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CIRCULAR LETTERS OF HIGH COUNCIL OF JUDGES AND PROSECUTORS
(SPEACIAL ANNOTATION) 1
1- Annual, Casual, Sick and Accompaniment Leaves of Judges and Prosecutors
In the circular letter, principles and procedures about informing annual, casual, sick and
accompaniment leaves and the dates of leave and setting to work of judges and prosecutors
are lined up as articles in every section. Also, it is informed that planning leaves at the
beginning of the year, not scheduling hearing and scene examination in the term when
officials take leave; and availing of judiciary recess, except those who are commissioned as
on duty during judiciary recess, are obligatory.
2- Annual Judiciary Recess
In the article 55 of Law on HCJP no 2802, the points that judges and prosecutors shall avail of
annual recess which is stated in procedures and laws; judges and prosecutors who have
availed of annual recess shall not take annual leave for that year and the terms and methods of
availing of annual recess shall be designated by HCJP, are regulated; methods and procedures
related with annual recess are designated in mentioned Circular letter.
3- Methods and Principles Related With Judges’ and Public Prosecutors’ Performing
On Duty Service
In accordance with article 54 of Law on HCJP no 2802 side-titled “working hours”, the
principles and procedures that judges and public prosecutors must abide by in performing on
duty services, constitutes the subject matter of the Circular letter.
4- Regulating Suspect-Accused Decision Tracking Forms, Decisions of Arrest in Default,
Arrest Warrants in UYAP and Tracking Executions and Updates
Provisions about providence and protection of individual freedom and security are regulated
in various international conventions especially in Universal Declaration of Human Rights and
in constitutions and domestic laws of many countries because of the importance they have.
These issues on these rights are protected under article 5 of European Convention on Human
Rights. European Court of Human Rights, in many of its decisions stressed the priority and
importance of individual freedoms and security.
On the other hand, issues on rights of individual freedom and security are mentioned in many
papers prepared and served as a route in the course of EU Acquis. In the 24 th Part of 2008
National Programme titled as “Justice, Freedom and Security” there are provisions which can
be directly related with this issue.
With the circular letter, those goals below are intended to be achieved:
1- Protecting the right of individual freedom and security through National Judiciary
Informatics System (UYAP) by means of latest technology.
1 The complete version of this Circular letter is available on our Council’s website. This summary is prepared
considering circular letter numbers.
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2- Preparing forms, decisions and orders in electronic environment that are attached to
circular letter,
3- Providing cooperation and coordination between judicial authorities and law enforcement
officers at high levels,
4- Providing integration of Department of Smuggling, Intelligence, Operations and
Information Gathering(KIHBI) with UYAP,
5- Preventing unjust arrests and detentions,
6- Reminding approaches of ECHR to those concerned,
7- Rendering operations on extradition quicker and more proper since in the cases of
requests on extradition, especially terrorism offenders, addressed to EU member states, our
requests are returned with the reason that the arrest warrants which only contain expressions
such as “the characteristics and nature of the crime and existing evidences” in terms of
determining causality between the alleged crime and the concrete actions of the accused are
not arrest warrants in the scope of article 12 of European Convention on Extradition,
(Supplemental -4)
In the Circular letter; the integration of UYAP and KIHBI is discussed and as of January 1 st
2012 it is aimed that only UYAP Information System of Those Wanted will be used. So that,
the expedition of judicial procedure will be enhanced.
For instance, as no operation is performed in physical setting, with just a click, documents
will be transmitted electronically; and consequently, delays caused by human factor will
disappear and abuses caused by human factor will be prevented.
In former practices, after an arrest warrant had been issued, it was signed and then it was sent
to the enforcement officers by mail or against custodianship after being registered in related
book and the enforcement officers would register it into KIHBI.
In this field, approximately 2250 police officers in security department, 450 gendarmerie in
Gendarmerie command which make total 2700 were employed nationwide. This number
shows the persons who are only assigned for registering, tracking and revoking this kind of
documents. Those operations are already available in UYAP Information System of Those
Wanted. Moreover, there is no need to repeat the same operation. This nothing else but waste
of time, labour and effort.
With respect to this, in accordance with the protocols signed in 2006, as there is the obligation
in using a single information source for those operations which is a natural consequence of the
studies, meetings, negotiations and test executions carried out so far, this circular letter has
been issued.
There are positive experiences resulting from the implementation of UYAP in similar fields.
For instance, with the change made in Highway Traffic Law, thanks to the possibility of
judges’ and bailiffs’ executing operations of imposing restriction on records of vehicles in
database directly, that is levying and releasing electronically via UYAP and POL-NET; so far
about 4 million restrictions have been imposed and 1,5 million of them have been released.
When only the costs of mailing is calculated for these documents, the total cost of 5,5 million
restriction imposing and releasing writs is 27,5 million Turkish Liras. Also, some possible
abuses which result from intervention of human factor have been prevented. With these, 2
thousand traffic police officers who were in charge only for the operations before, have
returned to their fundamental duties. As can be seen in this example, with this Circular letter
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not only saving in terms of labour, effort, time, costs and workforce will be achieved but also
assuring rights and freedoms of those concerned will be provided.
To achieve these benefits, forms attached to the Circular Letter need to be created, properly
registered, tracked, updated and deleted or removed in UYAP Informatics System. Until
January 1 st 2012 joint use of UYAP and KIHBI will be taken as base but following the date
for the queries that will be conducted, the records of UYAP will be taken as base.
5- Decisions on Bringing by Force
In the Circular letter, some problems seen in the implementation of bringing by force are
referred to and significant principles adopted by ECHR such as abiding by the principle of
proportion, ultimate remedy principle in the cases of children and documenting of bringing by
force are reminded.
As stated in the summary related with the Circular letter no (4), it is considered that this
Circular letter includes issues on individual freedom and security and will provide assurance
in terms of this right.
6- Execution and Probation Operations
In National Programme 2008, it was expressed that discrimination is criminalized in “Turkish
Penal Code” and also discrimination in execution was set forth in Law on Execution of
Sentences and Security Measures and it was also stated that studies will be carried on to make
penal institutions comply with international standards and probation services will be activated
and generalized.
In EU Progress Reports and Advisory Visit Reports, it is stated that judicial system must be
efficient. Execution of sentence and security measures constitutes a significant part of this
system. Execution of the decisions rendered by the courts is the indicator of the system which
operates as a whole.
In this context, in the Circular letter certain parts of the system where problems often occur
are evaluated with their titles and practical considerations are stated; and expediting
execution, ending the complexity in that part of the system and consequently providing a
rapid execution of the sentences and security measures are targeted.
The provisions mentioned in the Circular letter also comply with Judicial Reform Strategic
Paper and other plans which were accepted by our country.
Negotiations were held with officials of Ministry of Justice, Information Processing
Department, extending the use of UYAP is pointed out and so that expediting execution can
be provided.
Accordingly, in the Circular letter, the principles that in terms of execution of sentences,
execution documents shall be obtained in UYAP and physical documentation shall be
revoked; in terms of providing the registration and tracking of decisions, execution operations
shall be registered using electronic signature according to the file types in UYAP system
(execution, docket or general book of probation etc.) and they shall be controlled are set forth;
and important issues that must be taken into consideration and obeyed in execution of
sentences and security measures are underlined.
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In the Circular letter, the issues; Collecting judicial and administrative fines, Supervising
convicts who are on probation, Postponing execution of prison sentences because of health
problems, Depriving of exercising certain rights, the state when executed prison term does
not cover the decreed judicial fine, Execution of decisions of preventative detention, High
security health institutions, Execution of Probation decisions, Non-liability supervision,
Decisions of treatment and probation designated about the persons who are addicted to
narcotic drugs or stimulant, Probation decisions rendered about persistent violators to be
executed after the execution of sentence, are designated as titles and are then conveyed to
implementers in detail.
7- Duties, Powers and Responsibilities of Enforcement Officers
In Political Criteria part of Accession Partnership Document 2008, the need of empowering
and developing all law enforcement bodies, developing their status and functions and
collaboration among bodies and so that providing compliance with EU standards, are set as
priorities.
In 2008 National Programme, determination was expressed to regulate responsibilities,
powers and duties of enforcement officers and prosecutors in investigation and prosecution on
the basis of the principle of independence and separation of executive and judicial powers in
Constitution in parallel with best conduct in EU countries and moreover, it was stated that
increasing the capacity of enforcement office which is commissioned in crime examination,
research and investigation will be carried on.
In EU Progress Reports, it was criticized that the foundation of judicial enforcement offices
with regards to the implementation of New Criminal Court Law causes tension among
prosecutors and law enforcement officers and although Ministry of Justice has issued two
circular letters about the matter, difficulties show up in efficient control of judicial
enforcement officers by prosecutors. Besides, the reports pointed out that disruption in the
investigation of some cases which are known by public shows the need to develop the
operations of the police and gendarmerie and also the need to develop relations among the
police, gendarmerie and judiciary.
In the report about “ Efficiency of Judiciary and Criminal Justice System” prepared by Luca
PERILLI, Italian judge, at the end of her visit to Turkey between 17 th -21 st January 2011 in
the scope of Independent Expert Visit of European Commission with the chapter “Judiciary
and Fundamental Rights” with the title “The Role and Function of Judicial Enforcement
Office", the relationship between judicial enforcement officers and prosecutors are examined
and it is emphasized that the prosecutors are superiors of judicial enforcement officers in the
course of investigation and they have the power to instruct and order. In the report how
prosecutors and judicial enforcement officers provide coordination in compliance with article
161 of Criminal Court Law no 5271 are explained and it is stated that telephone calls and
correspondence are the means of communication between them. In the report, there are also
recommendations about implementing By-Law about Judicial Enforcement Officers, founding
police offices subordinate to prosecutor’s offices, founding professional judicial enforcement
offices subordinate to prosecutors offices to investigate though crimes; providing prosecutors
to give instructions to the police about investigation techniques; publishing written guidelines,
the priorities of police investigations, guidelines related to the content of police reports,
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proper channels of communication preferably means of informatics, the duration of
investigation, means to seek evidence, agreements on the quality and quantity of operations
conducted by the police, written protocols about feedback from prosecutor’s office.
European Council in its Recommendation numbered (2000)19 stated that the prosecutors can
instruct judicial enforcement officers during their duties and determine to what kind of
incidents and personnel they should give priority; and they can control whether their
instructions are obeyed or not and when necessary they can impose sanctions.
The Circular letter is thought to resolve criticism that there are different implementations
about the relationship between Public Prosecutor’s Offices and judicial enforcement offices as
stated in Progress Reports and Independent Expert Visit Reports on the issues of the duties,
powers and responsibilities of judicial enforcement offices.
In the Circular letter; rules that shall be followed in phases of prosecutor’s office and judicial
enforcement offices in order to redress the problems that often occur in practice and to create
unity in the relations between public prosecutor’s offices and judicial enforcement offices
which are pointed out in the Report by Luca PERILLI.
Problematic areas nationwide in application are discussed under titles. Some of the titles are
the legal status and judicial responsibilities of highest rank judicial enforcement officers, The
influence of incident report on the secrecy of investigation, The scope of the investigations
carried out by Coast Guard Command.
On the other side, the principle that the oral orders or written instructions given by prosecutor
shall be written in a clear and guiding way in articles by establishing standards peculiar to any
type of investigation which are demanded to be searched by judicial enforcement offices, has
been adopted.
Public prosecutors are demanded to supervise judicial operations in order to provide
management of judicial services in an efficient and effective way through holding
coordination meetings for judicial enforcement office and carrying out various training
activities.
It is stated by drawing attentions to division of labour and specialization in enforcement office
that due care must be paid to the commissioning offices such as anti-organized crime and antismuggling,
anti-terrorism and public order which are structured for a certain objective in
enlightening crimes within these scopes.
The opinions of related office were received in writing and orally; and with a cooperative
understanding the problems were tried to be solved. Nevertheless, there are controversial issues
on terms of the highest rank judicial enforcement officer, evaluation report and judicial
enforcement responsible person/s.
Considering that the issues of filling in evaluation reports and sending them to administration
are related to the administrative duties of prosecutors in terms of about whom the reports
would be filled in and the content and method of this, they need to be evaluated in parallel
with the provisions of By-law issued by the Ministry of Justice and Interior and other
secondary regulations in accordance with article 167 of Criminal Court Law no 5271.
According to the circular letter, provincial security director and provincial gendarmerie
commander are the highest rank enforcement officers with the amendment in 2005 as clearly
explained in sixth paragraph of article 161 of Law no 5271, the highest rank enforcement
officers have judicial enforcement duties. Also, customhouse guard directors, smuggling
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intelligence directors and coast guard unit commanders who will be commissioned in 20
regional customs and trade directorates who performs judicial enforcement are both in charge
of judicial enforcement and they are highest rank judicial chiefs.
It is anticipated that integration of prosecutor’s office and enforcement offices into electronic
environment and all operations related with investigation will be executed via information
systems in the future.
Forestry officers are judicial enforcement officers in the scope of other judicial enforcement.
As judicial authority is assigned to forestry administration chief in Forestry Law, they are also
judicial enforcement officers.
8- Investigations into Allegations on Violations of Human Rights and Maltreatment
In the part of Accession Partnership Document 2008 titled as prevention of torture and
maltreatment, the issues that providing implementation of measures accepted in the scope of
“zero tolerance” policy against torture and maltreatment in parallel with ECHR and European
Committee for the Prevention of Torture recommendations and fighting against impunity
extensively are mentioned. Among the priorities within this scope is prosecutor’s providing
efficient and on–time investigation and prosecution by determining the offenders in relation to
allegations and then providing them to be penalized by the courts. It is considered that the
Circular letter is in compliance with these priorities.
In the part of Accession Partnership Document 2008 titled as “Prevention of Torture and
Maltreatment” some priorities are stressed which are also among the objectives of the Circular
letter. In short, these priorities are: implementation of the measures that were accepted in the
scope of “zero tolerance” policy against torture and maltreatment in accordance with
provisions of “Turkish Penal Code”; and recommendations of “European Committee for the
Prevention of Torture” in all spheres of public offices; continuing to pay regard to prevention
of impunity; conducting training studies for public prosecutors and enforcement officers in
the subjects of human rights and investigation techniques to prevent possible problems during
implementation; carrying on the studies about reflections of article 3 of ECHR; opinion of the
ECHR on this matter and the reflection of these on Turkish law; continuing to implement
laws and by-laws efficiently which were accepted for prevention of torture and maltreatment
by the issued Circular letters and sustaining judicial capacity of the enforcement forces who
are in charge for crime analysis and crime research and investigation. Moreover, spreading the
use of advanced evidence taking and questioning techniques is prescribed. The circular letter
is considered to include provision to cover the priorities mentioned.
As a matter of fact, in Progress Report 2008, concerns are expressed as limited effort was put
to fight against torture and maltreatment and as there were allegations that torture and
maltreatment were inflicted in other places than custody or official custody centers, therefore
the report suggested the need for developing the struggles to fight against torture and
maltreatment.
In Progress Report 2009, it is stated that although the legal framework includes
comprehensive measures against torture and maltreatment, the application of these measures
and the policy of “zero tolerance” were limited. Moreover, the allegation that the offenders of
torture and maltreatment are not punished was still a matter of concern; and improvement
studies within these issues must be priority for Turkish authorities.
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In Progress Report 2010, it is stated that although there is a positive tendency towards
prevention of torture and maltreatment, the violations of human right went unpunished and
the issue of the accumulated workload in judiciary was not given due attention.
In Unofficial Screening Report Chapter 23 rd , it was mentioned that the numbers of the cases
about the allegations of torture and maltreatment which are on trial are inadequate and the
term of trial about offenders of these crimes are very long and Turkey needs to sustain the
policy of zero tolerance against torture and maltreatment and grant the independence of
Forensic Medicine Institute and increase the efforts to implement Istanbul Protocol across the
country and carry on efforts to improve the conditions of prisons. Those issues mentioned in
Progress and Screening Reports present the significance of the subject for our country.
In the report about “ Efficiency of Judiciary and Criminal Justice System” prepared by Luca
PERILLI, Italian judge, at the end of her visit to Turkey between 17 th -21 st January 2011 in
the scope of Independent Expert Visit organized by European Commission chapter “Judiciary
and Fundamental Rights”, the efficiency of investigation is stressed by stating that in the
investigations about the allegation of torture and maltreatment committed by public officers,
the state needs to provide the applicants access to the documents and information. According
to the report, the duties that prosecutors must perform to provide efficiency of investigation
are: obtaining detailed statements from enforcement officers, evaluating these statements by
researching the incidents that are mentioned by officers, determining the link between the
guns of enforcement officers and the incident subject to compliant by obtaining forensic
report of these guns, investigating crime scene in terms of fingerprints and other traces, taking
the statements of persons who are capable of giving information about the incident subject to
the investigation, expediting and facilitating operations, investigating the incidents by
questioning the defender and the doctor who issued the medical report. Within this
framework, the prosecutors are demanded to investigate the truth behind the incident through
utilizing the statements of eye-witnesses, all the information that can be obtained from
forensic medicine and autopsy reports which contain objective evaluation of information; and
clinical findings in cases of deaths and injuries. Furthermore, in the report, it is pointed out
that all duties and responsibilities need to be with prosecutors in the investigation of
allegations of torture and maltreatment by public officers in terms of carrying out
investigation in accordance with independence and impartiality.
In this context, the need for not only a hierarchical and institutional independence but also a
practical one is implied. In conclusion, in the scope of the recommendations made by Expert
PERILLI, there are the issues that the state must provide the complainant access to necessary
information, the efficiency of investigation must be granted and the prosecutor must have the
duties and responsibilities that are stated in ECHR decisions and the investigation must be
carried out independently from the institutions and the person that are engaged in the incident.
In the Circular letter, various recent amendments and improvements on Constitutional basis
primarily in Turkish Penal Code and Criminal Court Law in terms of human rights violations,
torture and maltreatment are mentioned and our responsibilities in the matter arising from
international law are reminded. In the Circular letter, especially necessary care on violations
of human rights, torture and maltreatment; that the investigation must be carried out by
prosecutors themselves in accordance with ECHR decisions and measure must be taken to
increase awareness about these, are included. Therefore, a general perspective is presented in
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terms of EU Acquis. This Circular was accepted on June 30 th 2011 in General Assembly and
was upgraded by being combined with the circulars issued by General Directorate of Penal
Affairs, Ministry of Justice on 01/01/2006 having the subject matters “Prevention of violation
of human rights in investigations” and “ Investigation into the allegations of torture and
maltreatment”.
Basically, in the Circular letter, the conduct of investigation in compliance with human rights
and right to fair trial are emphasized. The perspectives of ECHR and European Court on
Human Rights and provisions of national regulations are outlined.
Also, the preceding decisions of ECHR about Turkey, UK, Russia and England are referred
to.
In the text of Circular letter, conventions directly related with the issue are referred to and
improving awareness is aimed with these. (United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment which was adopted by the resolution of United Nations General
Assembly numbered A/RES/55/89, dated April 20th 2000 (İstanbul Protocol)
9- Examination of Corpse and Making Autopsy
Among the important documents about autopsy are; report of Parliamentary Assembly of the
Council of Europe dated October 31 st 1990, numbered 6332, recommendation of Council of
Europe Committee of Ministers dated February 2 nd 1999, numbered R(99)3, Model Autopsy
Report of EU and various decisions of ECHR.
In the report of Parliamentary Assembly of the Council of Europe dated October 31 st 1990,
the autopsy is defined and the reason why it is done are explained and some examples of
regulations about the matter from member states to Council of Europe are mentioned.
In this report, some principles such as the autopsy must be made by trained and experienced
forensic pathologist, and if a death case occurs during detention and a suspicion arises about
it, autopsy must be made, are mentioned.
The recommendation of Council of Europe Committee of Ministers, numbered R(99)3, points
out important matters in crime scene investigation, the roles of medico-legal professionals;
and states the need that where medico-legal autopsy is possible , it must be made by at least
doctors one of them being specialized in forensic pathology. The things that need to be done
before beginning autopsy and internal and external examination that will be done during
autopsy are told in detail in the report. In this document, some point in terms of autopsy report
are pointed out and also stated that the report must be clear, readable, and can also be
understood by those who are not medical staff. In the report, it is written that when there are
alternatives reason of death, and it is not possible to identify the correct one, the expert needs
to define these alternatives and put them in order according to probabilities and if this is not
possible, he/she needs to define the reason of death as unidentified. Another important point
in the report is that; it states that the interval between the date of the autopsy and the
temporary report must not exceed one or two days; and the interval between the autopsy and
the final report must be close. UN Model Autopsy Report sets forth a comprehensive list of
steps that need to be taken in a basic autopsy. In this context, the importance of giving the
expert who is to examine, at least 12 hours for an appropriate examination is emphasized.
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Also, there are detailed evaluations on how the examination shall be during autopsy and crime
scene investigation.
In the Circular letter, the UN Protocol is referred to; and the request to consider these matters
and texts of Protocol in English and Turkish are attached to the Circular letter.
Furthermore, In the report about “ Efficiency of Judiciary and Criminal Justice System”
prepared by Luca PERILLI, Italian judge, at the end of her visit to Turkey between 17 th -21 st
January 2011 in the scope of Independent Expert Visit organized by European Commission
chapter “Judiciary and Fundamental Rights”, autopsy is defined as a mean for prosecutors in
terms of protecting evidences; the importance of autopsy in objective analysis of clinical
findings including the reasons of death is emphasized and reference is made to Salma/Turkey
case in this context. In the decision of ECHR dated 2000 application no 21986/93, in short,
the importance of making an autopsy which includes all clinical findings is stated. In the
Judicial Reform Strategic Paper and Action Plan, the points such as alignment with
international standards, following technology, improving the capacity of human resources in
the scope of improving the capacity of Forensic Medicine Institute are stressed.
It is considered that the Circular letter includes well-directed elements when the documents
and the issues mentioned in them are taken into consideration.
In the Circular letter, crime scene investigation, corpse examination and the things that need
to be done during autopsy are discussed in detail in compliance with the abovementioned
documents.
As it was accepted on June 30 th 2011 in General Assembly meeting, the part related to
autopsy in the Circular letter issued by General Directorate of Penal Affairs, Ministry of
Justice having the subject matter “Murder and Incidents of by Unknown Assailants” is
included in this Circular and so that repetition is prevented.
In the Circular letter, it is emphasized that corpse examination and autopsy are indispensable
with their role of enlightening investigation and so they must be proper and made in a short
time.
In preparation of the Circular letter, national regulations on corpse examination and autopsy
and the perspectives of ECHR and European Court on Human Rights were outlined and in
this context, the decisions of ECHR which are related with the matter were referred to.
Rules about possibility of organ and tissue transplantation in case of cerebral death resulting
from criminal cases which are covered in fourth paragraph of article 14 of Law on Organ and
Tissue Transplantation are explained. So that, for the first time this issue which serves the
autopsy procedure as well as serving a matter which has significant part in terms of right to
life has been reminded in Circular letter to those who are to implement. Ministry of Health
and Forensic Medicine Institute demanded this issue to be included in a Circular and then
announced to the prosecutors.
Moreover, principles about providing deserted bodies for scientific studies are set forth upon
requests of Presidency of Forensic Medicine Institute and universities.
Principles and Methods of Investigation
It is clear in the Circular that the importance of carrying out investigations to search the truth
respecting human rights, and doing this in time, efficiently, in a complete way, in a short time
and within an order to provide a fair trial afterwards are mentioned.
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In this context, the points that need attention which are; how the enforcement officers must
react during their duties when they hesitate, the matters of importance to prevent unnecessary
exchange of letters; and complexities, benefiting from the term of custody in terms of
investigation, giving priority to the cases in which suspects are detained in investigation,
respecting the right to a fair trial and not restricting the right to defend, are mentioned as well
as exhibiting due care to the rights of aggrieved and the right to benefit from the assistance of
an attorney.
In Accession Partnership Document 2008, the training of enforcement forces in terms of
human rights and investigation techniques are referred to. Also this issue was stated in 2008
National Programme, besides “the right of freedom and security” and “the right to fair trial”
are included. It is considered that the issues mentioned in these documents are in compliance
with the issues in the Circular letter.
In Progress Reports generally, the issues discussed are: providing legal procedures related to
pretrial custody period comply with ECHR provisions and European Court of Human Rights
opinions; the significance of education on human rights in police schools; the importance of
training enforcement forces in various subjects, the supervision of security forces’ activities,
taking efficient measures against maltreatment, the limitations on freedom of expression and
lengthy detention period before hearing. It is considered that this Circular letter is a
constructive step with this respect.
As accepted on June 30 th 2011 in General Assembly meeting, the Circular letters issued by
General Directorate of Penal Affairs, Ministry of Justice having the subject matter “Murder
and Incidents of by Unknown Assailants” no(22), “The Right to Benefit from Assistance of an
Attorney for Suspects” no(24), “Opposition to Law on Meetings and Demonstrations” no(34)
“Investigations into the accidents that happened on State railways” no (36) and “Forest Fires”
no (37) were combined with this Circular letter as they are serving as announcement to
prosecutors in terms of careful conduct of investigations and as they include articles of Laws,
Constitution and European Convention on Human Rights.
Basically, in the Circular letter, fundamental rules that needs to be obeyed in a fast, efficient
and well-grounded investigation which is expected to be carried out in compliance with
fundamental human rights and fair trial principle are mentioned; and faults that are considered
to be occur often in implementation are reminded to the prosecutors in itemized form to create
unity among officials in order to provide guidance.
In preparation of the Circular letter, national regulations on investigation and the perspectives
of ECHR and European Court on Human Rights were outlined and in this context, the
precedent decisions of ECHR about the total 24 cases from Turkey, Bulgaria, Netherland,
Belgium and Austria which are related with the matter were referred to. International
documents which are accepted about investigation phase are mentioned in respect to their
similarity to the subject of the Circular letter and in order to improve awareness. (UN
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power dated 29
November 1985; Guidelines on the Role of Prosecutors dated 7 th September 1990 which was
accepted in UN Conference on Prevention of Crime and Treatment of Offenders; UN
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions dated 24 th May 1989)
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11- Special Investigation Methods
In the Circular letter, it is pointed out that time, effort must not be wasted because of
unnecessary exchange of letters among Council of Higher Education, higher education
institutions and judicial authorities and there must not be dispute among these in terms of
duties and powers; and also stated that by referring to article 145 of Constitution which reads
as “ Except the time of war, persons who are not soldiers can not be tried in military courts”
military personnel must be tried according to the procedure in relevant law.
In Accession Partnership Document 2008, the point that the judicial authority of the military
courts are limited to the matters of military personnel in relation to their military duties; and
in National Programme 2008, it is stated that legislations will be carried on about defining the
duties and powers of military courts and steps for expedition of judiciary and improving its
efficiency are referred to. These issues are similar to the content of Circular letter.
In all Progress Reports, the trial of military personnel and the powers and duties of military
courts are mentioned. In the Progress Reports of recent years, it is stated in terms of the
criticism on these matters that with the harmonization package, the trials of civilians by
military courts are prevented and the changes in the package receive positive evaluation. In
2010 Progress Report, the issues that are mentioned in the Circular letter are discussed in the
context of bringing the decisions of Supreme Military Council into judicial review.
In conclusion, in the Circular letter the methods and rules that are to be abided by in the
course of investigations about soldiers and members of Higher Education Council are
explained in detail and also provisions in other private laws are pointed out.
12- Information About The Persons For Whom There is A Ban On Leaving The
Country
With the Constitution and the European Convention on Human Rights, it has been aimed that
freedom of travel granted under the aforesaid provisions of the Law no 5682 is not restricted
unfairly and unjust treatments are not caused.
13- Laundry of Assets Derived from Crime
In this Circular that has been prepared in consensus with the authorities of the Financial
Crimes Investigation Board of the Ministry of Finance, it is aimed to promote awareness in
practice by including national and international legislation.
In the Circular; it is seen that various provisions are contained for the purposes of preventing
laundry of assets derived from crime, being able to combat this crime more effectively and
decisively, catching the perpetrators of crime, revealing the connections, being able to seize
and confiscate assets derived from crime, providing successful imposition of an interim
injunction over the claims and liabilities, and ensuring co-operation and coordination between
the relevant agencies during the investigation process.
In the Accession Partnership Document for the year 2008, the issues of implementation of
National Strategy For Combating Organized Crime and reinforcement of combat against
organized crime, illicit drugs, human trafficking, fraud, corruption and money laundering
were contained.
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In the Progress Report for the year 2010, on the other hand, it was mentioned that progress
had been made for combating money laundering with regard to complying with EU Acquis,
touching some arrangements adopted in this regard.
It is considered that the provisions that the Circular provides for the purpose of prevention of
laundering of assets derived from crime overlap the documents mentioned.
14- Investigations and Prosecutions Relating To Incidences of Corruption
In this Circular that was prepared in consensus with the authorities of the General Directorate
of International Law and Foreign Affairs of Ministry of Justice and the Financial Crimes
Investigation Board of the Ministry of Finance, it is aimed to promote the awareness again in
parallel with national and international legislation.
In the Accession Partnership Document for the year 2008, the issue of establishment of a
comprehensive fighting against corruption strategy, including high – level combat against
corruption as well, and of setting up of a central structure for monitoring implementation of
this through statistical information and development of coordination between all the relevant
agencies was contained. In the National Programme, on the other hand, it was mentioned that
Turkey had undersigned and ratified UN Convention Against Corruption, in Turkey, the
works for enhancement of good governance and transparency and for providing coordination
between the agencies combating corruption and for development of a comprehensive fighting
against corruption strategy were well underway, and as for the fighting against corruption
efforts, compliance on fighting against corruption with EU acquis was contained in the
programme.
Fighting against corruption and the inconveniences in this matter is one of the issues that are
frequently contained in the Progress Reports as well. Despite the measures adopted in the
issue of fighting against corruption, in the Progress Reports, attention is drawn to the fact that
in general there should be a progress in this issue.
In the said Circular, the issues were handled as such that the prosecutors should deal with the
incidence immediately in cases where incidences of corruption occur and they should launch
and carry out the investigation, reporting the incidence to relevant agencies, making
contribution into concluding cases rapidly and accurately, taking protective measures for the
revenues anticipated to have been derived from the said crimes and the things that should be
done in investigations involving the crime of bribing foreign public officials. The said issues
in the Circular were prepared for the purpose of concluding the investigations and
prosecutions as soon as possible, imposing the penalties in an effective manner and taking
into consideration the international essential papers related with the issue.
In the Circular, it is possible to see the reflections of precautionary measure contained in The
Council of Europe Civil Law Convention on Corruption and of the regulations for
international cooperation. Issues such as the measures to be considered the revenues derived
from a crime contained in The Council of Europe Civil Law Convention on Corruption, the
cooperation between national agencies, the extradition were also dealt with in the scope of the
Circular. Similarly, it is also a positive step that the arrangement related with the
responsibility of the legal entities in the Convention was contained in the Circular also by
making reference to the national legislation. Also, in the “First and Second Rounds of Mutual
Evaluation Addendum Compliance Report of Turkey”, dated 11 April 2010, of GRECO
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(Group of States Against Corruption – GRECO), it is noticed that penal liability of legal
entities by making reference to this Convention. In addition, it is noticed that the issue of
liability of legal entities is contained in UN Convention Against Corruption as well. In the EU
Council’s Framework Decision dated 22 July 2003 and no. 2003/568 governing fighting
corruption in the private sector, the liability of legal entities were mentioned as well and the
importance of penalizing in an effective, proportionate and deterrent manner was highlighted.
In the Circular, arrangements concerning liability of legal entities were contained.
15- Official Correspondences
The proceedings and principles to be taken into consideration in official correspondences with
the Board were determined.
Particularly; making correspondences in the medium of National Judiciary Informatics
System (NJIS) by means of using secured electronic signature, making correspondences such
as duty certificates requested for reasons of gun licenses, passports and spouse-related,
passport request forms, promotions, appointments and authorization certificates, education
request forms or petitions, petitions of review and objections and declarations of property that
will not entail asking for the positions of Chief Public Prosecutor or of Chairman of the
Commission, directly by those concerned are among significant novelties. Besides, the
presidencies of commission were also granted authorization for making direct
correspondences without asking for the intermediary of Chief Public Prosecutor’s Offices.
16- Searching, Examining and Investigation Proceedings Regarding Judges and
Prosecutors
The procedure required to be followed concerning the reportings and complaints about judges
and prosecutors falling within the remit of Third Circuit of the Board was considered, a
parallel turn of phrase was adopted by taking into account that it abides by the same
procedure with the Circular on investigation proceedings about the senior law enforcement
officers.
In the Accession Partnership Document for the year 2008, it was expressed as a necessity that
on Examining system the Supreme Council Judges and Prosecutors and the judiciary should
be independent of other governmental agencies and that the Supreme Council Judges and
Prosecutors should be ensured that it represented the whole of the judiciary.
In the National Program for the year 2008, it was mentioned that in crime prosecution and
invention, arrangements on duties, powers and responsibilities of law enforcementprosecutor’s
office would be continued, on the basis of the principle of separation and
independence of executive and judiciary powers under the Constitution, in line with best
practices in EU countries.
EU Progress Reports criticized, in terms of justice independence, that justice inspectors
responsible for assessment of the performances of judges and prosecutors were affiliated to
the Ministry of Justice and justice inspectors could seek, under a regulation passed in 2007, a
court rule granting authorization to tap the telephone conversations of justice members.
In the Progress Report for the year 2010, on the other hand, it was mentioned that the justice
inspectors assessing the performances of judges and prosecutors would then be reporting not
to the Ministry of Justice but to the Supreme Council Judges and Prosecutors.
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With the Circular, the issues pertaining to Searching, Examining and investigation
proceedings about judges and prosecutors were arranged in a covering the assurance of
procedure and the right of defense for the persons being subjects of an
investigation/examination; Since the provisions that would allow translation into practical
action of the assurances introduced in terms of searching and investigation proceedings
pursuant to the Constitution, Law No 6087 On Supreme Council of Judges and Prosecutors,
and Law No 2802 On Judges and Prosecutors, the Constitution were contained, it is
considered that it will be a positive step in terms of its inputs into meeting the criticisms
contained in EU Progress Reports.
17- Searching, Investigation and Prosecution Proceedings Commenced For the Highest-
Ranking Law Enforcement Chiefs
The procedure required to be followed concerning the reportings and complaints about
highest - ranking law enforcement chiefs, falling within the remit of Third Circuit of the
Board was considered, a parallel turn of phrase was adopted by taking into account that it
abides by the same procedure with the Circular on investigation proceedings about the judges
and prosecutors.
In the Progress Report for the year 2010, it was mentioned that effective carrying out of
judicial and administrative investigations on law enforcement members continued to pose a
problem.
In Article 9 of European Council Ministers Committee’s Recommendation numbered
(2001)10 and titled “Europe Police Ethic Code”, it was mentioned under the heading Police
and Crime Justice System that the police will provide functional and appropriate cooperation
with the prosecutor; in places where the police (law enforcement) are under the command of
the prosecutor or the investigating magistrate as is the case in Turkey, the police will receive
clear instructions regarding the priorities and process of the investigation the police will be
carrying out, during the process, the police will give information to their senior investigating
chiefs as to the instructions are carried out, elaborating regular reports in particular about the
going of the case under investigation. At the same time, in Article 33, it was highlighted the
fact that disciplinary measures taken against employees of the police service should be subject
to the control of an independent court or organ; in Article 34, public institutions would
provide required support against unfounded allegations that might be made to the police and
their duties.
In compliance with the said provisions, the Circular was prepared to clarify the issue of how
the investigation and Examining power vested in the prosecutors who are investigating
superior of law enforcement under Law no 5271 would be used. The Circular, described the
investigation and searching proceeding to be carried out about the highest – ranking law
enforcement chiefs by bringing clarification to the respective laws, shedding a light on how
the practice should be done following the new Law on Supreme Council of Judges and
Prosecutors. The Circular described that highest ranking law enforcement chiefs were also
subject to inspection as were the other law enforcement personnel, but that these people were
subject to jurisdiction procedures to which judges were subject, which constituted an
assurance against unjust allegations and explained the process in details.
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18- Implementation of The Law On Protection of the Family
In the Circular, in implementation of the Law no 4320 On Protection of the Family, by
introducing provisions for adopting protection decisions, their registration to National
Judiciary Informatics System, points to take care of in the enforcement, monitoring the
enforcement, there was no need for finalization of the decision of such protection decisions,
specialization of the Public Prosecutor and of the personnel, prevention of inconveniences in
practice in this regard was intended for.
In the Accession Partnership Document for the year 2008, implementation of the legislation
regarding women rights and taking of counter - measures for any sort of acts of violence,
including honour crimes are among the priorities therein. The said priorities were also
contained under the title ‘women rights’ of the Political Criteria in 2008 National Programme.
In the EU Progress Report, on the other hand, mention was made that serious problems
continued to exist in the issues of honour killings, marriages acted in early age and forcibly
and domestic violence against women, it was expressed that the legislation should be
implemented in coherence throughout the country.
In 23th paragraph, Unofficial Screening Final Report says that lawful arrangements are
sufficient, however certain problems continue their existence in implementation of the
legislation regarding the issue, including the Law On Protection of the Family.
In the Circular aimed at elimination of some problems on implementation of the Law On
Protection of the Family, it can possibly be termed as a positive step in that it aims at
eliminating the criticisms cited above and that it is compliant with the specified priorities.
With the Circular, the measures considered blocking the violence aimed at women will be
monitored intensively and support will be provided to training and awareness promotion
activities in this issue.
19- Map and Air Photograph Requests
The issues were arranged such as that courts may directly ask information, documents from
all the institutions and agencies; in this connection, they may ask the same from General
Command of Mapping, and that in each court house, a map information officer should be
employed, the requests should be processed by this officer in electronic medium from the
Internet address of General Command of Mapping, issues that should be made requests for,
interrogation of the fees and depositing them, which ones of the maps with which the work is
finished should be returned, which ones may be retained in the court house, all the
transactions should be made from National Judiciary Informatics System after the integrations
of National Judiciary Informatics System - General Command of Mapping.
With implementation of the Circular, Office of Map already setup within General Directorate
of Law Affairs of the Ministry of Justice was abolished, the principle of independence of
courts are reinforced through abolishment of the arrangements stipulating bureaucracy that the
courts should relate their map and air photography requests via the Ministry of Justice to the
command in question and the Ministry should appoint a payroll master for paying for the fees
and sending of the maps.
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20- Requests for Position
The procedures and rules to be followed as to the positions to be requested from the Board
have been determined. To date, it has been targeted to prevent procedure inconveniences
experienced both within the Ministry and the Board regarding the requests and to relate
especially those issues requested particularly from the organization to the General Secretariat
after sifting them through a certain filter.
In the Circular, the issues stipulating that positions should not be asked of in matters of
irrelevance, what is a requisite prior to making a request for position and the ones that should
be considered while making a request for position have been arranged, it has been stipulated,
by reporting the results of the meetings held in the court houses and about the inconveniences
in practice to the Board, that arrangements could be made in such issues and provisions for
blocking to make unnecessary correspondences have been contained.
21- Issues To Be Considered In Submitting Files For Examination By Way of Law
By regulating the issues such as keeping files orderly, appending all documentation to
National Judiciary Informatics System, sending penal law suit files directly to Supreme Court
of Appeals Prosecutor’s Office without asking for the intermediary of Offices of Public
Prosecutors, placement of files in separate envelopes, the envelopes on the other hand can be
sent collectively in sacks, sending files with all of their appendices to the department in
charge, checking out on appeal fees, paying attention to the notification, when a warrant with
electronic signature arrives from the Supreme Court of Appeals, extraction of it into a file
from National Judiciary Informatics System, when a warrant with electronic signature arrives
from the Supreme Court of Appeals, registering it from National Judiciary Informatics System
in line with the procedures of applications and giving a receipt document free of charge,
prevention of inconveniences in such issues and provision of unity have been targeted.
The positions of Supreme Court Office of the Prosecutor, the Supreme Administrative Court
and the Supreme Court of Appeals in this issue have been evaluated and processed.
Thus, quickening the lawful way of process has been targeted.
22- Expenses of Service of Notification Made at District Administrative, Administrative
and Tax Courts
In administrative justice, achievement of unification of practice has been aimed by
mentioning the fact that expenditures and expenses of notification should, first of all, be
charged as money, while those who bring it as stamps should not be rejected, either; monetary
transactions should be made at National Judiciary Informatics System and auditing
transactions should be performed by taking these data into the account.
23- Issues To Be Considered In Submitting Petitions Intended For A Court In
Somewhere Else
In the Circular, following referral of petitions of appellate or appeals submitted for sending to
a court in somewhere else, and of the other petitions, the issues to be considered have been
determined for provision of their being sent to the court in question by taking also the fact that
they may be time – bound in terms of any loss of right and complaints.
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The said Circular, is a positive step in terms of its input into the targets such as enhancement
of efficiency and effectiveness and facilitation of access to justice being stipulated in the
National Programme and is articulated in other negotiation papers by and large.
24- Proceedings of Referral
In the Accession Partnership Document for the year 2008 and in National Programme for the
year 2008, the issues of efficiency and effectiveness of justice and enhancement of trust in
justice issues are also available among targets.
In EU Progress Reports, too, with regard to effectiveness of justice, steps taken for quickening
the judicial processes wee mentioned as well.
In 23th paragraph, Unofficial Screening Final Report, mention was made of the fact that
unnecessary cost and time losses should not be caused to.
Among the results expected of the ‘Project of Supporting Court Administration System In
Turkey’ carried out by the Ministry of Justice and European Council and is based on the idea
of developing a more effective court administration, it appears that the issues of training a
more educated clerk personnel and bringing the group of judges and prosecutors to a more
effective position about their non-judicial responsibilities by increasing the qualifications of
the administrative staff were contained.
In the report about “ Efficiency of Judiciary and Criminal Justice System” prepared by Luca
PERILLI, Italian judge, at the end of her visit to Turkey between 17 th -21 st January 2011 in
the scope of Independent Expert Visit of European Commission with the paragraph “Judiciary
and Fundamental Rights” with the title “The role and Function of Judicial Enforcement
Officers", the suggestions of assigning non-judiciary duties of judges to the qualified
personnel fit for this task in order to reduce workload of judges in the recommendation no R
(2010)12 of European Council’s Committee of Ministers regarding independence, efficiency
and responsibilities of judges, in the position no. 6 (2004) of the Consultative Council of
European Judges of European Council and in the position no. 11 (2008) of the Consultative
Council of European Judges of European Council regarding quality of judiciary decisions;
have been expressed in different ways.
In the Circular, it is pointed out that in compliance with the said documents; the issues of
front desk application, utilization of National Judiciary Informatics System for transactions,
giving receipt documents to the petitioners and owners of documents free of charge, as a
requirement of court administration support project and in the framework of the provisions
introduced by the Civil Procedures Law No 6100, referral transactions may also be made by
those other than judges and prosecutors.
25- Inspection of Clerk Services of Courts and Enforcement and Bankruptcy Offices
In 23th Paragraph of Unofficial Screening Final Report, mention was made of the fact that
National Judiciary Informatics System Informatics System, which is an e-justice system, had
been scheduled to be completed in a way to cover entire justice at the end of the year and that
the system not only allowed the justice members to establish communication both among
themselves but also provided them the opportunity to exchange of information with other
agencies and institutions as well. It appears that the points highlighted reveals significance of
National Judiciary Informatics System for our country.
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In the report about “ Efficiency of Judiciary and Criminal Justice System” prepared by Luca
PERILLI, Italian judge, at the end of her visit to Turkey between 17 th -21 st January 2011 in
the scope of Independent Expert Visit of European Commission with the paragraph “Judiciary
and Fundamental Rights” with the title “The role and Function of Judicial Enforcement
Officers", it is mentioned that both efficiency and the quality of the works they are doing can
be increased by assigning non-judicial duties of judges to court clerks offices and clerks. In
this scope, arrangement of duties of clerks and employees of court clerks office is
recommended in order to create specialized and trained administrative staff. As is apparent, in
accordance with the report, in order to enhance effectiveness in justice, there exists an
expectation in that court clerks offices should alleviate the workload of judges by taking up
duties in certain areas.
In recommendation of European Council’s Committee of Ministers that was adopted on 17
October 2010 with no. R (2010)12, regarding independence, efficiency and responsibilities, it
was recommended that non-judicial duties of judges should be entrusted with qualified
personnel fit for this task in order to alleviate the workload in courts.
In the section titled ‘Quality and Assessment of Justice System; statistical information;
monitoring procedures’ of the Consultative Council of European Judges of European
Council’s position dated 24 November 2004 and no. 6 (2004), the importance of activities not
only of judges but also of governmental officers in terms of justice were touched, also in
terms of justice infra-structure, the issues such as building, equipment, support personnel were
contained.
In the Circular, in the scope of administrative duties of judges, inspection of court clerks
offices at least once quarterly, taking into account whether the inspections are carried out over
National Judiciary Informatics System timely, correctly and completely during inspections
has been arranged.
Also in line with the Inspection Board of Supreme Council of Judges and Prosecutors,
monetary and cash audit of judges are not contained. The Circular No. 131 of the Ministry of
Justice, which is the sole legal basis, was abolished upon issuance of this Circular. The
Ministry of Justice is required to make a Circular, in the scope of administrative duties
regarding the fact that monetary and cash account audits of law courts will be made by
prosecutors.
Since European Union also demanded that judges should be dismissed from administrative
duties, the Circular appears to be in compliance with the process of acquis in this form of it.
26- Specialization of Public Prosecutor in Crimes Regarding Infringement of Intellectual
and Industrial Rights and Prevention of Tax Loss of the State In This Area
The Circular has been formed in line with the positions of Ministry of Justice’s General
Directorate of European Union, the Ministry of Culture and Tourism, The Ministry of
European Union; in this line, the importance of the issue and entire international and national
legislation appertaining to the issue were mentioned, provisions were introduced for sending
clauses regarding these crimes to directorate of tax administrations, notifying rightful owners,
ensuring specialization of Public Prosecutor and of the personnel and setting up of an office
wherein more than 500 investigation files are present.
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In National Programme for the year 2008; it was mentioned that necessary infra-structure
works were accelerated for enhancement of functionality and efficiency of justice, in this
connection, mention was made of establishment of new courts and rendering them
operational; merging court houses that are near one another; promote specialized courts.
In EU Progress Reports; it is mentioned that there are inconveniences in practice although
legislation is greatly compliant with the acquis and is sufficient; administrative capacity falls
short in terms of ensuring effective enforcement required by the Customs Union Decision;
major updated bills regulating industrial property rights, in a way to include deterrent penal
sanctions are still pending ratification; it is of paramount importance that more cooperation
and coordination should be provided between public institutions concerned with intellectual
property rights and specialized executive units of intellectual property rights, owners of
intellectual property rights should be represented better in public platforms regarding
intellectual property rights.
In addition to this, importance of promoting public awareness about the risks posed by
imitation and backstreet products in terms of user safety, public order and public sanitation
was highlighted. In the reports, inconsistencies observed practices of specialized courts in this
field and the differences between the Turkish Patent Institute and court verdicts continued,
highlighting unavailability of reliable statistical information.
In the Circular, various measures for achievement of a more effective combat against the
violations in the field of intellectual and industrial rights are contained, such as notifying
relevant agencies of court verdicts, establishing specialized units specialized in this field in
order for finalization of investigations in a quick way. Besides, realization of investigations in
an effective and quick way was aimed through providing specialization, which was achieved
in the courts of first instance, in intellectual and industrial rights also in Public Prosecutors
Offices that are carrying out the investigations into violations of these rights as well. In this
scope, arrangements in the Circular will make an input into elimination of the above cited
inconveniences.
27- Official Advertisements
The issues that official advertisement should be given in places through Press Advertising
Agency branches where they are available, while in places where they are not available, they
should be advertised in newspapers having the right to advertise official advertisement via
Governorships have been arranged.
28- Requests Regarding Correction of One’s Name, Surname and Age
In lawsuits of correcting name, surname and age, arrangements have been introduced that
querying should be made regarding the person asking for such correction from National
Judiciary Informatics System and KİHBİ; General Directorate of Population and Citizenship
Affairs and the Directorates of Civil Registry are exempt from any sort of legal fees and of
any sort of court fees.
29- Timesheets, Employment Records and Success Reporting Forms
Principles to be abided by in drawing up of timesheets, employment records and success
reporting forms were determined, particularly mentioning the fact that files ending up in
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econciliation in penalties and the ones referred to reconciliation would be taken into
consideration a positive case for promotion, earning this institution functionality was targeted.
It appears that the issues regarding performances of judges and prosecutors are touched in
Progress Reports for the years 2008, 2009 and 2010.
30- Fact sheets for Judge and Prosecutor
Fact sheet has been re-arranged, in a way that can be used for personal transactions, training,
sending abroad to be made by the Board and other similar issues, additionally positions of
foreign language has been broadened, academic publications slot has been added.
In personal transactions, primary school, secondary school, high school and college education
slot anticipated as not having a realistic function was removed. This situation overlaps the
principle adopted in the Regulation of the Inspection Board.
With creation of the form in electronic medium from National Judiciary Informatics System,
creating a structure suitable for admission to reporting in terms of the data stipulated without
having to process them separately for a second time at the headquarters was targeted.
31- Unrevealing The Identities and Images of Public Officials Involved In Enforcement
of the Prevention of Terrorism Act While They Are Being Heard As Witnesses
The Progress Report for the year 2008 quoted positively that a new witness protection law
having sufficient provisions guaranteeing the security and identities of witnesses and that a
Witness Protection Unit was setup within Turkish National Police.
In the Circular, it is pointed out that when public officials involved in prevention of terrorism
during the rounds of investigations and prosecutions are appealed to for their testimony in
capacity of witness during investigations and prosecutions, taking into account the first
paragraph of Article 58 of the Criminal Procedure Code # 5271 and of first paragraph of
Article 6 of the Prevention of Terrorism Act # 3713 necessary measures should be taken for
not revealing their identity and images.
32- Issues To Be Considered In Employment Of Undercover Investigator
In implementation of employment of undercover investigator stipulated in Criminal Procedure
Code; since the issues of not using identity number which will ensure identity of the person
missioned to remain unrevealed, in accordance of the “Regulation On Monitoring Of
Communications Via Telecommunication Stipulated In Criminal Procedure Code; Under
Cover Investigator and Implementation of Surveillance Measures Through Technical
Equipments” and not assigning identity number to the law enforcement personnel designated
as the responsible law enforcement officer by the relevant enforcement unit, which is also
compulsory, are experienced frequently, by taking into account particularly on the demand of
General Directorate of Security in drawing up of a separate Circular in this issue, the
importance, purpose of said institution and utilisation of ID number were reminded to
enforcers.
33- Confidentiality of The Investigation and Informing The Press
During investigation, operation of press spokesman agency and the rules to be abided by in
this issue were contained, the balance between confidentiality of investigation and the right to
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get to news of the press was pointed out and case law precedents of ECHR in this respect
were contained.
Paragraph 20 of the report prepared on ‘Freedom of Expression and Press’ in the aftermath of
the visit paid to Turkey between 27-29 April 2011 by Council of EUrope, Human Rights
Commissioner Thomas Hammerberg said that Article 285 (the crime of infringement of the
confidentiality of an investigation) and Article 288 (the crime of attempting to enure the
judicial authorities) were exerting a pressure on freedom of expression, the number of
lawsuits filed against journalists had shown an increase since 2007 in the scope of Ergenekon
Lawsuit for infringement of these articles. According to the European Commission, the
number of lawsuits filed against since 2010 based on these articles is around 4,000.
The Circular in question has been prepared for the purposes of informing the press on
investigations, preventing information pollution, protecting presumption of innocence and of
personal rights and increasing confidence in justice. When the implementation is translated
into practical action, positive steps will have been taken on the way to investigations’ being
under the influence and preventing injuries to the presumption of innocence. The circular
which has been prepared for both reducing the number of lawsuits filed and informing the
common public, keeping the confidentiality of the investigations will possibly be a positive
step as of its purpose.
34- The Procedures and Principles for Sending Abroad of Judges and Prosecuters
Article 49 of Law No: 2802 of Judges and Prosecutors was amended by Decree Law No: 650.
As a result of this change, HCoJP has become the competent authority on the practice of
sending of judges and prosecutors. Judges and prosecutors can be sent abroad the scope of the
professional training, scholarship or technical co-operation by the HCoJP. In addition, they
can be sent abroad for internship and research related to their profession. The procedures and
principles for sending abroad of judges and prosecutors are designed in the Circular letter.
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