GENERAL JUSTIFICATION
The Judicial Reform Strategy Document prepared by the Ministry of Justice and announced by the President on May 30, 2019, emphasizes the vision of a “trustworthy and accessible justice system,” while the Human Rights Action Plan announced on March 2, 2021, highlights the vision of “free individuals, a strong society, and a more democratic Turkey.”
Important reforms were implemented within the scope of this strategy; the detention period during the investigation phase was limited, and new and effective procedures such as expedited trials, simplified trials, and electronic trials were put into practice.
The Turkish Penal Code contains many crimes aimed at protecting the right to life and physical integrity. These crimes are considered aggravating factors when committed against victims who are relatively easy to reach, such as spouses or close relatives. Disagreements between spouses that arise during the divorce process, escalate, and even turn into hostility, continue after the divorce, facilitating such violence. Therefore, within the scope of crimes against life, physical integrity, and freedom, it has become necessary to treat the victim’s divorced spouse as a separate case in terms of murder, assault, torture, and deprivation of liberty.
In line with the fundamental principles set out in most international texts, particularly the Constitution and the European Convention on Human Rights, certain amendments have been made to the Criminal Procedure Code.
Detention is the most severe protective measure and is designed not as a means of punishment during the judicial process, but to ensure that the investigation and prosecution stages are conducted more effectively. Additional regulations have been made regarding the conditions for applying the detention measure and its maximum duration, and the possibility of reduction has been introduced through a periodic review procedure within the scope of judicial control measures. The aim is to protect personal freedom and security.
On the other hand, a vertical appeal procedure has been introduced instead of a horizontal procedure for reviewing appeals against decisions of magistrates regarding detention and judicial control measures. The First Instance Criminal Courts will be the reviewing authority for these decisions.
Furthermore, in the new government system, the organization of the executive branch and the acceleration of decision-making processes have resulted in more effective and faster administration of services as a result of technological developments. In order to directly feel the results of this progress and to strengthen the individual-oriented management approach, the response time to applications made to the administration has been shortened and the right of access to the courts has been strengthened.
ARTICLES AND JUSTIFICATIONS:
In order to develop the principle of the rule of law and strengthen the individual-focused management approach,
ARTICLE 1: With the amendment made to Article 10/2 of the IYUK, the Implied Objection Period has been reduced from 60 days to 30 days. In addition, the Final Response Waiting Period has been reduced from 6 months to 4 months.
ARTICLE 2: With the amendment made to Article 11/2 of the Administrative Procedure Law titled “Appealing to Higher Authorities,” the Implied Rejection Period has been reduced from 60 days to 30 days.
ARTICLE 3: With the amendment made to Article 13/1 of the İYUK, the implied objection period for preliminary decision applications, which are a prerequisite for directly filing a Full Court Case, has been reduced from 60 days to 30 days.
These arrangements have been made.
NOTE: If different periods are stipulated in special laws, the periods specified in the relevant special law shall apply.
The aim is to prevent delays in trials and to more effectively exercise the right to be tried within a reasonable time and the freedom to seek justice.
ARTICLE 4: Pursuant to Article 24/1 of the IYUK, the decision shall be signed in writing within 30 days from the date it is issued. Consequently, final decisions must be issued in writing, together with their reasons, within 30 days at the latest.
ARTICLE 5: Transitional Article 10 of the Law states, “The old time limits shall apply to applications made to the administration pursuant to Articles 10, 11, and 13 prior to the date of entry into force of this article.
ARTICLES 6, 7, 8, 9: With the amendments made to the Turkish Penal Code, the crimes of intentional killing, intentional injury, torture, and deprivation of liberty committed by the perpetrator against his or her divorced spouse have been included within the scope of qualified crimes.
ARTICLE 10: With the paragraph added to Article 12 of the Criminal Procedure Code, in crimes committed using information systems, banks or credit institutions, or bank or credit cards as a means, in terms of jurisdiction, in addition to the court where the crime was committed, the victim’s place of residence also becomes competent.
ARTICLE 11: In line with technological developments, in addition to the existing procedure, a provision has been added to Article 44/1 of the CCP and to decisions on compulsory service of process, stipulating that service of process may be effected using communication tools such as telephone, telegraph, fax, or e-mail. However, for this, the witness’s contact information must be available in the file, and service of process using at least one of the listed means will suffice. (Effective September 1, 2021)
ARTICLE 12: Pursuant to Article 94 of the Criminal Procedure Code, “working hours based on the arrest warrant”
The release of a person arrested outside of custody who commits to appearing in court on the specified date may be ordered by the Central Office. This provision may only be applied once for each arrest warrant. A person who fails to fulfill their commitment shall be fined 1000 TL by the Central Office that issued the arrest warrant.
This additional paragraph aims to prevent arrest warrants, which are one of the protective measures restricting individuals’ freedom, from causing irreparable harm.
ARTICLE 13:
the amendment made to Article 100/3 of the Criminal Procedure Code, concrete evidence strongly indicating suspicion of a crime must be present in order to request a detention measure for the crimes listed in the third paragraph (catalogued crimes).
In fact, the same result will be achieved when paragraphs 1, 2, and 3 are considered together, but this regulation has been made due to some practical uncertainties.
ARTICLE 14: With the amendment made to Article 101 of the CCP, it has been accepted that in the decisions of judges or courts regarding arrest, continuation of arrest, or rejection of a request for release in this context, in addition to the existing conditions, evidence showing that judicial supervision would be insufficient must be clearly presented with concrete and justifiable facts.
AR TICLE 15: With the amendment made to paragraph 6 of Article 109 of the Criminal Procedure Code, the obligation not to leave one’s residence has been accepted as a reason for restricting personal liberty, and it has been decided that every 2 days spent under this obligation shall count as 1 day in the reduction of the sentence.
ARTICLE 16:
Upon the request of the Public Prosecutor, a decision on whether the suspect needs to remain under judicial supervision during the investigation phase will be made at intervals of no more than four months, in accordance with Article 110 of the CCP. During the prosecution phase, the court will decide ex officio for a period of no more than four months. (Effective as of January 1, 2022)
ARTICLE 17: With the addition of Article 110/A to the CCP, maximum periods for judicial supervision measures have been determined. This regulation aims to ensure the freedom of individuals and prevent the excessive application of judicial supervision measures. (Effective as of January 1, 2022)
In matters not falling within the jurisdiction of the High Criminal Court, this period may be extended for a maximum of 2 years and, in mandatory cases, for an additional year with justification.
In matters falling within the jurisdiction of the High Criminal Court, this period may be extended for a maximum of 3 years and, in mandatory cases, for an additional year with justification. However, the extended period may not exceed 3 years in total, or 4 years for crimes defined in the fourth, fifth, sixth, and seventh sections of Book 2 of the Turkish Penal Code and crimes covered by the Anti-Terrorism Law. Furthermore,
judicial supervision periods for children shall be applied at half the rate.
ARTICLE 18:
A provision has been added to the third paragraph of Article 137 of the Criminal Procedure Code, stipulating that when an acquittal decision is issued, as in the case of a KYOK decision, the records related to the identification or hearing shall be destroyed under the supervision of a judge. However, the destruction of these records shall take place after the acquittal decision becomes final.
ARTICLE 19: With the amendment made to the fourth paragraph of Article 170 of the Criminal Procedure Code, it has been stipulated that the section of the indictment explaining the events in relation to the evidence may not contain information unrelated to the alleged crime and unconnected to the evidence of the crime.
This regulation aims to protect personal rights, as well as the right to respect for private and family life enshrined in the Constitution and the European Convention on Human Rights.
ARTICLE 20: A provision has been added to paragraph 1 of Article 176 of the Criminal Procedure Code regarding the provision of information on the indictment and trial date; it has been accepted that if the file contains communication information such as telephone, fax, or e-mail, the defendant will be notified using these means. However, the results of search records will not apply in this case. Notification via at least one of the listed means shall be sufficient. (Effective September 1, 2021)
ARTICLE 12:
Pursuant to Article 94 of the Criminal Procedure Code, “working hours based on the arrest warrant”
The release of a person arrested outside of custody who commits to appearing in court on the specified date may be ordered by the Central Office. This provision may only be applied once for each arrest warrant. A person who fails to fulfill their commitment shall be fined 1000 TL by the Central Office that issued the arrest warrant.
This additional paragraph aims to prevent arrest warrants, which are one of the protective measures restricting individuals’ freedom, from causing irreparable harm.
ARTICLE 13: With the amendment made to Article 100/3 of the Criminal Procedure Code, concrete evidence strongly indicating suspicion of a crime must be present in order to request a detention measure for the crimes listed in the third paragraph (catalogued crimes).
In fact, the same result will be achieved when paragraphs 1, 2, and 3 are considered together, but this regulation has been made due to some practical uncertainties.
ARTICLE 14: With the amendment made to Article 101 of the CCP, it has been accepted that in the decisions of judges or courts regarding arrest, continuation of arrest, or rejection of a request for release in this context, in addition to the existing conditions, evidence showing that judicial supervision would be insufficient must be clearly presented with concrete and justifiable facts.
A RTICLE 15:
With the amendment made to paragraph 6 of Article 109 of the Criminal Procedure Code, the obligation not to leave one’s residence has been accepted as a reason for restricting personal liberty, and it has been decided that every 2 days spent under this obligation shall count as 1 day in the reduction of the sentence.
ARTICLE 16: Upon the request of the Public Prosecutor, a decision on whether the suspect needs to remain under judicial supervision during the investigation phase will be made at intervals of no more than four months, in accordance with Article 110 of the CCP. During the prosecution phase, the court will decide ex officio for a period of no more than four months. (Effective as of January 1, 2022)
ARTICLE 17: With the addition of Article 110/A to the CCP, maximum periods for judicial supervision measures have been determined. This regulation aims to ensure the freedom of individuals and prevent the excessive application of judicial supervision measures. (Effective as of January 1, 2022)
In matters not falling within the jurisdiction of the High Criminal Court, this period may be extended for a maximum of 2 years and, in mandatory cases, for an additional year with justification.
In matters falling within the jurisdiction of the High Criminal Court, this period may be extended for a maximum of 3 years and, in mandatory cases, for an additional year with justification. However, the extended period may not exceed 3 years in total, or 4 years for crimes defined in the fourth, fifth, sixth, and seventh sections of Book 2 of the Turkish Penal Code and crimes covered by the Anti-Terrorism Law. Furthermore,
judicial supervision periods for children shall be applied at half the rate.
ARTICLE 18:
A provision has been added to the third paragraph of Article 137 of the Criminal Procedure Code, stipulating that when an acquittal decision is issued, as in the case of a KYOK decision, the records related to the identification or hearing shall be destroyed under the supervision of a judge. However, the destruction of these records shall take place after the acquittal decision becomes final.
ARTICLE 19: With the amendment made to the fourth paragraph of Article 170 of the Criminal Procedure Code, it has been stipulated that the section of the indictment explaining the events in relation to the evidence may not contain information unrelated to the alleged crime and unconnected to the evidence of the crime.
This regulation aims to protect personal rights, as well as the right to respect for private and family life enshrined in the Constitution and the European Convention on Human Rights.
ARTICLE 20: A provision has been added to paragraph 1 of Article 176 of the Criminal Procedure Code regarding the provision of information on the indictment and trial date; it has been accepted that if the file contains communication information such as telephone, fax, or e-mail, the defendant will be notified using these means. However, the results of search records will not apply in this case. Notification via at least one of the listed means shall be sufficient. (Effective September 1, 2021)