New judicial package introduced: committing offenses on behalf of an organization returns, compensation commission to be exhausted before the Constitutional Court in long trials
MLSA Legal Unit - This week, a new judicial reform package passed through the Justice Commission of the Parliament. The package reinstates the crime of "committing offenses on behalf of an organization without being a member," regulated under Article 220/6 of the Turkish Penal Code (TCK), which was nullified by the Constitutional Court (AYM). Additionally, the powers of the compensation commission are expanded, making it mandatory to approach the commission before proceeding to the Constitutional Court in cases of prolonged trials. The package also introduces the possibility of appeal for deferred announcement of verdicts.
The bill contains several amendments in response to recent annulment decisions by the Constitutional Court. However, anticipated regulations concerning the surname of married women and probation did not find a place in the draft law. Lawyer Veysel Ok believes the package was hastily prepared.
The crime of "committing offenses on behalf of an organization without being a member" returns
On October 26, 2023, the Constitutional Court annulled the provision in Article 220, Paragraph 6 of the Turkish Penal Code, stating, "Persons committing offenses on behalf of an organization without being a member thereof shall also be punished for membership in the organization." The Court had given the Parliament a four-month period starting December 8, 2023, to revise the regulation. In its decision, the High Court stated that the rule was not sufficiently precise and foreseeable to prevent arbitrary practices by public authorities, thereby not meeting the legality requirement and ruling it unconstitutional.
With the new judicial reform package, the regulation concerning "committing offenses on behalf of an organization without being a member" returns unchanged. Additionally, the same provision is applied to "armed criminal organizations" under TCK Article 314.
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Annulled provision |
Proposed amendment |
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(6) A person who commits offenses on behalf of an organization without being a member shall also be punished for the crime of membership in the organization. The sentence for the crime of membership in the organization can be reduced by up to half. This provision applies only to armed organizations. |
(6) A person who commits offenses on behalf of an organization without being a member shall additionally be punished with imprisonment ranging from two years and six months to six years. The sentence for the committed crime can be reduced by up to half, depending on the nature of the crime. This provision applies only to armed organizations. |
A new paragraph is added to Article 314 of the Turkish Penal Code, regulating membership in armed organizations, introducing "committing offenses on behalf of an organization without being a member" as an independent crime for armed criminal organizations:
"(3) A person who commits offenses on behalf of an organization without being a member shall additionally be punished with imprisonment ranging from five to ten years. The sentence for the committed crime can be reduced by up to half, depending on the nature of the crime."
The jurisdiction of the Compensation Commission expands: compensation commission to be exhausted before the Constitutional Court in long trials
With the new regulation, the powers of the Human Rights Compensation Commission, established under the Ministry of Justice, are expanded to cover violations of rights in prolonged trial processes. Now, claims for compensation relating to violations of the right to a trial within a reasonable time will be directed to the Compensation Commission before the Constitutional Court.
The Constitutional Court, through the landmark Nevriye Kuruç decision, indicated the need for an administrative application mechanism for violations of rights resulting from prolonged trial processes. With the implemented regulation, applications related to the right to a trial within a reasonable time that were pending before the Constitutional Court were temporarily transferred to the Compensation Commission. With the new regulation, claims for compensation related to violations of the right to a trial within a reasonable time, including during investigation, prosecution, or trial processes, will first be directed to the Compensation Commission. Those dissatisfied with the decision of the Compensation Commission will have the option to make an individual application to the Constitutional Court.
Compensation can be claimed against house arrest, some of the claims for compensation due to unjust measures will come to the Compensation Commission
Article 141 of the Code of Criminal Procedure (CMK) grants the right to compensation for those subjected to unjust protective measures. While compensation claims are currently seen by the High Criminal Courts, with the new regulation, some of these claims will be handled by the Compensation Commission.
The new regulation also grants the right to compensation, in accordance with CMK Article 141, to individuals who, after being subjected to judicial control measures such as "not leaving their residence, undergoing treatment and examination, and accepting these measures," are then acquitted or have their cases dismissed.
Compensation claims of individuals who are acquitted or have their cases dismissed after being caught or arrested, those who spend more time in detention or custody than the duration of their sentence, and those subjected to measures like not leaving their residence or undergoing treatment and examination but ultimately acquitted or have their cases dismissed will now also be reviewed by the Compensation Commission. Under current regulations, all these claims are assessed by the High Criminal Court in the claimant's locality.
In applications made to the High Criminal Courts, attorney fees are awarded upon a favorable verdict, whereas, for applications made to the Compensation Commission through an attorney, no attorney fees are awarded. Lawyers believe this restricts the right to an effective application.
Deferred announcement of verdicts is being re-regulated
The package re-regulates the institution of the deferred announcement of the verdict (HAGB). Decisions on HAGB, found to be contrary to the presumption of innocence and the right to a fair trial by the Constitutional Court and thus annulled, will be appealable, and defendants will not be asked before the decision if they want HAGB.
Under the current regulation annulled by the Constitutional Court, the court asks the defendant if they want a HAGB decision. If the defendant agrees and the verdict is deferred, they do not have the right to appeal. In such cases, the defendant can only resort to the objection mechanism. The Constitutional Court annulled the provision because it required waiving the right to appeal.
With the new regulation, courts can issue HAGB decisions without asking the defendant's request, and now, HAGB decisions can also be taken to the Regional Courts of Justice for appellate review.
A verdict of "no need for punishment" cannot be issued for a fugitive defendant
On March 22, 2023, the Constitutional Court annulled the third paragraph of Article 247 of the Code of Criminal Procedure, which allowed for a verdict of "the crime was proven to be committed, but no need for punishment" in cases involving fugitive defendants who had not been interrogated. The rationale was that issuing a verdict on the commission of the act without the defendant's interrogation undermines the presumption of innocence. According to the new regulation, a conviction or a verdict of "no need for punishment" can no longer be issued for a fugitive defendant if they have not previously been interrogated.
Appeal and cassation periods will now start from the notification of the reasoned decision, with the appeal period extended to two weeks
Under the current regulations, the periods for appeal and cassation begin from the moment the court decision is notified or pronounced (read aloud) to the parties. However, since the reasons for the decisions are written after the court's decision, the period for filing an appeal for decisions without known reasons used to start. With the new change in the judicial reform package, the period for filing an appeal will now start from the notification of the reasoned decision. Moreover, the law extends the appeal period from seven days to two weeks, while the period for cassation, currently fifteen days, is adjusted to two weeks.
Convicts' restrictions become contingent on request
Under the current regulation, convicts sentenced to more than one year of imprisonment are directly subjected to a restriction order, and a legal guardian is appointed as their legal representative. Convicts are restricted from conducting legal transactions on their own and must do so through this guardian. With the new regulation, the automatic appointment of a legal representative for a convict will only be considered necessary for the protection of their person or property if they receive a definitive sentence of five years or more in prison. In other cases, the appointment of a guardian will be contingent upon the convict's request.
Lawyer Veysel Ok believes the law was hastily prepared during its drafting process. "The proposal text mentions the appointment of a 'guardian' for convicts. The government, being accustomed to the trustee system, assumed that a trustee would be appointed here as well. In the Civil Law system, a legal guardian should be appointed in such cases. A regulation prepared by individuals lacking the legal knowledge to foresee even this has been presented to us as a judicial package."
No provision for a woman's surname and enforcement regulations in the proposal
The proposal does not include a regulation related to the annulled provision concerning a married woman's surname. Article 187, paragraph 1, of the Turkish Civil Code, which mandates a woman to take her husband's surname upon marriage, was annulled by the Constitutional Court in a decision published in the Official Gazette on April 28, 2023, with effect from nine months later. The period given by the Constitutional Court to the Parliament to make an amendment expired on January 28, 2024. The Civil Code provision regarding a woman taking her husband's surname will no longer be applicable.
The composition of the Constitutional Court is changing
The President of the Constitutional Court, Zühtü Arslan, will retire on April 17. The term of member Emin Kuz will also end on May 12. The vacancies of the two members will be filled by appointees of President Erdoğan. With the retirement of President Arslan, the court members will elect a new president. Former Istanbul Chief Public Prosecutor İrfan Fidan had run in last year's elections, losing to Zühtü Arslan with 8 votes against 5. There is speculation that Fidan might run for Arslan's position.
