CMK art.231 regulates the institution of "suspension of the announcement of the verdict" (HAGB). Especially in the use/possession category of drug cases, HAGB provides the opportunity to close the file with minimal interference in the defendant's life.
HAGB Conditions
- The penalty imposed must be 2 years or less imprisonment or a judicial fine
- The defendant must not have been previously sentenced to imprisonment for a deliberate crime.
- Concluding that the defendant will not commit a crime again
- Compensating the victim's damage, if any (he may not be a direct victim due to drugs).
- The defendant's express consent to the HAGB provision.
Audit Period (5 Years)
With HAGB, the defendant is subject to 5-year supervision period. During this period:
- Not committing a new intentional crime.
- Compliance with established obligations (treatment, education, social services, etc.).
- Notifying of address and status changes.
Positive Outcome — "Downgrade"
If the 5-year audit period is completed positively, the prosecution is dropped; The conviction is not recorded. The "HAGB" record is kept in the criminal record for a certain period of time, but it is not considered a criminal record; It appears clean in job applications and visa procedures.
Negative Result
If a new intentional crime is committed or non-compliance with obligations occurs within the supervision period, a decision is made to announce the verdict; The sentence becomes final for execution.
Art.191 and HAGB — Most Frequent Application
In the crime of possession for use (Art. 191), treatment-probation (Art. 191/2) is first applied to the defendant. After this process is completed successfully, the HAGB decision mechanism can come into play; Sometimes two institutions are evaluated together.
Supreme Court 10th CD — Principle
10. CD adopts that in the implementation of HAGB, the condition of "concluding that he will not commit a crime again" must be determined with concrete justification, that merely clearing the record is not enough, and that facts such as the defendant's social-professional situation, family structure, compliance with the treatment process must be taken into consideration.
Art.188 and HAGB
Since the lower penalty limit for trade/manufacturing crime (Art. 188) is high, HAGB can be applied very rarely in practice. This is only possible in exceptional cases where the lower limit in penalty assessment can be lowered.
Practical Considerations
- HAGB request must be made at the decision hearing; subsequent application is limited.
- The defendant must clearly declare that he consents to the HAGB provision.
- Audit obligations must be strictly adhered to.
- No other files should be opened within 5 years.
HAGB saves lives when used correctly. Criminal defense attorney should provide strategic support.