Recent Development
The first package of the Judicial Reform Strategy Document, The Amendment to the Code of Criminal Procedure and Certain Laws (the “Law“), was published in the Official Gazette on October 24, 2019. The Law amends the Code of Criminal Procedure (the “CCP“) in line with the purposes and aims determined within the scope of the Judicial Reform Strategy Document.
What’s New?
The Law’s most important amendments to the CCP are as follows:
Limited detention periods in investigation phase: The amendment made to Article 102 of the CCP, “Period of detention”, limits detention periods in the investigation phase. In the former regulation, there was no clear provision on how long detention would last during the investigation phase. Pursuant to this amendment, the period of detention at the investigation phase shall not exceed six months for crimes that do not fall within the jurisdiction of the high criminal courts; and one year for crimes that fall within the jurisdiction of the high criminal courts. For crimes committed against the state and crimes within the scope of the Anti-Terror Law, the period of detention shall be a maximum of one year and six months and may be extended once for an additional six months. The amendment to Article 102 concerning the detention period will be applied as of January 24, 2020.
Except for offenses subject to mediation and prepayment, as well as certain offences specified in the CCP, the law now allows the possibility of postponing the initiation of the criminal case for five years for offenses requiring an imprisonment of three years or less: The amendment to Article 171/2 of the CCP, “Discretionary power to file a criminal case”, extends the scope of crimes subject to postponement of the initiation of the criminal case for a period of five years. Prior to this amendment, the public prosecutor could have postponed the initiation of the criminal case for offenses requiring a maximum one year imprisonment of which investigation is subject to a criminal complaint. The new regulation increased the upper limit for the postponement of a criminal case filing to three years. This amendment is not applicable to cases where a criminal lawsuit was already filed as of the date this regulation comes into force (i.e., October 24, 2019).
Accelerated trial procedure introduced: The amendment allows suspects accused of certain crimes and who have attorney representation to reach agreements with public prosecutors. These crimes include those listed in the Turkish Penal Code (the “TPC“) and certain crimes under the Law on Firearms and Knives and Other Appliances; Forestry Law; Law on Roulette, Tilt, Foosball and Similar Game Tools and Machines; and the Cooperatives Law. Accordingly, the public prosecutor can propose to the suspect the application of the accelerated trial procedure; if the suspect agrees before a lawyer, the accelerated trial procedure shall be applied. In this respect, the public prosecutor will determine the penalty by reducing half of the standard penalty to be determined between the lower and upper limits of the crime and, if necessary, include the penalty within the scope of postponement. The regulations regarding the accelerated trial procedure will come into force as of January 1, 2020. The accelerated trial procedure is not applicable to cases where the criminal lawsuit was initiated, or the judgement was made or finalized as of January 1, 2020.
Simple trial procedure introduced: The simple trial procedure had no previous application in the criminal justice system. The amendments allow first instance criminal courts to apply the simple trial procedure for crimes that require a judicial fine and/or imprisonment of two years or less. If courts decide to apply the simple trial procedure, the indictment will be notified to the defendant, injured party and complainant, and these parties will be asked to submit their statements and defenses in writing within 15 days as of the receipt. After the time given for the statements and defenses has expired, the court can render a decision without holding a hearing and taking the public prosecutor’s opinion. In case of imprisonment sentence, the penalty will be reduced by a quarter. The regulations regarding the simple trial procedure will come into effect as of January 1, 2020, and the simple trial procedure will not be applied to the cases that the criminal case has been initiated; the judgement has been made or has been finalized as of the date of January 1, 2020.
Scope of decisions that may be appealed before the Court of Cassation expanded: The Regional Court of Appeals’ decisions for the following crimes regulated in the TPC will not be final: (i) defamation; (ii) issuing threats creating fear and panic among the public; (iii) inciting the commission of a crime; (iv) praising a crime and criminal; (v) inciting public to hatred and enmity or humiliating the public; (vi) inciting non-compliance with laws; (viii) defamation of the President of the Republic of Turkey; (ix) defamation of the state’s symbols of sovereignty; (x) defamation of the Turkish nation, the Republic of Turkey, the state institutions or their organs; (xi) an armed organization; (xii) alienating the public from military service; and certain crimes under the Anti-Terror Law and Law on Gathering and Demonstration March. The Regional Court of Appeals’ decisions may be appealed before the Court of Cassation.
Conclusion
The Law made significant and fundamental changes to the criminal justice system, which includes regulations in line with the aims and objectives determined within the scope of the Judicial Reform Strategy Document.
In our opinion, these amendments make great strides to prevent long detention periods and long trial periods. Increasing the number of decisions subject to the review of the Court of Cassation is important for the development of the judicial system in Turkey and to strengthen the Court of Cassation’s precedents.
