…PRESIDENCY OF THE HEAVY CRIMINAL COURT
FOR DISPATCH
…PRESIDENCY OF THE HEAVY CRIMINAL COURT
…
FILE NO.
SUSPECT-ACCUSED :
AGENT :
ACCUSED :
CRIME : Mutual Fraud by Using Bank as an Intermediary
DATE OF OFFENCE :
DATE OF ARREST :
SUBJECT : It is about our objections against the decision of the …Assize Court dated ….. regarding the continuation of the detention of our client, suspect A.A.
Decision on Continuation of Detention
Our Objections Against the Decision
1) Our client A.A. has been under arrest since 21.04.2005 for the offence of fraud by means of a bank and is currently imprisoned in Muğla Closed Prison.
2) According to the content of the indictment issued by the Muğla Chief Public Prosecutor’s Office against our client and his co-defendants, the referral article requested to be applied to all defendants is Article 64/1 of the Turkish Penal Code No. 765 and articles 504/3-80,522,40 of the same law.
3) Our client, the suspect defendant A.A., was decided to “continue his detention according to the nature and nature of the offence and the current state of evidence” in the previous hearings and with the same justification, it was decided to continue the detention on 22.09.2005 and the hearing was left for 27.10.2005.
4) As of the previous hearings, our client has been in favour of the continuation of the suspect’s detention, but at the last hearing, the prosecution has been in favour of “the release of the accused according to the collection of evidence, the defendants’ inability to influence the evidence, their fixed residence, and the time they have spent in detention”.
5) According to the new Code of Criminal Procedure No. 5271, which entered into force on 1 June 2005, the indefinite periods of detention have come to an end. According to this law; if an arrest is made for an offence that does not require a heavy penalty, the maximum period of arrest can be 6 months and the 6-month period can be extended for a maximum of 4 months in mandatory cases. The regulation and practice, which causes the time spent in detention to be longer than the period of conviction or which will almost replace the execution, has been terminated and the old practice has been terminated in accordance with the principle of “Fair Trial”, which is one of the universal Criminal Procedure rules. As it is known, it is clear that the new law has put an end to the regulations that led to the conviction of Turkey before the European Court of Human Rights as in the past.(Article 102 of the Code of Criminal Procedure)
Moreover, with regard to arrest and personal liberty, Article 5 of the European Convention on Human Rights stipulates the main principle that “everyone has the right to liberty and security of person…no one shall be deprived of his liberty except in the cases and by the means prescribed by law ….”.
Within the framework of the norms of “European Union Law”, according to today’s conditions in which the jurisprudence of the European Court of Human Rights has been adopted and internalised in our domestic law, unfortunately, we have to state the following opinion.
When the crime statistics recently published by the Ministry of Justice are examined, it is seen that although arrest is not necessary, this measure is frequently resorted to, and that 5/3 of the people in prisons throughout the country consist of detainees. (See the tables titled “Convicts and Prisoners in Prison as of 1 June” in Annex-1 and “Prison population by months” in Annex-2).
From this perspective, “Arrest, as a measure in criminal proceedings, is a measure that both helps to find the truth and aims to ensure the enforcement of judgements. In this respect, arrest has three purposes: The first purpose is to ensure that the accused is available during the trial. In cases where there are strong facts indicating that the accused is likely to flee, this purpose comes to the fore when an arrest is made (Art. 100/2). The second aim is to enable the criminal proceedings bodies to establish the facts of the case and related facts in a sound manner. This purpose is taken into consideration when the accused is arrested due to the suspicion of “tampering with evidence” (Art. 100/2). The third purpose of arrest is to ensure the fulfilment of the sentence. If the verdict remains on paper, there is no need for a trial. When the accused is arrested in order to prevent this, the third purpose is intended to be achieved.
Norms on arrest have to maintain a balance in the face of the person-state dilemma. While criminal proceedings endeavour to restore the order in society that has been disrupted by the commission of the offence, they must also consider the interests of the individual. when the individual is sacrificed to the state and society, totalitarian regimes emerge. However, it should be considered that the individual constitutes the purpose of society. In a state of law, the balance between the person and the state must be well maintained.” (Source: Prof Dr. Erdener Yurtcan, Commentary on the Criminal Procedure Code, 4th Edition, November, 2005, Beta Publications, Sh. 244-245)
In the light of the above explanations, we would like to express that we attach great importance to the following assessment in paragraph 84 of the Tomasi judgement of the European Court of Human Rights dated 27.08.1992.
In this context, the relevant part of the said judgement is as follows “It is primarily the duty of the national judicial authorities to ensure that the detention of the accused in a particular case does not exceed a reasonable period. To this end, the national judicial authorities must examine all the circumstances, both favourable and unfavourable, in respect of which there is a public interest justifying a departure from the rule of respect for personal liberty, with due regard for the presumption of innocence, and must indicate these in their decision on the request for release. In essence, he asks the Court to decide whether there has been a violation of Article 5 § 3 of the Convention on the grounds given in the judgement of the national Courts on the basis of the facts set out in the applications for release and appeals.” (Source: Jurisprudence of the European Court of Human Rights, Vol.1, Assoc. Dr Osman Doğru, Beta Publications, October 2002, Istanbul)
The judgments of the European Court of Human Rights in W. v. Switzerland, 2.6.1993, paragraph 30, and Labita v. Italy, 06.04.2000, paragraph 151, and Cesky v. Czech Republic, 6.6.2000, reflect the same sentiments.
“… the ECtHR … emphasised that the national judicial authorities, in deciding whether detention in a concrete case exceeded a reasonable period of time, must, having regard to the presumption of innocence and to the public interest justifying an exception to the principle of respect for personal liberty, investigate and examine all the circumstances justifying the acceptance or refusal, and must clearly state the grounds for the refusal in their decision to reject the applicant’s request for release. ”
” The persistence of reasonable suspicion that a detained person has committed an offence is a sine qua non condition for the validity of continued detention. However, it is no longer sufficient after the lapse of a certain period of time. The Court must therefore ascertain whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. If these grounds are “relevant” and “sufficient”, the Court must also determine whether the competent national authorities exercised “special care” in the exercise of their judgement…” (İsmail Malkoç / Mert Yüksektepe, Açıklamalar ve Yorumlarla, Yeni Ceza Muhakemesi Kanunu No. 5271, Malkoç Kitapevi, 2005, Ankara)
6) Based on this thought and opinion, the conditions of arrest, considering the regulatory provisions of the new Criminal Procedure Code regarding arrest
A) There is a strong indication that the suspect is a perpetrator or a participant,
According to the established judgements of the European Court of Human Rights, which have entered into our domestic legal life, although the existence of strong indications is one of the sine qua non conditions for the arrest measure, it cannot constitute a reason for arrest alone. The suspect must also have strong indications of his/her guilt. Abstract suspicion is not sufficient to make an arrest decision, nor does it constitute a presumption for the continuation of detention. In other words, there must be a strong suspicion and conviction on the part of the judge or the court that the suspect will be convicted. For this reason, Article 100 of the new Code of Criminal Procedure stipulates that an arrest warrant may be issued for the suspect or the accused in the event that there are facts indicating the existence of a strong suspicion of a criminal offence and a state of arrest.
B) In order for the reasons for arrest listed in Article 100 of the Code of Criminal Procedure to exist;
1- There must be a suspicion of flight and hiding.
As it can be understood from the title of 100/2-a of the new Criminal Procedure Code, which states “if there are concrete facts that arouse the suspicion that the suspect or defendant will flee, hide or escape”, fleeing must include both fleeing abroad and going to a place where he cannot be found and hiding.
In this respect, it will automatically be understood that our client suspect does not fulfil these conditions and it is impossible for him to escape, hide or go abroad.
2- Suspicion of tampering with evidence; (CPC 100 (2) b/1 destruction, concealment or alteration of evidence)
According to the content of this subparagraph; it stipulates that a person with a strong suspicion of guilt may be arrested if there is a possibility of destruction, concealment or alteration of evidence.
When all the evidence obtained within the framework of the entire judicial process that our case has undergone is evaluated, it is clear that after this stage, since it is understood that the incident has been clarified and the evidence has been secured, it is clear that our client, suspect A. A., cannot be mentioned about the danger of obscuring the evidence and manipulating the evidence.
Furthermore, in the context of the new Criminal Procedure Law (100/2, b/2 of the Criminal Procedure Code), it is also clear that since all witness statements, victim and intervener statements have been fully established by the court, it is also clear that after this process, there can be no mention of any attempt to influence or pressure these people.
In addition to this, in deciding on detention or continuation of detention, it is necessary to consider whether the person will attempt to escape, hide, conceal or alter the evidence, or put pressure on witnesses or victims. On the other hand, the importance of the offence committed and the decision on detention to be taken should be evaluated together with the duration of the detention period during which the person is deprived of his/her liberty and a balance should be established.
C) In the decisions on the continuation of detention or detention, the principle of proportionality must be observed.
As it is known and appreciated by your Court, there must be a proportion between the means and the end, the method and the target. Considering the importance of the act under investigation or the penalty or security measure that may be imposed, if the decision to arrest or to continue detention would cause injustice as a result of the decision to arrest or to continue detention, or if the purpose of the trial can be achieved with other measures instead of detention in the context of the measures adopted by the new Criminal Procedure Code, for example through judicial control, the decision to arrest or to continue detention should not be made. For this reason, Article 100 of the new Criminal Procedure Code stipulates that an arrest warrant cannot be issued “if it is not proportionate to the importance of the case, the expected penalty or security measure”.
7) As in the previous interim decisions of the Court, in paragraph 2 of the interim decision dated 22.09.2005, it was decided to continue the detention of our client with the opinion that “…the nature and nature of the offence, according to the current state of evidence …”.
However, Article 141, paragraph 3 of the Constitution stipulates that “…all judgements of all courts shall be reasoned”. According to some opinions in the doctrine, although it is argued that the requirement of reasoned judgements prolongs the proceedings, Article 34 of the new Criminal Procedure Code stipulates that all decisions of judges and courts, including dissenting votes, must be reasoned.
Reasoned arrest decisions ensure that the decisions are audited by the parties and the public, and when an appeal is filed, the reasons will provide guidance on whether the decision is correct or not, and will ensure that the judicial review is healthy.(Kunter/Yenisey, Criminal Procedure Law as a Branch of Procedural Law, Pg. 311) In the justifications of the arrest decisions, the reasons that lead the judge to make that decision should be clearly included, the reason for arrest should be in accordance with reason, law and the content of the file.(Sedat Bakıcı, Criminal Trial from Incident to Final Judgement and General Provisions of the Criminal Code, Pg. 1035) Thanks to the justification, it will be understood whether the decision is based on legal reasons or not, and it will be possible for the parties to obtain information about the reason for arrest and to make a defence and for the objection authority to control the decision. Justification means a rational, non-contradictory and convincing explanation of the decision.(Nur Centel, Arrest and Detention in Criminal Procedure Law, Pg. 74)
In the light of these explanations, the decision regarding the continuation of our client’s detention is far from objectivity, abstract and unjustified.
8) In the same way, the act in question was regulated as heavy imprisonment in the law numbered 765, but in the new law, it has been converted to imprisonment, therefore, in case of a lower limit sentence is imposed on our client with Article 51 of the law numbered 5237, it has even become possible to postpone the sentence to be imposed within the margin of the court’s discretion.
9) As it can be understood from the document in the file, our client could not fulfil its commitments due to its current business and therefore suffered irreparable damages.
10) In the context of the evidence obtained during the trial process, our client’s defence, which has not been proven otherwise, and other evidence supporting it, we think that the nature and nature of the offence may change with great probability.
As we stated in the previous hearing during the trial, the relationship between our client and the participant is primarily a relationship based on a private debt-credit relationship. If it is considered for a moment that this relationship is not a private law relationship but an act that requires punishment, according to the content of the referral article in the indictment, a criminal case has been filed against our client for the offence of qualified fraud, and since the bank, which is accepted as an element of the crime of qualified fraud, is a private bank (Ak bank), we are of the opinion that Article 503, which is one of the favourable provisions of the Turkish Penal Code No. 765, should be applied to our client in case the crime is proven.
As stated in the case law of the 11th Criminal Chamber of the Court of Cassation dated 15.06.2004 and numbered 13656/5301, “…it is contrary to the law to establish a judgement with Article 504/3 of the same law, on the grounds that the public institution and organisation was used as an intermediary due to the remittances sent through the private bank, which is not considered a public institution, and that the public bank was not used as an intermediary, without considering that the action constitutes the offence stipulated in Article 503/1 of the TPC, it is contrary to the law …”.
11) As it is also known by your court, to reiterate; in the new Criminal Procedure Code, arrest can be made in the event that the suspect or defendant escapes, hides or there are concrete facts that arouse the suspicion that he/she will escape, darkens the evidence or attempts are made to put pressure on witnesses, victims or others, again, the person can be arrested only if the crime committed by the suspect or defendant requires a sentence of more than 7 years, likewise, the reasons for arrest are arranged in a list in the third title of Article 100 of the Criminal Procedure Code. According to the list, arrest can be made in serious crimes such as genocide and crimes against humanity, intentional killing, torture, sexual assault, sexual assault, sexual abuse of children, manufacture and trafficking of drugs or stimulants, the crime of establishing an organisation for the purpose of committing crimes, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, as well as crimes against the constitutional order and the functioning of this order…, which are included in the new Turkish Criminal Procedure Code, in this respect, Article 100 of the new Criminal Procedure Code In this respect, taking into account the regulatory provisions regarding the limitation of arrest in Article 100 of the new Code of Criminal Procedure, it should be considered by your Court that trial without arrest has become the rule, and the detention status of our client should be evaluated based on this reality.
Considering our Constitution and the new regulations made in domestic law, the main principle is stated in Article 19 of the Constitution as “everyone has the right to personal liberty and security”. However, exceptionally, paragraph 4 states that “persons with strong indications of guilt may be arrested only with a judge’s decision in order to prevent their escape, destruction or alteration of evidence, or in other cases such as these, which make arrest compulsory and are indicated in the law. Arrest without a judge’s decision may only be made in case of an offence or in cases where delay is inconvenient, and the law specifies the conditions for this.” According to our Constitution, the purpose of arrest is to ensure that persons with strong indications of guilt, 1) Their escape, 2) To prevent the destruction or alteration of evidence, 3) Or it is clear that it mentions this obligation in other cases such as these, which make arrest compulsory and are shown in the law.
12) As it is known, Article 109 of the New Criminal Procedure Code under the title of Judicial Control is regulated as follows.
Judicial Control
ARTICLE-109- (1) In the presence of the grounds for arrest set out in Article 100, in an investigation conducted for an offence punishable with a maximum penalty of imprisonment of three years or less, it may be decided to place the suspect under judicial control instead of arrest.
In the light of this article, it is necessary to explain; “Arrest alone is a measure which obliges the judge to either deprive the suspect or the accused of their liberty completely or to release them completely. They shall either be confined to a place of confinement or be released. The law regulates the institution of judicial control between arrest and release. The institution does not deprive the person concerned of his/her liberty, but subjects him/her to measures enabling observation and supervision, thus reducing the risk of the person’s escape and eliminating the harms of total deprivation of liberty. After this provision, detention becomes exceptional. Although the provision does not deprive the suspect of his/her liberty, judicial control will be necessary in cases where the same results can be achieved. Judicial control is the subjection of the suspect to one or more obligations specified in the law instead of his arrest during the investigation phase.” (Source: İsmail Malkoç / Mert Yüksektepe, Explanations and Commentaries, New Criminal Procedure Law No. 5271, Sh. 299, Malkoç Kitabevi, 2005, Ankara)
As can be understood from the relevant article of the Code of Criminal Procedure regulating the application of “Judicial Control”, it is clear that if these conditions are present and it is possible to decide on one of these measures, the arrest decision may be lifted and the application of Judicial Control may be decided.
Indeed, according to the last paragraph added to Article 104 of the Code of Criminal Procedure with the Law No. 3842, arrest cannot be decided if arrest may cause injustice considering the importance of the act under investigation or the penalty or security measure that may be applied, or if the purpose can be achieved by another judicial measure instead of arrest. Accordingly, arrest cannot be ordered if it is not proportionate to the importance of the matter, the expected penalty or security measure. As can be seen, the norm is mandatory. Let us state once again and with importance that there is no obligation to arrest in our Criminal Procedure Law. Article 100/1 of the Code of Criminal Procedure explains this point by saying “may be arrested”. When there is a real need, the judge should decide to arrest, taking into account the principles governing criminal procedure, especially proportionality. (Prof. Dr. Bahri Öztürk / Assoc. Dr. Mustafa Ruhan Erdem, Applied Criminal Procedure Law, Renewed According to the New Criminal Procedure Code, 9th Edition, Sh. 518-519, Seçkin Publishing House, Ankara, 2006)
The judgement of the European Court of Human Rights (Wemhoff v. Germany, 27.06.1968), which has become a rule of domestic law, is in the same direction.
In line with these explanations, due to the change in the nature of my client’s action, it has also become possible to decide to place him under judicial control instead of the continuation of his detention. (CPC 109/1.)
In this respect; as it is known and appreciated by your Court, there must be a proportion between the means and the purpose, method and goal. Considering the importance of the act under investigation or the penalty or security measure that may be imposed, if the decision to arrest or to continue detention would cause injustice as a result of the decision to arrest or to continue detention, or if the purpose of the trial can be achieved with other measures instead of detention, in the context of the measures adopted by the new Criminal Procedure Code, for example through judicial control, the decision to arrest or to continue detention should not be made. For this reason, Article 100 of the new Criminal Procedure Code stipulates that arrest cannot be ordered “if it is not proportionate to the importance of the case, the punishment or security measure expected to be imposed”.
13) “No state treasury can pay the cost of depriving a person of his/her liberty more than necessary” as well as the maxim “Scrape the criminal and a human being will come out from underneath” have formed the basic philosophy of the new legal regulations.
The main thing is the freedom of the person. Nothing can compensate for the restriction of a person’s freedom more than necessary. For this reason, the provision of Article 5 of the European Convention on Human Rights on ‘the protection of the human rights of the individual’ is of great importance in the restriction of personal freedom.
” Personal liberty is a fundamental condition which everyone must generally enjoy. Deprivation of personal liberty is something that can directly and adversely affect the enjoyment of many other rights and freedoms, such as the right to family life and private life, freedom of assembly, freedom of association, freedom of expression and freedom of movement. Moreover, any deprivation of liberty would place the person concerned in an extremely vulnerable position, putting him or her at risk of being subjected to …… treatment. Judges must always bear in mind that, for the guarantee of liberty to be meaningful, any deprivation of liberty must be exceptional, objectively justified and must not last longer than is absolutely necessary.” (ECtHR, judgments)
In the interim decision of the court dated 28.03.2006, it was decided to continue my client’s detention by evaluating “according to the state of evidence and the date of arrest”.
Pursuant to Articles 101 et seq. of the Code of Criminal Procedure, since the arrest decision and the decisions on the continuation of detention are a severe measure applied against the person, the legal and factual reasons for the decisions made in this regard must be explained and justified.
Likewise, the third paragraph of Article 141 of the Constitution stipulates that “All decisions of all courts shall be reasoned”. Although it is argued that the requirement of reasoned decisions prolongs the proceedings, Article 34 of the Code of Criminal Procedure stipulates that all decisions of judges and courts, including dissenting votes, must be reasoned. The justification must be in accordance with the general logic of the law, without contradiction and convincing.
In this sense; as stated in the judgements of the European Court of Human Rights,
“… According to the case-law of the ECtHR, the reasonable duration of detention is not measured by an abstract assessment. The reasonable duration of an accused person’s detention must be assessed on the individual facts of each case.” (W v. Switzerland judgment of 26 January 1993) The ECtHR firstly states that in the event of an arrest, the judicial authorities are responsible for ensuring that the period of detention does not exceed the prescribed reasonable period. On the basis of the reasoning of these judgments and the facts stated by the applicants in their applications, the ECtHR must determine whether there has been a violation of Article 5 § 3 of the ECHR (Assenov and Others v. Bulgaria judgment of 28 October 1998).
… However, on the facts of the present case file it appears that the Court, when deciding on the applicant’s continued detention, often used the same grounds (in view of the state of the evidence and the nature of the offence charged…) and sometimes did not give reasons for always stating the same grounds. It is a sine qua non condition of the detention rules that there are grounds for suspecting the apprehended person of having committed an offence. Moreover, this condition also loses its validity after a while. In these circumstances, the ECtHR must determine whether the other grounds cited by the judicial authorities justify the restriction of liberty… it must investigate whether the competent authorities exercised ‘particular diligence’ during the proceedings…” (Ilijkov v. Bulgaria judgment of 26 July 2001)
In the light of the above-mentioned case law of the European Court of Human Rights, we believe that the following principle should be at the forefront of the issues to be observed by the judicial bodies. In this respect; “it is within the duties of the judicial bodies that the period of detention should not exceed a reasonable period of time. Even if the condition of reasonable suspicion required for arrest is present, if a certain period of time has passed, the detention should be terminated. ”
In line with the approach of the Code of Criminal Procedure No. 5271 on pre-trial detention and the established judgements of the European Court of Human Rights, it can be concluded that Today, within the framework of the libertarian understanding of many countries that emphasises the individual, pre-trial detention has become an exception, while trial without detention has become a rule.
In this respect, according to the new Criminal Procedure Law No. 5271, which entered into force on 1 June 2005, the periods of indefinite detention have ended, the old practice has been terminated with the new regulations introduced by the Criminal Procedure Law, and the old practice has been terminated in accordance with the principle of “Fair Trial”, which is one of the Universal Criminal Procedure rules.
Moreover, with regard to arrest and personal liberty, Article 5 of the European Convention on Human Rights includes the main principle that “everyone has the right to liberty and security of person… no one shall be deprived of his liberty except in specified circumstances and in accordance with the law…”.
14) When the available evidence in the file is evaluated, it is clear that since all the evidence reflected in the file after this stage of my client A.A. has been secured, it is clear that there is no longer any danger of tampering with the evidence or manipulating the evidence.
As we have explained above, both in our defences and in the light of the jurisprudence of the General Assembly of Criminal Chambers; likewise, we think that the nature and quality of the crime may change with a great probability in the face of the Court’s granting additional defence considering the possibility that the nature of my client’s action may change.
CONCLUSION AND REQUEST :
Considering the sincere and convincing defence of my client, which has not been proved otherwise, the possibility that the nature of the crime may change, the fact that the evidence has been collected to a great extent, therefore, after this stage of the trial, the possibility of influencing the evidence, obscuring the evidence, directing the trial in another direction has disappeared, and that the detention is ultimately a measure, as well as the fact that these conditions have completely disappeared,
My client A.A.
a- Duration of confinement,
b- Having a fixed residence
c- The possibility of tampering with evidence has disappeared,
d- No possibility of escape,
d- All the evidence has been collected,
e- The fact that detention is a precautionary measure and that these conditions have completely disappeared,
f- By taking into consideration the issues in Articles 100 and following of the Code of Criminal Procedure No. 5271,
Considering the current legal regulations and the regulatory provisions of the new Turkish Penal Code and the new Criminal Procedure Code, as well as the humanitarian provisions and discretionary measures regarding detention; I request that the decision regarding the continuation of the detention of my client, the suspect defendant A.A., in accordance with CMK 267, be lifted and the decision to release him unconditionally or with a bail to be deemed appropriate by your Court.
Sincerely yours …
Defence Counsel
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