failure to apply a rule of law, or its wrong application, is a breach of law. Under CMK 294/2, a ground of temyiz can relate only to the legal aspect of the judgment. Under CMK 293/1, a temyiz application made within the period prevents the judgment from becoming final.

The table sets the two routes side by side, as the Code words them.

The route after filing, in the order the Code gives it:

1. Filing with the court that gave the judgment (CMK 291/1).
2. First check by the regional court or first-instance court whose judgment is appealed (CMK 296/1).
3. Service on the other side, who may answer in writing within two weeks (CMK 297/1).
4. Transfer of the file to the Chief Public Prosecutor's Office at the Court of Cassation (CMK 297/2).
5. The written opinion (tebliğname), served on the defendant and the intervening party in the situations CMK 297/3 names, with two weeks to answer.
6. Examination by the Court of Cassation, on the file or, for judgments of ten years' imprisonment or more, at a hearing if it finds this appropriate (CMK 299/1).
7. Decision: rejection of the request in the situations listed in CMK 298/1, rejection on the merits, reversal, or in the situations listed in CMK 303 a decision on the merits or a correction.

The provisions summarised here set no date for the decision of the Court of Cassation on appeal, and this note does not predict one.

CMK 286/2 lists regional court decisions that cannot be appealed by temyiz. The list is long, and it is the first thing a lawyer reads against the regional court's decision. The groups below follow the text of the Code; whether a given decision falls into one of them is read from the decision itself.

The exceptions to the exceptions. Under CMK 286/3, added by Law No. 7188 in 2019, decisions of the regional court's criminal chambers given for the offences it lists can be appealed by temyiz even if they fall within the second paragraph. The list names, in the Turkish Criminal Code (TCK), insult under article 125/3, threats intended to create fear and panic among the public (213), incitement to commit an offence (214), praising an offence or an offender (215), inciting the public to hatred, hostility or degradation (216), incitement to disobey the law (217), publicly spreading misleading information (217/A, added in 2022), insulting the President (299), degrading the symbols of the sovereignty of the State (300), degrading the Turkish Nation, the State and its institutions and organs (301), armed organisation (314) and alienating the public from military service (318). It also names offences in article 6, second and fourth paragraphs, and article 7, second paragraph, of the Anti-Terror Law, and in article 28, first paragraph, and articles 31 and 32 of the Law on Meetings and Demonstrations.

Earlier decisions. Under CMK 287/1, court decisions given before the judgment that form the basis of the judgment, or for which no other remedy is provided, can also be appealed by temyiz together with the judgment.

Decisions to set aside. CMK 286/1 opens temyiz against judgments of the regional court other than decisions to set aside. Where the regional court sets aside the first-instance judgment under CMK 280/1(e) or (f), the file is sent for re-examination and a new judgment to the first-instance court whose judgment was set aside, or to another first-instance court in the regional court's jurisdiction. The different types of judgment a court can give are explained in the note on verdict types in a Turkish criminal court.

The petition must give reasons. Under CMK 294/1, the appellant must show in the temyiz application on what ground they ask for the judgment to be reversed. A sentence added to the same paragraph by Law No. 7499 of 2 March 2024 also requires the prosecutor to state clearly in the temyiz petition whether the request is in favour of or against the defendant. Under CMK 298/1, the Court of Cassation rejects the temyiz request where the petition does not contain the grounds of temyiz. Here temyiz differs from istinaf, where CMK 273/4 says that a defendant's petition without grounds does not prevent the examination.

Definite breaches of law. Under CMK 289/1, even if they are not shown in the temyiz petition or statement, a definite breach of law (hukuka kesin aykırılık) is deemed to exist in the following situations:

• the court was not constituted in accordance with the law;
• a judge barred by law from acting as judge took part in the judgment;
• a judge took part in the judgment although a challenge on valid grounds had been accepted, or had been rejected contrary to law (see challenging the judge);
• the court, contrary to law, considered itself to have subject-matter or territorial jurisdiction;
• a hearing was held in the absence of the prosecutor or of other persons whose presence at the hearing is required by law;
• in a judgment given after a hearing, the rule of publicity was breached;
• the judgment does not contain reasoning as required by CMK 230;
• the right of defence was restricted by a court decision on points important for the judgment;
• the judgment is based on evidence obtained by unlawful methods.

The provision names these situations; it does not decide whether one of them is present in a particular file. That is for the Court of Cassation on appeal, and an appellant who believes one of them applies has every reason to state it in the petition as well.

A limit on the prosecutor. Under CMK 290/1, a breach of rules of law that are in the defendant's favour does not give the prosecutor a right to have the judgment reversed against the defendant.

What the Court of Cassation examines on appeal. Under CMK 301/1, the Court of Cassation examines only the matters stated in the temyiz application and, where the temyiz request arises from procedural deficiencies, the facts stated in the application that show them. Under CMK 302/3, where the judgment is reversed on the grounds shown in the petition, all other breaches of law that are found are also shown in the decision, even if the petition did not set them out, and CMK 302/5 reserves article 289.

Who may appeal. Under CMK 260/1, remedies are open against the decisions of judges and courts to the prosecutor, the suspect, the defendant, those who have acquired the status of intervening party (katılan) under the Code, and those whose request to join has not been decided or was rejected, or who were harmed by the offence in a way that could give them that status; how a victim joins is set out in the note on joining a case as the victim. Under CMK 260/3, the prosecutor may also use remedies in favour of the defendant. Under CMK 261/1, a lawyer may use remedies for the persons they act for as defence counsel or representative, on condition that this is not contrary to the express wish of the person. Under CMK 262/1, the legal representative and the spouse of a defendant may, of their own accord and within the period, use the remedies open to the defendant.

The period and where it starts. Under CMK 291/1, the temyiz request is made within two weeks from the date on which the judgment was served together with its reasoning, by giving a petition to the court that gave the judgment or by making a statement to the court clerk; the statement is recorded and the record is approved by the judge. The rule of CMK 263 for a defendant on remand is reserved. Law No. 7499 replaced the earlier wording, fifteen days from pronouncement, and a transitional provision added by the same Law applies the new periods to decisions given on or after 1 June 2024; decisions given before that date remain under the earlier provisions. How service of the reasoned judgment works is explained in the note on the reasoned judgment and the appeal deadline.

A defendant on remand. Under CMK 263/1, a defendant on remand (tutuklu) may use a remedy by making a statement to the court clerk or to the director of the prison or detention house where they are held, or by submitting a petition. Under CMK 263/4, once the clerk or the director has acted as the second paragraph requires, the periods fixed in the Code for remedies are deemed to have been interrupted (kesilmiş sayılır).

A judgment given in the defendant's absence. Under CMK 292/1, for judgments given against the defendant in their absence, the provisions of CMK 274 on restoration of time (eski hâle getirme) apply. Under CMK 274/1, the period runs during the restoration period as well, and a defendant who applies for restoration must also make a separate appeal. See convicted in your absence.

The first check. Under CMK 296/1, if the temyiz request was made after the statutory period, or against a judgment that cannot be appealed by temyiz, or by a person who has no right to it, the regional court or first-instance court whose judgment is appealed rejects the request by a decision. Under CMK 296/2, the appellant may, within two weeks from service of the rejection decision, ask the Court of Cassation for a decision on this point; the file is then sent to the Court of Cassation, but enforcement of the judgment cannot be postponed for this reason.

The reply and the written opinion. Under CMK 297/1, a copy of a temyiz petition that the regional court did not reject under CMK 296 is served on the other side, who may give a written answer within two weeks from service. Under CMK 297/2, after the answer has been given or the period for it has ended, the regional court sends the case file to the Chief Public Prosecutor's Office at the Court of Cassation. Under CMK 297/3, the written opinion (tebliğname) prepared by that office is served by the relevant chamber on the defendant or defence counsel and on the intervening party or their representatives where they appealed the judgment or where the opinion contains a view that may have consequences against them; the party concerned may answer in writing within two weeks from service. Under CMK 297/4, service under the third paragraph is valid when made to the last address of the person concerned established from the case file. Under CMK 297/5, CMK 262 and 263 are reserved.

Withdrawal. Under CMK 266/1, withdrawal of an application is valid until the authority has given its decision, but an application made by the prosecutor in favour of the defendant cannot be withdrawn without the defendant's consent. Under CMK 266/2, defence counsel or a representative can withdraw only if the power of attorney gives special authority for it; see power of attorney for a Turkish criminal case from abroad. Under CMK 266/3, where defence counsel was appointed under CMK 150/2 and the wishes of the suspect or defendant and of counsel conflict on using or withdrawing a remedy, counsel's wish prevails.

A hearing in some files. Under CMK 299/1, in judgments concerning imprisonment of ten years or more, the Court of Cassation may carry out its examination on appeal by way of a hearing if it considers this appropriate. The defendant, the intervening party, defence counsel and the representative are informed of the hearing day, and the defendant may attend the hearing or be represented by defence counsel. Under CMK 299/2, a defendant on remand cannot request to take part in the hearing. Under CMK 300/2, at the hearing the Chief Public Prosecutor at the Court of Cassation or a prosecutor designated in their place, the defendant, defence counsel, the intervening party and their representative set out their claims and defence; the party who requested temyiz speaks first, and in every case the defendant has the last word. Under CMK 305/1, the judgment is announced in line with CMK 231, and if that is not possible a decision is given within seven days from the end of the hearing.

Rejection or reversal. Under CMK 302/1, if the Court of Cassation finds the regional court's judgment lawful, it rejects the temyiz request on the merits. Under CMK 302/2, it reverses (bozar) the judgment for breaches of law shown in the temyiz application that are capable of affecting the judgment, and the grounds of reversal are stated separately in the decision. Under CMK 302/4, if the breach of law arises from acts on which the judgment was based, those acts are reversed as well.

Deciding the case itself. Under CMK 303/1, where the judgment is reversed on temyiz for a breach of law in applying the law to the facts established as its basis, the Court of Cassation may decide the merits of the case or correct the breach in the situations the paragraph lists. They include: where, without further clarification of the facts, an acquittal, a dismissal or a fixed penalty with no lower or upper limit must be given; where only the article number of the law was written wrongly; where a law that entered into force after the judgment reduced the penalty and no ground for increase was accepted by the court in setting the penalty, or a new law took the act out of the scope of offences; where a required reduction based on the defendant's established dates of birth and offence was not made or was made wrongly; where there is a material error in calculating the penalty; and where the order in TCK 61 was not observed.

Where the file goes next. Under CMK 304/2, in situations outside CMK 303, the Court of Cassation sends the file for re-examination and a new judgment to the regional court whose judgment was reversed or to another regional court. Where the reversal concerns a regional court decision rejecting the istinaf appeal on the merits, the file goes to the first-instance court that gave the decision; where it concerns a rejection on the merits with correction of the breach of law, it goes to the first-instance court or, if the Court of Cassation finds it appropriate in line with the reversal, to the regional court. Under CMK 304/3, where the judgment is reversed because the court wrongly considered itself to have subject-matter or territorial jurisdiction, the file is sent to the competent court.

Co-defendants. Under CMK 306/1, if the judgment is reversed in favour of a defendant and those points can also apply to co-defendants who did not apply for temyiz, they benefit from the reversal as if they had applied.

Asking the parties. Under CMK 307/1, the regional court or first-instance court that will hear the case again after the Court of Cassation's reversal on appeal asks those concerned what they have to say against the reversal. Under CMK 307/2, even if the statements of the defendant, defence counsel, the intervening party and their representative on the reversal have not been taken, because the summons could not be served at the addresses in the file or they did not attend although served, the hearing can continue and the case can be concluded in their absence. However, if the penalty to be given to the defendant is heavier than the penalty that was the subject of the reversal, the defendant must in every case be heard.

Following the reversal. Under CMK 307/3, added by Law No. 7165 in 2019, where the reversal is followed (bozmaya uyma), only temyiz can be used against the decision then given by the first-instance court, regardless of the istinaf or temyiz limits.

Resisting the reversal. Under CMK 307/4, the regional court or first-instance court has a right to resist (direnme) the reversal of the Court of Cassation on appeal. Resistance decisions are sent to the chamber whose decision was resisted. The chamber examines the resistance decision as soon as possible and, if it finds it justified, corrects its own decision; if not, it sends the file to the larger body of the Court of Cassation named in that paragraph. The decisions given by that body on resistance cannot themselves be resisted.

No heavier penalty. Under CMK 307/5, if the judgment was appealed by temyiz only by the defendant, or in the defendant's favour by the prosecutor or by the persons listed in CMK 262, the judgment given again cannot be heavier than the penalty set by the earlier judgment. Under CMK 265/1, a decision against which the prosecutor has used a remedy against the defendant can be reversed or changed in the defendant's favour, and where the prosecutor applies in favour of the defendant, the judgment given again cannot contain a heavier penalty than the one set in the earlier judgment. Both provisions speak of the penalty (ceza), and this note does not extend them to other consequences of a judgment. Whether the prosecutor or the intervening party has also appealed against the defendant is therefore a fact to establish early.

The Code also contains extraordinary remedies that follow their own rules; they are outside this note. If a regional court decision has been served on you in Türkiye, a lawyer can read it, check the dates of service and draft the grounds. The decision on the appeal remains with the Court of Cassation. The wider picture of the stage after the verdict is on the appeals in Türkiye page, and the link between a deferred announcement of the verdict and the appeal routes is in the note on HAGB and appeal.