Can Prison Sentences Exceeding 5 Years Always Be Taken to the Yargıtay? Explaining the Finality Threshold for Cassation Appeals

Whether a conviction handed down by a regional court of appeal (istinaf) in criminal proceedings can be taken to the Yargıtay (Court of Cassation) is one of the most frequently confused issues in practice. Especially for offense types where aggravated forms (aggravating circumstances) are applied, it is not always clear above which threshold the sentence must fall for the cassation route to be open. In this article, we examine the finality threshold for cassation appeals in the Code of Criminal Procedure (CMK) and the effect of aggravated forms on that threshold, in light of Yargıtay case law.

The Legal Issue

For a judgment upheld or corrected by a regional court of appeal to be taken to the Yargıtay, two core elements are assessed together:

• Is the amount of the prison sentence imposed above the finality threshold set out in the law?
• What role does the existence of aggravated forms of the offense play in calculating that threshold?

Failure to assess these two elements correctly can lead to the right of cassation appeal being wrongly left unused — or, conversely, being invoked unnecessarily and rejected.

What Do the Yargıtay and the General Assembly of Criminal Chambers Say?

Prison sentences exceeding five years are subject to cassation appeal. Under Article 286/2-a of the Code of Criminal Procedure (CMK), decisions of regional courts of appeal rejecting on the merits an appeal against prison sentences of five years or less imposed by first-instance courts, and against judicial fines regardless of amount, are final. However, for prison sentences exceeding five years, the cassation route is open. The 9th Criminal Chamber of the Yargıtay (E. 2022/12327, K. 2023/2510, dated 2023) confirmed that a prison sentence exceeding five years is subject to cassation review under the relevant provisions of the former CMUK and the CMK, examined the case on the merits and quashed the judgment. In another decision of the same Chamber (E. 2022/9546, K. 2023/2632, dated 2023), a prison sentence of a similar amount was likewise found to be appealable in cassation.

Aggravated forms are taken into account in determining the finality threshold. According to the General Assembly of Criminal Chambers of the Yargıtay (E. 2023/64, K. 2023/691, dated 2023), when assessing the phrase "offenses requiring a prison sentence of ten years or less" in Article 286/2-g of the CMK, the aggravated forms of the offense (the aggravating circumstances in the law) must be taken into account in determining the finality threshold for cassation. For offenses whose upper limit exceeds ten years when aggravated forms are included, the cassation route should be open. Similarly, the 9th Criminal Chamber of the Yargıtay (E. 2022/10417, K. 2022/10536, dated 2022) stated that the upper limit of the base sentence may change with aggravated forms, but that, as a general rule, prison sentences exceeding five years in conviction judgments are open to cassation appeal.

A special procedure applies to judgments rendered after a quashing decision. Where the first-instance court complies with the Yargıtay's quashing decision, the new judgment it renders may be appealed directly in cassation under Article 307/3 of the CMK, regardless of the appellate or cassation thresholds (9th Criminal Chamber of the Yargıtay, E. 2023/14143, K. 2024/4595, dated 2024).

Points to Watch

• Calculate the sentence amount carefully. Whether the prison sentence imposed is above the finality threshold (five years) is the first criterion determining whether the cassation route is open.
• Review the effect of aggravated forms on the sentence. Even if the basic form of the offense carries a sentence below five years, where the application of aggravated forms (aggravating circumstances) has increased the sentence, this must be assessed separately when calculating the finality threshold for cassation.
• Do not miss the cassation deadline. Even where the sentence is above the finality threshold, the time limits prescribed for filing a cassation appeal are strict and preclusive.
• Assess the post-quashing process separately. The procedure for challenging a judgment re-rendered after a Yargıtay quashing decision may be subject to special rules different from those governing the original judgment.

Conclusion: What Should You Do?

Whether a judgment rendered in a criminal case is subject to Yargıtay review depends not only on the numerical amount of the sentence imposed, but also on the effect of the offense's aggravated forms on the sentence. This assessment requires a technical, case-law-based analysis. If you are unsure whether a decision in your hands is open to cassation appeal, consulting a criminal defense lawyer without losing time and having your file assessed against the current finality thresholds in the CMK is of great importance for exercising your rights correctly and on time.