TURKİSH CRIMINAL LEGAL SYSTEM :
i.
Where do the
laws of Turkey apply?
A ) Laws of Turkey, are executed about the crimes commited in
Turkey. One crime is accepted to be executed in Turkey if one of the following conditions must have
been asked for to become true :
-
Action takes place partially or entirely in Turkey or conclusion of the action occures
in Turkey,
-
Crime is executed in continent or airspace and
territorial waters of Turkey.
-
Crime is executed in open water and airspace
above this, in Turkish aerial vehicles and water crafts or by these vehicles.
-
Crime is executed Turkish water crafts and
aerial war vehicles or or by these vehicles
-
Crime is executed in continental shelf or
restricted to fixed platforms built in the economical regions or against these.
B ) If these specified
crimes are executed in foreign country by the citizen or foreigner, law of
Turkey is executed; international crimes, crimes against hegemony brands of
government or govermental body, crimes against goverment security, crimes
against constitutional principle and establishing these principles, crimes
against national defence, crimes against goverment secrets and espionage,
crimes against relations with foreign governments, tortures, environment
pollution on purpose, narcotics or production and commerce of narkotic drugs,
facilitation using narcotic drugs, forgery of banknotes, production and
commerce of vehicles manufacturing moneys and valuable imprint, forgery in
affix, prostution, seajack, highjacking, trainjacking or keeping them or
damaging crimes against these vehicles.
C ) A foreigner, out of the crimes
specified above, executing according to laws of Turkey with the minimum limit
of one year prison term, to the prejudice of Turkey in the foreign country and
in case the criminal himself presented in Turkey, punished against laws of
Turkey. Exercise of judjing depends on demand on Minister of Justice.
D ) One of the crimes specified above
executed against Turkish citizen or against private law legal person according
to laws of Turkey and that criminal presented in Turkey and by the condition
which the criminal hasn’t adjudged in the foreing country about that crime upon the complaints of aggrieved person, the
criminal will be punished according to laws of Turkey.
**( TCC item
8 – 12 – 13 )
ii.
Is the
system a civil law or a common law system?
Our criminal
law system is composed of written laws. ( Ciwil Law System) Turkish Criminal
Code and Code of Criminal Procedure are predicated on penalty judjing and
according to these law elements adjudication is established by law court. While establishing adjudication law courts
take into consideration decisions made also by Court of Appeal. Conventions would not handled on Turkish
Criminal Law System. The ones at each sides can present specialist sentiments
about the trial in the law court. Law
court takes into consideration of these sentiments with the means of evidence
excluding decisions made by Court of Appeals.
Also across interrogation is possible to the witnesses and court
experts.
2 – ARREST AND INVESTIGATION :
i.
What are my
rights upon arrest?
A
– Right to information :
i.
Will the
police inform me of my rights? Will this be done orally or in writing?
After
providing against the captured person to
harm himself or others, the police informs the captured person of his/her
rights immediately. This notification can be done orally or in writing. During the police impementation in our country
the suspect or accused’s rights would not be informed one by one, the documents on which these rights are written have been
signed. Suspect or accused should read the documents signed to them carefully,
if it is needed he/she should want the writings be interpreted to their own
language.
** ( TCC item 90/4 )
ii.
Do I have a
right to be informed of the allegations/charges against me?
During questioning and examining the
suspect or accused, he/she is informed of the allegations agains him/her.
Telling about the allegations is the statutory obligation. Most of the time in
application suspect or accused is not informed detailly about the accusation
attached to him/her. This occasion also constitude contradiction to the
European Convention on Human Rights (ECHR) in which Turkey has become a part
of.
B
– Right to inform people :
i.
I have a
right to have the consulate informed of my arrest? / ii. Do I have a right to
inform family of arrest?
At the time
suspect or accused is captured, is taken into custody or the custody time is
extended, one of his/her relatives or
one person the suspect determined, instantantaneously be informed by the Public Prosecutor. If the
person who is captured or taken into custody is a foreigner, his/her situation
is informed to the consulate of his/her civil government in a written way if
he/she doen’t beard of it.
The person
who is determined by the suspect or is informed without delay by judge decision
about the arrest and about all the
decision related extending the capture
time.
Also, without
making to jeopardize the purpose of investigation, person who is under arrest
allowed to inform his/her relatives or the person determined by him/her.
In practice,
in the case of arrestation if one of the suspect’s relative exhibits the
telephone bill to the prison officers,
the arrested person is able to call his/her relative one time in a week during
the time he/she is under arrest.
** ( CCP item
95 – 107 )
Suspect or accused is informed that he has the right to choose a lawyer and will able to benefit from his legal help, and this lawyer will be present on the statement stage or through the interrogation stage. If he/she is not in the position to choose a lawyer and if he/she wants to benefit from the help of the lawyer, a lawyer is charged by the Bar Council to him/her. Suspect or accused has the right to remain silent and not to make a statement until his/her own lawyer or the lawyer by the Bar Council charged arrives and meets him/her.
D – Do I have a right to a translator / interpreter?
In the law system of Turkey, foreigners’ right to benefit from interpreter that is free of charge has been specified explicitly. Also according to European Convention on Human Rights (ECHR) , it is obvious that foreigners have the right to benefit from an interpreter. Therefore suspect or accused has to be surely insistent on demanding an interpreter besides before the deposition they should test the authority of the interpreter to his/her related language. Because especially in small places the person, whose business is not interpretership, called to be interpreter and doensn’t have the authority for that language and consequently it is observed that they make interpretation wrongly.
ii.
Do I have to talk to the police or can I remain
silent during police interrogation? What consequences can my silence bear?
According to the law system of Turkey, suspect or accused has the obligation to answer rightly the questions
about his/her identity but has the right to remain silent about the crime
accused to him/her. Remaining silent doesn’t mean that he/she accepts the
charges. In practice the case is different, according to Turkish punishment
practice remaining silent comes through in the direction of the charges are
rather be accepted by the suspect or accused. On this account, suspect or accused announcing to the
court/prosecuting counsel to remain silent until meeting the lawyer, is in
favor of him/her. ** ( CCP item 147 )
iii.
When will I know about the charges against me?
Will I be allowed to access a file?
According to the law system of Turkey, during
police interrogation or statement of suspect or accused,
the crime charged on is defined to him/her. There is no barrier in the penal
code for the suspect or accused looking over the file oneself by taking a copy
of it but in practice, it is possible for him/her to reach the file through
his/her lawyer. . ** ( CCP item 147 / 1 – (b) )
iv.
How long can I be kept on remand ( i.e. prison )
before my trial starts?
The length imprisonment before trial
changes according to the crime’s duty of the high criminal court or not.The cases which are not on duty of high criminal court, restraint time is at most one year and it is possible to extend this time six months more on mandatory cases by specifying the necessary reasons. And the cases which are on duty of high criminal court, restraint time is at most two years and and it is possible to lenghten this time theree years more on mandatory cases by specifying the necessary reasons. Extension decision is taken after taking views of public prosecutor, suspect or accused with lawyer.
** ( CCP item 102 )
v.
What is an investigative magistrate?
According to the law system of Turkey, in
red handed occasion and in cases have unfavorurable effect on delay, if it is
not possible to reach chief public prosecutor or the
working force of the chief public prosecutor is exceeded with in the large
case, judge of police can also do the all investigation processes. Law-enforcement officers, take the cautions prescribed by the judge of police and fulfill the investigations.
** ( CCP item 163 )
3 – LEGAL REPRESANTATION :
i. How can I find a lawyer?
Suspect or accused, has the right to have a lawyer from the related bar council in the exposition and investigation. In the case of demand without exception it is mandatory to get a lawyer free of charge to the suspect or accused. Besides during the trial he/she may want a lawyer free of charge. But in practice the lawyer sent by the Bar Council is generally chosen among the lawyers newly started their career. Because of this if the suspect or accused has a lawyer he/she knew and trusted, he/she has to reach him; if not, it is appropriate chosing one of the lawyers in the Consulate List of the government he/she is subjected, who is experienced in penal law or getting benefit from well-known and prestigious human rights organizations like FTI.
ii.
What is the role of my lawyer? Will he investigate
the case?
Suspect or
accused, is able to benefit from the help of one or more lawyers in every step
of investigation and prosecution. The right of the lawyer in every stage,
meeting with the suspect or accused, present beside during the depositions or
investigation and lending legal help shouldn’t be blocked or constrained.
Firstly the lawyer should provide the suspect
or accused to be able to make a statement healthy without remaining under any
pressure. Also during the trial he should consider the case truly, should present
the idenfications appropriately, should know about the international
conventions became important on practice which Turkey is a part of and that is
like European Convention on Human Rights (ECHR) and should provide collecting the evidence in
favor of his client.Furthermore, at the penalty trial of Turkey by analysing carefully the decisions of Supreme Court of Appeals that have big importance role, the lawyer should present the decisions in favor of his client. Besides, according to the gravity of the crime, it is necessary taking independent reports from the specialized authorities and forensic medicine specialists. Also according the specification of crime it is also necessary the lawyer to get across with NGO s and human rights organisations in favor of his client.
** ( CCP item 149 )
iii.
I cannot afford to pay for a private lawyer, what
shoul I do? ( is there legal aid? How should I apply? What are the criteria to
be eligible? What is covered by legal aid? ) –
According to the law system of Turkey, it
is necessary the suspect or accused to choose a lawyer. A lawyer is charged if
suspect or accused demands or claims that he/she is not able to choose
one. Suspect or accused which doesn’t
have a lawyer; the child, disabled to defend oneself or deaf and speechless, a
lawyer is charged in the lack of any demand. Also during the investigation and
prosecution made due to prison terms with the lower limit of five years, a
defense lawyer is charged in the lack of any demand.
iv.
I am unhappy with my lawyer, how can I change a
lawyer?
In practice, it is seen that the
main reason of having difficulties between the lawyer and his client is
communication gap. Suspect or accused,
has benefit working with the lawyer who understands
his/her own language or be able to communicate in any language he/she
knows. Lawyers work in accordance with
the instructions of their clients but being criminal lawyers is a branch which
the lawyer has to direct his client at the same time. Consequently if the
suspect or accused thinks that he/she doesn’t take a good legal service, he/she
has the right to discharge his/her lawyer from the duty at any time he/she
wants to. In the discharge of the lawyer, all of the charges are paid. But there
is no need to pay the charge if the lawyer is discharged because of his fault
or negligence.
** ( Advocacy Law item 174 )
v.
How can I complain about my lawyer?
Lawyers in Turkey, are registered
to the Bar Council in the city they work in. The clients, present as a brief
complaining about lawyers to the bar council of that lawyer is related to. This presented brief, analysed by Board of
Directors and if it is approved warning penalty is given to the lawyer. Also it
is possible to complain about the lawyer directly to the chief public
prosecutor. This complication, is processed after the allowance of the Ministry of Justice because of the lawyer
doing public service.
4 – PRE – TRIAL MATTERS :
i. Will
I have to stay in prison until my trial starts?
The suspect or accused doesn’t have to be remanded
in custody until the trial is started by the Court. The public prosecutor is able to want letting the suspect go from
the judge of police by being taken under the judicial control. The suspect who
has given a custody decision about and also the defense lawyer is able to make
processing the same situation. During the investigation if the public prosecutor decides to be in the opinion
of the judicial control and custody is now unneccasary, the suspect is
deallocated on its own initiative. And when the investigation decided not to be
in place, the suspect or accused is released. In every step of the investigation and prosecution, the suspect or accused may want to be released. It is decided the restraint of the suspect or shady person to be continued or released by the adjudicator or the court. It is possible to take objection to the refusal decision.
When the file came to the law court of the region or court of appeal, the decision about the demand of being released, is given after the analysis on the file by the related court of appeal or upper court of the related court; this decision is on its own initiative.
** ( CCP item 103 – 104 – 105 )
İi
How long before my case goes to trial?
The assigment
opening criminal case belongs to public prosecutor. If
there is enough doubt in the direction of the crime is committed after the end
phase of investigation according to the evidence collected, without suffering delay the public prosecutor sends this to the
criminal court by composing the indictment. There is no any legal restriction
about the time being composed of the indictment. In practice, the composition
of the crime or like the work load of the prosecution office is determinent
about the time. It can be seen the indictment is accomplished in three or six
months at simple accuses, and then in the aggravated crimes is accomplished at
longer times.
In order to open the criminal case,
the court gives the decision of
accepting the indictment in 15 days. If it seems to be necessary by the court,
it negotiates the indictment back to the office of the public prosecutor in
order to accomplish the missing parts. Prosecuting counsel has the right to
appeal this decision. If the appeal is not accepted, the prosecuting counsel
prepares the indictment again by accomplishing the missing parts and presents
it to the court.
In practice, especially the
criminal courts accept the indictments.
** ( CCP item
160 – 170 – 175 )
iii.
There are always delays with my case, does that
mean my lawyer does a bad job?
The trial not
ending in a short time and delaying the cases in many times are the results of
the work which the courts have over their capacity. Collecting the evidence
during the trial, making the writings among the corporations and etc. All of the
procedures executed by the court, the
lawyer’s authority is limited in these cases. Because of this, making a
contribution helping to accelerate the trial by following the file well, not
missing the trials, demanding to postpone the dates of trial to sooner dates,
facilitating the job of the adjudicator in some points like directing him
collecting the evidence to help providing to brighten the case and etc. But, it has to be declined that, all the
attempt made by the lawyers, the judging process depends on the appreciation of
the adjudicator and it is impossible for the lawyers exactly providing against
the delays and providing the cases coming to a conclusion earlier.
iv.
Are there alternatives to detention pending trial?
In the case
assets of facts that show strongly crime doubt and finding the cause of
detention, it may be given a detention
decision about the suspect and accused.
In the case of the importance of the job, not being continence with the expected given penalty and security policy, detention
decision can not be given. It can be assumed there is a reason for the
detention if the following cases occur:
a) Escape of the suspect and shady person,
hiding or if there is objective facts raising doubts he/she will escape
b) The behaviours of the suspect or accused;
1. Destroy, hide and change the evidence,2. Attanding to make pressure on witness, victim or others,
Composes strongly doubt about these issues.
If there is strongly doubt reasons about committing following crimes, we assume there is need for detention:
1.Crimes
against genocide and hummanity, 2. Killing on purpose, 3.
Injury with the help of gun on purpose and with consederation of consequence of
aggravated injury on purpose, 4. Cruelty, 5. Sexual abuse, 6. Sexual abuse of
children, 7. Robbery and spoilation, 8. narcotics or
production and commerce of narkotic drugs, 9. Organize in an effort to commit a
crime, 10. Crimes against government security, 11. Crimes against constituanal
principle and against avoiding to processing these principles, 12. Arms traffic
crimes defined in the law about the firearms and knives and with other tools,
13. Embezzlement 14. Crimes needed prison terms and defined in the law of
conflict with illegal traffic. 15. Crimes defined in the 68 and 74 th topics of
Law of the Preservation of cultural and naturel assets. 16. Crimes firing the
forests on purpose.
Only in forensic money penalty
offence or in the crimes that prison terms have an upper limit more than one
year, detention decision may be given.
In the form of existing the detention of
the reasons explained above, during the
executed investigation because of one crime having an upper boundary of there
or less prison terms, instead of detention of the suspect, it can be able to be
decided taking under judicial control. According to the law also in the cases that detection inhibition is foreseen, judgements relative to judicial control may be applied.
Judicial control composes the suspect to be subjected to one or more obligations described below:
a) Not being able to go out of country.
b) Apply to the places specified by the judge at the specified times and regularly. ( In practice, give manual sign regularly to the police office/gendermerie near the residence of the person)
c) To adjust the calls of the authority or people specified by the judge and adjust control cautions about the issues attendance to the education or the issues related his occupation if needed.
d) Not to use all the vehicles or some of the vehicles and if needed to consign driving license in consideratiom of the receipt form to the office handling the paperwork for a governmental department.
e) So as to became clean especially from narcotics, narcotics drug or volatile substances, including to stay in hospital, treatment or being subordinate oneself of examination cautions and accept them.
f) Take into consideration about the financial position of the suspect, pay at once or more than once in payments with payment times and the amount of money guaranteed specified by the adjudicator on the demand of public prosecutor.
g) Not having present of guns or not being able to carry them, if needed consign the owned guns to the forensic custody in consideration of receipt.
h) On the demand of public prosecutor assess the amount of money with payment times which is specified by the judge in kind and personal guarantee in covering the right of the victim of guilt.
i) To provide security of filling the famiy obligations and paying the alimony regularly obliged to the forensic decisions.
** ( CCP item 100 )
v. How and when can I apply for bail?
According to the law system of Turkey, on the occassions which the detention cases are available, in the investigation of the crimes having as an upper limit of three years or less of prison terms, instead of the suspect of being detentioned it can be decided to be under judicial control.
Also on the occasions thet detention is forbidden, the adjudication can be applied related to judicial control.
Take into consideration about the financial position of the suspect, also pay at once or more than once in payments with payment times on the demad of public prosecutor the amount of indemnity money specified by the adjudicator, is one of the types of forensic control.
(4) (Appendix article 25/05/2005-5353 S.K./14 th.item)*1* Suspect, (a) and (f) bents of the third article dependent on written obligations, limit of time mentioned in the first article can not been takken into consideration. So, without having no time obligation, it is possible for releasing the suspect under the conditions of deposit of indemnity in every occasions which the adjudicator approves.
** ( CCP item 109/2-f )
v.
How often will the decision on bail be reviewed?
If the convict
performed all of the obligations truly, indemnity related to these obligations
is given back to him.
If there is no need to investigate or
also if acquittal decision is given the second part of the imdemnity not yet
given to the victim of crime or to the alimonia demander,is given back to the
suspect or accused person. Otherwise, out of the valid excuse, assurance is
written as an income to the government treasury. In the case of convict, the part of the indemnity specified in the laws is used, the rest part is given back.
** ( CCP item 113 - 115 )
vi.
What conditions can be imposed?
Insurance shown by the suspect or convict, provides to accomplish the subjects written
below:
a) The suspect or convict will be ready to in order
to accomplish other obligations execute
the judgement executed in all course
action procedures.
b) Giving the payments according to the sequence
described below:
1. The expenditures made by the
participant, overcoming the damages caused by the guilt and reinstate their
status; if the suspect or convict is being investigated because of not paying
the bail charges. 2. Public expenditures.
3. Money penalties.
On the decisions had to be given in order to show the suspect or convict for insurance, the parts related the insurance has shown indivudally.
If wanted the judge, with the acceptance of the court or public prosecutor, suspect or convict, the parts of the insurance corresponds to the rights of the victim or the parts corresponds to the bail charges have to be given as an order to the victim or the bail takers.
Because of the cases that compose the subject of the Investigation and prosecution, if he court decision given favoured by the victim or the bail taker, disregarding the acceptance of the suspect or convict, discharging the payment has to be ordered.
** ( CCP item 113 – 115 )
viii. Can I go back to my home country while on bail?
If there is no decision applying the judicial control about the suspect for “the forbiden of leaving abroad” and there is no other law court decision preventing the suspect of leaving abroad, there is no problem of him/her returning back to his home country.
ix. What will happen if I breach my bail conditions?
About the suspect or convict who doesn’t perform the judicial obligations, it does not matter howlong the prison term is, the executive authority is able to decide for the detection immediately.
x. Do I need a lawyer to apply for bail?
According to the laws of Turkey the demand of releasing is able to be made by the lawyer or the suspect or convict himself.
xi. Can I plead guilty? What are the consequences of pleading guilty?
Confession of
the suspect or convict, does not eliminate the obligation he/she has to be
involved. But; specifying as attenuating reasons, have the possibility of
deduction in his penalty. According to penalty law of Turkey, if there are
reasons benefit to convict to make a deduction in the penalties, instead of
life sentence in solitary confinement and with no possiblity of parole, life
imprisonment penalty; instead of life imprisonment penalty, twenty five years
of prison terms is given. Other penalties are deducted up to twent percent in
case there is an attenuating reason.
As the cause
of deduction, the past of the convict, social relationships, the behaviours
after the action and behaviours during the trial, the cases like the possible
effects on the future of the convict is able to take into consideration. The
reasons of deduction have to be shown on the decision. Not showing these facts
is the reason for appeal.
** ( TCC item
62 )
5 – TRIAL :
i.
What happens
at the trial?
Judicial council or judge explains that he is starting of the trial by reading the acceptance decision of the indictment. In the trial, succesively;
a)The open identity of the convict is established, personal and economical information is taken about himself,
b) Explaninig that he has legal rights to remain silent about the crime related to and other legal rights are told,
c) If the convict declares that he/she wil not use the right to remain silent and is ready to make an explanation, interrogation is made due to the procedure.
Firstly the
judicial council or judge reads the convict his declaration he/she made in the
police office, asks questions to brighten the case. In this stage, neither the lawyer
of the victim nor the lawyer of the convict are not able to intervene the
investigation the adjudicator makes.
After this
stage, the participants are able to questione the convict with
cross-examination. The adjudicator is not able to tackle these questions. But
in practice it is observed that the
adjudicators intervene these questions.
After this stage
the participants demand their witnesses to be listened by the court. They are
able to ask cross-examination to the witnesses. Besides, except magistrate
criminal court, counsel for the prosecution sitting beside of the adjudicator,
has the rigt to ask question during every stage.
After the
trial the adjudicator is able to give the custody decision by taking the opinion
of the public prosecuter. If custody decision is not given, the confict, is
able to demand to immune from the immersion, can follow the coming trials by
his lawyer. Also, as a new practice, the information about the dates of the
trial is coming as an information message to the cell phones he/she has given
during the invastigation stage.
** ( CCP item
188 – 191 )
i.
Do I have to be present?
The trial is not held in
case the accused is absent. Yet, there
are some exceptions according to Turkish Law. But if there is no legal reason
for the convict, it is decided to force him for coming to the trial. About the
convict, if there is an opinion to decide except the custody according to the
evidence, the trial is able to be closed also the investigation hasnt been
made.It is provided sor the convict be ready during the trial and take preventive measures avoiding him to escape.
If the convict escapes or doesn’t come back to the trial after the break, if he is investigated befor and there is no necessary of being present at that time, the trial is able to closed.
If the crime, lonely or fine or confiscation is required; the trial is able to be done even the convict doensn’t come. In such cases in the invitation which will be sent to the convict, it is writen that the trail would be done.
The suspect investigated by the law court or in the cases the defense lawyer willing and authorized by the suspect, the law court is able to immune of being present the suspect on the trial.
Suspect, except the crimes having a lower limit of five years and more, can be investigated by judically. The day determined for the investigation, suspect and the defense lawyer are both declared with public prosecutor. It is not necessary for the public prosecutor with the lawyer to attend during the investigation. Before the investigation, the convict is asked for if he wants to despose based on the presence of the court. The investigation record is read on the trial.
If it is possible for the convict to investigate by video and voice comminication techniques convict at the same time, this method is applied for the investigation.
If there is no need for the convict not present at the trial such in the case that he is out of the judgement environment in a hospital or prison because of the illness or dicipline measure, the law court is able to decide not to bring the convict to the trial.
The convict out of the country, if it is necessary for him to be present at the specified date, before this time opening the trial or investigation can be made by judical.
** ( CCP item 193 - 198 )
Can I ask for the trial to take place in my home country?
About the
crimes committed in Turkey Turkish laws will be applied and judgment will take
place in Turkey by Turkish courts. Turkish courts can ask the state for
information and documents. It can be requested that the deposition/legal
arguments of the defendant/suspicious person are taken in the country he is
present at via Ministry of Justice. In this case suspect/accused will give his
legal arguments to the law-enforcement officers and judicial authorities.
i.
Are there jurors at trial?
In the turkish law system there aren’t
jurors in the criminal justice.
ii.
Can my
lawyer call witnesses ? Can he cross-examine witnesses ?
The lawyer has
the right to call witnesses with a petition to the court showing the arguments
and witnesses.
The lawyer has
the right cross-examine or directly ask the accused and the experts. The lawyer
joining the trial as public prosecutor, lawyer of the accused can directly ask
the accused, witnesses, experts and other persons invited to the trial. The
accused and the participants can ask questions via judge. If the question is
objected, the judge decides if the
question is necessary or not. If needed, related persons can ask questions
again
**( CCP, item 201
)
vi. I don’t speak the language of the court, do I have a right to
an interpreter? Is it free?
Accordingly, if the accused or the victim of the crime doesn’t speak
Turkish, fundamental points related to claim and defense is translated by a
court appointed interpreter. The provisions of this Article also apply to the
suspect, victim and witness hearings during the investigation. At this stage,
an interpreter is assigned by the judge or the public prosecutor. Interpreter
fee is paid by the state.
vii.Will the written
evidence be translated for me ?
No, written evidence will not be translated. During the trial, the
defendant or the suspect shall be benefited from interpreter services. In the
Turkish Penal Code, a regulation regarding the translation of written documents
of a foreigners’ trial does not exist. Since the foreigner will benefit from
the interpreter services during the hearing or interrogation, it is worth
asking about issues related to the evidence. For this reason; it is useful to
get information related to the evidence, from a lawyer who speaks their
language.
Viii-Will the interpreter
also assist me if I need to talk to my attorney?
If the accused wishes to speak with a lawyer during the trial, a
court-appointed interpreter will assist him/her. However, the accused does not
sit side by side with his/her attorney during the trial. The accused testifies
in front of the judge and in the middle of the courtroom. This practice causes discussions due to
violation of ECHR case-law, because in practice the accused is unable to speak
with a lawyer in the courtroom. It is claimed that this situation impairs the
discipline of the trial in the courtroom. The judge is responsible from the discipline
in the courtroom; if the accused and his/her lawyer speaks, they are warned by
the judge. Therefore, if the accused is under arrest, he/she should meet with
the lawyer in prison, before the hearing. A face to face meeting in prison is
held in a separate room, without the presence of law enforcement.
ix. Why is the victim taking part in the trial?
The victim has the right to be notified about the hearing and attend
public prosecution. These provisions are important for providing the use of
right to attend public prosecution.
During the trial, upon the complaint
statement, the victim is prompted to attend the proceedings. After hearing the public
prosecutor, the accused and the lawyer, it is decided if the request to attend
the proceedings is appropriate. If he/she wishes; the victim could attend each
hearing, until the end of the trial. Or he/she may choose to be represented by
a lawyer.
x. Will
I be informed of the decision of the court on the day of the trial ?
After trial, the accused is not informed. If the accused is
represented by a lawyer, the lawyer could have the trial record from the court
secretary office; after the trial if he/she chooses to attend, or after the
trial if he/she does not choose to attend. If the defendant does not have a
lawyer, he/she could procure the trial record from court secretary office.
Therefore, he/she is not briefed separately.
If the accused is under arrest, he/she is
only notified of the date and time of next hearing, he/she is not given the
trial record.
xi. Can I receive a copy of the judgement in
my mother tongue ?
The judgment is not
translated to the person’s mother tongue, even if she/he is a foreigner.
However, because of this reason; when it’s considered that judicial sentence is
important in terms of appeal and the appeal is subject to time; there is a
great benefit that the defendant asks an interpreter to translate the court
verdict. If the defendant has an attorney who speaks a foreign language, the
attorney will provide the required information.
xii. I was tried in my absence and was not
informed of this, what can I do ?
Conditions that require the
accused to appear at trial are stated in Criminal Procedure Law. In such a
case, if the accused did not attend trial, an arrest warrant may me issued. For
this reason, if the accused did not attend the trial and did not receive a
notification in this regard, he/she may receive information about their status
from the court secretary office. However, if an arrest decision is issued; an
arrest situation is in question. In this case, it is beneficial to receive
information on the subject from a lawyer. Thus, the risk of an arrest may be
avoided.
Appeals
i.
I am not happy with the decision, can I appeal against it?
A
portion of the prosecution results constitutes the final decision, while the
other part can be appealed. The appeal is reviewed by Supreme Court. Verdict is
given after the end of the trial is announced. The verdict is an acquittal, a
decision of not to impose punishmen, conviction,
granting security measures, dismissal of charges, or the decision to drop the
case.
Usual legal remedies are stated in the
Criminal Procedure Law. Usual legal remedies are divided into three categories
as: appeals, objections and cassation.
A lawyer can take legal actions, as long as these actions don’t
contradict with his/her client’s wishes.
ii.
How can I make an appeal ?
Appeal request is made by giving a statement to the court secretary
office or filing a petition in court; the statement enters the record and is
approved by the judge. If the verdict is given in the absence of Terms, is
revealed in the absence of persons who have the right to seek appellate, the
period begins on the notification date.
The appellant should declare the reason of the deterioration of the
verdict, on the appeal.
10 years or above prison sentences are reviewed by the Supreme Court,
upon the the defendant’s or the attendee’s appeal request or through the
hearing. The defendant, attendee, defense counsel and the lawyer are notified
on the say of the hearing. If the defendant is under arrest, he/she can not
request to attend the hearing.
iii.
Do I need to pay my attorney more money if there is an appeal?
Whether to pay the attorney an additional
fee for appeal is determinded by attorney’s service contract. However, in
practice; attornies do not demand an additional charge for appeals.
iv.
What is the timeframe for the appeal to take place ?
The appeal request is made within seven days following the
announcement of the verdict, by giving a statement to the court secretary
office or filing a petition to the court which issued the judgment; the
statement enters the record and is approved by the judge. If the verdict is
given in the absence of Terms, is revealed in the absence of persons who have
the right to seek appellate, the period begins on the notification date.
v.
Could things get worst during appeal ?
If the verdict is only appealed by the accused, or the Public
Prosecutor on victim’s behalf, or suspect’s or accused’s legal representative,
or spouse; the accused can not be sentenced to a more severe punishment.
But, if the verdict is appealed by the accused and the victims
lawyer, new verdict can include a more severe punishment. In other words,
judicial sentence can be reversed against the defendant.
vi.
Can the Prosecution appeal against a decision ? An acquittal ?
Being the counsel for the prosecution, The Prosecutor's Office can appeal
to Supreme Court, to reverse the judgement.
Prison conditions (when possible, you can refer to existing local
organizations rather than answering those questions.)
i.
What are the prision conditions like
?
Prison conditions in Turkey have improved compared to previous
years. Traditionally, Turkish prisons are E-type prisons built in 1970’s and
1980’s, according to a plan where all prison units are common to all or most of
the prisoners; including a dormitory, living area, cleaning areas and joint
ventilation.Spacious, long main halls and, cells which usually accommodate a
large number of prisoners; didn’t give prison personel much opportunity to
supervise inmates. Regardless of the type, in all of existing closed prisons;
inmates had a tendency to leave their units. They rarely left their dormotary
and prison personal rarely entered their dormotary. In this system, contact
between staff and prisoners had been kept to a minimum. After the second half
of 1990’s, Turkish authorities have gradually realized the drawbacks of
dormotary system. Such arrangement did not allow the prison personel to control
the prisoners’ activities. Also, the risk of having severe losses during
various chaoses (such as riot, hostage situation, murder, etc.) could result in
military police intervention from outside, using serious physical power. As a
result, authorities started to make the transition to a new prison system with
smaller living units. Authorities named these high security prison buildings as
“F-type prisons”; detainees and iprisoners residing in F-Type prisons are
usually transferred here, due to crimes committed against the state and / or
organized crimes.
ii.
Do I have rights as a prisioner ? Where can I find out about my
rights ?
( Prisoner rights are organized by Law on the Execution of Sentences
and Security Measures
– art. 59 - )
According to this, a prisoner has rights
such as: to interview with an attorney, to participate in cultural and artistic
activities that can be facilitated by prison, to benefit from limited and
unlimited publications, to request appropriate clothing from prison
administration in case of need, to keep and raise her 0-6 years old child if
there’s no one outside to take care of the child, to communicate via phone, to
use radio, TV and internet facilities, to send and receive letter, fax and
telegraph, to request medical examination and treatment, and to have visitors
from the outside.
In order to adapt
prison life, after being admitted to prison; inmates are briefed by prison
administration on necessary information such as: improvement works,
disciplinary actions and punishments, ways to be informed and to complain,
rights and responsibilities; they are also notified in writing. Prison
administration also provides assistance after prosecution and information on
protection. Foreign nationals who do not speak Turkish are briefed in their
mother tongue, if this is not possible; information is provided in English,
French or German language. Inmates with hearing or speech impairment are
briefed in sign language. Visually impaired inmates are provided booklets in
Braille. If a foreign inmate does not file a written complaint, diplomatic
representative or counselate of inmate’s citizenship is informed when inmate is
admitted to prison, transferred to another institution or hospitalized. ( Art.
22 )
If the diplomatic representative or
counsulate request to visit the foreing inmate, this request is carried out in
accordance with principles and procedures stated in the regulations and without
delay. ( Art. 84 ) However in practice, it is observed that detainees and
prisoners have limited access to their rights and prison administration has a
wide range of discretion in exircising such rights.
iii.
What can I
do if my rights are violated ?
Article 14 of the European Convention
on Human Rights, other international agreements
and statements, and Article 10 of the
Constitution contains a “prohibition of discrimination on gender, race, color,
religion, sect, nationality, political and intellectual opinion, national or
social origin, association with a national minority, property, birth or other
status”; these principles are equally indispensable for the prisoners.
This principle is taken
into account in Constitution, shortly as “equality before the law” during prosecution;
in the intent not to favor any prisoner in the same statue, based on race,
color, religion, social origin, a minority, birth, economic and social
positions, and other status.
The Law
on Execution of Sentences and Security
Measures states an obligation to prevent the cruel, degrading and
inhumane effects of executing punishment and security measures on a prisoner;
and the responbsibility to carry out a sentence in a manner worthy of human
dignity. Also, it's stated on article 17
of Constitution, that no one can be subjected to criminal process that is
incompatible with human dignity.
Prison conditions in
Turkey is often being the subject of complaints and therefore, prisons and
their conditions are often inspected by the European Committee for the
Prevention of Torture, subordinate of Europian Council.
iv.
Where can I
get assistance regarding my welfare issues ? Regarding abuse and mistreatment ?
According to ECHR
Art.3, no one can be subjected to torture, inhumane or degrading treatment or
punishment. Article 17/3 in the
Constitution states that, no one can be tortured and persecuted and treated in
a way that is incompatible with human dignity.
Public
officers who perform actions that are incompatible with human dignity, which
lead to physical or psychological suffering, vulnerability, loss of perceptual
ability and humiliation of a person; are subjected to three to twelve years of
imprisionment (Turkish Penal Code Art. 94).
On 18 December 1982, with
article 37/194, General Assembly has adopted the text titled as “principles of medical ethics for
health personel’s, especially doctors’ responsibilites on protecting prisioners
and convists against torture and cruel, inhumane or degrading punishment
and behavior”.
Post –trial matters
i.Can I get my sentence reduced ?
The discretion
of the reasons for reduction, are related to the developments until the ruling.
Causes of
reduction are stated in Turkish Penal Code, articles 62 and 63.
A sentence may be reduced when: the
perpetrator has a clean sheet, he/she is
known as a
respectable person, if he/she pays the damages of the
victim, if he/she takes the victim to a hospital, if he/she cooperates during
trial, shows remorse and appreciation and for similar reasons.
If there are reasons for reduciton on behalf of
the perpetrator, he/she is sentenced to life imprisonment, rather than
aggravated life imprisonment; and to twenty-five years of imprisonment, rather
than life imprisonment. Other punishments' duration are reduced to 1/6th (other
penalties are reduced by 1/6th)
Perpetrator’s past, social
relations, actions after the crime and during prosecution, possible effects of
the sentence on his/her life, are possible reasons of reduction. The reasons of
reduciton are stated on the verdict.
Arrest, capture,
keeping under observation, hospitalization for treatment of narcotic,
stimulants, volatile substances and alcohol addiction, are
necessary reasons for reduction.
The time period that has
caused on restriction on personal freedom before the verdict, are reduced from
the sentence. The sentence is reduced by one hundred Turkish Lira per day.
According to the 98th
article of Law on Execution of Sentences and Security Measures; if the
interpretation of conviction process comes to a hault, or if the penalty can be
partially or completely met, or if the law that is enacted later is in favor of
the prisoner; the court of provision is requested to reach a verdict.
The applications that are made, do not postpone the execution of the
decision. But the court may decide postponing or suspending the execution based
on the nature of the event. Art. 94-
If the inmate is sent to hospital
due to an illness after a sentence is executed, the time period spent in the
hospital is reduced from inmate’s sentence.
If the inmate has
caused the illness deliberately to stop the execution of the sentence, he/she
can not benefit from this provision. In this
case, the public prosecutor asks the court to reach a
verdict. –art 100-
ii. What would help me get an early release ?
The conditional release conditions are stated in 107th and 108th
articles of the Law on Execution of Sentences and Security Measures.
(1) In
order to benefit from conditional release, an inmate must spend
a good conduct time.
(2) Inmates that have completed thirty years
of an aggravated life imprisonmen sentence, twenty four years of life
imprisonment sentence, and two thirds of a regular prison sentence can benefit
from conditional release.
(3) The time period that should be spend in
penal institution for conditional release;
a) Thirty six years for multiple aggravated
life imprisonment sentences, or
aggravated life imprisonment sentences,
b) Thirty years for multiple life
imprisonment sentences,
c) Maximum thirty six years for an
aggravated life imprisonment sentence and term prison sentence,
d) Maximum thirty years for life
imprisonment sentence and term prison sentence,
e) Maximum twenty eight years for multiple
term prison sentences
(4) Due to a conviction
for to establishing or managing a crime organization, committing offensive
activities within the organizaton; inmates that have completed thirty years of
a heavy sentence to life imprisonment, and two thirds of a term prison
sentence, can benefit from conditional release.
However, these time periods are:
a) Forty years for
multiple aggravated life imprisonment or life imprisonment sentences,
b) Thirty four years
for multiple life imprisonment sentences,
c) Maximum forty years
for a aggravated life imprisonment sentence and term prision sentence,
d) Maximum thirty four
years for an aggravated life imprisonment sentence and term prision sentence,
e) Maximum thirty two years for multiple term
prision sentences
(Additional phrase:: 6008 - 22.7.2010 / art.9) “The provisions of this paragraph do
not apply to children.”
(5) While
calculating the conditional release period of inmates under 15, each prison day is counted as two
days (Amended phrase: 5560 - 6.12.2006 / art.28),
(6) The
audition period of an inmate released conditionally, is half of the sentence
duration, according to the above paragraphs.
(7) The inmate can work and earn money under
supervision, by performing the crafts that he/she has learnt.
(8) Inmates under the age of
eighteen, continue their education in an institution with housing.
(9) The judge can assign a
specialist to guide the inmate during the audition. This person gives
counseling on staying away from bad habits and living a lresponsible Iife in
harmony, interviews with his tutors and colleagues and prepares a report in
every three months on inmates actions, ability to adapt to society and
responsibility.
(10) The judge can consider the character and
his ability to adapt to the society and decide that the audition period may end
without a controlled measure of freedom is
applied or without any amenability, or that controlled measure of freedom or
the amenabilities should be abolished during the audition period.
(11) The reasoned report for the conditional release of the inmate prepared
by the penal institution should be given to the judging court, if the inmate is
on another place, it shoud be given to a court there with the same degree. If
the court approves this report, it decides on the conditional release of the
inmate about this file. If the court doesn’t approve the report, it shows its
justification on the judgment. He can go to the right of appeal.
(12) If the conditionally released inmate
intentionally commits a crime during the audition period, or insists on not
obeying the amenabilities dictated by the judge, the conditional release decree
will be recalled.
(13) If the conditional release decree is
recalled,
a) the remaining penalty of the inmate
since the last crime committed will be fully
b) If he fails to comply to the
amenabilities, he should take his penalty for a period not longer than the
period between the date not obeying the amenabilities and the date of release.
After the conditionally release decree is recalled, no more conditionally
release decision will be made about the execution of this judgement.
(15) It will be decided on the recall of the
decree:
a) If the inmate is sentenced to
imprisonment because a crime he committed in the remaining period, by the
judging court with the first degree or judicial district court,
b) If the inmate doesn’t obey the
amenabilities dictated to him, the judging court with the first degree -decided
on the conditional release- or the judicial district court will decide about
the file. He can go to the right of appeal.
(16) Turkish Penal Code 2, 4, 4th
paragraph with the title “crimes against state security”, 5th
paragraph with the title “crimes against constitutional order”, 6th
paragraph with the title “crimes against national defense”, if the inmate
sentenced to aggravated life imprisonment because on any of the above mentioned
crimes within the activities of an organization, conditional release rules are
not applied.
ART.108 (1) In the case of recurrence the penalty:
a)
39 years
of the aggravated life imprisonment,
b)
13 years
of life imprisonment,
c)
¾ of
term imprisonment
If the inmate
completed one of these periods with good conduct, he can benefit from
conditional release.
(3) If for the
second time recurrence judgments are applied, the inmate will not conditionally
released.
(4) The judge
defines an audition period for the recidivist starting from the end of the
execution of the penalty and lasting no less than one year.
(5) In the
audition period because of recurrence the judgments about conditonal release
will be applied.
(6) The judge
can decide on extension of the audition period. It can be extended up to 5
years.
I have been sentenced to
pay a fine, what will happen if I don’t
pay it ?
iii. The fact that judicial fine is arranged
in the 106. Art. of the 5275. law about the execution of penalty and security
measures. Final court decision with the judicial fine will ve given to the
office of the prosecutor. Public prosecutor notifies the imnate about the
payment of the judicial fine an order of payment in 30 days in accordance with
the 3rd paragraph of the Art.
20. If the imnate doesn’t pay the fine, will be sentenced to imprisonment with
the judgment of the Public prosecutor for the number of days corresponding the
amount of the not paid fine.That’s why the defendant muss track the judicial
fine after the case is over and the judgment is made.
iv.Can I ask for a transfer to my home country ?
A foreigner, who is accused of a committed or alleged crime, can be given back upon request for the proceedings
and execution of the penalty. But if the
action resulting in the demand for extradition is not a crime according to Turkish Laws but a
political, military or thought crime, and it’s committed against
the security of the State, Turkish Law or a legal entity or it’s pardoned; extradition request is denied (TCK art. 18).
.
A foreigner who is sentenced to imprisonment due to
a crime he/she has committed, is immediately reported to the Ministry of Internal Affairs for deportation process, after
the completion of a sentence or conditional release (Penal
Code art. 59).
v.
I have exhausted all legal remedies, is there still a possibility to
get my case reviewed ?
In certain cases designated by law; a lawsuit that
is finalized with a verdict, can be reviewed in favor of the convict.
For example, if a
document that affects the verdict is discovered to be false; if a witness or an
expert intentionally or by negligence, gives a false testimony against the
convict, while under oath; if one of the judges participating in the verdict,
fail to perform his/her duties by causing the defendant to be tried or
convicted for a crime that he/she hasn’t committed; if a criminal sentence is
based on a verdict of the criminal court, and if this verdict is eliminated by
another verdict; if new events or evidences when presented alone or with prior
evidence, cause the defendant to be sentenced to a less severe punishment or
defendant’s acquittal (CPC Art.311)
vi.
I have exhausted all legal remedies; can I apply for a pardon ?
The authority
of amnesty relies on 87 and 104th articles of the Constitution.
According to the 87th article of the Constitution of the Republic of
Turkey; Grand National Assembly of Turkey is entitled to declare a general and
specific amnesty, with the decision three-fifths of its members. 104th
article of the Constitution states that the President has the authority to
reduce or pardon the punishment of the people with permanent illness,
disability and old age.
Amnesty is regulated by the 65th article of Turkish
Penal Code. In case of a general amnesty,
the civil law suit is dropped; all penalties and their consequences are
eliminated. With a special amnesty; the execution of an imprisonment sentence may be terminated,
shortened or converted to a judicial fine. Punishment related or provision
specified deprivation rights resume effect despite a special amnesty.
vii.Can I be expelled
instead of serving my sentence ?
If
the foreigner’s stay in the country is against public safety, political and
administrative requirements, Ministry of Internal Affairs invites him/her to
leave the country in a certain time period. Foreigners, who do not leave the
country at the end of this period, can be deported - The Law on Residence and
Travel of Foreigners in Turkey art. 19-
viii-Is there a risk that
I will be deported after serving my sentence ?
A foreigner, who is sentenced to two years or more imprisonment in
result of committing a crime, is deported immediately after the execution of
the sentence. –art.59-
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