Article by Ass. Prof. Muharrem ÖZEN and Research Assistant, Mustafa ÖZEN
Organized Crimes and fight against such crimes which are at the top of the agenda in our country in the recent days, rights of suspect and counsel creating the defense side are very important. Differences are noticed in the regulations on this matter between simple (petty) offences and organized crimes. In this research such differences will be dealt with and attention will be paid on troubles that may occur and solution suggestions will be tried to be offered.
I – PREAMPLE
There are three basic aspects in the Criminal Procedures Law. These are the Judicial Authority, Prosecution and Defense Authorities.The Judicial Authority (Court) is impartial and independent. It cannot act prejudgmentally in favor or against any one of the Parties according to the previously obtained information. The Court renders its judgment based on information obtained as the result of discussions by the Parties orally on their legally obtained information at the trial session, in compliance with the principle of contradiction and discrepancy:
The Prosecution (Plaintiff) is a party. The prosecution acts both on behalf of the public (suffered damage indirectly due to the offense) and on behalf of the victim (suffered damage directly from the offense). Defense Counsel (Defendant) Side however stands against the Prosecution Side and defends himself/herself against charges being indicted to the effect that he/she is not guilty. The Prosecution and Defense Sides in Criminal Proceedings (Trials) must have equal rights. This has a great importance so much so that judgment is to be fair and just and eventually for ensuring establishment of sense of justice in conscience of public and the parties at the court. In order that the judgment is to be fair and just however principles prevailing the criminal proceedings must have been observed and exercised in full and complete.
It will be necessary to refer to the right to learn about the charge and rights, right to a fair trial within a reasonable time, principles of equality of means and facilities which included in the rights and principles that are dominant over the criminal trial proceedings since they have direct correlation with the subject of our present study.
In this Study, we shall state and discuss on the rights of suspect and the right to benefit from assistance of counsel (lawyer) which is one of these rights at investigation phase of terrorist crimes having widespread place on the agenda of our country specifically in recent days.
II – STARTING THE INVESTIGATION/INQUIRY PHASE
Starting the investigation/inquiry phase has been arranged in Article 160 of the Criminal Procedures Law (CPL) ("CMK" in Turkish). This arrangement reads as following: 'The Public Prosecutor, as soon as finding out and informed by notice or by another way any incident that suggests the impression that a crime was committed, starts immediately to investigate and find the fact and reality of the incident in order to decide whether or not filing a public suit is necessary'. According to the foregoing statement, there is not any limitation on how the Public Prosecutor would get information about the offense. The prominent stress in this provision is 'to be acquainted with the offense in any manner'. This acquaintance may be made either through notification, complaint or by way of mass media or Internet. For example, in para.1 of Article 90 of the Criminal Procedures Law (CMK) it is sated that in case of caught in red-handed (in flagrante delicto) everybody may catch the suspect and may notify the incident to police or the Public Prosecutor. Likewise, according to para.2 of Article 90 of the same law, Police/Gendarmerie forces may also catch criminals without warrant of arrest and notify it to the Public Prosecutor. Such kind of communications is considered as notification. In case of offenses/crimes which can be prosecuted by the Public Prosecutor only upon complaint of the injured Party, notification by the directly injured person of the incident to the Public Prosecutor however is the complaint.
III – POLICE CUSTODY/DETENTION OF THE SUSPECT
Procedure regarding police custody/detention has been arranged in Article 91 of the Criminal Procedures Law ("CMK"). According to this arrangement, if suspects caught pursuant to Article 90 (those caught in red-handed "in flagrante delicto" by everybody and caught by police force without arrest warrant) are not released by the Public Prosecutor, decision that they should be detained could be made. It is importantly emphasized here that detention is not an obligatory measure for protection according to Article-91.
That detention for protective measure is optional (voluntary) does not mean that it is arbitrary. As a matter of fact in para.2 of Article-91 of the Law this issue has been arranged as following: "Detention depends on the fact that such measure of apprehension is compulsory in terms of inquiry and existence of signs and circumstantial evidence that may lead to strong belief that the suspect may have committed the offense." This arrangement although some criteria are provided in order to prevent arbitrariness of the detention protective measure, due to the fact that the statement of "existence of signs and circumstantial evidence that may lead to strong belief that suspect may have committed the offense" is ambiguous is of a nature to create a problem in attaining the objective of a judgment.
A – DETENTION PERIOD
The period in which the caught person will be apprehended does not change according to nature of the offense committed.
1. In case of simple (petty) offenses
Detention period has been described in para.1 of Article 91 of the Criminal Procedures Law as following: 'Detention Period shall not exceed twenty four hours as from the moment of apprehension, except the period essential for dispatching judge to the place of apprehension (crime scene) or for sending the suspect to court. The mandatory period required for sending to the nearest judge or court shall not be more than twelve hours'. In the 3rd Paragraph of the same Article the following statement has been made: 'In case of offenses committed collectively, owing to the challenge in gathering evidences or numerousness of suspects, the Public Prosecutor may order in writing that detention period is extended for a period of three days on condition that it may not exceed one day at every time. The order given for extension of detention period shall be notified forthwith to the Detainee'.
2. In case of Terrorist Crimes
In relation with terrorist crimes, according to 5th paragraph of Article 251 of the Criminal Procedures Law (CMK), twenty four hour detention time as specified in paragraph 1 of Article 91 has been raised up to forty-eight hours. If somebody who is the suspect of terrorist crime has been caught at the Region of Emergency State, the extension time as specified four days in 3rd paragraph of Article-91 has been increased to seven days.
Pursuant to the 5th Paragraph of Article-250 of the Criminal Procedures Law (CMK), for suspects who are caught at Emergency State Regions in accordance with Article 120 of the Constitution, when the situation as per Para. 3 of Article-91 is applicable, detention time may be extended up to seven days. However, in contradiction to provision of Para.3 of Article-91, the decision of extension up to seven days may be rendered by judge upon request of the Public Prosecutor. Pursuant to the 5th Paragraph the judge shall have to hear the caught or detained suspect before rendering his decision.
While pursuant to Para.3 of Article-91 of the Criminal Procedures Law, before the Public Prosecutor's decision on extension of the detention period up to four days, the condition that the detainee is to be heard, the fact that pursuant to Para. 5 of Article – 251 of the same Law the detainee must be absolutely heard before the Public Prosecutor's decision to extend the detention period brings about a paradox and contradiction. That the detainee is to be absolutely heard before the decision of time extension is a proper arrangement. In this regard, it resembles to apprehension protection measure1. However, we think that the same arrangement is to be applicable also for Paragraph-3 of Article-91.
According to Öztürk in teaching, pursuant to 5th Paragraph of Article-251 of THE Criminal Procedures Law (CMK), the fact that detention period is to be extended up to seven days indicates that this period is long. Therefore, in such cases, even if catching and apprehension was mandatory, application is to be made for arresting the suspect, and necessary transactions should be carried out after arresting the suspect2.
III – RIGHTS OF THE SUSPECT WHO HAS BEEN DETAINED
Procedures required to be observed at the time of taking statement or questioning the suspect or defendant (person charged with an offense) have been specified in Article-147 of the Criminal Procedures Law ( CMK). In this Article, before taking statement of or questioning the suspect or defendant, what are the rights vested with the law and such rights are to be notified have been indicated. Somebody who is suspected to have committed an offense is called "Suspect" during the investigation phase (CMK Art. 2/1(a). As the word "suspect" is mentioned in Articl-147, rights laid down in this Article will also be applicable to the suspect at the phase of investigation.
Article -147 incorporates also terrorist crimes. Therefore, unless clearly and specifically an exemption/derogation is brought in the laws on terrorist crimes, provisions of this Article shall be applicable also for the suspects of such kind of crimes. We are going to discuss here the differences in the rights of suspect during investigation phase in petty crimes and terrorist crimes, being limited with our subject of this research, in lieu of dealing with all circumstances as bring forth with this Article.
A – IN CASE OF PETTY CRIMES
1) Pursuant to Article-147/1(d) of the Criminal Procedures Law, any one of the relatives of the person who is caught is informed that the suspect has been detained.
2) Pursuant to Article of the Criminal Procedures Law, that the suspect has the right to select counsel (lawyer) and that he/she is able to benefit from counsel's legal assistance, that the counsel could be present during his/her delivering statement/testimony or interrogation/questioning shall be notified to the suspect. In the event that the suspect is unable to retain a counsel but desires to benefit from legal assistance of a counsel, a counsel/lawyer shall be appointed for him/her by the bar.
3) Pursuant to Article 149/1 of the Criminal Procedures Law, the suspect shall be able to benefit from legal assistance of one counsel or several counsels at every phase of the investigation.
4) According to Article-149/2 of the Criminal Procedures Law, maximum three counsels/Lawyers may be present at the time of taking statement/testimony at the phase of investigation.
5) At every phase of investigations the lawyer's right to meet with the suspect, to accompany the suspect throughout the phase of taking statement or interrogation and to render legal assistance to the suspect cannot be prevented and restricted.
6) According to Article 153/3 of the Criminal Procedures Law, no restriction and prejudice shall be imposed on counsel (lawyer) on examination and reviewing of records of statement of the Suspect, reports of experts and records related with other judicial proceedings at which the said persons (suspect, expert) are entitled to be present.
B – IN CASE OF TERRORIST CRIMES
1) Only one relative of the suspect is informed under the order of the Public Prosecutor pursuant to Para. (a) of Article 10 of the Law respecting Amendments to the Anti-Terrorist Law No. 5532 (TMKDYDK in Turkish).
2) Pursuant to Article-10/b of TMKDYDK, the Suspect may benefit from legal assistance of only one counsel during the detention period. The Suspects right to meet with the Counsel during detention period may be restricted for a period of twenty four hours upon claim of the Public Prosecutor and under Ruling of the Judge, however suspect's statement cannot be taken within this period.
3) According to Article-10/c of TMKDYDK, only one counsel shall be present at the time when the suspect's statement is taken by police.
4) According to Article-10/d of TMKDYDK, if the counsel's examination of content of the file or taking samples from documents may jeopardize the purpose of interrogation, this right of the counsel could be restricted by the ruling of the judge upon claim of the Public Prosecutor.
5) Pursuant to Article-10/e of TMKDYDK, in the investigation conducted due to the crimes contained in scope of this Law the Counsel's documents, files pertaining to the defense and records of conversations made with the detainee shall not be subject to examination. However, in case of obtaining findings or evidential documents evidencing that the Counsel has acted as intermediary in organizational communications among members of terrorist organization, upon the claim of the Public Prosecutor and under the ruling of the judge an official may be present and accompany the counsel at the meeting and documents given by these detainees to the Counsel and given by the Counsel to these detainees may be examined by the judge. The judge decides on whether or not the document is to be given partially or completely. This ruling of the judge may be contested by the relevant persons.
The state of appointing mandatory defense counsel as per Article 150 of the Criminal Procedures Law does not take place in the course of investigation and legal proceedings initiated for terrorist crimes. In this case, provisions of Article-150 of the Criminal Procedures Law may be effective also for suspects or defendants in such kind of crimes.
At one upper headline above, in case of simple (petty) crimes and terrorist crimes, at the phase of investigation, we have referred to the rights of the suspect. Primarily it being the right to benefit from legal assistance of Counsel, in terms of other rights, it has been found that the suspect accused of terrorist crimes has rather restricted rights. If we should indicate these differences;
1) In case of simple (petty) crimes, while the situation is notified to any relative chosen by the suspect, in case of terrorist crimes the situation is to be notified to the suspect's relative chosen by the Public Prosecutor.
2) While the suspect has been benefiting from assistance of three lawyers in case of petty crimes, the suspect of the terrorist crimes has the right to benefit from legal assistance of only one lawyer. This situation means that the suspect's defense right has been restricted. At the same time, this situation has constituted a contrariness and discrepancy to the principle of equality as set forth in Article-3 of the Turkish Penal Code (TCK), mainly as per Article-10 of the Constitution.
3) While in petty crimes the suspect's (in custody) right to meet with his/her counsel is possible at every phase of investigation, the suspect's (accused of terrorists crime) right to meet with his/her counsel has been restricted with the period of twenty four hours by the ruling of judge upon claim of the Public Prosecutor. In addition to the fact that suspect's statement could not be taken within this restricted period, it is unacceptable however that personal liberty and freedom is to be unnecessarily restricted without making any legal transactions.
4) In petty crimes, the Counsel (Lawyer) shall never be restricted on the matter related with examination of the suspect's records of statement, reports of experts and protocols related with other judicial transactions where the said persons (suspect, experts) are authorized to attend. In case of terrorist crimes, if and when it has been found and concluded under proper findings or evidences that the Counsel has acted as intermediary at organizational purpose communications between members of terrorist organization, the judge rules whether or not such document is to be delivered completely or partially. According to this arrangement, the judge shall be free to confiscate documents containing organizational purpose communication of the suspect accused of being a member of a terrorist organization and his/her Counsel and not to deliver such document to the Counsel. Nevertheless, the Judge has acquired also evidence with possession of such documents related with the said crime. The fact that any document which has been possessed concealed and avoided from the Counsel is unlawful and legally inexplicable, which may also inure to the result of restriction of the right to defense.
VI – CONCLUSION
Fight against terrorism is rather difficult in reference to struggle against other crimes. Both great number of criminals and their commitment of crimes in much more professional ways has been making difficult to obtain evidence related with the crime and to collapse and destroy the terrorist organization completely. However, this difficulty is to be overcome by laws made in the field of material (corporeal) criminal law, in other words, in the field of criminal law; not by laws enacted in the field of the law of judicial (court) procedures; for instance, such as expansion of crimes falling within the scope of terrorism, increasing their amount of punishments, provision of effective repentance facilities and substantial decrease of amount of penalties of convicts involved therein, etc.
Legislations related with the field of Criminal Procedures have been implemented after committing a crime. Therefore, at this phase, restriction of personal rights and liberties, even totally cancellation and removal of such rights and liberties within certain intervals have been a matter and in the question. This situation, by its very nature, requires that everybody must be subjected to equal transactions and treatments. In other words, inasmuch as the fact that transactions and procedures carried out in the field of judicial procedures law relate directly personal rights and liberties, those who are involved in this scope, irrespective of that they may be the suspect of petty crime or the suspect of terrorist crime, must have personally the same rights. The difference due to the nature of the crime committed should present itself in the sanction to be imposed, but should not show itself in the course of judicial proceedings and eventually within the field of personal rights and liberties.
By the premises heretofore mentioned, the suspect of terrorist crime should be able to meet with three lawyers at the phase of investigation, should not be kept in custody within twenty four hours without any good reasons, despite the fact that counsel's communication with the suspect is related with terrorist crime, documents seized thereof, should be left to the possession of the Counsel. Because these documents have been seized, adequate number of evidence would have been gathered for indictment.
The fact that the suspect caught before the decision of time extension as per Article 251 of the Criminal Procedures Law (CMK) is an appropriate arrangement. When viewed from this aspect it seems like apprehension protection measures3. However, we are of the opinion that the same arrangements should have been effective and operative also for the provisions of Para..3, Article-91.
1. ÖZBEK; Veli Özer; Criminal Procedures Law, Ankara, 2006, p. 266.
2. ÖZTÜRK, Bahri – ERDEM, Mustafa Ruhan; Applied Criminal Procedures Law, 2006,p. 508.
3. ÖZBEK; Veli Özer; Criminal Procedures Law, Ankara, 2006, p. 266.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.