OLD TCK & CMUK and NEW TCK & CMK: “PERIOD OF DETENTION”

I. Ratione Temporis Execution of the Codes of Penal and Criminal Procedure: “The Principle of Ban on Retroactive Execution of Law-in-disfavor”

Pursuant to the Principle of Ban on Retroactive Execution of Law in disfavor, the rule is: “Enforcement of the law in force at the time of committal of a crime. Exception: If provisions of a new law which comes into effect following the committal of a crime are: (i) in favor of the perpetrator, the law is enforced retroactively; that is, the law is applied and the perpetrator benefits from these provisions; (ii) in disfavor, the law is not applied”.

According to the 2nd paragraph of Article 7 titled “Ratione Temporis Execution” in the New Turkish Penal Code (numbered 5237 and dated 26 September 2004) (“TCK”), “If provisions of a law in force at the time of committal of a crime are not identical with that of prospective laws, the law in favor of the perpetrator is applied and executed.”

II. Old CMUK & New CMK: “Period of Detention”

According to Article 110 of the old Code of Criminal Procedure (“CMUK”) (numbered 1412 and dated 4 April 1929) titled “Period of Detention on Remand” states that: “The period of detention on remand is six months at maximum. In case a public law suit is filed, this period, including period of detention on remand past during the investigation process, cannot exceed two (2)years.

…… Punishments restricting freedom for seven years, or longer, and in the cases requiring death sentence, depending on the reason for arrest, on the conditions of evidences and personal attitudes of the perpetrator, the court may rule for continuation of the detention period or termination thereof or for the release of the perpetrator on condition of a proper bail out.”

Article 102 of the New Code of Criminal Procedure (numbered 5271 and dated 4 December 2004) (“CMK”) titled “Detention Period on Remand” (effective from 31 December 2010), states that: “… (ii) Detention Period on Remand in the jurisdiction of the High Criminal Court is two (2) years at maximum. In the presence of compelling reasons, such period may be extended by justifying it. The extension period cannot be longer than three (3) years in total. (iii) The decisions concerning the extension periods according to this article shall be given after consulting the views of the public prosecutor, the suspect or the defendant and the defense lawyer.”

III. Ergenekon Case & Detention Period

Detention Period of the defendants in the Ergenekon case cannot exceed two years according to Article 110 of the old CMUK. However, according to the 3rd paragraph, the detention period may be extended depending on the personal attitude of the defendant and evidences.

According to Article 102 of the new CMK, detention period is two (2) years at maximum, which can be extended in the presence of compelling reasons by justifying it. As it is clearly stated without need for any debate in the Vol. 66 of the 26th Session (3 December 2004) in the 3rd Legislative Year and 22nd Term of Turkish Parliament, in line with the will of lawmakers, it is apparent that detention period cannot exceed 2+1= 3 years in total.

Vol. 66 of the 26th Session (on 3 December 2004) in the 3rd Legislative Year and 22nd Term of Parliament

“On behalf of the governing Justice and Development Party (“AKP”), Aydın Deputy Semiha Öyüş – Thank you.

Mr. Speaker and the distinguished members of Parliament, I took speech to express our opinion in general concerning regulations among Article 101 and 156 of the Draft Code of Criminal Procedure numbered 698. I salute honorable Parliament.

With Article 100 of the Draft Code of Criminal Procedure, reasons for detention are enlisted and reduced in number as a result of a regulation in the subject matter.

With Article 100, it is stated that: “In case of strong suspicion of offense, and of a reason for arrest, decision for the detention of the suspect or the defendant may be reached. During the investigation process, the person is a suspect. In this case, public prosecutor conducting an investigation on the suspect resorts to the judge of Criminal Court of Peace and asks for a decision to arrest.

During the trial period, the individual is the defendant. In this case, decision to arrest the defendant is given by the demand of the prosecutor or ex-officio. Such type of demands should be justified.

Besides, as a new regulation in our criminal justice system, legal and actual reasons are explained why implementation of judicial control remains incapable.

Regarding the decision for arrest, or continuation of arrest or overruling of request for acquittal, legal and actual reasons on which such decision is based shall be provided. The suspect or the defendant shall be verbally informed about the content of ruling; along with that a written copy shall be provided and that also shall be mentioned in the ruling.

The suspect or the defendant is entitled to ask for assistance of a defense counselor to be appointed by the bar or someone chosen at the suspect or the defendant discretion. In case no decision for detention has been reached, the suspect or the defendant shall be released immediately. S/he can appeal to reasons and decision for detention.

In cases not subject to the duty of the High Criminal Court, detention period is six months at maximum. If needed, detention period shall be extended for four months by stating its reason. In cases subject to the duty of the High Criminal Court, detention period can be two (2) years at maximum; but it could be extended up to three (3) years.

With this article, detention period on remand is classified as offenses subject or not subject to the jurisdiction of the High Criminal Court, rather than being contingent upon abstract punishment period. Accordingly, detention period on remand is regulated as six months in minimum, two years in maximum; the six-month period should be extended four more months, if needed and the two-year (2) period for one (1) additional year”.

According to Article 121 of the rationale of the CMK in regard to its Article 102 says that: “Detention period should be reasonable according to the Article 5 of European Human Rights Convention, which is a fundamental principle. As seen in some decisions of the European Court of Human Rights (“ECHR”), if detention exceeds a reasonable period of time requires the payment of damages. It is known that the ECHR decisions are taken into account by all European countries and amendments in national laws are made accordingly.

With these in mind, envisaged in the Article are: 1. Six months is the maximum detention period for offenses requiring an upper limit of five years punishment, or less, 2. One year is the maximum detention period for offenses requiring an upper limit exceeding five (5) years punishment.

With this Article, however, the Draft Code giving importance to an effective justice system and to the rights of the defendant, maintains a reasonable balance and agrees for up to six months extension in cases requiring potential punishment of over five years.

 In case the punishment of the crime does not exceed five years, the extension can be four months. In law suits subject to the duty of the High Criminal Court, detention period is two (2) years in maximum. The decisions concerning the extension periods shall be given after consulting the views of the public prosecutor and the defense. In terms of faults, the last paragraph of the article envisages three month detention period in maximum.

The article entirely serves to protect the rights of the suspect and the defendant.”

IV. Conclusion: “Detention Period”

Since according to 3rd paragraph of Article 110 of the old CMUK, continuation of detention period seems to be “unlimited” at some point, in the Article 102 of the new CMK (2+1) years in total up to three (3) years in maximum detention period (by reserving that the extension of the period could be debatable based on the personal attitude of the defendant, evidences or compelling circumstances) is applicable, because it seems as a law-in-favor.

However, the double-time implementation of the new TCK on terror and organized crime against State shall only be valid for offenses committed after the article’s date of entry into force. The article, however, cannot be implemented for offenses prior to the article’s date of effect, because it shall be law-in-disfavor.

Under the light of aforementioned assessments, according to TCK and CMK, maximum detention period is two plus one (2+1=) three (3) years.

The said laws are applicable to offenses committed prior to 1 June 2005, if they are law-in-favor.

Truly yours

Hakan HANLI, Esq.

Senior Attorney-at-Law

Member of Ankara & Brussels Bars

International & European Law, Ph.D

GLOBAL TOP TEN COUNSEL of YEAR 2010

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