Country of origin information report Turkey December 2007

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The Constitutional Court (anayasa mahkemesi)
10.19 As noted by the Turkish Embassy website 2004, “The Constitutional Court consists of 11 regular members and four alternate members. All judges of the Constitutional Court hold office until they retire at the age of 65 like all other judges in Turkey.” [74] (The Court System)
10.20 As recorded in ‘Political Structure of Turkey’ November 2005:
“The basic function of the Constitutional Court, established in the 1961 Constitution, is to examine the constitutionality, in both form and substance, of laws, and decrees with the power of law and the Rules of Procedure of the Turkish Grand National Assembly. Other functions of the Court are as follows: With the capacity of the High Tribunal, the Constitutional Court judges the following: the President, members of the Council of Ministers, members of supreme courts, the chairman and members of the Supreme Council of Judges and Public Prosecutors and of the Supreme Council of Public Accounts, the Chief Republic Prosecutors and the Deputy Republic Chief Prosecutors for crimes related to their offices. It audits the finances of political parties. It examines TGNA decisions to revoke the immunities of deputies, or to dismiss members of parliament. It chooses the Chairman and Deputy Chairman of the Court of Jurisdictional Conflicts. The Constitutional Court is composed of 11 regular and four substitute members. Decisions are made when the eleven members convene. The decisions of the Constitutional Court are final. These decisions cannot be amended in any manner and their application cannot be delayed.” [36g] (Section on Higher Courts)
10.21 The USSD 2006 report stated that:
“The Constitutional Court examines the constitutionality of laws, decrees, and parliamentary procedural rules and hears cases involving the prohibition of political parties. If impeached, ministers and prime ministers can be tried in the Constitutional Court. However, the court cannot consider decrees with the force of law issued under a state of emergency, martial law, in time of war, or in other situations as authorized by parliament.” [5g] (section 1e)
10.22 As reported on 26 July 2005 by the Office of the Prime Minister, Directorate General of Press and Information (quoting the newspaper Cumhuriyet) on the previous day Tulay Tugcu was elected the first female head of the 44-year-old Constitutional Court. [36f]
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Fair trial
10.23 The International Helsinki Federation (IHF) for Human Rights 2006 Turkey report noted:
“Both the government and the military maintained their influence on the judiciary, and corruption remained widespread in the judiciary. Violations of fair trial and due process rights continued to be frequently reported. With respect to terrorist suspects, Amnesty International documented a range of violations, including failure to investigate allegations of torture and ill-treatment; the admission of statements made under duress as evidence; denial of equality of arms and the right to an effective defense; and excessively long pre-trial detention and protracted criminal proceedings. A considerable number of people charged with terrorism-related crimes, some of whom had been arrested as far back as in 1993, remained in detention in maximum security prisons pending trial.” [10c]
10.24 The USSD 2006 report stated that:
“There is no jury system; a judge or a panel of judges decides all cases. Trials are public. The law requires bar associations to provide free counsel to indigents who request it from the court and bar associations across the country did so in practice. Defendants have the right to be present at trial and to consult with an attorney in a timely manner. Defendants or their attorneys can question witnesses for the prosecution and present witnesses and evidence on their behalf. Defendants and their attorneys have access to government-held evidence relevant to their cases. Defendants enjoy a presumption of innocence and the right to appeal.” [5g] (section 1e)
10.25 The USSD 2006 report continued:
“The law provides for the right to a speedy trial; however, at times trials lasted for years. Proceedings against security officials often were delayed because officers did not submit statements promptly or attend trials. In several cases, such delays extended beyond the statute of limitations, causing the trial to end without a verdict. The law prohibits the use of evidence obtained by torture in court; however, prosecutors in some instances failed to pursue torture allegations, and exclusion of evidence occurred only after a separate case on the legality of the evidence was resolved. In practice a trial based on a confession allegedly coerced under torture could proceed, and even conclude, before the court had examined the merits of the torture allegations.” [5g] (section 1e)
10.26 The EC 2006 report noted that:
“As regards the right to an effective remedy and to a fair trial, the average criminal trial period increased from 210 days in 2004 to 234 days in 2005, and so did the average duration of civil proceedings, from 177 days in 2004 to 184 days in 2005. The pending cases before the criminal courts remained stable: 1 050 754 criminal cases were carried over from 2004 to 2005, while 1 050 250 criminal cases were carried over from 2005 to 2006. The pending cases before the civil courts slightly increased: 757 560 cases were carried over from 2005 to 2006, compared to 717 960 cases carried over from 2004 to 2005.” [71a] (p61)
10.27 The EC 2007 report noted that:
“With regards to a fair trial there has been no progress on the establishment of an organised, professional interpretation system in courts. Interpreters are not included on the list of expert witnesses and are often summoned among court auxiliary staff. As regards legal aid, amendments to the Turkish Criminal Code and the Criminal Procedure Code were adopted in December. They relate, among other things, to the compulsory commissioning of a defence lawyer. In cases where the suspect or the defendant does not have a defence lawyer and the offence is calling for a lower limit of imprisonment of more than five years, a defence lawyer shall be appointed for suspects and defendants without requesting them.” [71d] (p 63)
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Penal code
10.28 The European Commission report 2007 report stated:
“Progress was registered in the fight against organised crime. A national strategy against organised crime was adopted. A new law on anti-smuggling was adopted. It aims at adapting legislation to the provisions of the new Turkish penal code and code on criminal procedures.” [71d] (p65)
10.29 The Turkish Daily News in an article published on October 3, 2007 reported that,” The government will change the much-criticized Article 301 of the penal code that penalizes insulting “Turkishness” before the release of Turkey's European Union Progress Report in early November…Many see Article 301 as a violation of the freedom of expression and the EU has been demanding its removal in order for Turkey to continue its membership process.” [23f]
See also Section 15:01 Freedom of Speech and Media
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Code of criminal procedure
10.30 The European Commission 2007 report stated that:
“Some progress has been made in terms of the efficiency of the judiciary, including through amendments to the Turkish Criminal Code (CC) and the Criminal Procedure Code (CPC) adopted in December 2006. These amendments extend the discretion of the prosecutor as regards decisions not to prosecute, while the provisions regarding mediation are simplified. Judicial supervision - introduced in the CPC as an alternative to arrest for offences requiring imprisonment of three years or less - has started functioning satisfactorily. Probation is an area where progress has been achieved in implementation: 133 probation centres employing 1,298 staff have become fully operational since November 2006.” [71d] (p 9-10)
10.31 The EC 2007 report further noted that, “However, some provisions introduced under the CPC such as return of the indictment, mediation (plea bargaining) and cross-examination have not been used sufficiently in practice. As regards the regional courts of appeal, under the 2004 legislation establishing these courts, they were due to start operating in June 2007: in the event, this did not materialise. Finally, the bar examination for a lawyers' licence was abolished under legislation adopted in November 2006. The implementation of this provision should be monitored as it might lead to lower standards in the profession.” [71d] (p59)
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11 Arrest and detention – Legal Rights
11.01 The European Commission 2007 report stated that:
“However, cases of torture and ill-treatment are still being reported, especially during arrest and outside detention centres. There is no independent monitoring of places of detention by independent national bodies, pending the adoption of the Optional Protocol to the UN Convention against Torture. The use of statements obtained in the absence of legal counsel or which are not confirmed in front of a judge is prohibited by the Criminal Procedure Code. However, the Court of Cassation ruled that the ban on the use of such statements does not apply retroactively.” [71d] (p13)
11.02 The EC 2007 report also noted that:
“Some progress was made regarding access to justice. Access to a lawyer for detainees improved during the reporting period. Reports indicate that in urban areas most detainees consulted lawyers immediately after detention. However, access to lawyers has varied across the country and according to the type of crime committed. Security forces have not always provided detainees with immediate access to lawyers, as required by law. In rural areas, particularly in the Southeast of the country, there have been a higher number of cases where defendants have not had access to a lawyer on terms similar to those applying in urban areas. Under the current legal framework, defendants are under the obligation to return the lawyers' fees if they are sentenced.” [71d] (p14)
11.03 The 2006 USSD report noted:
“HRA claimed police often intimidated detainees who asked for attorneys, for example by telling them a court would assume they were guilty if they consulted an attorney during detention. Detainees were generally allowed prompt access to family members; however, human rights organizations reported that since October, they have been hindered from helping families find out whether a relative has been detained because the government began to refuse to release such information to the organizations.” [5g] (section 1d)
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11.04 As noted in a letter from the British Embassy in Ankara to the Home Office, dated 28 September 2005:
“A new Code on Criminal Procedure (CCP) came into force on 1 June 2005. As part of the new CCP, ‘judicial controls’ [reporting conditions] were introduced which allow courts to impose a number of restrictions on suspects or defendants in criminal cases. This includes the condition of reporting regularly, within the time limits indicated, to a place specified by the judge.”
As mentioned in this letter Article 109 and article 110 of the CCP set out the detail of ‘judicial controls’.
A109 – Judicial supervision

(1) Where there are reasons for arrest as specified in Article 100 and where an investigation is being conducted with regard to an offence necessitating imprisonment, with an upper limit of 3 years or less, a decision may be taken to place the suspect under judicial supervision instead of placing him under arrest.

(2) Judgements in favour of judicial supervision may also be applied to cases for which the law prohibits arrest.

(3) Judicial supervision may involve the imposition of one or more of the following obligations upon the suspect:

(a) not to go abroad,

(b) to appear regularly within the time limits indicated at places specified by the judge,

(c) to obey the summons of authorities or persons specified by the judge, and where necessary to comply with supervisory measures regarding the persons occupational activities or the pursuit of his education,

(d) not to be permitted to drive any or certain vehicles, and where necessary to leave his driving licence at a government office in return for a receipt,

(e) to undergo and accept medical care or treatment or examination, for detoxification purposes, particularly with respect to narcotics, stimulants or volatile substances or alcohol dependency and including hospitalization,

(f) to deposit an amount of money as a security, as determined by the judge at the request of the public prosecutor, after taking into account the financial circumstances of the suspect and deciding if it is to be paid in more than one instalment,

(g) not to possess or carry weapons, and if necessary to leave any weapons in his possession at a judicial depository, in return for a receipt,

(h) to provide real and personal security for monies needed to secure the rights of the injured party, concerning which the judge, at the request of the public prosecutor, shall specify the amount and time limit for payment,

(i) to provide assurances that he will pay alimony regularly, in accordance with any court verdict, and that he will fulfil his obligation towards his family.

(4) In applying subsection (b) above, the judge or the prosecutor may permanently or temporarily allow the suspect to drive vehicles as part of his occupational activities.

(5) Any time spent under judicial supervision may not be deducted from a sentence by reason of being considered as a restriction of personal liberty. This provision shall not apply to cases listed under subsection (e) of this Article.
A110 – Judicial supervision decisions and administration by the authorities

(1) A suspect may be put under judicial supervision at the request of the public prosecutor, and according to the decision of a Justice of the Peace.

(2) The judge, at the prosecutors’ request, may impose one or more additional judicial supervision conditions; he may also lift or change all or part of the obligations contained in the conditions, or exempt the suspect from fulfilling some of the conditions.
When it is deemed necessary, the provisions of Article A109 and of the present Article may be used by other designated or competent judicial authorities, in order to pursue prosecution at any level.” [4i]
11.05 The USSD 2006 report noted that:
“The law prohibits arbitrary arrest and detention; however, the government at times did not observe these prohibitions. During the year police routinely detained demonstrators. Police detained several members of the former DEHAP on various occasions. Police continued to detain and harass members of human rights organizations and monitors. Police continued to detain persons on suspicion of links to Turkish Hizballah.” [5g] (Section 1d)
11.06 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Turkey from 7 to 14 December 2005 and their report issued on 6 September 2006, noted that:
“The obligation to notify without delay a relative of the detained person was, as a rule, being complied with. In most cases, the notification was made shortly after deprivation of liberty and, in some cases the detained person was given the opportunity himself to speak to his relatives. Moreover, the procedures related to the notification were properly recorded in the custody follow-up form (including the name and signature of the official giving the notification, the date and time at which notification was given, and the signature of the detained person confirming the fact that detention had been notified). However, in a few cases, allegations of delays in notification were received, as well as of absence of feedback to the detainee (whether notification had indeed been made or when).” [13a] (Paragraph 22, section 2)
Detention for questioning prior to formal arrest
11.07 The EC 2005 report stated that:
“Article 141 of the Constitution limits the length of pre-trial detention by providing for the right to be judged within a reasonable time. Under Article 91 of the Criminal Procedure Code, a person who has been arrested shall in general be brought before a court within twenty four hours; in exceptional cases, this period may be extended to a maximum of four days. A person who has been remanded in custody awaiting trial may be detained, under Article 102 of the Criminal Procedure Code, for up to six months if accused of a minor offence and two years if accused of a serious offence; in exceptional cases, this period may be extended to three years.” [71b] (p105-106)
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11.08 As outlined in the January-February 2005 issue of Newspot which is the online Journal of the Directorate General of Press and Information under the Office of the Prime Minister of Turkey:
“According to the new law [the new Penal Procedural Law (CMUK)], suspects cannot remain in police custody for more than 24 hours. Those arrested and brought to court will not be handcuffed. Police will inform individuals taken into custody of their legal rights. Prosecutors will have the right to extend the period of detainment for a consecutive three days, if gathering evidence is difficult… Detainees suspected of crimes which stipulate punishment for less than two years will no longer be imprisoned for the duration of the trial.” [36d] On 27 May 2005, the Turkish Daily News reported that the parliamentary General Assembly had passed a bill that amended the Criminal Procedures Law (CMK), effective from 1 June 2005. “The maximum time in custody before appearing in a relevant court will be 24 hours. Suspects facing charges carrying a fine or prison sentence of less than a year will not be detained beyond arrest and booking.” [23q]
11.09 The USSD 2006 report noted that, “Lengthy pretrial detention was a problem. The law provides detainees the right to request speedy arraignment and trial; however, judges have ordered that some suspects be detained indefinitely, at times for years. Approximately half of the prison inmates held during the year were convicts; the other half were either awaiting trial or held during trial proceedings.” [5g] (section 1d)
Warrants / Court Summonses
11.10 The USSD 2006 report noted that:
“Warrants issued by a prosecutor are required for arrests unless the suspect is caught in the commission of a crime. A suspect may be detained for 24 hours, with prosecutorial discretion to extend the period to 48 hours, excluding transportation time, before being arraigned by a judge. There is a functioning bail system. After arraignment, the judge may release the accused upon receipt of an appropriate assurance, such as bail, or order detention if the court determines that the accused is likely to flee the jurisdiction or destroy evidence.” [5g] (section 1d)
11.11 The Norwegian Country of Origin Information Centre ‘Report of fact-finding mission to Turkey (7-17 October 2004)’ related that:
“According to Mr. Islambay, law enforcement authorities are required to report to the Public Prosecutor on each case-inquiry. This report – Fezleke – contains all information available on the case, such as the type of the crime, names of witnesses, victims, suspects, date of the crime and so on… According to Mr. Islambay, the attorney is entitled to receive a copy of the documents from the Prosecutors Office and would thus have access to this subject index if verification was required… A person claiming to have been summoned to criminal proceedings or to commencement of sentence should be able to give documentary evidence of that… Both Mr. Islambay and Mr. Turan claimed that persons on the run could not get access to en [sic] (authentic) warrant. He or she (or the attorney) would get a copy of the document at the earliest after detention.” [16] (p22- 23)
Right to legal advice
11.12 The USSD 2006 report noted that:
“The law provides that detainees are entitled to immediate access to an attorney and to meet and confer with an attorney at any time. The law provides that indigent detainees be provided a public attorney at government expense. Private attorneys and human rights monitors reported irregular implementation of these regulations, particularly with respect to attorney access. According to a number of local bar associations, attorney access for detainees improved during the year, but varied widely across the country. Numerous bar association representatives and human rights organizations reported that in urban areas most detainees consulted with attorneys soon after being detained, while in rural areas, particularly the southeast, there was a higher number of cases where defendants did not have immediate access to an attorney. The HRA observed an increase in the percentage of detainees consulting with attorneys but maintained that the numerous detainees did not exercise this right.” [5g] (section 1d)
11.13 The USSD 2006 report noted that:
“Human rights observers noted that in most cases where a defendant could not afford an attorney, one was provided; however, in terrorism-related cases an attorney was frequently not provided until after the suspect had been detained and interrogated by security forces. Provincial bar associations reported that they faced increasing difficulties providing such attorneys because the government was behind on compensation payments for such work.” [5g]
11.14 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Turkey from 7 to 14 December 2005 and their report issued on 6 September 2006, noted that:
“However, the delegation heard allegations to the effect that law enforcement officials still do on occasion delay access to a lawyer, so as to enable the person detained to be informally questioned without the presence of a lawyer, prior to the taking of a formal statement (in the lawyer’s presence). The CPT must once again recommend that all necessary steps be taken to ensure that the right of access to a lawyer for persons in police/gendarmerie custody, as guaranteed by law, is fully effective in practice as from the outset of custody.” [13a] (paragraph 23)
11.15 Furthermore the report noted that:
“A ’Suspect’s Rights Form’ (SRF) reflecting the latest legal situation was in use in the three Provinces visited. However, many detained persons claimed they had been informed of their rights only some time after having been brought to the detention facility, often after an initial ‘informal’ questioning session. It was also clear that a copy of the signed SRF was frequently not given to detained persons, despite the requirement in the Regulation on Apprehension that this be done.” [13a] (paragraph 24)