GENERAL JUSTIFICATION
In the Judicial Reform Strategy Document prepared by the Ministry of Justice and announced by the President on May 30, 2019, “a reassuring and accessible justice system” was emphasized as the vision, while the vision of “free individuals, a strong society and a more democratic Turkey” was emphasized in the Human Rights Action Plan announced on March 2, 2021. has been planned.
Within the scope of this strategy, important reforms were implemented; During the investigation phase, the duration of detention was limited and new and effective procedures such as rapid trial, simple trial, and e-trial were introduced.
There are many crimes in the Turkish Penal Code aimed at protecting the right to life and bodily integrity. The case that these crimes are committed against victims who are relatively easy to reach, and in this context, against their spouse or close relative, is regulated as an aggravating factor. The fact that the disagreements that arise between the spouses during the divorce process, which grow and even turn into hostility, continue after the divorce, making it easier to experience such violence. For this reason, from crimes against life, bodily immunity and freedom; It has revealed the need to accept the divorced spouse of the victim as a qualified case in terms of murder, injury, torture and deprivation of liberty.
In accordance with the basic principles in most international texts, especially the Constitution and the European Convention on Human Rights, some regulations are made in the Criminal Procedure Code.
Arrest, which is the heaviest of the protection measures, is not a punishment tool in the judicial process, but a measure designed to carry out the Investigation and Prosecution stages more effectively. Additional regulation has been made regarding the conditions of application of the detention measure and maximum periods and the possibility of deduction have been introduced with the periodic review procedure in terms of judicial control measures. The aim is to protect personal freedom and security.
On the other hand, in the examination of the objections made against the decisions of the peace judgeships regarding arrest and judicial control measures, the vertical objection procedure has been introduced instead of the horizontal procedure. The review authority against these decisions will be the Criminal Courts of First Instance.
In addition, as a result of the organization of the executive and the acceleration of decision-making processes in the new government system, as a result of the development of technology, the administration has become more effective and faster in service delivery. In order to feel the results of this progress directly and to strengthen the individual-oriented management approach, the response time to the applications made to the administration was shortened and the right of access to the court was strengthened.
ARTICLES AND THEIR REASONS:
In order to develop the rule of law principle and to strengthen the individual-oriented management approach,
ARTICLE 1: With the amendment made in the article 10/2 of the IYUK, the Implied Objection Period has been reduced from 60 days to 30 days. In addition, the Waiting Time for Final Response has been reduced from 6 months to 4 months.
ARTICLE 2: With the amendment made in the article 11/2 of the IYUK titled “Applying to the Higher Authorities”, the Implied Rejection Period has been reduced from 60 days to 30 days.
ARTICLE 3: With the amendment made in the Article 13/1 of the IYUK, the Implied Objection Period has been reduced from 60 days to 30 days with regard to the preliminary decision applications, which are the prerequisites for the Full Court Actions to be filed directly.
These arrangements have been made.NOTE: If different periods are stipulated in special laws, the periods covered by the said special law will be applied.
With the aim of preventing delays in the proceedings and using the right to be tried in a reasonable time and the freedom to seek justice more effectively.
ARTICLE 4: It is written and signed within 30 days from the date of decision, according to article 24/1 of the İYUK. sentence added. As a result, the final decisions should be written within 30 days at the latest, together with their justification.
ARTICLE 5: Provisional Article 10 to the Law “For applications made to the administration in accordance with Articles 10, 11 and 13 before the effective date of this article, the old deadlines are applied.
ARTICLE 6,7,8,9: With the amendments made to the Turkish Penal Code, the crime of Deliberately Killing, Intentionally Injuring, Tormenting, Deprivation of Freedom of the Person committed by the perpetrator against his divorced spouse has been included in the qualified cases of crimes.
ARTICLE 10: With the paragraph added to Article 12 of the CMK, in the crimes committed by using information systems, bank or credit institutions, or bank or credit cards as a tool, the victim’s place of residence has become authorized in addition to the court of the place where the crime was committed, in terms of jurisdiction.
ARTICLE 11: In line with the technological developments, in addition to the existing procedure, the sentence added to the CMK article 44/1 and the decisions to bring by force; It has been added to make notification by using communication tools such as telephone, telegram, fax, e-mail. However, for this, it is necessary to include the contact information of the witness in the file and it will be sufficient to make a notification with at least one of the listed means. (will enter into force on 1.09.2021)
ARTICLE 12: According to Article 94 of the CMK, “working hours based on the arrest warrant issued to be taken”
The release of a person who has been caught outside of his custody and has committed to appear before the court on the appointed date may be ordered by the CB. This provision can only be applied once for each arrest warrant. The person who does not fulfill his commitment is given an administrative fine of 1000 TL by the CB of the place that issued the arrest warrant.
With this added paragraph, it is aimed to prevent the arrest warrant, which is one of the protection measures restricting the freedom of individuals, from causing irreparable damages.
ARTICLE 13: With the amendment made in the article 100/3 of the CMK, concrete evidence showing strong suspicion of crime must be found in order to apply for detention measures in terms of crimes listed in paragraph 3 (catalogue crimes).
In fact, when the 1st, 2nd and 3rd paragraphs are evaluated together, the same result will be achieved, but this arrangement has been made due to some hesitations in practice.
ARTICLE 14: With the amendment made in CMK article 101, it has been accepted that in the decisions of judges or courts regarding detention, the continuation of detention or the refusal of a release request in this regard, the evidence showing that the application of judicial control will be insufficient, in addition to the existing conditions, must be clearly demonstrated by justifying concrete facts. .
ARTICLE 15: With the amendment made in paragraph 6 of Article 109 of the CMK, the obligation not to leave the residence has been considered as a reason for limiting personal freedom, and it is decreed that every 2 days spent under this obligation will be taken into account as 1 day in the deduction of the penalty.
ARTICLE 16: A decision will be made by the SCH upon the request of the Public Prosecutor, at intervals of 4 months at the latest, on whether the suspect will require the continuation of the judicial control obligation during the investigation phase by making a regulation in Article 110 of the CMK. In the prosecution phase, the court will decide ex officio for a period of 4 months at the latest. (will enter into force on 1.1.2022)
ARTICLE 17: By adding article 110/A to the CMK, maximum periods for judicial control measures have been determined. With the regulation, it is aimed to ensure the freedom of individuals and to prevent the excessive application of judicial control measures. (will enter into force on 1.1.2022)
In matters that do not fall under the jurisdiction of the Heavy Penal Court, this period may be extended for a maximum of 2 years, and this period may be extended for 1 more year in compulsory cases, by justifying reasons.
In the works that fall under the duty of the High Criminal Court, this period can be extended for a maximum of 3 years, and this period can be extended for 1 more year, by giving reasons, in compulsory cases. However, the extended period will not exceed 3 years in total, and 4 years for the crimes defined in the fourth, fifth, sixth and seventh chapters of the 2nd book of the TCK, and the crimes within the scope of the Anti-Terror Law.
ALSO, judicial control periods will be applied at a rate of ½ for children.
ARTICLE 18: By adding a provision to the 3rd paragraph of Article 137 of the CMK, it has been decreed that the records regarding detection or listening will be destroyed under the supervision of a judge, when a BREAAT decision is given, as in the case of a KYOK decision. However, the destruction of these records will only be made after the date on which the acquittal is FINAL.
ARTICLE 19: With the amendment made in the 4th paragraph of Article 170 of the CMK, in the part of the indictment, where the events are explained by associating them with the evidence, it is stipulated that information that is not related to the events constituting the charged crime and the evidence of the crime cannot be included.
With this regulation, the right to demand respect for private and family life, which is included in the Constitution and the European Convention on Human Rights, as well as personal rights were sought to be protected.
ARTICLE 20: By adding a provision to the 1st paragraph of Article 176 of the CMK, information regarding the indictment and the date of the hearing; It has been accepted that if contact information such as telephone, fax, e-mail is included in the file, the accused will be notified by using these tools. However, the results linked to the call log will not be applied in this case. It will be sufficient to make a notification with at least one of the listed vehicles. (will enter into force on 1.09.2021)
Parallel to technological developments, this regulation was made in order to increase judicial efficiency and productivity.
ARTICLE 21: With the provision added to the first paragraph of Article 233 of the CMK, in order to ensure that the victim or the complainant is informed of the legal characterization of the crime before the start of the trial, it has become mandatory to include the indictment in the summons when the prosecution phase begins. The innovations introduced in Article 20 (fax, telephone …) are valid in this article.
In addition, with the amendment made in the second paragraph of the article, the provisions regarding the witnesses will be applied in terms of the decision to bring the victim or complainant by force. This situation should be evaluated together with the provision of Article 44 regulated by this law (Article 11). (will enter into force on 1.09.2021)
ARTICLE 22: With the provision added to the 4th paragraph of Article 25 of the CCP, the provisions of the successive offense can be applied if the conditions of the rapid trial procedure are met. Considering Article 61 of the TCK, between the lower and upper limit of the penalty stipulated in the legal definition of the crime
If the basic penalty is determined and the conditions are met, the penalty will be reduced by half after the increase regarding the chain crime.
– With the provision added to paragraph 8 of the article, it is regulated that the request letter can be returned to CBS in order to complete the deficiencies determined by the court. After the deficiencies specified by the court are completed, the request letter will be rearranged and sent to the court.
– The regulation in the 9th paragraph of the mine is based on the AYM dated 31.03.2021 and 2020/35; It was made in line with the cancellation decision numbered 2021/26 K. Accordingly, if the court, which received the request letter in the rapid trial procedure, evaluates the evidence in the file, if it considers that a decision such as acquittal or dismissal should be made other than conviction, it should reject the request. Since the court does not have the authority to expand the investigation and collect new evidence for the purpose of investigating the material truth, it should reject the request for the material truth to be revealed.
– With the provision added to the 11th paragraph of the article, it has been regulated that this procedure will not be applied if the crime that is included in the rapid trial procedure is committed together with a crime that does not.
– With the amendment made in the 14th paragraph of the article, the objection made against the judgment established by the court within the scope of the 9th paragraph, the appeal authority examines the objections in terms of the conditions in the 3rd and 9th paragraphs.
ARTICLE 23: By adding a provision to the first paragraph of Article 251 of the CCP, it has been regulated that a simple trial procedure cannot be applied after the date of hearing is determined in accordance with Article 175 after the acceptance of the indictment.
ARTICLE 24: With the amendment made to Article 268 of the CMK, it has been regulated that objections made against any decision of the SCH regarding detention and judicial control measures will be examined by the Criminal Court of First Instance in the jurisdiction.
If SCH affairs are considered by ASCM, the authority to examine the objections to be made in this case is the President of the Heavy Penal Court in the jurisdiction.
Thus, the vertical objection procedure was introduced instead of the horizontal objection procedure.
NOTE: In terms of decisions made other than detention and judicial control measures, the objection will be examined according to the current procedure in paragraph 3 of Article 268.
(will enter into force on 1.1.2022)
