Since Law No. 7589 entered into force on 31.07.2026, one of the most widely discussed legal issues has undoubtedly been Article 13, together with the sixth and seventh paragraphs of Provisional Article 1, of Law No. 7589 Amending Certain Laws for the Effective and Efficient Functioning of the Judiciary. I am of the opinion that Provisional Article 1(7) in that regulation is a provision open to erroneous interpretation.

Provisional Article 1(7) reads verbatim as follows:

The question that comes to mind on a first reading of the provision is this: has the legislator made the application of Article 158(4) of the Turkish Penal Code (TPC, Law No. 5237) to files at the enforcement stage conditional on the victim's damage being fully compensated within six months? In other words, will a convict who cannot or does not compensate the damage be turned away, from the standpoint of enforcement law, from the door of the new regulation introduced in his or her favour? It cannot be denied that the wording of the article lends itself to reasoning in this direction. However, as will be shown below, such reasoning is compatible neither with the systematic position of the provision nor with the fundamental principles of criminal law; it may overlook the fact that the provisional article in reality regulates the possibility of once again benefiting from the institution of effective repentance governed by Article 168(2) TPC.

What Does Provisional Article 1(7) Regulate?

The answer to the question lies in the purpose for which the provisional article was enacted. As is known, effective repentance governed by Article 168(2) TPC is an institution that may be invoked until judgment is rendered, and this possibility ceases to exist once the judgment becomes final. The principal subject matter of Provisional Article 1(7) of Law No. 7589 is the reopening, on a one-off basis and limited to a period of six months, of this door, which as a rule has been closed, in favour of convicts to whom Article 158(4) TPC is to be applied. The condition set out in the article, namely that the damage suffered by the victim be fully compensated within six months, is precisely and exclusively a condition of this exceptional possibility (benefiting from effective repentance after the judgment has become final).

The following finding must therefore be made: Provisional Article 1(7) is not a provision regulating the conditions for the application of Article 158(4) TPC to files at the enforcement stage; it is a provision regulating the conditions of the possibility of effective repentance granted in addition to that application. This is because the application of Article 158(4) TPC to final judgments does not depend on the grace of the provisional article; it is a necessity arising directly from Article 7(2) TPC. That provision commands, in mandatory language, as follows:

"If the provisions of the law in force at the time the offence was committed and those of laws that enter into force subsequently differ, the law that is in favour of the perpetrator shall be applied and enforced." (Article 7(2) TPC)

Adaptation proceedings (uyarlama yargılaması), which are the manifestation of the principle of retroactivity of the more favourable law in the field of final convictions, are the necessary consequence of this mandatory provision. Since Article 158(4) TPC, which entered into force subsequently, indisputably constitutes a more favourable provision for the convicts falling within its scope, adaptation proceedings must be conducted in respect of convicts who meet the conditions of that paragraph, irrespective of whether or not they have compensated the victim's damage. It cannot be concluded that a provisional article, which by its nature contributes to the transition process of the new regulation, has thereby impliedly set aside this fundamental safeguard of criminal law, which also has a constitutional basis; it is a settled requirement of interpretive methodology that exceptional and provisional provisions are to be interpreted narrowly and produce effects only with regard to the matter they expressly regulate.

The answer to the first question is therefore clear: a convict who does not compensate the damage is deprived only of the reduction available under Article 168(2) TPC; the conduct of adaptation proceedings in his or her respect pursuant to Article 7(2) TPC and his or her benefiting from the more favourable provision of Article 158(4) TPC are, in any event, both possible and necessary.

What, Then, About the Stay of Enforcement? Will a Convict Who Cannot Compensate the Damage Remain in Prison Despite a Law That Is Indisputably in His or Her Favour?

This is the truly thorny question, and its source is the following sentence of the provisional article: "Within this period, until the victim's damage has been fully compensated, no decision may be made pursuant to this paragraph to postpone or stay the enforcement."

At first glance, this sentence creates the impression that, for a convict who cannot compensate the damage within the six-month period, a stay of enforcement is absolutely prohibited. If such reasoning is accepted, the following picture emerges: a convict who is the subject of adaptation proceedings, whose sentence will fall below two years and who could benefit from the deferral of the announcement of the verdict (HAGB) on condition that the damage is compensated in instalments during the supervision period (Article 231(6)(c) and (9) CCP), but who cannot immediately compensate the damage owing to economic impossibility, will continue to undergo enforcement throughout the adaptation process. Is this outcome acceptable?

In our opinion, no; and the answer once again lies hidden in the very wording of the sentence. The phrase "pursuant to this paragraph" in the sentence limits the scope of the prohibition by the legislator's own pen. What is prohibited is the postponement or stay of enforcement based solely on the possibility of effective repentance granted by the provisional article, that is, by asserting the expectation "I will compensate the damage within six months". The legislator's aim here is sound and clear: to prevent a convict who has not yet compensated the damage from protracting the enforcement merely by referring to the period granted to him or her.

However, to infer from this prohibition that enforcement cannot be stayed on any legal ground whatsoever would amount to deleting the phrase "pursuant to this paragraph" from the text. Yet, having regard to the true aim of the legislator, a meaning must be attributed to every phrase in the text. Consequently, had the legislator intended an absolute prohibition, it would not have confined the prohibition to decisions to be made "pursuant to this paragraph", but would have drafted it unconditionally.

Adaptation proceedings based on Article 7(2) TPC, by contrast, are a process independent of the provisional article and subject to their own legal regime. Whether a stay of enforcement may be ordered in this process is to be determined according to the general provisions on adaptation proceedings, and the prohibition in Provisional Article 1(7) does not extend to this area.

The Contradiction of the Absolute Prohibition Interpretation: A Concrete Example

The extent to which the result to which the absolute prohibition interpretation would lead is incompatible with the essence of the regulation can be seen strikingly through a concrete example. Consider a person who meets the conditions of the new regulation and who has been convicted under Article 158(1)(f) TPC and sentenced, with a reduction of 1/6 also applied, to 3 years and 4 months' imprisonment, and who is serving that sentence; if Article 158(4) TPC is applied by way of adaptation, this person's sentence will be reduced by half to 1 year and 8 months, so that, provided the other conditions are also met, even the possibility of applying the institution of deferral of the announcement of the verdict will arise.

The question that must be asked in the context of this example is precisely this: on what legal grounds can it be argued that, in order for the enforcement to be stayed for a convict whose sentence will change to this extent as a result of adaptation, and for whom the possibility of the conviction being suspended has even emerged, the damage must have been compensated? Such an interpretation would mean forcing the convict to undergo an enforcement whose lawfulness has now become substantially questionable, and moreover solely because he or she lacks the means to pay. This would clearly contradict the legislator's express will to give retroactive effect to the more favourable regulation, the manner in which the regulation was framed and its essence, and the situation in which the HAGB institution may be applicable. Moreover, it would create a difference in enforcement based solely on economic power between a wealthy convict who is able to compensate the damage and a convict who lacks that means, and such a result cannot be defended in the face of the principle of equality.

Conclusion

Unless Provisional Article 1(7) is reasoned in accordance with the aim of the legislator, it is a provision open to misreading. The correct reading is as follows:

1. The condition of compensating the damage and the six-month period in the article are exclusively conditions for benefiting from effective repentance after the judgment has become final (Article 168(2) TPC).
2. In my opinion, the application of Article 158(4) TPC to files at the enforcement stage, on the other hand, is mandatory by virtue of the mandatory provision of Article 7(2) TPC, independently of whether or not the damage has been compensated. Since there is as yet no settled case law of the Court of Cassation on this matter, a stay of enforcement should also be expressly requested together with the request for adaptation.
3. The enforcement prohibition in the second sentence, within the boundary drawn by the phrase "pursuant to this paragraph", covers only requests for postponement and stay based on an expectation of effective repentance. Consequently, in the adaptation process based on Article 7(2) TPC, a stay of enforcement is in any event possible within the framework of the general provisions.

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Attorney Coşkun Genç | Coşkun Genç Law Office