Turkey

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Contents

Introduction

Summary of the context (including the country’s recent history)

The history of law in Turkey is a history of change and revolution. The current Constitution of the Republic of Turkey was ratified in 1982 and is the fifth Constitution of the State. Since its ratification it has been amended seventeen times. Each of these new Constitutions and amendments brought with it the installation of more civil rights and rules, bringing the Turkish legal system closer to fulfilling all de jure prerequisites for a rule of law state.

Article 2 of the 1982 Constitution proclaims:

“The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble.”

The Turkish legal system is in big parts based on the major codes of other European nations, a Civil Code from Switzerland, a Penal Code from Italy, as well as a Criminal Procedure Code and a Commercial Code inspired by Germany.[1]

Through this, and the ratification of a multitude of international treaties, the Republic of Turkey grants rights to its citizens that are, in theory, very similar to those in the member states of the European Union. Many of the political and legal reforms introducing and manifesting these rights were in fact made in order to enable Turkey’s accession to the European Union.[2]

However, the situation in Turkey at the moment (as of February 2017), especially with regards to human rights and rights safeguards is problematic. On 15 July 2016, a fraction of the Turkish Armed Forces[3] tried to overturn the government in a failed coup attempt.[4]

During the coup attempt, over 300 people were killed and more than 2,100 were injured. Mass arrests followed, with at least 40,000 detained, including at least 10,000 soldiers and, for reasons that remain unclear, 2,745 judges. 15,000 education staff were also suspended and the licenses of 21,000 teachers working at private institutions were revoked as well after the government alleged they were loyal to the opposition led by Muhammed Fethullah Gülen[5] (also known as the Gülen movement). More than 100,000 people have been purged.[6]

On 21 July 2016, President Erdogan announced a state of emergency in the Turkish Republic,[7] which has been extended for a further 90 days as of January 19, 2017.[8] While the President claims that this is a measure to protect citizen rights and democracy, it gives the government broad authority to enact laws without the parliament. An emergency decree has been enacted that removes important safeguards protecting detainees from torture and ill-treatment.[9]

The Office of the High Commissioner for Human Rights has expressed concern about the situation and has reminded the government that, even in a state of emergency, human rights obligations must be upheld.[10] The United Nations currently has no access on the ground and are monitoring the situation remotely. The planned visit of the Special Rapporteur on torture has been postponed by the Turkish government.[11]

The Turkish government has temporarily suspended the obligations of the European Convention on Human Rights (ECHR).[12] It should be noted though, that Article 15 of the ECHR states that “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.” In theory, this upholds the protection of the right to life, the prohibition of torture and slavery and the principle of “No punishment without law.” Protocols 6 and 13 to the ECHR also explicitly excluded the abolition of the death penalty from derogation.

Type of system

The Turkish legal system is a civil law system based on various European legal systems.[13] The primary source of law in Turkey is the Constitution. Secondary to this are the laws (most relevant for criminal law are the Turkish Criminal Code[14] with substantive provisions and the Turkish Criminal Procedure Code[15] with procedural provisions), law amending ordinances and international treaties (see below). A third tier of sources of law are regulations.[16] This means that court decisions are not an immediate source of law, but should merely interpret the existing body of legal statutes and norms.

The legal aid situation in the country

State Sponsored Legal Aid

Article 36 of the Constitution and Article 6(1) of the ECHR guarantees each person a right to litigation, either as plaintiff or defendant. The right to access courts includes bringing disputes to an authorized court and executing court decisions. This means that the Turkish State has a constitutional duty to provide access to justice, which is seen to include free legal assistance.[17] Article 150 of the Turkish Code of Criminal Procedure[18] sets out the right to request legal counsel. Pursuant to Article 176 of the Code of Lawyers, legal aid covers exemption from court fees and free legal representation by an attorney appointed by the Bar.

The Turkish government does not provide this legal assistance immediately, but rather entrusts the Turkish Bar Associations with the task. Thus, many Bars have established so-called Code of Criminal Procedure Practice Units (the “CCCP Units”). These are funded by the Turkish government.[19]

However, the state legal aid is rarely used and the results are not always favorable to the defendant, be it due to a lack of resources or training.[20] The system is seen as highly inefficient.[21]

Pro bono legal aid

Pro bono opportunities in Turkey are limited. Pro bono work by foreign law firms and NGOs is limited to cases before international bodies, as pro bono work is regulated very strictly and limited to the extent to which local Bar Associations provide for it through locally accredited lawyers, or partnering with domestic law firms and university legal clinics to assist them in their efforts to promote pro bono efforts in Turkey.

However, since there are mandatory minimum tariffs to provide legal services, pro bono services technically breach this requirement. This makes Turkish attorneys and domestic law firms hesitant to provide free legal assistance, since a notification to the Bar is required, while there is a ban on advertising legal services. NGOs and University clinics are also not necessarily incentivized to provide assistance as the Bar still holds a legal monopoly over the provision of a wide range of legal services.[22]

Currently, the most promising domestic resource for legal aid in general (only to a limited extent for criminal law though) is the “Istanbul Bilgi University Human Rights Law Center” (“Bilgi”). Bilgi is the first university in Turkey to set up legal clinics based on the models used in law schools in the United States. Currently, Bilgi has three legal clinics on street law, refugee law and private law.[23]

A promising international endeavor are the educational meetings organized by the Association for Solidarity with Asylum Seekers and Migrants and the United Nations High Commissioner for Refugees (“UNHCR”). These meetings cover a broad range of issues concerning refugees, migration, law on foreigners and international protection and are flanked by articles published on their website explaining the relevant legislation, in order to safeguard the rights and well-being of refugees.[24]

Number of lawyers

The most recent, reliable source puts the number of lawyers as of December 31, 2009 at: 42,484 male; 23,776 female; 66,260 total.[25]

Sources of defendant’s rights

National Sources of Defendant’s rights

The Constitution guarantees fundamental rights and equality (reinforced for criminal law in Article 3(2) of the Criminal Code). Article 19 of the Constitution generally allows for certain limitations of these rights, which seems to be the most fundamental basis for measures like arrest and detention.

The two substantive national sources of law are the Turkish Criminal Code (TCC)[26] and the Turkish Code of Criminal Procedure (CCP).[27] Both laws, but in particular the Criminal Procedure Code, are very detailed and precise. This has the significant advantage that both legal practitioners and defendants may understand the basic legal framework of criminal proceedings.

International Sources of defendant’s rights

In its effort to transform the Turkish nation into a truly democratic Republic, the Turkish government has signed and ratified numerous international treaties and conventions that provide for a vast pool of sources for defendant’s rights, most of which are also reinforced in the national laws.

According to Article 90 of the Constitution, international treaties that have been duly put into effect (meaning that have been ratified and then adopted by law through the Grand National Assembly of Turkey) have “the force of law”. This puts them at a prominent position among the sources of law.

The most relevant treaties that have been ratified and implemented in national law and, thus, can and should be consulted when assessing a defendant’s rights are:

  • International Convention on the Elimination of all Forms of Racial Discrimination (1969, ratified by Turkey in 2002);[28]
  • Convention on the Elimination of all Forms of Discrimination against Women (1981, ratified by Turkey in 1985);[29]
  • International Covenant on Civil and Political Rights (1976, ratified by Turkey in 2003);[30]
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987, ratified by Turkey in 1988);[31]
  • European Convention of Human Rights (1950, ratified by Turkey in 1954).[32]

Pretrial Procedures

Police procedures

The Turkish Code of Criminal Procedure (CCP), calls the first phase of criminal process the “investigation phase”.[33] Investigations during the preparatory inquiry are written, non-adversarial and secret.[34] They are conducted in camera.[35]

Investigating authorities. Under the Code of Criminal Procedure, the public prosecutor’s office is the definitive investigating authority. The Prosecutor has an obligation to investigate. The police and the gendarmerie are subordinate to the public prosecutor. A police officer investigates cases only when the prosecutor has ordered him to do so.[36] If the results of the investigation show that there is sufficient evidence, he must prosecute.[37] Although the Public Prosecutor is in charge during the preliminary investigation, all investigative powers revert to the court when he submits the indictment to the court.[38]

Suspect’s rights during the preliminary investigation. The CCP regulates the suspect’s rights during the preliminary investigation. The regulations concerning pre-trial detention and interrogation by the police are to be interpreted in the light of the provisions of Article 5 of the ECHR.[39]

Amongst those rights are: a) unlimited access to the file of investigation to defense counsel (the power of the defense counsel for discovery of the file);[40] and b) the right to participate and bring evidence. The accused has a stronger position during the phase of inquiry in court, for he has the right to bring witnesses with him, the right to have a non-public hearing and the right of having the “last word” at the end of the inquiry.

Investigative methods. Certain investigative methods that relate to privacy trigger constitutional safeguards for the suspect. Article 22 of the Constitution, which establishes the freedom and privacy of communication, requires that a Judge, or in cases where delay can be prejudicial, by a written order of an agency authorized by law, to issue the order to violate privacy and impede communications, when one or several grounds of the following are present: national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others. In cases where the agency submitted the order, a competent judge should submit approval within 24 hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall be automatically lifted.[41]

Other safeguards are present in the use of undercover agents and surveillance, where there must be an investigation or prosecution conducted in relation to a crime and strong grounds of suspicion based on concrete evidence indicating that the crime has been committed and there is no other possibility to obtain evidence, which may be established upon the decision of the judge.

Conclusion of the investigation. The public prosecutor concludes the preliminary investigation as soon as the level of information is sufficient to enable prosecution. Only the public prosecutor has the discretion to decide whether the investigation is complete. The victim of the crime has the right to oppose the decision of the public prosecutor to drop the case.

Complaint

Initiation of the investigation. When a public prosecutor is informed of the occurrence of a crime, he is required to undertake an investigation in order to determine whether there is a necessity for commencing a prosecution.[42] The civil party has the right to report the crime or to file a complaint about the committed crime.[43] The victim and the person reporting the crime have the right to give testimony about the crime,[44] and to ask that the evidence of the crime be collected. Other rights of the victim and the person who filed the complaint are contained in Article 233 of the CCP.[45]

Arrest, Search and Seizure Laws

Stops and Frisks

There is no special provision in the CCP that gives the police the power to stop and check people. However, there is a provision in the Police Act[46] that permits the police to stop and ask someone for identification. If the person is without identification or there is suspicion that a false identity is being used, the police have the power to arrest this person until his identity is cleared up or to detain him for up to 24 hours.[47]

Arrests

Turkish law sharply distinguishes between “arrest” and “pre-trial detention.” An arrest deprives the accused of his personal freedom when he is caught red-handed, i.e., during the commission of a crime. It can be made without a written order of a court.[48]

Constitutional rights related to the deprivation of liberty are established in Article 19 of the Constitution (right to personal liberty and security):

“No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law. (…)

Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. Arrest of a person without a decision by a judge may be executed only when a person is caught in flagrante delicto or in cases where delay is likely to thwart the course of justice; the conditions for such acts shall be defined by law. (…)”

In the CCP, the powers of arrest are regulated by Article 90. Any citizen may arrest an offender during the commission of the crime, or during hot pursuit, if in the meantime the offender might escape or not be identifiable.[49]

Article 19 of the Constitution mandates that individuals arrested or detained shall be promptly notified, in all cases in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them; in cases of offences committed collectively this notification shall be made, at the latest, before the individual is brought before a judge. Another constitutional right established in Article 19 mandates that “the next of kin shall be notified immediately when a person has been arrested or detained.”

The public prosecutor shall be immediately informed about the arrest, and the police shall act upon the orders of the public prosecutor.[50] The public prosecutor may issue an order for police custody if there is "concrete evidence that indicates the suspicion of the committed crime".[51]

Police custody. If a person was arrested during the commission of the crime, the arrested person will be brought to a Justice of the Peace within 24 hours for interrogation. He will be immediately taken to the court of first appearance if a prosecution has already been instituted.[52]

The time necessary to bring him before the judge is not included in the 24-hour requirement, but it may not exceed 12 hours.[53] The 24-hour period of deprivation of liberty for crimes committed by three or more persons may be prolonged up to four days by a written order of the public prosecutor if the collection of evidence becomes difficult. However, the prolongation may not exceed four days altogether.[54]

The suspect must be informed of his rights by the police during the arrest and if he requests so, he has the right to have his counsel present during the interrogation.[55] This is a constitutional right. Article 19 of the Constitution, establishes that “the person arrested or detained shall be brought before a judge within at latest forty-eight hours and in case of offences committed collectively within at most four days, excluding the time required to send the individual to the court nearest to the place of arrest. No one can be deprived of his/her liberty without the decision of a judge after the expiry of the above specified periods. These periods may be extended during a state of emergency, martial law or in time of war.” For children and for suspects of crimes carrying imprisonment at the lower level of more than five years, there is an obligation to appoint a lawyer if the suspect does not already have one.[56]

The Justice of the Peace interrogates and can release the arrested person if he or she determines that pre-trial detention was not necessary or if the reasons for arrest no longer exist. There is a requirement that an appointed defense lawyer be present during this interrogation (Article 91(6) of the CCP). This too is a constitutional right.[57] According to Article 19 of the Constitution: “persons under detention shall have the right to request trial within a reasonable time and to be released during investigation or prosecution. Release may be conditioned by a guarantee as to ensure the presence of the person at the trial proceedings or the execution of the court sentence.”

Pre-trial detention

Pre-trial detention is the accused’s deprivation of liberty upon a “warrant of pretrial detention” issued by a judge, established in article 94 and 101 of the CCP. There is no compulsory detention in Turkish Law, and the public prosecutor has no authority to issue a decision about the pre-trial detention of the accused.[58]

The Justice of the Peace during the preliminary investigation [59] or the court of competent jurisdiction during the trial stage [60] is entitled to issue a warrant of pre-trial detention if there is persuasive concrete evidence [61] of a person’s guilt and sufficient facts indicating that he will escape, or facts regarding prior behavior sufficient to conclude that he will try to destroy evidence, influence witnesses to give false testimony, or unjustifiably influence or bribe experts.[62]

However, in some cases the CCP allows the judge to issue a warrant of pre-trial detention on a strong suspicion of guilt and presumption that the other requirements are self-evident. This is only possible if the investigated crime is one of the crimes as listed in the CCP Article 100(3).[63]

The deprivation of liberty through pre-trial detention for crimes carrying judicial fines or imprisonment of not more than 2 years is forbidden.[64]

Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

  • Remedies for arrest or pre-trial detention

There are no legal remedies against measures taken by the public prosecutor and police. The only exception to this rule is petitioning the Justice of the Peace to overturn or check an arrest or rule against the prolongation of police custody.[65] The arrested person or his lawyer, his legal representative, his first and second degree relatives or his spouse have the right to demand a decision from the Justice of the Peace against the written order from the public prosecutor relating to the prolongation of the arrest period or on the legality of the arrest as such.[66]

The Justice of the Peace reviews the file and gives his decision immediately or, at the latest, within 24 hours. He may reject the application if he considers the arrest or prolongation period to be justified, or he may order that the arrested person be brought to the public prosecutor together with the documents relating to his investigation.[67]

If the arrest (or the pre-trial detention) was unconstitutional, the arrested individual may claim damages under Article 141 of the CCP. The State is responsible for compensation.[68]

Searches

The fundamental right of inviolability of the domicile is established in Article 21 of the Turkish Constitution, which mandates that “the domicile of an individual shall not be violated. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on these grounds, no domicile may be entered or searched or the property seized therein.” As with the investigative methods that interfere with privacy of communications, discussed above, the decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall be automatically lifted.

When there are "reasonable grounds" for suspecting that the person is carrying or hiding evidence of an offense or that he has committed a crime, he and his premises may be searched.[69] Searches cannot be consensual. Even if an occupant grants permission, the police are not entitled to enter the house and conduct a search.[70]

Entering the domicile of the suspect and conducting a search therein is regulated by two factors: first, to arrest the suspect, and secondly to seize evidence,[71] and per statute, the search at night is exceptional.[72]

Interrogation

As discussed supra (Arrests), the suspect or the accused must be advised of the offense they are suspected of. According to article 148 of CCP, the interviewed person must be advised that he has the legal right to be silent. He will be given notice that he may demand collection of exculpatory evidence that would favor him. Questions about his personal status will be asked. The suspect or accused is entitled to inform his or her relatives about the arrest. An official report of the interview will be prepared. If the suspect demands a lawyer appointed by the Bar Association, that lawyer may be present during the interview on the condition that this causes no delay in the investigation. There is no requirement for a written power of attorney for the requested lawyer.[73]

Illegal methods of interview.

The CCP lists the methods of interviewing suspects that are not allowed.[74] The testimony during the interview must be given freely. The use of torture, drugs given by force, stress or pressure tactics, fraud, physical violence or force, and devices that influence free will are forbidden.[75] The person being interviewed may not be offered illegal promises.[76]

Evidence that has been obtained through illegal means is excluded, even if the individual gives his consent.[77] If, during the police questioning, there is no defense counsel present, and the accused denies his testimony later at court, such testimony cannot be taken into account as evidence for forming the judgment.[78]

This provision is an innovation of the Turkish Legislature, which was enacted prior to the Salduz v. Turkey decision of the ECHR, which is relevant to the case because in it the Court affirmed the international human right of access to lawyer when the person in custody is a minor. Unfortunately, in cases where the defense attorney is not experienced, or did not provided the suspect with sufficient legal advice, a confession in the presence of the lawyer at the police station may still be used as very strong evidence against the accused later at the trial.[79]

If the police have interviewed a suspect once, and later there is a need for further questioning, the police are not empowered to re-interview the same person for the same investigation.[80]

Right to Counsel

A suspect has a right to counsel, and he has the right to engage counsel on his behalf. If he cannot afford to retain counsel, he may demand a lawyer appointed by the Bar Association of that district. If the suspect demands a lawyer appointed by the Bar Association, that lawyer may be present during the interview on the condition that this causes no delay in the investigation. This right must have been explained to the suspect upon his arrest.[81] There is no requirement for a written power of attorney for the requested lawyer. Furthermore, the interviewed person is entitled to inform his or her relatives about the arrest if he wishes to do so. He must also be advised of this right.[82]

CCP contains provisions regarding the defense of suspects and accused persons.[83] This defense is obligatory, if the individual is under 18 years of age or if the alleged crime carries a term of imprisonment of more than 5 years at the lower level.[84]

Rights of the accused at all time

Article 10 of the Constitution generally establishes a principle of equality, and of particular importance to criminal proceedings is Section 5, which mandates that “State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.” This principle is reinforced in Article 3 of the Criminal Code and expands it to include also a requirement of the punishment always being proportionate to the crime.

With regards to crimes committed by Turkish citizens in foreign countries it should be noted that Article 38(12) of the Constitution stipulates, “[n]o citizen shall be extradited to a foreign country because of an offence, except under obligations resulting from being a party to the International Criminal Court.”

On the other hand, Article 18 of the Criminal Code regulates that, generally, foreigners may be extradited to their home nation, unless one of the exceptions applies. These exceptions cover a wide range of reasons to refuse, including that only offenses which are considered criminal in Turkey may lead to extradition.

For members of the Grand National Assembly of Turkey it should be noted that Article 83 of the Constitution regulates their immunity.

Criminal Law system

Double jeopardy

The only provision in the Turkish criminal statutes that shows resemblance to a double jeopardy clause is Article 11(1) of the Criminal Code. However, it only applies to cases where a Turkish citizen has been previously prosecuted by a foreign court.

After signing Protocol No. 7 to the ECHR in 1985, Turkey finally ratified the Protocol in May 2016, and it entered into force on August 1, 2016.[85] Article 4(1) of this Protocol mandates that “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.”

It should be noted that even though the Turkish government has currently (as of November 2016) suspended its obligations under the ECHR, Article 4 of Protocol 7 is one of the provisions that cannot be suspended.[86] This means that completed trials that did not have a result desired by the government cannot be re-opened.

Legality principle

The legality principle (“nulla poena sine lege”) is laid out in Article 38(1)(2) of the Turkish Constitution and reinforced in Article 7(1) of the Criminal Code. Both provisions make clear that only those laws applicable at the time of the offense can be the basis for punishment in general and determination of the appropriateness of a particular punishment.

Furthermore, Article 66 of the Criminal Code provides for a statute of limitations, after which an offense cannot be brought to justice anymore. Similarly, Article 68 of the Criminal Code provides for a statutory period for execution of punishment.

Article 2(1) of the Criminal Code addresses the issue already one step before and makes clear that only actions that constitute “an offense within the definition of the Law” can be subject to punishment. (“No punishment without crime.”)

Another important pillar of the legality principle is found in Article 2(3) of the Criminal Code and prohibits analogous application or interpretation of laws in order to expand the application of the law.

Presumption of innocence

Article 38(4) of the Constitution states that “[n]o one shall be considered guilty until proven guilty in a court of law.”

Standards of proof and standards for conviction

The provision dealing with the final judgment concluding a trial, Article 223 of the CCP, does not seem to clearly state what the standard of proof and the standard for conviction should be. It merely states “If it has been proven […].”

However, as a civil law system, the Turkish criminal proceeding does not use such concepts as beyond reasonable doubt.[87] One main characteristic of inquisitorial systems, such as the Turkish one, is that it is not up to the parties to convince the decision making body. Both parties may provide evidence, but this is more an assistance to the judge in his analysis and ultimately the judge decides on the basis of all presented evidence and reaches his own conclusions.

The court must undertake a complete investigation to determine the factual truth. The court is not dependent on the evidence of the prosecutor, the accused, or the other parties. Witnesses can even be called on the court’s own initiative.[88]

It should be noted that the legal determination for filing an indictment is less stringent (a sufficient level of suspicion), than the one required for an arrest (strong suspicion).[89]

Procedure with witnesses

Generally the judge is still the presiding figure during the trial and the prosecutor will do most questioning in the investigative stage.

Before the enactment of the Criminal Procedure Code in 2004, the Turkish legal system did not provide for active participation of the defense counsel in the proceedings. Article 201 CPC now allows the defense counsel and lawyer functioning as representative to ask direct questions. According to Article 216 CPC the defense counsel is the last one to ask questions.

It should be noted that pursuant to Article 84(3) of the CCP the accused might be excluded from witness inspection.

Capital Punishment

Article 38(10) of the Constitution was amended in 2004, to expressly outlaw the death penalty.

Articles 45 to 50 of the Criminal Code lay out the possible punishments in criminal proceedings, which can take the form of either imprisonment or administrative fines. Article 50 gives the important chance to convert a short-time prison sentence into a much less intrusive punishment, through reparation in form of fines, reimbursement of the victim and through abiding by certain restrictions, such as prohibition to travel.

Ex Post Facto punishment

Article 15 of the International Covenant on Civil and Political Rights[90] contains the requirement that only crimes that constituted offenses at the time of commitment are prosecuted and that any regulation providing for a lighter penalty benefits the defendant. Since the Turkish Republic has signed and ratified the Convention, it creates international obligations, which are implemented in Article 38(1)(2) of the Constitution and in Article 7(2) of the Criminal Code.

Fair Trial Rights

Freedom from prolonged pre-trial detention

Arrest without a warrant

Article 19(6) of the Constitution generally mandates that an arrested or detained person has a right to be heard by a judge within 48 hours (or four days when several offense have been committed). Without a decision by the court, the detainee must not be held longer. Section 7 of the Constitution? Grants a right to request trial within a “reasonable” time and to request to be released while awaiting trial. Section 9 reiterates the right to request a speedy conclusion of the proceedings. Section 10 of the Constitution? finally awards compensation to any person suffering from arrest or detention that does not follow these rules.

Article 91(1)(3) of the CCP provides the length of police custody to not exceed 24 hours or a maximum of three days for several offenses, such as those committed by three or more persons. This is narrower than the Constitutional provision, which is merely the upper limit possible without infringing on fundamental rights. Under Article 251(1) of the CCP longer limits may apply.

According to Article 91(4) of the CCP, any person arrested without a warrant or certain affiliates have a right to file a motion against custody.

Arrest with a warrant

The Justice of the Peace during the preliminary investigation[91] or the court of competent jurisdiction during the trial stage[92] may issue a warrant of pre-trial detention if there is persuasive concrete evidence of certain circumstances pursuant to Article 100(1) of the CCP.

Article 102 of the CCP stipulates that when an arrest has been made under an arrest warrant, the length of detention may not exceed one year or two years, depending on whether the crime is within the jurisdiction of the court of assizes (penal courts of first instance). According to Article 108 of the CCP, a detainee has a right to re-evaluation of the necessity of the detention every 30 days. The detainee may also file a motion for release at all times, pursuant to Article 102 of the CCP.

According to Article 100(4) of the CCP, an arrest warrant for pre-trial detention for crimes carrying judicial fines, or imprisonment of not more than one year may not be issued.

Data concerning the average length of time spent in custody awaiting trial (or pending trial) is not published. However, considering the average length of prosecution in Turkey (246 days in all criminal courts),[93] and the rather high percentage of detentions, it is fair to assume that suspects/defendants may be kept in custody for a long time.[94]

However, in 2013 the Turkish Constitutional Court explicitly ruled in favor of petitioners claiming to be violated by prolonged detention and reinforced that it had to abide by the ECHR rules.[95]

Freedom from punishment

There is no express right to freedom from punishment in Turkish criminal law. There are provisions of substantive criminal law granting certain exemptions from prosecution or punishment in Articles 24 to 34 of the Criminal Code.

Procedurally, a right to freedom from (unjust) punishment is manifested in the presumption of innocence and the statute of limitations.

Article 253 of the CCP provides for a special penal mediation in order to remedy the injury of the victim. Section 19 of this Article provides that if the mediation was successful and “the suspect fulfills the object of that contract at once” a decision on no grounds for prosecution shall be rendered. The purpose of penal mediation is to find an agreement between the perpetrator and the victim, which enables the defendant to try to make amends with their victim and thus restore a social equilibrium.

Freedom from torture

Another constitutional provision that is crucial to the criminal law system is Article 17(3), which states that “No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.”

Right to counsel

According to Article 149 of the CCP, a defendant has a right to defense counsel and according to Article 150 of the CCP such counsel must be appointed by the state, if the defendant cannot appoint counsel.

Article 147(1c) of the CCP already grants this right for interviews in the investigating stage.

Article 74(2) of the CCP contains a special reinforcement of the right to counsel in stating that a suspect who is subjected to medical evaluation must be appointed counsel.

Right to Habeas Corpus

The right to habeas corpus is the right to report an unlawful detention or imprisonment before the court.[96]

Article 5 of the ECHR explicitly grants the right to habeas corpus. In the Turkish Constitution Article 19(8) is seen to contain it.[97] Article 108 of the CCP reinforces this.

Right to Medical Care

A right to medical care is not explicitly mentioned in Turkish law.

Right to a Fair Trial

The right to a fair trial is guaranteed in Article 36 of the Turkish Constitution and in various of the international treaties that Turkey has signed, ratified and implemented, such as the International Covenant on Civil and Political Right,[98] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [99] and the European Convention of Human Rights. [100]

Nonetheless, between 1998 and 2008 alone, Turkey was found to have violated the right to a fair trial 528 times. [101]

Right to Notice of Charges

A right to be notified of the grounds for arrest and/or the charges brought against the arrested person is granted in Article 19(5) of the Constitution.

Further, Article 226 of the CCP states that a defendant must be notified of any changes in the law under which a charge is brought and must be given a chance to defend himself against the new charge.

Article 35 of the CCP generally mandates that all notifications be read to the accused.

Right to Non Self-incrimination

Article 38(5) of the Constitution states that “[n]o one shall be compelled to make a statement that would incriminate himself/herself or his/her legal next of kin, or to present such incriminating evidence.”

Article 147(1e) of the CCP reiterates the “right to remain silent.”

Right to a Speedy Trial

The right to a speedy trial stems from Article 19 Sections 6, 8 and 9 of the Constitution and manifests itself on the provisions provided for the freedom of prolonged detention.

Right to an Impartial Judge

Article 138(1)(2), as well as Article 140(2), of the Constitution establish the independence of the judiciary. Although not explicitly called a right, this mandate constitutes one of the basic principles of the criminal legal system. Articles 22 and 23 of the CCP confirm this, by providing reasons based on which a judge may be excluded from serving in a proceeding.

Article 22 forbids a judge from judging his own case if he was injured by the accused or if he is a relative of the parties, as well as if he has been active in the same case as a prosecutor, an investigative police officer, a defender of the accused or of the victim, or if he was summoned as a witness or has delivered an opinion as an expert.

If a judge was active during the trial at the first instance, he is barred from acting in the higher court's trial either during the opposition examination or during the appeal procedure at the Court of Cassation according to Article 23 of the CCP.

Article 24 of the CCP regulates the right to file a motion for disqualification of a judge. This motion may be filed by the defendant, the public prosecutor, or the defense counsel.

Right to appeal

The Turkish Code of Criminal Procedure provides for three opportunities to tackle judge’s decisions.

Article 267 of the CCP grants the right to a motion of opposition against magistrates’ decisions that are not final judgments and subjects these decisions to inspection.

Article 272 of the CCP lays down the right to appeal a judgment of first instance in law and in fact. Judgments resulting in imprisonment of more than 15 years are automatically subject to inspection by the Regional Court of Appeal on Facts and Law.

Exempt from this first right to appeal are “a) Judgments recognizing final judicial fines up to two thousand Liras (two thousand included); b) Judgments of acquittal rendered for crimes that require a judicial fine not exceeding five hundred days as the upper level of the punishment; c) Judgments for which the way of legal remedy had been closed by law.”

Article 273 of the CCP outlines the time frame for appeal. The appeal has to be submitted with a written explanation to the court or by making a declaration to the clerk to be taken on record within seven days after the judgment has been pronounced. If the defendant was not present at the pronouncement, the time period starts running upon notification of the judgment (Section 2).

Article 286 of the CCP grants a further right to appeal on law. Exempt from this right to appeal are:

  • “a) Decisions of Regional Court of Appeal on Facts and Law that are related to the rejecting the merits of the application of appeal on facts and law against the imprisonment penalties up to five years or less and decisions denying the merits of appeals on facts and law against any kind of judicial fines, rendered by the courts of first instance,
  • b) Decisions of Regional Court of Appeal on Facts and Law that do not increase the imprisonment penalties up to five years or less rendered by the courts of first instance,
  • c) All kinds of decisions of the Regional Court of Appeal on Facts and Law, that are related to the crimes that are within the jurisdiction of the Court of the Peace which have been rendered as the court of first instance,

  • d) Decisions of the Regional Court of Appeal on Facts and Law, which do not alter the nature of the crime in connection with the sentence rendered by the court of first instance, which require a judicial fine only,
  • e) Judgments rendered by the Regional Court of Appeal on Facts and Law, which do not alter the decision of the court of first instance in relation to confiscation or forfeiture or in relation to a judgment that deems it not necessary to rule so,
  • f) Where the judgment of the Regional Court of appeal on Facts and Law was an acquittal on appeals on fact related to offenses that require imprisonment for ten years or less, or decisions of denial of motions for appeals of facts,

  • g) Where the decision of the court of first instance was related to striking a lawsuit, or a decision not to punish, or to a security measure, and the Regional Court of Appeal on Facts and Law has rendered a judgment in agreement with that to strike the lawsuit, or a decision not to punish, or to a security measure or about the inadmissibility of the petition for appeal on facts and law.

  • h) Decisions of the Regional Court of Appeal on Facts and Law that contain more than one sentencing and decision, as long as they stay within the limits of the above-mentioned subsections.”''

Article 291 of the CCP provides for the same time limit of seven days as for the first appeal on facts and law.

Ways to Protect Rights

Exclusionary Rule or Nullity of Procedure

Generally, the Turkish Constitution provides in Article 38(6) that “[f]indings obtained through illegal methods shall not be considered evidence.”

The Turkish Criminal Procedural Code deals with this in Articles 206, 217 and 289. Article 206 provides:

“The request of presentation of any evidence shall be denied in the below-mentioned cases: a) If the evidence is unlawfully obtained; b) If the fact to be proven by the evidence is irrelevant with respect to the decision; c) If the request of presentation of evidence is made to delay the proceedings only.”

Article 217 reiterates the requirement of the evidence being lawfully obtained and also stipulates that only evidence that had been presented and discussed in the main hearing can be used to form the judgment.

Article 289 notes illegally obtained evidence as one possible ground for appeal.

Civil Action

The Turkish criminal law does not really provide for civil action against criminal proceedings.

There are no legal remedies against measures taken by the public prosecutor and police.[102]

However, if the arrest (or the pre-trial detention) was unconstitutional, the arrested individual may claim damages under Article 141 of the CCP. The State is responsible for compensation, and once the compensation is paid, the State is entitled to demand from the officer the reimbursement of the compensation.[103]

Pursuant to Article 142, “[t]he motion for compensation may be filed within 3 months after the notification of the final decisions or judgments to the related parties, or at any case within one year after the final decision.”

Motions

According to Article 24(2) of the CCP, a defendant can motion for disqualification of a judge. Article 25 of the CCP sets out the time limits for this motion:

“(1) A motion to disqualify the judge on the basis of doubt concerning his impartiality may be forwarded to the court of the first instance at the beginning of the main hearing until interrogation of the accused by the judge starts; where there is a hearing at the Regional Court of Appeal on Facts and Law shall be conducted, until the inspection report is read out in the main hearing; and at the Court of Cassation, until the report that had been written by the appointed member or examination judge had been disclosed to the members. At other cases, the judge may be challenged until the beginning of the inspection.

(2) On the grounds that appear or has been found out after the time limit had expired, the motion may also be submitted until the main hearing or the inspection is over. However, such a motion must be submitted within seven days after gaining knowledge of the grounds of disqualification.”

Article 69(2) of the CCP provides for the same right with regards to expert witnesses.

Article 91(4) of the CCP gives a right to a person who has been arrested without a warrant, their defense counsel, legal representative, spouse or blood relatives of first and second degree, a right to file a motion “against the arrest without a warrant, or against the written order by the public prosecutor on taking the individual into custody or on the extension of the custody period, in order to achieve an immediate release from custody.” The judge has to make a ruling on this motion within 24 hours.

According to Article 104, the suspect or accused can file a motion to release at any stage of the proceedings.

According to Article 311 of the CCP, a defendant can motion for a new trial under certain circumstances. Under Article 312 he/she may motion for postponement or stay of execution.

Rights in Prison

In 2004 the execution of custodial penalties was finally regulated in the Law on the Execution of Penalties and Security Measures (LE).[104] There are different types of correctional facilities: closed prisons of various sizes, construction, and security standards;[105] prisons for women;[106] prisons for juveniles;[107] prisons for young adults who are at least 18 but less than 21 years of age;[108] open prisons;[109] as well as special reform schools for juveniles.[110] The position of a judge with jurisdiction over the execution of sentences was created in 2010. This judge makes decisions on important issues in the prison system and is the authority for inmate complaints.[111]

Imprisonment is the sanction for most criminal acts; thus, the prison system is of key importance. Major modernization efforts were made in recent years. There are numerous types of facilities, ranging from small prisons holding 24 inmates to a number of large facilities such as Bayrampaşa (Istanbul) and Buca (Izmir) with capacities of 1,200 and 1,000 inmates respectively. In recent years, cells for one, three, or eight individuals have been introduced.[112]

Over the past decades, custodial sentences for petty crime have been steadily reduced. For example, cases may be dismissed in exchange for payment of the minimum penalty. Since 1965, the option to commute prison terms of up to six months to fines has been available and is typically utilized. The early release term is two-thirds of the full term.[113] The LE introduced for the first time the new feature of a probation system that is designed to assist offenders sentenced to probation as well as released prisoners [114] with their reintegration into society. Another innovation in the area of fines is a day-fine system designed to take account of each convict’s financial situation.[115]

According to the US Department of State, Country Reports of Human Rights Practices for 2015, Turkish prisons have frequently been overcrowded. Contributing factors are pretrial detention, which in practice continues to be ordered quite readily, and lengthy court proceedings. The incarceration rate was estimated at 197 per 100,000 in February 2014.[116]

According to the US Department of State Human Rights Report of Turkey in 2015, prison facilities remained inadequate and did not meet international standards. Underfunding and lack of access to adequate health care were problems. Some of the results of the report are the following:

Regarding the physical conditions, by September 16, 2015 according to the Ministry of Justice, there were 362 prisons with a designed capacity of 171,267. As of August 18, the prisons held 172,708 inmates, including 25,433 persons in pretrial detention and 147,275 convicts. Regarding juveniles, the Report states that there were 2,420 (1,773 in pretrial detention and 647 convicts). The government reported it used separate prisons for children where such facilities were available; otherwise, children were held in separate sections within adult prisons.[117]
Human rights organizations asserted prisoners frequently lacked adequate access to potable water, proper heating, ventilation, and lighting, a claim the government denied. Physical and hygiene conditions in prisons were reported as inadequate due to overcrowding. Although the government claimed doctors were assigned to each prison, human rights associations expressed serious concern over the inadequate provision of health care to prisoners, particularly the insufficient number of prison doctors. There is no adequate access to medical care because the prisoners need to show immediate and verifiable danger to receive special treatment. Even though the law allows 10 hours of recreational time per week, prisoners accused of membership in terror organizations were held in higher-security prisons and only received one to two hours per week of recreational time. [118]

Immigration detention

The following information is reported by the Global Detention Project: [119]

The principal law governing immigration detention is Law No. 6458 on Foreigners and International Protection, adopted in April 2013 and came into force in April 2014.[120] It provides Turkey’s first legal framework for the protection of asylum seekers. This law creates a specialized civilian institution under the Ministry of the Interior to manage all forms of migration, including with respect to international protection. This Law provides several grounds for pre-removal administrative detention. Article 57 stipulates that detention can be ordered for “those who may abscond or disappear, who violate rules for entry into and exit from Turkey, who use fraudulent or unfounded documents, who do not leave Turkey in the granted period without an acceptable excuse, who constitute a threat to public order and security or public health”.[121] The law specifies that the detention of persons seeking protection should be an exceptional measure.[122]
Other relevant immigration laws are the Passport Law and the Law of Sojourn and Movement of Aliens.[123] Article 4 of the Passport Law provides that foreign nationals who arrive at the Turkish border without appropriate documentation are not admissible, and that those who claim to have lost their documents during travel must stay at a location indicated by the administrative head of the local government until the Ministry of the Interior has completed an investigation. Article 23 of the Law on the Sojourn and Movement of Aliens provides that non-citizens who have been issued a deportation order but whom the state cannot immediately deport must reside in a location assigned to them by the Ministry of interior.
People who violate immigration-related laws can be subject to fines.[124] However, the new law does not include provisions that were found in previous laws providing for criminal prosecution and prison sentences.

Under the Law on Foreigners Art. 57 (3), detention can last up to one year (six initial months plus a maximum of six additional months), which according to international standards established by the Special Rapporteur of the Human Rights of Immigrants is too long a period. [125]

The Law on Foreigners stipulates that “law-enforcement units” can apprehend people for immigration-related reasons.[126] It also shifts all implementation regarding migration and international protection, including the issuing of deportation decisions and oversight of removal centers, from the police to the local offices of the Directorate General for Migration Management in each provincial governorate

Minors

The Law on Foreigners in article 59 (1-c-d), provides that the best interest of children shall be respected. However, it also provides that families and unaccompanied children can be detained for removal purposes but that they should be given separate accommodation arrangements at removal centers and that children are to have access to education. Unaccompanied minors who apply for international protection, on the other hand, are not to be detained. Those aged below 16 years will be placed in government-run shelters, while those over 16 can be placed in “reception and accommodation centers provided that favorable conditions are ensured.” [127]

Asylum seekers

Under the Law on Foreigners, the administrative detention of asylum seekers is to be an exceptional procedure.[128] Grounds for detention of asylum seekers include: (1) to verify identity documents and nationality; (2) to prevent irregular entry at ports of entry; (3) when an asylum application cannot be properly assessed unless administrative detention is applied; and (4) when the person poses a serious danger to public order and security.[129] Detention on these grounds is not to exceed 30 days.[130] International protection applicants in administrative detention are to be granted access to “a legal representative, lawyer, as well as to a notary and UNHCR officers.[131] Article 92 (3) provides that UNHCR shall have access to applicants of international protection, including those at the border gates. Under Article 59 (2) representatives of relevant non-governmental organizations with expertise in the area of migration shall be able to visit removal centers upon permission of the Directorate General.

According to Amnesty International, the report Europe’s Gatekeeper documents show, since September 2015, in parallel with EU-Turkey migration talks, the Turkish authorities have rounded up and herded scores – possibly hundreds – of refugees and asylum-seekers onto buses and transported them more than 1,000 kilometers to isolated detention centers where they have been held incommunicado. Some report being shackled for days on end, beaten and forcibly transported back to the countries they had fled.[132]

Up until September 2015, the main human rights concerns facing refugees and asylum-seekers in Turkey have not included unlawful detention and deportation. Turkey hosts the largest refugee population in the world, with about 2.2 million registered refugees from Syria and approximately 230,000 asylum-seekers from other countries.[133]

In addition, those who lodge their application for international protection in a reasonable period of time on their own accord shall not be subject to a criminal proceeding for illegal entry or presence.[134] While people can apply for international protection after being detained, the assessment of these applications will not disrupt enforcement of other judicial and administrative actions or measures and sanctions.[135]

Detention infrastructure

Turkey has used a broad assortment of sites for the purposes of immigration-related detention, including police stations, ad hoc sites, specialized detention centers, and transit facilities.[136]  In addition to these facilities, undocumented migrants have been detained at police stations and gendarmerie posts, as well as at a juvenile detention facility in Istanbul and at transit zone “detention rooms” at the Istanbul Ataturk Airport and other international airports, including Istanbul’s Sabiha Gokcen Airport. According to various reports gathered by the Global Detention Project, there are approximately two dozen dedicated immigration detention facilities (formerly known as “guesthouses”) in Turkey.[137] The Global Detention Projects reports that it has received information about 14 removal centers and two airport transit zone facilities that were in use of 2014.

Women’s rights in prison

Regarding the situation of women’s right in prison, Human Rights Watch reported in “A Blank Check: Turkey’s Post-Coup Suspension of Safeguards Against Torture”, published in October 2016, several instances of women’s rights being violated during imprisonment, being submitted to cruel psychological treatment and deprivation adequate food and water.[138]

Court Procedures

Pre-Trial

Initial Court Appearance

In the Turkish criminal law system there is no general initial court appearance where the charges are read and explained. The CCP is already entirely silent on the use of force during an arrest or the procedures that need to be followed. There is no statutory obligation to read the arrestee any rights or inform them of the charges against them. Just as well, there is no right for the defendant to appear in front of a judge in order to be formally charged with a crime. This significantly increases the potential for arbitrariness in the proceedings. This also ties in with the fact that the investigative stage of Turkish criminal proceedings is conducted largely in secrecy, with very limited access for lawyers or the defendant.

Charging Instrument

According to Article 170 of the CCP the duty to file a prosecution lies with the public prosecutor. Section 2 of that Article makes clear that the public prosecutor must prosecute (with few exceptions), when there is sufficient evidence of a crime. This is the manifestation of the principle of legality on the prosecution’s side. If the Prosecutor is of the opinion that there are sufficient grounds for commencement of a public prosecution, he prepares a Bill of Indictment and submits it to the court for approval.

Preliminary Hearing

The Turkish Code of Criminal Procedure does not provide for a preliminary hearing.

Pre-Trial Motions

Instead of being arrested with a warrant, “[i]n cases where the grounds as regulated in Article 100 are present, which would have resulted in arrest with a warrant, a decision to put the suspect under judicial control may be rendered, instead of arresting him with a warrant, if the conducted investigation is about a crime that carries a punishment of imprisonment at the upper level of 3 years or less”, Article 109(1) of the CCP.

According to Article 176 of the CCP, the accused has to be asked for motions for defense in the summons to the trial. There must at least be a week between the notification of the summons and the trial (Section 4).

The defendant may make written applications to the President of the Court or the trial judge until five days before the main trial to request the summoning of witnesses or experts and collection of defense evidence, pursuant to Article 177 of the CCP. The application must indicate the events the request is related to.

Discovery

An important provision of the Turkish Constitution relating to discovery is Article 38(6), which provides that “[f]indings obtained through illegal methods shall not be considered evidence.”

The detailed requirements and demands for witness proceedings, experts, inspections and evaluations are provided for in the Code of Criminal Procedure. The court must undertake a complete investigation to determine the factual truth. The court is not dependent on the evidence of the prosecutor, the accused, or the other parties. Witnesses can also be called on the court’s own initiative. The court is obliged to explain the means of proof included in the verdict, as well as to provide the analysis used to include or exclude such proof.[139]

Thus, neither the public prosecutor nor the accused has the burden of proof in Turkish Law. If the accused or the public prosecutor points out any factual aspect that is necessary to decision during the course of criminal proceedings, the trial court has the obligation to determine the factual truth.

Turkish law does not define the means of proof. Everything may be considered as evidence insofar as it is reasonable. The court considers the evidence freely in order to discover the factual truth. However, that evidence should have been obtained lawfully, and the concerned parties should discuss all the evidence during trial. The judges may use only the evidence, documents and statements presented and discussed at the open trial to reach their conclusions and form the judgment of the court.

Trial

Nature of the Trial

As in most civil law systems, the Turkish criminal law trial is an inquisitorial trial, which means that it is the judge’s task to issue a judgment on whether the defendant is guilty or not guilty based on the presented evidence and his/her own judicial investigation.[140]

According to Article 175 of the CCP, the prosecution phase of the criminal proceeding starts as soon as indictment has been approved.

Defendant

The basic rights of the defendant during the criminal proceedings have been laid out above. There are, however, several rights that are not as fundamental, but equally important to ensure a fair trial.

The general procedure of the main hearing is outlined in Article 191 of the CCP. A provision that is particularly relevant to the personal well-being of the defendant is that he shall not be handcuffed during the main trial.

A defendant may be subject to physical bodily examination under the procedure provided for in Article 75 of the CCP. In order to obtain evidence of a committed crime, the judge or the trial court by its own motion, or upon the request of the public prosecutor or the victim; and in cases where there is peril in delay, the public prosecutor may issue an order to conduct an internal physical bodily examination. The decision of the public prosecutor shall be submitted for the approval of the judge or the court within 24 hours. The judge or the court shall issue its decision within 24 hours. Unapproved decisions shall be invalid, and evidence so obtained shall not be used.

According to Article 155 of the CCP, the defendant has a right for his/her legal guardian and spouse to be notified of the proceedings and for them to be present during the main trial.

If the court has declined to issue a summons request for certain witnesses that the defendant would like to be heard during the trial, the defendant may bring these witnesses directly to the main trial to have them heard by the court, according to Article 178 of the CCP.

The defendant has the right to a translator, pursuant to Article 202 of the CCP. If the accused selects for his oral arguments any language other than Turkish, he must choose an interpreter from the list of certified translators. The costs of translation are, however, not paid by the state.

Based on Article 311 of the CCP, a defendant can motion for a new trial,

“a) [i]f any document used in the main hearing and which had an effect on the judgment, is fraudulent;

b) [i]f it is discovered that any witness or expert who has been heard under oath has testified or used his vote deliberately or negligently against the convicted individual, contrary to the facts, in a way that affected the judgment,

c) [e]xcept fault caused by the convicted individual personally, while performing his duty, if any of the judges who participated in the judgment had been in fault in executing his duties, in such a manner that would require a criminal prosecution or a conviction with a punishment;

d) [i]f the judgment of the criminal court was based upon a judgment given by a civil court, and this judgment was reversed by another judgment which became final;

e) [i]f new facts or new evidence have been produced, which when taken in to consideration solely or together with the evidence previously submitted, are of the nature that require the acquittal of the accused or the conviction of the accused because of a provision of the Criminal Code that require a lighter punishment;

f) [i]f a final judgment of the European Court of Human Rights has established that the criminal judgment is violating the Convention on Protecting the Human Rights or its Protocols. In such cases, a motion for a new trial may be filed within one year after the date of the final judgment of the European Court of Human Rights”. If the defendant moves for a new trial, the court can decide to stay the execution of the judgment, per Article 312 of the CCP.

Lawyers

According to Article 149 of the CCP, a defendant has a right to defense counsel and according to Article 150 of the CCP such counsel must be appointed by the state, if the defendant cannot appoint counsel.

Article 74(2) of the CCP contains a special reinforcement of the right to counsel in stating that a suspect who is subjected to medical evaluation must be appointed counsel.

At all times does the defendant have a right, pursuant to Article 154 of the CCP, to an interview with his defense counsel, in privacy and confidentiality.

Subject to limited restrictions, according to Article 153 of the CCP, “[t]he defense counsel may review the full contents of the file related to the investigation phase and may take a copy of his choice of documents, and is not obliged to pay any fees for such”.

It should be noted that, within the framework of the National Judiciary Network Project (“UYAP”), there is a public and free-of-charge specific information system entitled “Lawyer Portal,” where lawyers are provided with an e-signature, mobile signature or e-government and online connection during office hours. They can open cases and enforcement proceedings online, make copies of case files, transfer e-signed documents, pay fees and expenses and subscribe to the SMS information system for instant information about their case.[141]

Witnesses

Article 43 of the CCP provides that witnesses are summoned to court. The summons has to contain an instruction about the consequences of failure to appear. These consequences are laid out in Article 44 of the CCP.

Two types of witnesses may refrain from testimony: those according to Article 45 of the CCP, with a personal relationship to the accused, and those according to Article 46, whose professional privilege bars them from testifying.

According to Article 45, the following persons may refrain from testifying:

“a) [t]he fiancée of the suspect or the accused,

b) [t]he husband or wife of the suspect or the accused, even if the link of marriage is not existing at that time,

c) [p]ersons related to the suspect or the accused in the ascending or descending direct line, either by blood relationship or affinity relationship,

d) [p]ersons lineally related to the accused within three degrees, or persons collaterally related to the accused within two degrees,

e) [p]ersons having a relationship to the accused by virtue of adoption”.

If a witness is not capable of understanding these rights, due to minor age, mental illness or mental weakness, they may only testify if their legal representative consents (Section 2).

According to Article 46, no testimony shall be required from:

“a) [t]he lawyers or their apprentices or assistants about the information they have learned in their professional capacity or during their judicial duty,

b) [m]edical doctors, dentists, pharmacist, midwifes and their assistants, as well as other members of the medical profession, about their patients’ information and that of the relatives of the patients that they acquired in their capacity as a professional,

c) [c]ertified public accountants and notary publics in respect to information of their clients that they acquired in their capacity as a professional”.

The person that the privilege protects may, however, consent to their testimony (Section 2).

Like the defendant, any witness has a “right to remain silent” and to not incriminate themselves, pursuant to Article 48 of the CCP.

Article 58 Sections 2, 3, and 4 provide for witness protection procedures if the testimony would put the witness in danger. However, according to Section 5 this only applies for crimes committed by organized crime gangs.

Expert Witnesses

The Turkish criminal procedure provides for the possible use of expert witnesses. These are generally chosen pursuant to Article 64 of the CCP from a yearly renewed list by the judicial commission. Experts not on that list might be appointed, if the motive of his appointment can be explained.

Article 62 of the CCP states that generally the same rules apply to expert witnesses as to regular witnesses.

Article 66(3) of the CCP outlines the basic mandate of the expert: “Experts shall fulfill their duties in accordance with the authority that had appointed them; they shall deliver information about the developments in their examination, if necessary, and may ask for the application of useful measures“.

According to Article 69 of the CCP, the grounds for exclusion of a judge apply to expert witnesses as well.

Judges

The presiding judge takes the lead in the trial, “interrogates the accused and provides for the presentation of evidence”, pursuant to Article 192(1) of the CCP. Article 193(3) of the CCP outlines the examination of the defendant by the judge. First, the identification of the defendant must be done in the hearing, than private and financial information is taken. Afterwards, the indictment is read to the defendant, and he is reminded of the right to remain silent and his/her other legal rights. When the defendant states that he is ready to testify, he/she is questioned by the judge.

According to Article 224 of the CCP, the courts have to decide unanimously or by majority vote.

The procedural aspects of the issuing of the final judgment are laid out in Articles 230, 231 and 232 of the CCP. These articles provide detailed requirements of the content and issue contained in the reasons of the judgment.

The accused, if he is present, shall be informed of “the legal remedies he may apply to, where to apply for them, and the time limits shall be notified” (Article 231(2)). If the accused is acquitted, he “shall be notified of ground of asking for compensation if there is any” (Section 3).

Victims

If the public prosecutor issues a decision for no ground for prosecution, Article 173(1) of the CCP grants the victim a right for motion of opposition.

Parallel to the accused, the victim might be subject to physical bodily examination, pursuant to Article 76 of the CCP.

According to Article 84 of the CCP, they may be present at any judicial inspection by the court.

The same right to recover the file of the investigation that is granted to the defendant’s legal counsel is granted to the victim’s representative by Article 153(5) of the CCP.

The rights of the victim during the trial phase of the criminal proceeding can be found in Article 234(1b) of the CCP:

# To be notified about the main trial;

  1. The right to intervene in the public claim;
  2. To demand copies from the records and documents via his representative;
  3. To demand the witnesses to be summoned;
  4. In cases of sexual assault and in crimes that carry imprisonment of five years at the lower level and less, if he has no representative, to demand the appointment of a lawyer on his behalf by the Bar Association;
  5. Under the condition to have taken the position of intervening party in the lawsuit, to attack the decisions that end the lawsuit by legal remedies.

Article 236(1) of the CCP provides that when a victim is heard as a witness, the same rules apply as for witnesses.

Articles 237 to 243 of the CCP stipulate the right of the victim to intervene in the criminal proceeding and thereby become a party to the proceeding alongside the public prosecutor.[142]

Pursuant to Articles 234 and 239 of the CCP, victims of crimes may apply to the CCPP Units and request that the relevant Bar appoints a lawyer to represent them as intervening party if the crime is a sexual offense or is punishable with five years of imprisonment or more.

The framework of the National Judiciary Network Project (“UYAP”), provides a public and free-of-charge specific information system, similar to that for lawyers, entitled “Citizen Portal” to inform and help victims of crimes, and efforts are underway to ensure that citizens may examine their files in a comprehensive manner and be informed via SMS of any updates.[143]

Sentencing

After conducting the hearing as prescribed by the law, the president of the court announces that the hearing has been completed and concludes the session.[144] The Court holds a closed session to discuss the outcome of the inquiry. Before reaching judgment, the court must first decide whether the proven fact constitutes a criminal offence or not. If not, the accused will be acquitted. If the court decides that it has been proven that the accused has committed a crime and there are no grounds to justify the punishable act, the accused will be pronounced guilty and then convicted. Then the court determines the punishment.[145]

The trial court may issue the following categories of judgments at the end of the trial:

  • “acquittal”;[146]
  • “no ground for punishing on the grounds of lacking culpability”;[147]
  • “no ground for punishing”;[148]
  • “conviction,” in cases in which the facts are proven;[149]
  • "conviction" in cases where the facts are proven and the accused is mentally ill, security measure instead of punishment, or security measure and punishment;[150]
  • “dismissal of the case,”[151]; and
  • dismissal or “dropping of the case”.[152]

If there is a ground for dismissing the case or setting the punishments aside, or if it is obvious that the conditions of criminal prosecution will not be realized, the court dismisses the case.[153]

Article 38 of the Turkish Constitution mandates the principles relating to offences and penalties, establishing that “no one shall be punished for any act which does not constitute a criminal offence under the law in force at the time committed; no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed.”

The Criminal Code provides for the penalties of imprisonment and fines (Article 45). Prison terms of up to two years – in the case of juveniles and the elderly, up to three years – may be suspended. Short prison terms may be commuted to alternate penalties such as restitution or community service.[154] The legal consequences of a prison sentence for an intentional offense include the temporary loss of certain rights such as the right to vote.[155] Objects or tools used in the commission of and proceeds gained from the offense may be taken from the offender by seizure [156] and forfeiture.[157] Juveniles, the mentally ill, and legal entities may be sentenced to various security measures.[158]

The enforcement of criminal judgments was regulated in Book Eight of the repealed Penal Procedure Code. These provisions have been transferred into the Law on Enforcement of Punishments and Security Measures (LE). Only final convictions (res judicata) may be enforced.[159] The public prosecutor enforces final judgments.[160]

Appeals

According to Turkish doctrine, legal remedies in Turkish criminal procedure are divided into two categories: ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedies are based on court judgments that are not final (not res judicata).[161] Extraordinary legal remedies apply against court judgments that are final and enforceable (res judicata). We will center on extraordinary legal remedies. Some relevant ordinary remedies were reviewed in Arrest, supra.

Some general requirements apply to all legal remedies. The first one is interest. Only the party who has interest in the review of the decision may apply for a remedy: the acquitted person has no interest in a legal remedy if the acquittal is based on the facts of the case. The petition for a legal remedy has a suspensive effect, and the original judgment of the trial court does not become final or res judicata. If a party does not apply for review, the judgment becomes final.[162]

There are two legal remedies against the final judgment of the courts of the first instance: “appeal on law and fact”, to be filed to the Regional Courts of Appeal and “cassation”, to be filed to the Court of Cassation. However, the law that governs the Regional Court of Appeals by 2015 had not been put yet in effect, and the motion of appeal on fact and law has not entered into force as of March 2014, thus the criminal justice system in fact recognizes only one ordinary legal remedy, which is cassation, against the final judgment. The Court of Cassation reviews all the petitions related to mistakes in the application of the law in final judgements of all trial courts, which is the one we will review.[163]

Ordinary Way of Cassation

Since there are no appeal courts hearing cases on fact and law, an interesting state of affairs has existed in Turkish Law since June 1, 2005: the provisions of the repealed Penal Procedure Code related to the ordinary way of cassation are applicable as the only legal remedy against judgments rendered by the courts. The Court of Cassation will be explained further. The citation of the law will appear with the mentions of the provisions of the Repealed CCP.[164]

The Court of Cassation or The Supreme Court, regulated in Article 154, is empowered to make final decisions on the conflicts concerning private and criminal laws. “The Ordinary Way of Cassation” regulates the party’s petition to the Court of Cassation for quashing the last judgment of the trial court. Only violation of the law can be argued in this legal remedy.[165]

At the request of any party involved in a case, the Ordinary Way of Cassation is awarded against the last decisions of trial courts.[166] If the conviction is related to deprivation of liberty for 15 years or more, however, then the Court of Cassation examines the case automatically.[167]

The ordinary petition for review must be made within one week of the decision given to the Clerk of the Court where the judgment was rendered.[168] The examination by the Court of Cassation is not limited to the issues raised by the appellant. The court has the power to examine the whole file and may quash the judgment because of a fundamental error in law made by the trial court that could have changed the outcome of the judgment and that was not known to the parties.[169] The problem of res judicata on those matters not objected to in the petition for review does not exist in Turkish Law.[170]

The second limitation to examination is critical: only the mistakes in the application of the law are reviewed. The factual findings are excluded from examination. The Court of Cassation may only quash the judgment of the trial Court if it determines that there are mistakes of law. However, in exceptional cases, as provided by the Code, where the mistake can be set aside without considering the facts, the Court of Cassation can correct the judgment on its own initiative without quashing the decision.[171]

There are four types of decisions of the Court of Cassation: quashing the judgment of the trial court, rejecting the petition, rendering a new judgment and dismissing the case.[172]

The Court of Cassation has the power to quash the judgment of the trial court and return the record to the same trial court [173] or to another court of equal jurisdiction.[174] Once the record is sent back, the trial court must seek the opinion of the parties concerned about the quashed decision.[175] It then has two options. The first is to accept the error and begin a new trial. The second option is to “insist” on the first judgment, arguing that there was no mistake in law. This “insisting” decision on the first judgment may be appealed again. If not appealed, the first judgment rendered by the trial court becomes final and res judicata.[176]

The Court of Cassation can reject a petition if it does not meet the necessary legal requirements. In this case, the judgment of the trial court becomes final and res judicata.[177]

It is worth mentioning that the Provisions of the New Penal Procedure Code Related to the appeal on law, that are not yet in force, provide that when the Regional Courts of Appeal are formed, the provisions regarding legal remedies are to change. Some of the relevant changes that will go in effect are the following.

The new Penal Procedure Code includes three extraordinary legal remedies: opposition of the Attorney General, “reversal in the interest of the administration of justice” and “re-opening of a trial”. In cases of major miscarriages of justice, the Code provides for the possibility of commencing a new trial in order to revise the sentence. If there is new evidence or a substantial error in fact, then a trial that had ended with a final judgment may be re-opened.[178] Also, in some cases, a motion for a new trial may be filed within one year after the date of the final judgment of the European Court of Human Rights, rendered on or after the date of February 4, 2003.[179]

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  147. Article 223(3) CCP
  148. Article 223(4) CCP
  149. Article 223(5) CCP
  150. Article 223(6) CCP
  151. Article 223(7) CCP
  152. Article 223(8)) CCP
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  155. Article 53 Criminal Code
  156. Article 54 Criminal Code
  157. Article 55 Criminal Code
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  162. Ib. Id. p. 71
  163. Ib. Id. p. 10
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  168. Article 310, repealed CCP
  169. Article 320, repealed CCP
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  172. Ib. Id. p. 76
  173. Article 321, repealed CCP.
  174. Article 322(2), repealed CCP.
  175. Article 326/1, repealed CCP
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  177. Ib. Id. p. 77
  178. Article 327 CCP.
  179. Feridun Yenisey, Criminal Procedure Law in Turkey, in International Encyclopedia of Criminal Law, eds., Frank Verbruggen, et. al. (2015), p. 87. URL: https://law.ku.edu/sites/law.ku.edu/files/docs/istanbul/criminal-procedure-istanbul-2015.pdf., Article 311 CCP.