The new judicial reform package, aimed at making Turkey’s judicial system more effective and fair, includes significant amendments to the Turkish Penal Code and the Code of Criminal Procedure. These amendments, made in light of the Constitutional Court’s annulment decisions, particularly aim to eliminate ambiguities in judicial practice and strengthen the right to a fair trial in areas such as committing crimes on behalf of an organization, the trial of fugitive defendants, and objection mechanisms related to simple trial procedures. These changes will contribute to making the judicial system more transparent and accountable while ensuring individual responsibility is defined in accordance with the fundamental principles of criminal and penal law.
Articles 10 and 11 introduce amendments to the Turkish Penal Code defining the act of committing crimes on behalf of an organization as an independent crime, while Articles 16 and 17 focus on the trial of fugitive defendants and objection mechanisms to simple trial procedures in the Code of Criminal Procedure. Particularly, these changes post-Constitutional Court’s annulment decisions aim to adopt a more fair and effective approach in the judicial process. This news examines the changes in the relevant articles and the reasons behind these changes.
Article 10 amends the sixth paragraph of Article 220 of Law No. 5237.
The amendment to Article 220 of the Turkish Penal Code, in light of the Constitutional Court’s decisions, defines the act of committing crimes on behalf of an organization as a significant independent crime. The primary reason for this change is the Constitutional Court’s decision on 26/10/2023, which annulled the sixth paragraph of the article, and the annulment decision becoming effective four months after its publication in the Official Gazette. The annulled paragraph previously regulated the punishment for those who commit crimes on behalf of an organization without being a member, but the Constitutional Court decided to annul this regulation.
The main difference between the new regulation and the previous one is the more specific punishment of individuals who commit crimes on behalf of an organization without being members. The new regulation proposes imprisoning these individuals for between two years and six months to six years, with the possibility of reducing the sentence by half depending on the nature of the committed crime. A critical point is that this regulation applies only to armed organizations. Additionally, it is stated that individuals committing crimes on behalf of an organization will be punished separately for the crime committed and for committing a crime on behalf of an organization.
This change can be seen as part of a more effective approach to combating organized crime. Particularly, this amendment, made by taking into account the reasons for the Constitutional Court’s
annulment decision, aims to provide legal clarity and a fair trial process in the fight against organized crimes.
The amendment is also in line with the principle of “individual criminal responsibility,” one of the fundamental principles of criminal and penal law, aiming to define individual responsibility more clearly in organized crimes and ensure justice. In this context, defining the act of committing crimes on behalf of an organization as an independent crime aims to provide a more fair and proportionate approach to sentencing based on the intent to commit a crime and the degree of connection to the organization.
Article 11 adds a new paragraph to Article 314 of Law No. 5237.
The amendment to Article 314 of the Turkish Penal Code, aimed at complying with the Constitutional Court’s annulment decisions, defines the act of committing crimes on behalf of an organization without being a member as a significant independent crime. The primary reason for this amendment is to address ambiguities in judicial practice following the Constitutional Court’s annulment decisions and to clarify the legal status of individuals committing crimes on behalf of armed organizations.
The main difference introduced by the new regulation is the addition of a specific provision for individuals who commit crimes on behalf of an organization without being members. This provision proposes imprisoning these individuals for between five years to ten years, with the possibility of reducing the sentence by half depending on the crime’s nature. This regulation ensures that individuals committing crimes on behalf of an organization are punished separately for the crime committed and the act of committing a crime on behalf of an organization.
This amendment, made to comply with the Constitutional Court’s annulment decisions and
address ambiguities in judicial practice, aims to provide legal clarity and a fair trial process in combating organized crimes.
Article 16 re-regulates the third paragraph of Article 247 of Law No. 5271, which was annulled by the Constitutional Court.
The latest amendment to Article 247 of the Code of Criminal Procedure introduces significant changes to the process of trying fugitive defendants, aiming to comply with the Constitutional Court’s annulment decisions. The main reason for this amendment is to eliminate ambiguities in judicial practice and more effectively protect the right to a fair trial by introducing new provisions after the Constitutional Court annulled the old regulations.
The key difference between the new and previous regulations is that it now allows for the prosecution of fugitive defendants but prohibits the issuance of both conviction and decision of non-punishment without conducting an interrogation. This change ensures that no judicial decision is made without interrogation, aligning with the principle of a fair trial.
This amendment, based on the Constitutional Court’s annulment decision, specifically aims to ensure that trials of fugitive defendants are conducted fairly. The Constitutional Court, in its reasoning for the annulment, stated that allowing the trial to conclude without the defendant’s interrogation imposes an excessive restriction on the right to a fair trial.
The amendment aligns with the principle of “individual criminal responsibility,” aiming to define individual responsibility more clearly in cases involving fugitive defendants and strengthen the fair trial process. By prohibiting the issuance of conviction or non-punishment decisions without interrogation, it ensures justice in the trial process and protects the rights of defendants.
Article 17 amends Article 252 of Law No. 5271 and adds a new paragraph.
The latest amendment to Article 252 of the Code of Criminal Procedure, aimed at restructuring the objection mechanism to the simple trial procedure, introduces significant innovations to comply with the Constitutional Court’s annulment decisions and address ambiguities in the judicial process. Especially, it provides clarity on how objections to decisions made under the simple trial procedure are handled and how the transition to the general trial procedure is facilitated.
The key difference introduced by the new regulation is that the court issuing the decision upon objection now sends the file to another primary criminal court determined based on distribution criteria if multiple primary criminal courts exist in the location. If only one primary criminal court exists, the trial continues under a different judge within the same court or a judge appointed by the president of the judicial commission of the first-degree court of the judiciary. This ensures a more fair and impartial process in transitioning from the simple to the general trial procedure.
The main reason for this amendment is the Constitutional Court’s criticism of the transition mechanism from the simple trial procedure to the general trial procedure upon objection and the preservation of the discount rate. The Court pointed out that transitioning to the general procedure upon objection and not preserving the discount rate violates the principles of the rule of law and the right to be tried by an impartial court.
With the new regulation, upon objecting to the simple trial procedure, the court can issue a new decision independent of the previous one. However, if the objection is made by the victim, complainant, or public prosecutor, the discount applied under the simple trial procedure is preserved. This aims to ensure a fairer trial process for decisions without a determination of guilt, such as acquittals, especially when objections are made by parties other than the defendant.
The addition of the seventh paragraph specifies that if the objection concerns trial expenses, attorney fees, or material errors, Article 268’s second paragraph applies, allowing the court to amend the decision if it deems the objection valid. If not, the file is sent to the competent authority for review.
This amendment, effective from 1/6/2024, aims to make the objection mechanism to the simple trial procedure more fair, effective, and in line with the principles of the rule of law. The innovations prepared in light of the Constitutional Court’s annulment decisions will contribute to a more transparent and fair progression of the judicial process.
Conclusion
In conclusion, the changes made with this judicial reform package can be considered an important step towards making Turkey’s judicial system more just and efficient. The main goals of these changes are to eliminate ambiguities in judicial practice, strengthen the right to a fair trial, and ensure legal clarity. Making the judicial process more transparent and accountable will increase society’s confidence in the justice system and contribute to the more effective implementation of the principle of the supremacy of law.
