October 30, 2019
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. The amendments implemented in the first phase were collected in the Law No. 7188 Amending the Code of Criminal Procedure and Other Laws (“Law”). Subject Law was published in the Official Gazette No. 309278 dated October 24, 2019 and entered into force.
AMENDMENTS AND NOVELTIES BROUGHT BY THE LAW
It is possible to enlighten the amendments and new regulations made to Code of Criminal Procedure (“CCP”) as follows;
- Detention Periods: With the amendment made to the Article 102 of the CCP, the period of detention at the investigation phase shall not exceed six months for crimes that do not fall within the jurisdiction of the High Criminal Courts; and one year for crimes that fall within the jurisdiction of the High Criminal Courts. Exceptionally, for the crimes committed against the state and crimes within the scope of the Anti-Terror Law, the period of detention shall be a maximum of one year and six months and may be extended once for an additional six months. The amendment will be applied as of January 24, 2020.
- Expansion of the Scope of Decisions May Be Appealed Before the Court of Cassation: With the Article 29 of the Law, the third paragraph has been added to Article 286 of the CCP and it has been made possible to appeal the decisions of the District Court of justice, even if they fall below the legal appellate limit, for the following offences regulated in the Turkish Penal Code (“TPC”):
- Defamation (TPC Art. 125/3)
- Issuing threats creating fear and panic among the public (TPC Art. 213)
- Inciting the commission of a crime (TPC Art. 214)
- Praising a crime and criminal (TPC Art. 215)
- Inciting public to hatred and enmity or humiliating the public (TPC Art. 216)
- Inciting non-compliance with laws (TPC Art. 217)
- Defamation of the President of the Republic of Turkey (TPC Art. 299)
- Defamation of the state’s symbols of sovereignty (TPC Art. 300)
- Defamation of the Turkish nation, the Republic of Turkey, the state institutions or their organs (TPC Art. 301)
- An armed organization (TPC Art. 314)
- Alienating the public from military service (TPC Art. 318)
- Crimes under the second and fourth paragraphs of Article 6 and the second paragraph of Article 7 of the Anti-Terror Act
- Crimes included in the first paragraph of Article 28, Article 31 and Article 32 of the Law on Meetings and Demonstrations.
- Ban of Access to Internet Sites: With the Article 36 of the Law, in case of a breach regulated in the paragraphs 2, 4 and 14 of Article 8 of the Law no. 5651 on the Regulation of Publications Made on the Internet and the Fight Against Crimes Committed Through These Publications, it is possible to ban access to the publication, section, branch where the violation occured (URL, etc.), rather than banning access to the entire website. Exceptionally, where technically blocking access to infringing content cannot be done or where a violation cannot be prevented by blocking access to related content, the decision to block access to the entire website is yet conceivable.
- Postponing The İnitiation Of the Criminal Case: Except for offenses subject to mediation and prepayment, as well as the offences enacted in the Article 181/6 of the CCP, the Public Prosecutor shall postpone the initiation of the criminal case for 5 years, for offenses requiring a maximum 3-year imprisonment of which investigation is subject to a criminal complaint. With the subject Law, the upper limit, which was previously 1 year, was increased to 3-years. As of October 24, 2019, when the subject Law comes into force, the new regulation will not be applied in respect of files where a criminal lawsuit was already filed.
- Accelerated Trial Procedure: With the subject Law, it has been enabled for the suspects accused of certain crimes and who have attorney representation to reach agreements with Public Prosecutors. According to 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. The offences for which accelerated trial procedure can be applied are as follows:
- Trespassing (TPC Art. 154/2,3)
- Willful endangerment of general security (TPC Art. 170)
- Endangering traffic safety (TPC Art. 179/2,3)
- Causing noise (TPC Art. 183)
- Counterfeiting on money (TPC Art. 197/2,3)
- Seal busting (TPC Art. 203)
- Perjury in editing of official document (TPC Art. 206)
- Providing space and facilities for gambling (TPC Art. 228/1)
- Use of somebody else’s identity or credentials (TPC Art. 268)
- The offences specified in the first, third and fifth paragraphs of Article 13 and the first, second and third paragraphs of Article 15 of the Law No. 6136 dated July 10, 1953 on Firearms and Knives and Other Tools
- The offence specified in the first paragraph of Article 93 of the Forestry Law no. 6831 dated August 31, 1956
- The offence stated in Article 2 of the Law No. 1072 of December 13, 1968 on Roulette, Tilt, Pinball and Similar Game Instruments and Machines
- The offence specified in subclause (1) of the first paragraph of the Additional Clause 2 of the Cooperatives Law No. 1163 of April 24, 1969.
- Simple Trial Procedure: With this procedure newly added to Article 251 of the CCP with the Law, first instance criminal courts may apply the simple trial procedure for crimes that require a judicial fine and/or imprisonment of two years or less. If courts decide to apply the simple trial procedure, the indictment will be notified to the defendant, injured party and complainant, and these parties will be asked to submit their statements and defenses in writing within 15 days as of the receipt. After the time given for the statements and defenses has expired, the court can render a decision without holding a hearing and taking the Public Prosecutor’s opinion. In case of imprisonment sentence, the penalty will be reduced by a quarter. The regulations regarding the subject procedure will come into effect as of January 1, 2020, and subject procedure will not be applied to the cases that the criminal case has been initiated; the judgement has been made or has been finalized as of the date of January 1, 2020.
- Crimes Under Conciliation: The scope of the crimes subject to conciliation has been expanded by including the following crimes in the scope of conciliation;
- Violation of the freedom to work and labor,
- Abuse of confidence
- Purchase of criminal property.
EFFECTIVE DATE AND ENFORCEMENT
Law No. 7188 Amending the Code of Criminal Procedure and Other Laws, which has been adopted in the Parliament on October 17, 2019 and published in the Official Gazette No. 309278 dated October 24, 2019 will be take effect on its release date, which is October 24, 2019.
TEXT OF THE AMENDMENT
Uçar Law & Consultancy Office