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‘Deferment of announcement of verdict’ provisions cancelled: how willthis affect criminal liability in trademark infringement cases?

• The Constitutional Court has annulled the provisions of the Code of Criminal Procedure regulating the ‘deferment of theannouncement of the verdict' (‘HAGB')
• The decision highlights key concerns regarding the compatibility of the HAGB institution with constitutional principles
• This development will likely have a significant impact on trademark infringement cases, as the finalisation of decisions willbe delayed

On 1 June 2023 the Constitutional Court rendered a significant decision that will have an impact on criminal trademarkinfringement cases. The decision pertains to the annulment of Paragraphs 5 to 14 of Article 231 of the Code of CriminalProcedure, which regulate the ‘deferment of the announcement of the verdict' (‘Hükmün Açıklanmasının Geri Bırakılması ' or‘HAGB') institution. The decision will become effective on 1 June 2024.

Background

The case before the Constitutional Court involved a criminal trial for intentional assault and resistance to lawful arrest. Theapplicants challenged the constitutionality of Paragraphs 5 to 14 of Article 231 of the Code of Criminal Procedure based on theviolation of Article 17 of the Constitution.

Key points

The court's analysis highlighted several key concerns regarding the compatibility of the HAGB institution with constitutionalprinciples.

Procedural fairness and access to appeal

The court pointed out that the HAGB decision could be forced upon the defendant before the trial's conclusion, potentiallylimiting the defendant's access to the appellate process and impinging on the right to a fair trial.

Uncertainty of confi scation measures

The decision noted that the lack of a specified timeframe for the enforcement of confiscation measures resulting from a HAGBdecision could undermine property rights and the principle of proportionality.

Ineffectiveness of deterrence and victim compensation

The court emphasised that the HAGB institution might hinder the proportionality of criminal sanctions and the propercompensation of victims, thereby compromising the efficacy of deterrence and the state's obligations.

Omissions in addressing torture and abuse cases

The decision also highlighted the absence of provisions within the HAGB institution that would address cases involving tortureand abuse committed by public officials.

Impact of the decision on criminal trademark infringement cases

This landmark decision has far-reaching consequences for criminal trademark infringement cases. If the parliament does notenact a new law before the effective date (ie, 1 June 2024), the HAGB institution will no longer be applicable, affecting theability to defer penalties, including prison terms or fines, for trademark infringement under Article 30 of the Industrial PropertyLaw.

Trademark owners and legal practitioners should be aware of this change, which emphasises the importance of bringing timelylegal actions and the potential for immediate enforcement of penalties.

This new development will likely have a significant impact on trademark infringement cases, as the finalisation of decisions willbe delayed, given that the majority of such cases were resolved through a HAGB decision. Nevertheless, sanctions againstcounterfeiters will be reinforced. Additionally, if the new enactment mandates the termination of the five-year deferral period forconfiscating seized products, the extended destruction procedures will further lengthen this period and lead to storagechallenges for seized counterfeit goods.

Conclusion

The Constitutional Court's decision highlights the evolving legal landscape and underscores the need for a balanced approachto criminal justice. Legal professionals, trademark owners and all interested stakeholders should closely follow developments intrademark infringement cases and adapt their strategies to align themselves with the changing legal framework. The annulmentof the HAGB institution marks a significant shift in legal dynamics, particularly in the realm of trademark enforcement.