Harmonization Laws
In line with Turkish government’s National Programme for the Adoption of the Acquits in March 2001, GNAT adopted three “harmonization packages” in February, March and August 2002 in order to align several laws with the Constitutional amendments of October 2001. Amendments made to Article 16 of the Law on State Security Courts decreased the maximum length of detention for offences committed jointly by three or more people from 7 to 4 days. In the region under a state of emergency (OHAL) the period may be extended on demand of a prosecutor and decision by a judge to 7 days. Previously the maximum period of detention had been 10 days. Prisoners in pre-trial detention will have access to his/her legal counsel at any time. The same applies to prisoners whose period of detention was extended, as soon as the prosecutor orders the prolonged detention in a communication. Provisions under Article 107 and 128 of the Turkish Criminal Procedure Code (TCPC) were reworded so that relatives will have to be informed once a person is detained.
Article 13 of the Law on Civil Servants was amended with the second “reform package”. With the new paragraph added to this article, “compensation paid by the government according to the judgments of the European Court of Human Rights (ECHR) for torture and inhuman or degrading treatment or punishment will be retraced to the perpetrators who are responsible for the act.” ([1] )
Circular on Detention Procedures
In July the Minister of Interior at the time, Rüştü Kazım Yücelen sent a circular to the governors in order to prevent “unjust (/unlawful) detentions”. Below are some of the points emphasized in the circular:
“Information shall be kept up-to-date and there shall be no delay in data entry in proceedings regarding to limitations (of freedoms) and arrested people so as to ensure the reliability of the data, to increase efficiency in the search for the wanted people and to avoid any unjust action that the people may suffer from.
“Data entry into the computers about the persons against whom an arrest warrant or an arrest warrant in absentia has been issued, a fine has been ordered and about the persons who are invited to the courts should be performed at the security headquarters of the province where the proceeding is taking place, at the first hand. If a detainee is apprehended in a province other than the one where he is wanted, then the police headquarters where he is kept should perform the proceedings in the computer, but the police headquarters which has entered the arrest warrant in the computer as well as the one which is in charge of the place where the crime has taken place and also the one in the province where the detainee is registered should be informed.
“Before canceling a data entry, security officers should resort to the database in order to check out if there is another entry against the person in connection with the same offense or with another. This proceeding should be performed in coordination with the related police headquarters.”
The Minister of Justice at the time, Hikmet Sami Türk announced that a new draft law was prepared to make amendments to the Criminal Procedures Code (TPCP). Minister Türk explained details of the draft during a press meeting on 17 July. Accordingly, amendments that concern 5 laws would improve and increase the efficiency of the judicial system. Reforms suggested in the draft law are as follows, according to Minister Türk: “Arresting a person would be the last resort to apply; the process of telephone tapping and detention periods would be revised; the practice of arrest in absentia would be abolished; individuals will have the right to ask questions directly to public prosecutor, complainant, suspect and lawyers, witnesses; and the means for re-trial and appeal will be provided for the defendants whose cases ended with a decision of violation (of the European Human Rights Convention) at ECHR.”
Regulation On Apprehension, Police Custody And Interrogation
On 18 September a new regulation amending the Regulation On Apprehension, Police Custody And Interrogation was promulgated in the Official Gazette. According to the new regulation, which was signed by Minister of Interior Muzaffer Ecemiş and Minister of Justice Aysel Çelikel, ([2] ) apprehended persons will be informed of their rights, charges against them and of the means of raising an objection against the detention.
The phrase “informing immediately the relatives of the detained person will depend whether this information will harm the investigation as to the context and subject” in the old text has been omitted. According to the new regulation, relatives of the apprehended person or other persons on the request of the apprehended person will be informed, with a decision of the public prosecutor, about the detention and extension of the detention period.
Medical examination of the detainee will be performed according to the principle of the confidentiality of doctor-patient relationship. However, the medical examination may take place in the presence of security officers upon the request of the detainee or the doctor due to security considerations.
The new regulation limits the detention period to 4 days, including for the crimes falling under the scope of the State Security Courts. The provision of the old text as to the prolongation of the detention period, which read “In spite of the four day extension, if the investigation is still not completed, upon the request of the Prosecutor and the decision of the Judge, the arraignment of suspects before the Judge may be extended to 7 days” has been replaced with the text “No one shall be deprived of his/her freedom without a judge’s decision after these periods are exhausted.” As for the crimes committed in emergency regions and falling under the scope of SSCs, the 4-day detention period may be extended to 7 days (which was 10 days in the old text) upon the request of the prosecutor and the decision of the judge. According to the regulation, the judge has to hear the detainee before making such a decision.
Regulation Amending Certain Provisions of the Regulation on Apprehension, Police Custody And Interrogation
ARTICLE 1 - Fifth paragraph of Article 6 of the Regulation on Apprehension, Police Custody And Interrogation, which was promulgated in the Official Gazette on 1 October 1998, is amended as below and two more paragraphs are added to follow the fifth paragraph:
“During apprehension, the person will be informed of the reason for apprehension, and the right to remain silent and to have access to a lawyer, regardless of the nature of the crime, in a written from in any case or verbally if immediate written notification is not possible”
“Relatives of the apprehended person or other persons on the request of the apprehended person will be informed immediately, with a decision of the public prosecutor, about the detention and prolongation of the detention period”. “Apprehended person will be informed of his/her right to raise an objection against the detention and the means of using this right.”
ARTICLE 2- The sentence following the item (d) in the first paragraph of Article 9 of the old text is amended as below and third and fourth paragraphs are omitted from the text:
“Relatives of the apprehended person or other persons on the request of the apprehended person will be informed, with a decision of the public prosecutor, about the detention and prolongation of the detention period.”
ARTICLE 3 - The last paragraphs of Article 10 is amended as follows:
“It is essential that the doctor and the person going through medical examination be alone and the medical examination be performed according to the principle of the confidentiality of doctor-patient relationship. However, the medical examination may take place in the presence of security officers upon the request of the suspect, detainee or apprehended person or the doctor due to personal security considerations. This request is fulfilled after being documented.”
ARTICLE 4 - The second sentence of the first paragraph and the second paragraph of Article 14 are amended as follows:
“No one shall be deprived of his/her freedom without a judge’s decision after these periods are exhausted.”
“As for the crimes committed in emergency regions and falling under the scope of SSCs, the 4-day detention period may be extended to 7 days upon the request of the prosecutor and the decision of the judge. The judge has to hear the apprehended person before making such a decision.”
ARTICLE 5 - The last paragraph of Article 20 is amended as below and the following paragraph is added:
“In crimes falling under the scope of the State Security Courts, the apprehended person may meet his/her lawyer only upon extension of the custody period by order of the public prosecutor.”
“A suitable place will be allocated in every security unit for meetings with lawyers.” ARTICLE 6 - Article 21 is amended as follows:
“Excluding the crimes falling under the scope of the State Security Courts, the Lawyer may examine anytime the minutes of the statement of the apprehended person, all the experts' reports and all other preparatory documents and may obtain copies of them from the security forces free of charge. However, this right may be restricted with a decision of the judge of a peace during the preliminary investigation if the use of this right will harm the investigation. Such a decision may be made upon the request of the public prosecutor. However, restriction of this right shall not apply to the testimony of the suspect, expertise reports and the documents as to the judicial proceedings which are kept in the presence of the apprehended person or the suspect.”
ARTICLE 7 - The item (b) of the first paragraph and the first sentence of the second paragraph of Article 22 are amended as follows and the second sentence of the third paragraph is omitted from the text:
“b) (The apprehended person) will be told that he can inform any of his relatives about his apprehension, and these relatives will be informed of his apprehension.”
“The lawyer may only offer legal assistance; h/she is not entitled to answer questions in the name of the suspect or intervene in a way that gives the impression that he is replacing the suspect during interrogation.”
ARTICLE 8 - Items III, V and VI of "Form on Suspect and Accused Rights" (Annex A) as mentioned in the last paragraph of Article 6 are amended as follows:
“III- You have the right to inform your relatives or another person about your apprehension and/or detention. Your relative or your Embassy/Consulate will be informed about your case immediately.”
“V- You have the right to assign a lawyer. If you cannot support hiring a lawyer, you can have legal assistance from a lawyer to be assigned by the Bar. You have the right to meet and speak with your lawyer. Your lawyer may attend in interrogation. (In crimes falling under the scope of the State Security Courts, you may meet your lawyer only upon extension of the custody period by order of the public prosecutor.)”
“VI- You have the right to raise an objection with the judge against your apprehension or extension of the detention period. Writing a petition will start this process. Your petition will be submitted to a judge immediately.”
ARTICLE 10 - Ministers of Justice and Interior are responsible for executing the provisions of this Regulation. Following the early elections on 3 November, the government prepared a 36-item harmonization package to be enacted before the Copenhagen Summit on 12 December. According to a statement by the Minister of State responsible for human rights, Ertuğrul Yalçınbayır, on 28 November, the package would bring many modifications, including the right to retrial for the people whose cases are concluded in favor at ECHR and elimination of the provision of elapse of time for prosecuting the perpetrators of torture.
Yalçınbayır said that the restriction that was imposed on re-trials, i.e. “establishing the results of the act that are impossible to cover with compensation”, would be lifted so that the cases at ECHR would be revised even if ECHR ordered a compensation and if the money was paid to the victim. In addition, the condition that re-trials would apply to cases which would be brought to ECHR one year after the adoption of the final harmonization law would also be lifted, said Yalçınbayır, so that some 300 cases, which were concluded at ECHR up to date and most of which were resulted in favor of the applicants, would be taken to the local courts once again for a revision of the prior judgments. Concerning the Law on Prosecution of Civil Servants Yalçınbayır stated that the provision of the law which foresees the “consent of the superior” as a precondition of bringing the culprits to justice would be amended and added that the provision of “lapse of criminal responsibilities in time” would not be applicable to crimes concerning the breach of Article 243 and 245 TPC:
In December Ertuğrul Yalçınbayır announced the project named “Communication Partnership”, the aim of which he described as “preventing disappearances in custody”. The project foresees the tracking of detainees via Internet from the moment they are detained until they are taken before a court. Yalçınbayır added that he would take the project to the Council of Ministers and then it would be started by a communication to be issued by the Ministry of Interior. When the project started, continued Yalçınbayır, the information about a detainee would be processed on computers immediately and on the network this information would be transmitted to the Office of the Chief Prosecutor and of the Bar Chairman via the police stations at the court houses. When the project started, a “Detention Registry Form” would be put in the computer network of the security. ID information of the detainee, information on the unit of the security that detained the person, information about the detention process such as the reason, date and place of the detention, related instructions, and the date and hour of release would be filled in the formed. In another form, ID information of the detainee, information about the security unit that performed the action, the place where the detainee is kept and information on the extension of the detention period by the prosecutor’s office would be filled. Yalçınbayır stated that a pilot project would start in Bursa province. Yalçınbayır defined the expected consequences of the project as follows: “This project will provide the transparency of the services that security forces provide. The public prosecutors can effectively control detentions. Citizens can get information about their relatives in detention from the public prosecutor’s offices and bar associations. Hence, a communication partnership will be realized among the prosecutor’s offices, police HQs and bar associations in the protection and development of human rights and supremacy of law”.