4th Judicial Package Amendments With Article Justifications
GENERAL RATIONALE
In the Judicial Reform Strategy Document prepared by the Ministry of Justice and announced by the President on 30 May 2019, the vision of “a trustworthy and accessible justice system” was emphasised, while in the Human Rights Action Plan announced on 2 March 2021, the vision of “free individual, strong society and more democratic Turkey” was brought to the fore.
Within the scope of this strategy, important reforms were implemented; the duration of detention in the investigation phase was limited and new and effective procedures such as summary proceedings, simple trials and e-trial were introduced.
The Turkish Penal Code includes many offences aimed at protecting the right to life and bodily integrity. The fact that these offences are committed against the victims, who are relatively easier to reach, in this context, against the spouse or close relative, is regulated as an aggravating factor. The fact that the disputes that arise between the spouses during the divorce process, which grow and even turn into enmity, continue after the divorce facilitates the occurrence of such violent incidents. For this reason, the need to accept the fact that the victim is a divorced spouse as a qualified case in terms of the crimes of murder, injury, cruelty and deprivation of personal liberty, which are crimes against life, bodily inviolability and liberty, has emerged.
In accordance with the Constitution and the European Convention on Human Rights, as well as the basic principles contained in many international texts, some regulations are made in the Code of Criminal Procedure.
Arrest, which is the most severe of the protection measures, is not a means of punishment in the judicial process, but a measure regulated in order to carry out the investigation and prosecution stages more effectively. Additional arrangements have been made regarding the conditions for the application of the arrest measure and the periodic review procedure, maximum periods and the possibility of offsetting have been introduced in terms of judicial control measures. The aim is to protect personal freedom and security.
On the other hand, a vertical objection procedure has been introduced instead of a horizontal procedure in the examination of objections against the decisions of criminal judgeships of peace regarding arrest and judicial control measures. The review authority against these decisions will be the Criminal Courts of First Instance.
In addition, as a result of the acceleration of the organisation and decision-making processes of the executive in the new government system and the development of technology, the administration has become more effective and faster in service delivery. In order to ensure that the results of this progress can be felt directly and to strengthen the individual-oriented management approach, the time to respond to applications to the administration has been shortened and the right of access to court has been strengthened.
ARTICLES AND JUSTIFICATIONS:
In order to improve the rule of law principle and to strengthen the individual-oriented administration approach,
ARTICLE 1: With the amendment made in Article 10/2 of the İYUK, the Implied Refusal Period has been reduced from 60 days to 30 days. In addition, the Waiting Period for Final Response has been reduced from 6 months to 4 months.
ARTICLE 2: With the amendment made in Article 11/2 paragraph of the İYUK titled Application to Higher Authorities, the Implied Refusal Period has been reduced from 60 days to 30 days
ARTICLE 3: With the amendment made in Article 13/1 paragraph of the İYUK, the Implied Refusal Period has been reduced from 60 days to 30 days regarding the applications for preliminary decision-making, which is a prerequisite for the Full Judgement Cases to be filed directly.
These arrangements have been made.
NOTE: If different periods are stipulated in special laws, the periods within the scope of the special law shall apply.
In order to prevent delays in the proceedings and to use the right to be tried within a reasonable time and the freedom to seek rights more effectively
ARTICLE 4: The sentence “the decision shall be written and signed within 30 days from the date of its issuance.” has been added to Article 24/1 of the İYUK. As a result, final decisions must be written within 30 days at the latest, together with the reasons.
ARTICLE 5: Provisional ARTICLE 10 to the Law “The previous periods shall apply to the applications made to the administration pursuant to Articles 10, 11 and 13 before the effective date of this article.
ARTICLE 6,7,8,9: With the amendments made to the Turkish Penal Code, the offences of intentional killing, intentional injury, cruelty and deprivation of liberty committed by the perpetrator against his divorced spouse have been included among the qualified forms of the offences.
ARTICLE 10: With the paragraph added to Article 12 of the Code of Criminal Procedure, in crimes committed by using information systems, bank or credit institutions or bank or credit cards as a tool, in addition to the court where the crime is committed, the victim’s place of residence has also become competent in terms of jurisdiction.
ARTICLE 11: In line with technological developments, in addition to the existing procedure, a sentence has been added to Article 44/1 of the Code of Criminal Procedure, and it has been added that the notification of compulsion decisions shall be made by using communication tools such as telephone, telegraph, fax, electronic mail. However, for this, it is necessary to have the contact information of the witness in the file and it will be sufficient to notify by at least one of the listed means. (To enter into force on 1.09.2021)
ARTICLE 12: Article 94 of the Code of Criminal Procedure states that “the CB may order the release of a person who is arrested outside working hours pursuant to an arrest warrant issued to take his/her statement and who undertakes to appear before the judiciary on the specified date. This provision may be applied only once for each warrant. The person who fails to fulfil his/her commitment shall be imposed an administrative fine of 1000 TL by the CB where the warrant was issued.
With this added paragraph, it is aimed to prevent the arrest warrant, which is one of the protection measures restricting the freedom of persons, from causing irreparable damages.
ARTICLE 13: With the amendment made to Article 100/3 of the Code of Criminal Procedure, in order to apply the arrest measure for the crimes listed in paragraph 3 (catalogue crimes), there must be concrete evidence showing strong suspicion of a crime.
Already, when the 1st, 2nd and 3rd paragraphs are evaluated together, the same conclusion will be reached, but this regulation has been made due to some hesitations in practice.
ARTICLE 14: With the amendment made to Article 101 of the Code of Criminal Procedure, it has been accepted that in the decisions of the judge or court regarding arrest, continuation of detention or rejection of a request for release in this regard, in addition to the existing conditions, the evidence showing that the judicial control application will be insufficient must be clearly shown by justifying with concrete facts.
ARTICLE 15: Amendment to paragraph 6 of Article 109 of the Code of Criminal Procedure With the amendment made to paragraph 6 of Article 109 of the Code of Criminal Procedure, the obligation not to leave the residence is considered as a reason for limitation of personal liberty, and it is ruled that every 2 days spent under this obligation will be taken into account as 1 day in the offsetting of the sentence.
ARTICLE 16: By amending Article 110 of the Criminal Procedure Code, in the investigation phase, a decision will be made by the SCH upon the request of the Public Prosecutor at intervals of 4 months at the latest on whether the suspect will require the continuation of the judicial control obligation. In the prosecution phase, the court will decide ex officio for a period of 4 months at the latest. (Will enter into force on 1.1.2022)
ARTICLE 17: By adding Article 110/A to the Criminal Procedure Code, maximum periods for judicial control measures have been determined. With the regulation, it is aimed to secure the freedoms of individuals and to prevent the excessive application of judicial control measures. (To enter into force on 1.1.2022)
Maximum 2 years in cases that do not fall under the jurisdiction of the Serious Criminal Court, this period can be extended for 1 more year by showing justification in mandatory cases.
In the cases that fall under the jurisdiction of the Serious Criminal Court, the maximum period shall be 3 years, and this period may be extended for 1 more year by justifying in compulsory cases. However, the extended period shall not exceed 3 years in total, and 4 years for the offences defined in the fourth, fifth, sixth and seventh sections of the fourth, fifth, sixth and seventh part of the second book of the Turkish Penal Code and the offences falling within the scope of the Anti-Terrorism Law.
In addition, judicial control periods shall be applied at the rate of ½ for children.
ARTICLE 18: By adding a provision to the 3rd paragraph of Article 137 of the Code of Criminal Procedure, it has been ruled that the records related to the detection or interception shall be destroyed under the supervision of the judge when the verdict of BREAATH is given, as in the case of a verdict of KYOKOK. However, these records will be destroyed only after the acquittal decision is finalised.
ARTICLE 19: With the amendment made to Article 170, paragraph 4 of the Criminal Procedure Code, it has been stipulated that in the part of the indictment where the events are explained in relation to the evidence, information that is not related to the events constituting the charged offence and the evidence of the offence cannot be included.
With this amendment, the right to demand respect for private and family life, as well as personal rights, as enshrined in the Constitution and the European Convention on Human Rights, has been sought to be protected.
ARTICLE 20: By adding a provision to paragraph 1 of Article 176 of the Code of Criminal Procedure, it has been accepted that the information regarding the indictment and the date of the hearing will be notified to the accused by making use of communication information such as telephone, fax, electronic mail if they are available in the file. However, the consequences attached to the call recording shall not be applied in this case. It will be sufficient to notify the defendant by at least one of the listed means. (To enter into force on 1.09.2021)
This regulation has been made with the aim of increasing judicial efficiency and productivity in parallel with technological developments.
ARTICLE 21: With the provision added to paragraph 1 of Article 233 of the Code of Criminal Procedure, it has been made compulsory to attach the indictment to the summons when the prosecution phase starts in order to ensure that the victim or complainant is informed of the legal characterisation of the offence before the trial begins. The innovations introduced in Article 20 (fax, telephone …) are also valid for this article.
In addition, with the amendment made in paragraph 2 of the Article, the provisions regarding witnesses will be applied in terms of the compulsory summons to be issued for the victim or the complainant. This situation should be evaluated together with the provision of Article 44 regulated by this law (Article 11) (will enter into force on 1.09.2021)
ARTICLE 22: With the provision added to paragraph 4 of Article 25 of the Criminal Procedure Code, it has been made possible to apply the provisions related to chain offence in case the conditions of serial procedure are found. The basic penalty shall be determined between the lower and upper limit of the penalty stipulated in the legal definition of the offence, taking into account Article 61 of the Turkish Criminal Code, and the penalty shall be reduced by half after the increase related to the chain crime if the conditions are found.
– With the provision added to paragraph 8 of the Article, it is regulated that the request letter may be returned to the CBS in order to complete the deficiencies determined by the court. After the deficiencies specified by the court are completed, the request letter will be redrafted and sent to the court.
– The regulation in paragraph 9 of the Article has been made in line with the cancellation decision of the Constitutional Court dated 31.03.2021 and numbered 2020/35 Esas; 2021/26 K. Accordingly, the court, which receives the request letter in the summary procedure, should reject the request if it concludes that a decision such as acquittal or dismissal should be made other than conviction by evaluating the evidence in the file. Since the court does not have the authority to extend the investigation and collect new evidence in order to investigate the material truth, it must reject the request in order to reveal the material truth.
– With the provision added to the 11th paragraph of the Article, it is regulated that this procedure shall not be applied if the offence included in the summary procedure is committed together with an offence not included in the serial procedure.
– With the amendment made to paragraph 14 of the Article, the objection made against the judgement established by the court within the scope of paragraph 9, the objection authority shall examine the objections in terms of the conditions in paragraphs 3 and 9.
ARTICLE 23: With the addition of a provision to paragraph 1 of Article 251 of the Code of Criminal Procedure, it has been regulated that the simple trial procedure cannot be applied after the acceptance of the indictment and after the trial date is set in accordance with Article 175.
ARTICLE 24: With the amendment made to Article 268 of the Criminal Procedure Code, it has been regulated that the objections against all kinds of decisions of the SCH regarding arrest and judicial control measures will be examined by the Criminal Court of First Instance in the judicial circle.
In the event that the SCH’s affairs are handled by the ASCM, the authority to examine the objections to be made in this case is the President of the Criminal Court of First Instance located in the judicial circuit.
Thus, instead of the horizontal objection procedure, a vertical objection procedure has been introduced.
NOTE: For decisions other than arrest and judicial control measures, the objection will be examined according to the existing procedure in paragraph 3 of Article 268.
(to enter into force on 1.1.2022)
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