The draft law, which contains a part of the regulations contained in the draft text “Judicial Reform Strategy Document”, was first prepared as a result of joint work by the Union of Turkish Bar Associations (“TBB”) and the Ministry of Justice (“Ministry”), was adopted in the Parliament on October 17, 2019. Law No. 7188 Amending the Code of Criminal Procedure and Other Laws (“Law”) was published in the Official Gazette No. 309278 dated October 24, 2019 and entered into force.
Accelerated trial procedure in the Law is implemented as of January 1, 2020 and has gained a practice of approximately 2 months.
What is Accelerated Trial Procedure?
It can be summarized as the procedure in which the suspects accused of certain crimes and who have attorney representation, to reach agreements with Public Prosecutors. These procedural regulations are, in essence, contained in the Article 250 of the Code of Criminal Procedure (“CCP”). With the subject Law, the Public Prosecutor can propose to the suspect the application of the accelerated trial procedure; if the suspect agrees before an attorney, the given procedure shall be applied. The Public Prosecutor will determine the penalty by reducing half of the standard penalty to be determined between the lower and upper limits of the crime and, if necessary, include the penalty within the scope of postponement, commuting the penalty to optional sanctions or deferment of the announcement of the verdict (“DAV”).
Detailed explanations of the accelerated trial procedure, which is an “exceptional” procedure, according to the Directorate General for Penal Affairs of the Ministry of Justice, can be found in our previous article on the First Package of Judicial Reform dated October 30, 2019.
How Does the Process Progressing?
In the categories of crimes in which accelerated trial procedure will be applied, an invitation is sent to the suspect as soon as possible by the competent Public Prosecutor’s Office of Serial Procedure Investigation (“Office”). Although there is no requirement as to form for this invitation, in practice, it is perceived that an invitation letter was directed through the police departments.
The invitation includes information about which crime is being investigated, information about the investigation, detailed information about the accelerated trial procedure, procedure to be applied if the invitation is not responded and the reminder that the suspect can apply to the Attorney General who issued the invitation, together with his/her attorney. In practice, in addition to this information, without any legal basis, in case of not applying to the Office without an excuse within a short period of time (e.g. 3 days) after the notification of the invitation, the suspect is warned that he/she will be deemed to have waived this procedure.
Following the notification of the invitation by the suspect, the suspect and preferably the attorney are present at the negotiation stage at the Office. At this stage, the limits of compulsory attorneyship have been drawn up by the Directive of Accelerated Trial Procedure in Criminal Procedure (“Directive”). According to Articles 5/3, 10/1-d and 10/3 of the Directive, the proposal of the public prosecutor can only be accepted in the presence of the attorney of the suspect. Invariably, when the requisition prepared by the public prosecutor as a result of accelerated trial procedure is referred to the court, the attorney of the suspect must be present at the hearing that is opened to decide on the request. In this way, it is thinkable to mention the existence of compulsory attorneyship in both the prosecution and the court stages in the accelerated trial procedure. (in this regard see. TBB Announcement No. 2020/4)
A determination is made by the Public Prosecutor between the legal lower and upper limits of the criminal sanction related to the crime and then, the resulting sanction is reduced by half. In addition to the remission, it can be decided/proposed to include the penalty within the scope of postponement, commuting the penalty to optional sanctions or deferment of the DAV.
After the suspect and his/her attorney have announced their decision on this proposal, a form titled “Accelerated Trial Procedure Application Form” is issued by the Public Prosecutor. This form includes information about the phases of the investigation, the enlightment made to the suspect and his/her attorney regarding the accelerated trial procedure, the crime attributed to the suspect, the offer made by the prosecution and the information regarding whether the suspect accepted the offer. In the lower part of the form, the signature fields on behalf of the Public Prosecutor, the Clerk, the suspect and the Attorney are kept.
If the proposal is not accepted, the investigation will be conducted according to the general provisions of CCP, an indictment will be filed and a criminal case against the suspect will be opened. If the proposal is accepted, the Public Prosecutor must ask the competent court in writing for the application of the accelerated trial procedure on the suspect. This request is made with a document named Requisition.
After the requisition is sent to the competent Criminal Court of first instance, a hearing is opened by the court, on the same day and hour, in practice. If, after hearing the suspect in the presence of his/her attorney, the court finds that the suspect has accepted the procedure of his own free will and that the alleged action/crime is within the scope of the procedure, it shall rule in accordance with the sanction set out in the requisition of the prosecutor’s office. If it is determined by the court that the conditions of the accelerated trial procedure have not been met, the requisition will be rejected and the file will be returned to the Public Prosecutor’s Office for the purpose of concluding the investigation according to the general provisions of the CCP.
The verdict established by the court in accordance with the request of the Public Prosecutor can be appealed by the suspect and his/her within 7 days from pronouncement of the judgment.
Opinions and Evaluations On Implementation and Procedure
The accelerated trial procedure applied as of January 1, 2020 can be deemed useful in terms of significantly easing the workload of the First Instance Criminal Courts, which have become “bag courts” because of the portrayal of Peace Courts of Criminal Jurisdiction as magistrates, and therefore in terms of establishing a trial within a reasonable time. However, considering the fact that the Public Prosecutors are not the adjudication authority and the passive role of the courts in the process, it can be asserted that the new procedure has significantly changed the basic organs and dynamics of the criminal trial procedure, both in theoretical and practical aspects. The fact that the courts’ authority of adjudication has been redesignated as “supervisory powers”, paints a vague portrait of the bodies of criminal procedure and their powers.
Additionally, it is unfortunately observed that, in practice, the concept of “trial” by the Criminal Court of First Instance on requisition is relatively brief and succinct; sometimes the suspects and their attorneys of multiple investigations are put to trial at the same time and the examination by the court is superficial. Finally, the fact that the suspect, who is likely to be acquitted as a result of a trial before the court, is only likely to accept a reduced sentence for fear of further punishment, is likely to adversely affect the main purpose of the criminal trial, which is directed towards material fact.
Uçar Law & Consultancy Office