General Evaluation of Serial Trial Procedure in Turkish Criminal Procedure Law

Türk Ceza Muhakemesi Hukukunda Seri Muhakeme Usulünün Genel Değerlendirmesi

Sertaç IŞIKA

The serial trial procedure is a new trial procedure, that established in the Turkish Criminal Procedure Code (CPC) by the law numbered 7188 on 24.10.2019. The conditions of this procedure are regulated in Article 250 of CPC and in the Internal Regulation on Serial Trial Procedure (IR). The dispute is settled during the investigation phase in serial trial procedure. According to this procedure; if the crime which is under the investigation listed in Art. 250, the prosecutor proposed to the suspect the application of serial trial procedure; upon the acceptance of the suspect, the prosecutor reduces the punishment, that he determined by one half and he requests from the court to apply the serial trial procedure about the suspect with a requisition. If the conditions are met, the court approves the requirement and it becomes the judgment. This procedure, which aims to speed up the trial process and reduce the caseload of the judiciary, was introduced as an alternative dispute resolution method.

Criminal Procedure, Serial Trial, Alternative Dispute Resolution, Material Fact, Judgment.

Seri muhakeme usulü, 24.10.2019 tarih ve 7188 sayılı kanunla Ceza Muhakemesi Kanunu’na (CMK) getirilmiş yeni bir yargılama usulüdür. Usulün koşulları, CMK m.250’de ve Ceza Muhakemesinde Seri Muhakeme Yönetmeliği’nde düzenlenmiştrir. Seri muhakeme usulünde uyuşmazlık, soruşturma aşamasında ortadan kalkmaktadır. Usule göre, CMK m.250’de sayılı suçların işlenmiş olması halinde cumhuriyet savcısı şüpheliye seri muhakeme usulünün uygulanmasını teklif etmektedir. Şüphelinin teklifi kabul etmesi üzerine cumhuriyet savcısı belirlediği temel cezayı yarı oranında indirerek mahkemeye bir talepname sunar ve seri muhakeme usulünün uygulanmasını talep eder. Koşulların bulunması halinde mahkeme cumhuriyet savcısının hazırladığı talepnameyi onaylar ve talepnamede belirlenen şekilde hükmü kurar. Yargılama sürecinin hızlandırılmasını ve iş yükünün azaltılmasını amaçlayan usul, alternatif çözüm yöntemi olarak kabul edilmektedir.

Ceza Yargılaması, Seri Muhakeme, Alternatif Çözüm Yöntemi, Maddi Gerçek, Hüküm.

I. Introduction

As in all branches of law, criminal law aims to maintain the order and safety of the community through its provisions and to regulate the relationships of individuals, too. With the difference of other jurisdictions, sanctions for violation of criminal provisions have a harder effect on the individual. Penal law sanctions involve direct and serious interventions with personal rights and freedoms. These interventions may have an effect on the property or liberty of the individual. Therefore a person who is likely to face a penalty for a criminal charge must truly deserve the probable sanction. This issue can only be possible by revealing the material fact. Revealing the material fact will cause the field of study to move from the material criminal law to the criminal procedure law.

The activity of the state, which uses its jurisdiction to reach the material fact, is defined as the criminal trial and this activity is performed within the framework of criminal procedure principles.¹ The primary purpose of criminal procedure is to reveal the material fact, that means a violation of a material criminal law provision.² This fact consists of determinations as to whether a crime has been committed, if so, by whom it is committed and its criminal responsibilities. In this context, it is purposed with the criminal trial to correctly identify a concrete event that occurred in the past as a material fact. However, the state, which is in a superior position and monopolized on the authority to punish, should not reveal the material fact with the thought of “whatever”. This activity should be done within limitations, as it will cause damage to the fundamental rights and freedoms of individuals. As well as the general purpose of the rules of law is to provide assurance for the fundamental rights and freedoms of individuals, the rules of criminal procedure will not be able to sacrifice and endanger individuals’ fundamental rights and freedoms for the sake of revealing the material fact. Criminal trial should purpose to reveal the material fact in accordance with the rights of the arising out of the provisions and principles of the constitution, international law and criminal procedure law.³

Criminal trial is a process, which is carried out with the participation of the subjects, who are determined by criminal procedure code (CPC), and in accordance with the principles of criminal procedure law. Criminal procedure law ensures that the decision, which reveals the material fact, is made collectively between the defence and the prosecution.⁴ At the point of ensuring collectivity, the hearing stage, which is the most important stage of the criminal procedure, appears. The hearing is the stage that the evidence is discussed by the prosecutor, the defence and the judicial authority, and that the decision is made.⁵ This system is defined as the adversarial procedure.⁶

It is seen that the main principles of the criminal procedure are reflected in different regulations of the Turkish CPC. Primarily, the principle of fair trial in terms of ensuring the right of defense of the accused, there are other principles that the subjects of the trial must comply with in order to ensure the adversarial procedure at the point of revealing the material fact. The legitimacy of the decision, that will be given at the end of the trial based on these principles, will not be controversial.

In the CPC, the “Serial Trial” was regulated as a special procedure in Article 250 by amending by the law numbered 7188. The serial trial, which is claimed to shorten and simplify the traditional criminal procedure, in our opinion has contrariety to the main principles of criminal procedure law. Especially, the accused is deprived of important assurances due to the inability to exercise the rights provided by the hearing. As a consequence, in the process of revealing the material fact, the establish of justice and social peace may be in doubt.⁷ It should be stated that the serial trial procedure does not serve the purpose of revealing the material fact. By applying this procedure, the offender is not punished because of proving the crime but because of accepting applying this procedure. In our study, it was purposed to make assessment the conditions of serial trial.

II. Concept of Serial Trial

The serial trial, which is similar to the “plea bargaining” in the Anglo Saxon Law,⁸ is a criminal procedure that carried out by the prosecutor during the investigation, in case of the determined crimes in the code are committed and settling the criminal dispute by the approve of judge.

The legal characteristic of serial trial appears to be a special trial procedure, which was created with conditions different from the classical trial procedure included in the CPC.

The purpose of regulating this procedure is stated in legislative intention as simplifying the trial from formalities in minor crimes and the restoration of the public order, which was broken by penalizing to these crimes at once. But we should state that the purpose of providing benefits in terms of procedural economy and reducing the caseload may raise some problems about the rights of accused. For example, there may reveal some problems that may deviate from the right to a fair trial and the principles of investigating material fact.

III. Conditions

In the Article 250/1 of CPC, that the serial trial is regulated, it is stated that serial trial will be applied if it is not decided to “postponing of the filing of the public prosecution” for the crimes that serial trial can be applied at the end of the investigation phase. As seen, the prosecutor will not start applying the serial trial procedure as soon as he finds out a suspicion of crime. First of all the prosecutor has to start the investigation process and have reached “sufficient suspicion” to file the public prosecution.

The investigation phase means the phase that starting with gaining knowledge of suspicion of a committed crime by competent authorities as indicated by the Code, and continuing until the indictment has been approved. And this phase fundamentally ends in two ways. The first one is filing the public prosecution, and the second is the decision of non-prosecution. Besides these classical decisions, it is possible to eliminate the criminal dispute under investigation by means of alternative dispute resolution methods by ensuring the participation of the victim of the crime. These methods, which are provided in CPC, are pre-payment, conciliation and postponing of the filing of the public prosecution.⁹

At this point, we would also like to mention “the decision of non-investigation”, which enacted in Article 158/6 by the law numbered 7078, on 01.02.2018. According to Article 160 of CPC, the public prosecutor, who took action to investigate the material fact, which gave the impression that a crime has been committed and may decide the “decision of non-investigation”. According to Article 158/6, two states are envisaged for the prosecutor to make this decision. Normally the prosecutor shall immediately take action to start the investigation as soon as he is informed of a fact that creates a suspicion. But in two cases, the prosecutor may render the decision of non-investigation according to Article 158/6. The first one is that if it is clearly understood that the act of notice or complaint does not compose a crime. And the second is that if the notice or complaint is abstract and general character. In this case, the prosecutor will decide the “decision of non-investigation”. In cases, where it can be decided that the decision of non-investigation, it is not possible to apply the serial trial procedure due to the absence of an investigation.

If the prosecutor finds the notice or complaint seriously, he immediately investigates the suspicion of crime and collects the evidence related to incident according to Article 160. After the process, which started with simple suspicion as soon as the collected evidences constitute sufficient suspicion, is completed, the investigation process has come to an end and the prosecutor files the public prosecution by preparing an indictment according to Art. 170.¹⁰

If the prosecutor starts his investigations with the emergence of suspicion of crime, but can not collect enough evidence to provide sufficient suspicion, it will not be possiple to prepare an indictment. In this case, the prosecutor renders the decison of non-prosecution.¹¹ With this decision the investigation phase ends.

In cases where the prosecutor has sufficient suspicion to file a public prosecution, before preparing the indictment the prosecutor shall first apply pre-payment or conciliation, if the charged crime is available to apply these processes. If the dispute is eliminated through these methods, the prosecutor terminates the investigation by deciding that the decision of non-prosecution. Therefore it is not possible to apply the serial trial. In Article 5 of the Internal Regulation of Serial Trial in Criminal Procedure Law it is stated that it is not possible to apply the serial trial procedure about the crimes within the scope of pre-payment and conciliation.

If the conditions exist, the prosecutor may decide to postpone the filing of the public prosecution according to Article 171/2 before preparing an indictment. The authority to render this decision is left to the discretion of the prosecutor.¹² According to Article 250, the serial trial procedure can be applied in cases where the decision on postponing of the filing of the public prosecution is not decided.

In addition, if there is no possibility of prosecution, the prosecutor should render the decision of non-prosecution according to Article 172/1. These are situations in which the requirement of investigation or prosecution are not fulfilled and cannot be fulfilled.¹³ These situations are also an obstacle to apply the serial trial procedure.

In this context, serial trial procedure is a method to be applied in cases where the Prosecutor acting upon learning the suspicion of crime obtains sufficient evidence to prepare an indictment, the absence of the conditions to decide to non-prosecution and the prosecutor does not decide to postpone the filing of the public prosecution.¹⁴ All of these conditions must coexist. If the prosecutor prepares an indictment and submit it to the court without applying the serial trial procedure, although the conditions are met, the court decides to return of the indictment according to Article 174/1-c.