THE FIFTH JUDICIAL REFORM PACKAGE

The 5th Judicial Package (Law No: 6526) amending Anti-Terror Law, Criminal Procedure Code and other laws was enacted on 21/03/2014. The main outlines of the amendments are cited below:

1.1.2. Specially Authorized Courts were abolished.

Specially authorized heavy criminal courts established according to former Article 250 of the Criminal Procedure Code and Courts established according to Article 10 of the Anti-Terror Law were abolished and the charges of the Public prosecutors assigned to these courts were ended.

Therefore, the continuing double-headed (CCP 250-ATL 10) practice in terms of the trial of terror offences and other offences was terminated.

Besides, with the provisional Article 14 added to ATL:

  • Investigation files conducted by public prosecutors assigned according to Article 10 of ATL will be transferred to Chief Public Prosecution Offices.
  • The pending files in these courts will be transferred to heavy criminal courts to continue prosecution as of the current stage.
  • The examination of files which are given by these courts and available in Court of Cassation Chief Prosecutor’s Office or the chambers of Court of Cassation will resume. The approved files will be sent to the court where the archive is transferred for execution. The reversed files will be sent to the heavy criminal courts.   
  • The grounds of the provisions given by heavy criminal courts abolished with this Law and whose grounds have not been written yet will be written within 15 days at the latest as of the entry into force of this Law. 
  • File transfer transactions will be completed by these judges and Public prosecutors within 15 days as of the entry into force of this Law. 
  • Judges and Public prosecutors assigned in these courts will be appointed within 10 days as of the completion of the transfer transaction to a duty to be found suitable considering their acquisition.
  • Archives, deposits, other documents and papers which are in the abolished courts and belong to the finalized files will be transferred to court or courts to be determined by HCJP and following transactions and requests will be conducted by these courts and decisions will be made upon them. According to this provision, re-trial requests will be made to the courts where archive has been transferred. 
  • References made to abolished courts and offences for which trial has been conducted by these courts are arranged and gap is prevented on this issue. According to this, preventive interception will be decided by Ankara Heavy Criminal Court determined by HCJP. No change has been made as regards the scope of preventive interception.
  • For the pending cases under the scope of Article 10 of ATL, decision of suspension and discontinuance, regarding the fact that taking permission or decision is required so as to conduct investigation about the accused owing to the fact that s/he is a public official, cannot be given.
  • Cases relating to the offences falling into the duties of specially authorized courts will be hereafter filed to heavy criminal courts.

1.1.2. Punishments of recording personal data (Article 135 of TCC), giving or seizure of data illegally (Article 136of TCC) and the offences of not destroying data (Article 138 of TCC) have been increased. 

It is foreseen that the penalty to be given in case of not destroying data which have to be eliminated or destroyed shall be increased two-fold.

1.1.3. Instead of “indicative evidences for suspicion of a committed crime” the existence of “concrete evidences indicating suspicion of a committed crime” has been introduced in order to give the decision of custody. 

1.1.4. Statements of the persons arrested owing to the arrest warrant can be taken by using audiovisual communication systems in case that it is not possible to bring them before the authorized judge or the court in 24 hours.

1.1.5. Instead of “facts”, “concrete evidence” criteria, have been introduced in order to give detention decision.

1.1.6. Period of detention has been limited with maximum 5 years.

  • ECtHR examines the complaints on the length of detention period in the scope of Article 5(3) of ECtHR.
  • The Court takes the date when the relevant person was apprehended and released or his/her imprisonment was decided by first instance court as a basis when determining the period of detention it takes as a basis for assessment. (Tendik and others-Turkey, No. 23188/02, 22 December 2005).
  • Again, in the same manner, while the Constitutional Court examines individual applications on long detention, it has accepted that the detention will end as of the imprisonment date if the imprisonment of the person on remand has been decided in the case in which s/he is tried.
  • In its decision dated 5/4/2011 and 2011/1-51 Docket, 2011/42 Decision, Court of Cassation Criminal General Board has ruled that the period lapsed until the judgment is delivered by local court in the calculation of detention periods should be taken into consideration, and the period lapsed in appeal should not be taken into consideration due to the fact that after the local court delivers judgment, detainee accused has become de jure detainee.

In line with the decisions stated in the calculation of maximum period in detention, the period lapsed in the examination of legal remedy will not be taken into consideration.

1.1.7.“Strong suspicion based on concrete evidences” criteria have been introduced in order to make a search.

1.1.8. The criteria of “strong suspicion based on concrete evidences” have been introduced in order to confiscate immovable, rights and receivables.

As a pre-condition the court takes a report from Banking Regulatory and Inspection Authority, Capital Market Board, Financial Crimes Investigation Board, Undersecretariat of Treasury and Public Oversight, Accounting and Auditing Standards institutions according to the relevance of the situation in order to give the decision of seizure, has been introduced.

It has been foreseen with the arrangement made that seizure shall be unanimously decided by heavy criminal court and unanimity shall also be sought in order to decide on this measure upon objection.

This measure will not be implemented in regard to the offence of establishing an organization with the purpose of committing a crime (Art.220).

1.1.9. The criteria of “strong suspicion based on concrete evidences” have been introduced in order to conduct search, copying and seizure in computers.

1.1.10. The criteria of “strong suspicion based on concrete evidences” have been introduced for interception of communication.

The Heavy Criminal Court should take interception decision unanimously in order to ensure the implementation of this measure and unanimity is sought in order to ensure making decisions on this measure upon objection.

When making a request for this measure, the obligation of adding a document showing the owner of the line or communication means has been introduced.

The periods where the measure will be implemented have been decreased from 6 months to 3 months and the judgment enabling the extension of it numerous times in terms of organized crimes has been limited to maximum 3 months. Hence, maximum 6-month interception can be conducted. 

On the other hand, this measure will not be implemented in regard to the offence of establishing an organization with the purpose of committing a crime (Art.220). However, the possibility of resorting to this measure also in terms of these offences by means of including qualified theft and looting offences to the catalogue where this measure can be implemented has been introduced. 

1.1.11. The criteria of “strong suspicion based on concrete evidences” have been introduced for assignment of confidential investigator.

The Heavy Criminal Court can assign confidential investigator with an unanimous decision in order to ensure the implementation of this measure and unanimity is sought in order to ensure making decisions on this measure upon objection.

Also with the other arrangement, immediate destruction of personal information not connected with the offence has been ensured.

1.1.12. The criteria of “strong suspicion based on concrete evidences” have been introduced for surveillance with technical means.

The Heavy Criminal Court can decide unanimously in order to ensure the implementation of this measure and unanimity is sought in order to ensure making decisions on this measure upon objection.

The periods in which this measure will be implemented have been decreased from 8 weeks to 4 weeks and the judgment regarding the extension of it numerous times in regard to organized crimes has been limited to maximum 4 weeks. Hence, maximum 8-week technical surveillance will be conducted.

On the other hand, this measure will not be implemented in regard to the offence of establishing an organization with the purpose of committing a crime(Art.220).However, the possibility of resorting to this measure also in terms of these offences by means of including qualified theft and looting offences to the catalogue where this measure can be implemented has been introduced.

1.1.13. The continuity in writing register number instead of open identity in the minutes taken by law enforcement officers assigned in the fight against terror has been ensured in order to protect them.

1.1.14. The restriction for the defense lawyer to examine file content at the investigation phase is lifted and the right of defense is strengthened

Law No: 6526

 


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