4. Catalogue Crimes and Reasons for Arrest According to the Judicial Package Amendment
The Proposal for a Law on Criminal Procedure and Amendments to Certain Laws, known in public as the 4th judicial package, was adopted at the General Assembly of the TBMM on Friday, July 9, 2021. The most controversial provision of the law proposal is added in Article 100 of Article 100 of the Code of Criminal Procedure, which regulates the conditions of arrest in the types of crimes known as catalogue crimes, with the phrase “'based on concrete evidence'” in relation to these types of crimes, with a strong suspicion of crime based only on concrete evidence in terms of these types of crimes. was placed under the regulation that an arrest measure could be resorted to if it was available.
The arrest decision contained in the legislation as the most severe protection measure due to the removal of a person's liberty is quite amenable to abuse and arbitrariness. For this reason, national and international arrest decisions are subject to a number of strict conditions.
*** According to paragraph 3 of Article 100 of the CMK, the existence of a strong suspicion of a crime was considered sufficient for arrest in the previous regulation. However, according to the new regulation, the existence of a strong suspicion of a crime for arrest is not enough on its own, but it must now also be based on CONCRETE EVIDENCE.
In this article we will consider the reasons for arrest and catalog crimes along with the new amendment.
What is Arrest
A protective measure applied temporarily so that the suspect or accused does not escape and to protect the evidence is called arrest.
Authorities Authorized to Arrest
The judge who makes the decision to arrest in the investigation or prosecution, the public prosecutor's office has the power to issue an arrest warrant only if certain conditions are met. At the stage of investigation, the arrest decision is issued by the magistrate judge, while at the stage of prosecution, the decision is made by the court where the criminal case is opened. Although there are reasons for arrest in a concrete case, an arrest measure may not be resorted to by taking a judicial control decision.
Reasons for Arrest
· Demonstrating strong suspicion of crime the presence of concrete evidence(although strong suspicion was considered sufficient in the previous law, the new law stipulated the existence of concrete evidence.)
· Finding a reason for arrest
· Moderation of arrest
· Decision on arrest by the judge,
· that it can be given for arrest only about the accused or suspect,
· It can be counted as the absence of a ban on arrest.
Below all the terms will be examined separately in headings.
Reasons for arrest, (cmk m.100) determined within the scope of the law. According to the article of the law, two important purposes are involved in the arrest decision on the accused or suspect. these protection of evidence and preventing the accused from escaping.
There are three types of evidence in criminal proceedings: document, statement and indication, if the person has a concrete behavior in the form of blackening, destruction or alteration of them, an arrest decision is made. Again, if the person has attitudes and behaviors that give rise to suspicion of absconding, or if this strong suspicion is based on concrete evidence, an arrest decision is made. However, if there is no concrete evidence, an arrest decision cannot be made based on subjective assessments.
For the reasons for arrest, catalog offenses are of great importance. The most important feature of catalog crimes is that if any of these crimes were committed, the reasons for the arrest of the suspect or the accused are considered to exist. The judge justifies and discusses the existence of reasons for arrest under the principle of moderation, which will make an arrest decision on catalog crimes. These reasons must be in the middle in a concrete way. However, if the suspect or accused has committed one or more of these catalogue offences, there is no obligation to justify the reasons for the arrest mentioned above if he has entered the sentencing process for this reason. Directly these reasons are considered to exist and an arrest decision can be made. Therefore, catalog crimes are also a carina.
Reason for Arrest Default States
A reason for arrest can be assumed in the following cases:
a) If there are concrete facts that give rise to the suspicion that the suspect or accused will flee, hide or flee. b) the conduct of the suspect or accused;
1. Destroying, concealing, or altering evidence
2. Attempting to pressure the witness, the victim or others, if there is a strong suspicion of the facts,
In cases enumerated in Article 100/2 of the CMK, it is recognized that the reason for arrest exists. However, the presence of these circumstances does not entail the necessity of arrest. The judge must make an assessment according to the concrete incident and act in accordance with his conscientious opinion.In cases where the reasons for arrest are considered to exist, this measure may not be applied according to the specifics of the incident.Besides, there is a reason for arrest in terms of the catalog crimes enumerated in Article 100/3. The cases in which the reason for arrest is assumed in the law are regulated as follows;
Reason for Arrest Default Catalog Crimes
a) contained in the Turkish Criminal Code No. 5237 of 26.9.2004;
Genocide and crimes against humanity (articles 76, 77, 78),
Intentional killing (articles 81, 82, 83),
(Appendix: 6/12/2006 —5560/17 Md.) Intentional wounding with a weapon (Article 86, paragraph 3, subparagraph e) and consequent aggravated intentional injury (Article 87),
Torture (Article 94, 95)
Sexual assault (with the exception of the first paragraph, article 102),
Sexual abuse of children (Article 103)
(Appendix: 6/12/2006 —5560/17 Md.) Theft (articles 141, 142) and looting (articles 148, 149),
Manufacture and trade in drugs or stimulants (Article 188),
Establishing an organization with a wedge for committing crimes (with the exception of paragraphs two, seven and eight, article 220),
Crimes against State Security (articles 302, 303, 304, 307, 308),
Crimes against the Constitutional Order and the Functioning of this Order (articles 309, 310, 311, 312, 313, 314,315),
b) Crimes of arms trafficking (article 12) as defined in the Firearms and Knives and Other Instruments Act No. 6136 dated 10.7.1953.
c) the crime of embezzlement as defined in paragraphs (3) and (4) of Article 22 of the Banks Law No. 4389 of 18.6.1999.
d) Crimes defined in the Anti-Trafficking Law No. 4926 of 10.7.2003 and requiring imprisonment.
e) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets of 21.7.1983 No. 2863
f) the crimes of intentional forest burning as defined in paragraphs four and five of Article 110 of the Forest Code No. 6831 of 31.8.1956.
g) (Appendix: 27/3/2015-6638/14md.) The offences enumerated in Article 33 of the Law on Meetings and Demonstration Marches of 6/10/1983 No. 2911.
h) (Appendix: 27/3/2015-6638/14 para.) The offences referred to in the third paragraph of Article 7 of the Combating Terrorism Act No 3713 of 12/4/1991.
(4) (Amended:2/7/2012-6352/96 d.) An arrest warrant may not be issued for crimes requiring only a judicial fine or for crimes that do not exceed the maximum limit of 2 imprisonment, except for those committed intentionally against the immunity of the body.
As we mentioned above, Article 100/3 of the CMK has been recognized that there is a reason for arrest for certain crimes. In these types of crimes, it is considered that there is a possibility of destruction or alteration of evidence or suppression of witnesses or victims. But it should be remembered that in these types of crimes, concrete evidence must be found that the suspect or accused has committed a crime in order to be arrested. Even in this case, the decision to arrest is at the discretion of the judge; there can be no mention of the obligation to arrest.
Crimes for which an arrest warrant could not be issued
· In cases of crimes that require only a judicial fine according to the Code of Criminal Procedure,
· An arrest warrant may not be issued for crimes requiring a sentence of less than 2 years.
There is an exception to the non-custodial sentence for offences of less than 2 years; an arrest warrant may also be issued for offences committed against bodily immunity, regardless of the upper limit of the sentence of imprisonment, regardless of the amount of the sentence.
On the other hand, for children under the age of fifteen, no arrest can be issued for crimes that entail a prison sentence not exceeding the maximum limit of 5 years.
Appeal against detention
The appeal against the arrest orders issued by the judge can be carried out by law. The period of appeal against detention is 7 days. When calculating this period, the day of the decision is not taken into account. The decision to appeal the arrest is made by submitting a declaration to the clerk of the bailiff with the condition that it be entered in the minutes or on the record. According to Article 268/2 of the CMK; “The judge or court whose decision is challenged shall correct the decision if it sees the appeal on the spot; if it does not see it on the spot, it shall, within a maximum of three days, send it to the mercie competent to examine the appeal.”
The right to appeal the order of arrest is, in the first place, a right recognized by the suspect or the accused. In addition, according to Article 262 of the CMK, the legal representative and spouse of the suspect or accused may resort to the legal remedies open to the suspect or the accused within the period of time. The provisions relating to the application of the suspect or the accused shall also apply to the application to be made by them and the proceedings following it
Detailed regulations regarding the place of examination of the decisions of the appeal against arrest are contained in Article 268 of the CMK. According to the relevant article;
· Examination of appeals against decisions of a magistrate judge, if there is more than one magistrate judge in that place, to the judge who follows him as number one; to the number one judge for the last numbered judge; if there is a single magistrate judge in the absence of a serious criminal court, where there is no serious criminal court, in which he serves in the judicial circle the magistrate judge at the location of the serious criminal court; if there is only one magistrate judge where the severe criminal court is located, it belongs to the magistrate at the location of the nearest serious criminal court.
· Examination of appeals to decisions made by the judge of the ordinary criminal court, examination of appeals to the serious criminal court where they are located around the jurisdiction and the decisions made by that court and its chairman, if there are multiple chambers of the serious criminal court in that place, to the apartment that follows him as number; to the first circle for the last numbered apartment; in that heavy place if there is only one office of the criminal court, it belongs to the nearest serious criminal court
· The examination of appeals against decisions of the deputy judges shall be the head of the court or court where they are based on the principles set out in the above paragraphs against the decisions of the court to which they belong.
· In the case of appeals against the decisions of the criminal offices of the district court of justice and the decisions of the criminal offices of the Supreme Court in cases that they consider as the main court, the head of the department and the criminal department, which monitors the decision of the criminal office by number; in the case of the last numbered department, the first penal department examines the decision of the criminal department
Decisions on appeal against arrest are made without a hearing on file. When deemed necessary in accordance with Article 271/1, the public prosecutor and then his defense or deputy shall be heard. It is stated that decisions must be made as soon as possible, but there is no day limit.
According to Article 271/4 of the CMK, “the decisions of the Merciin on appeal are final; only for the first time the appeal against the arrest decisions made by the Merci can be taken.” Here, for the first time, it will be necessary to explain the wording of the decisions made by the magistrate. This situation arises if the accused or suspect is not arrested despite the request of the Public Prosecutor. If, as a result of the appeal of the prosecutor, the competent authority decides to arrest the suspect or the accused, the appeal against this decision can be made by law.
Detention Periods
· In the case of offences under the jurisdiction of the original criminal court, the period of detention is not more than one year, but in mandatory cases it can be extended for a further six months.
· The term of detention is 2 years for crimes in a serious court trial and for crimes that entail life or imprisonment of more than ten years. However, the period recognized together with the extension can exceed three years, in which case the total of the person's detention period can reach five years.
· In the case of an arrest warrant applied under the Anti-Terrorism Act, the term may not exceed 7 years.
· In all these crimes, Article 102/5 of the CMK stipulates a maximum period of detention in respect of children. When the crime is committed, the period of detention is applied in half if the person is under fifteen years of age, and three-fourths if he has not reached the age of eighteen.
Catalog Can a Person Arrested for Crimes Receive Compensation for Wrongful Arrest?
As mentioned above, the fact that catalog crimes have been committed does not mean that an arrest warrant will be issued directly.
It can be prevented or the detention can be terminated by finding that the arrest is unjustified. As a result of the trial, the person may also be acquitted.
If it is found that the arrest has been granted unjustly in this way, the person may receive compensation for wrongful arrest.
Attorney Assistance in Arrest
Cases where an arrest warrant is issued are listed above individually. As we can see, since the crimes that are issued with an arrest warrant are usually punishable offenses, we certainly recommend that you work with a specialized criminal lawyer during the investigation and prosecution phase. Because if an effective defense cannot be given or the evidence is not presented in a timely manner, there is a high probability that an arrest order will be issued by the judge. In this case, we recommend that you work with a specialist criminal lawyer in order to avoid victimization.