Subject: Preparatory Questionnaire of the CCPE Opinion No. 12(2007) (Rights of Victims, Witnesses and Vulnerable Persons)

1. DEFINITIONS

1.1. ''Victim'' notion was not defined in law in Turkey, however, ''witness'' notion was defined in Law no. 5276. Accordingly, witness defines person heard as witness in criminal procedure, victims heard as witness and their relatives set out in this Law.

1.2. Regulations concerning domestic violence

1- Constitution

2- Turkish Criminal Code (Law no. 5237)

3- Turkish Civil Code (Law no. 4721)

4- Code of Criminal Procedure (Law no. 5271)

5- Law to Protect Family and Prevent Violence against Woman (Law no. 6284)

Regulations concerning sexual abuse

1- Turkish Criminal Code (Law no. 5237)

2- Measures in Article 5 of Child Protection Law (Law no. 5395)

Human Trafficking Crime

1- In Article 79 of the Turkish Criminal Code no. 5237 migrant smuggling crime was set up.

1.3. ''Child in need of protection'' notion in Turkey defined in Law on Social Services no. 2828. Additionally, ''child in need of protection'' notion was also defined in Child Protection Law no. 5395.

2. Rights of Victims, Witnesses and Vulnerable Persons

2.1. Child in need of protection;

- Measures in Article 5 of Child Protection Law no. 5395

- Measures in Law on Social Services no. 2828

Victim;

- Family Protection Law no. 6284

- Turkish Criminal Code no. 5237

Human Trafficking

- Turkish Criminal Code no. 5237

Witness

- Code of Criminal Procedure no. 5271

Rights concerning witness, victim and child in need of protection take part in these Codes.

2.2. Measures concerning victim, witness and vulnerable persons were set out by codes.

2.3. Victim rights set out in Code of Criminal Procedure are;

- Right to be informed

- Right to demand evidence collection

- Right to demand copies of documents

- Right to have investigation files, seized and confiscated properties examined

- Right to counsel/legal aid

- Right to object

- Right to be informed of trial

- Right to participate in criminal case

- Right to written or verbal self-expression in case

- Right to call evidence in trial

- Right to demand counsel nomination

- Right to appeal

- Participation in compromise

Rights concerning witnesses were set out in Law on Witness Protection no. 5726. Within the context of this Law, here are the witness protection measures that may be applied on witnesses:

a) Recording and keeping confidential of credentials and address information and detecting a different address for notices to be served on him/her.

b) Being heard without the ones having the right to be present in trial or being heard in a special area by altering his/her voice or image.

c) Placing detainees and convicted ones to penal institutions or prisons appropriate for their situations.

ç) Providing physical protection.

d) Changing and arranging credentials and other relevant information and documents:

1) Changing and arranging criminal record, military service records, social security information and similar information and records.

2) Changing and arranging official documents such as identity card, driving license, marriage certificate, diploma and license of every kind.

3) Carrying out proceedings concerning the use of rights on estate and asset.

e) Providing temporary financial assistance.

f) Changing work place or work field of employee or changing educational institution of student.

g) Making it possible for him/her to live in a different place in country.

ğ) Temporarily placing him/her to another country in accordance with international agreements and principle of reciprocity.

h) Changing his/her physical appearance by plastic surgery or without plastic surgery and rearranging credentials accordingly.

Rights of children in need of protection were set out in Law on Social Services no. 2828 and Child Protection Law no. 5395;

- ''Social Services'' signifies overall systematic and programmed services to eliminate material, moral and social deprivations stemmed from persons or families' own nature or environmental conditions or occurred out of control and to meet their needs, prevent social problems and help resolve them and improve and raise standards and quality of life,

- b) ''Child in need of protection'' is child whose corporal, spiritual and moral development or personal safety is in danger;

- 1. Orphans (without mother, without father or in cases where both are missing),

- 2. Whose mother or father is unknown or whose parents are unknown,

- 3. Abandoned by mother or father or both,

- 4. Neglected child by his/her mother or father; vulnerable child against social dangers and bad habits of every kind as prostitution, mendacity, alcohol or drug use and uncared-for/unchecked child,

- ''Disabled'', in an unsuitable condition for life requirements from birth or due to a disease or accident causing loss of corporal, mental, emotional and social skills to various degrees; person in need of protection, care, rehabilitation, consultancy and assistance services,

- ''Disabled in need of care'' is highly disabled according to formal medical health report, cannot live and fulfil their own needs on a daily basis without assistance and care of another person,

- ''Elderly person in need of care'' is socially and economically poor and in need of care and assistance,

- Social service institutions are institutions functioning in accordance with the purpose of this Code and the rules set out in…

Protective and Supportive Measures in Law on Child Protection no. 5395;

(1) Protective and supportive measures are measures to be taken to provide protection of child firstly in his/her own family environment and with respect to consultancy, education, care, health and sheltering. Among these measures;

a) Consultancy measure aims at guiding ones responsible of child's care in terms of child rearing and guiding children to resolve their problems related to their education and development,

b) Education measure is to provide continuance to child's education in an educational establishment in day or boarding school; send him/her to a course to obtain a profession or learn an art for job and professional purposes or to an artisan having profession or to place him/her in public or private workplaces,

c) Care measure is applied when person responsible of child's care cannot fulfil his/her duty for any reason and child gets benefit from public or private nursing home or foster family services or placed in these establishments,

d) Health measure is to provide child temporary or continuous medical care and rehabilitation necessary for his/her physical and spiritual health and recovery and to treat drug users,

2.4. Within the context of the right of victims, witnesses and vulnerable persons to be informed, statement is made concerning the points set out in Article 234 of Code of Criminal Procedure. In Article 90 of the same Code, the fact that legal rights of detainee shall be immediately notified to him/her by law enforcement officers. Victims, witnesses and vulnerable persons have access to information about their rights via formal websites and publications.

2.5. Penalties are prescribed under relevant laws in case rights are not granted.

2.6. While victim children or other victims who are mentally depressed due to the effects of offense committed are testified, an expert in field of psychology, psychiatry, medicine or education is also present. Additionally, in case victim is deaf or speech handicapped, sign language interpreter is also present during testimony.

2.7. Besides measures in domestic violence cases, Family Courts decide on guardianship. Furthermore, when divorce case is heard, injunction and protection order can be given for children, if appropriate. Again, during proceedings in Juvenile Courts, injunction and protection order can be given for child in need of protection.

2.8. Persons can testify in accordance with conditions set out in Code of Criminal Procedure. Accordingly, pursuant to Article 54 of Code of Criminal Procedure, witnesses shall separately swear an oath before testimony.

2.9 Special Conditions about Testimony

· When the victim is heard as a witness, except for oath, the conditions related to testimony are applied.

· The child and the victim who is mentally depressed as a result of the infringement shall be heard only once except for the situations that constitute an obligation with regard to the disclosure of material fact in the investigation and prosecution related to this infringement.

· During the hearing of victimised children and other victims that are mentally depressed as a result of the infringement, an expert specialised in psychology, psychiatry, medicine or education is needed.

· Those who are not able to understand the importance of exemption from testimony as a result of minority, mental disease and mental defectiveness may be heard as a witness with the consent of their legal representative.

· One may abstain from medical examination and having got sample from his/her body as a result of the reasons for exemption from testimony. In the case of a child’s and mentally deranged person’s exemption from testimony, it is his/her legal representative who takes the decision about this matter. If the child or mentally deranged person is able to understand the legal meaning and results of testimony, his/her opinion is asked. If legal representative is also suspect or accused, at this point, the decision is taken by judge. However, the evidence obtained in such a way, cannot be used in further stages of the case without the permission of the legal representative that is not suspect or accused.

v Circumstances requiring a translator

If suspect or accused doesn’t speak enough Turkish to make oneself understood; via the translator appointed by the court, the essential points of the allegation and the defence of the trial is explained. Furthermore, the essential points of allegation and defence is explained to disabled suspect or accused in a way he/she can understand. The same consideration is applied to suspect, victim and witnesses that are heard during the investigation stage.

2.10 In Criminal Procedure Code No. 5271, the matter of exemption from testimony is regulated as follows:

The following persons may use the privilege to not testify as a witness:

a) The fiancée of the suspect or the accused,

b) The husband or wife of the suspect or the accused, even if the link of marriage is not existing at that time,

c) Persons related to the suspect or the accused in the ascending or descending direct line, either by blood relationship or affinity relationship,

d) Persons lineally related to the accused within three degrees, or persons collaterally related to the accused within two degrees,

e) Persons having a relationship to the accused

- Individuals who are not capable of understanding the importance of refraining from testimony because of their minor age, mental illness or mental weakness, may be heard as witnesses if their legal representative consents.

- The individuals who have the right of refraining from testimony shall be given notice of their privilege before being called upon to testify. These individuals m ay also assert their privilege at any point of the testimony during the hearing.

- The vulnerable are designated within the framework of law. The decision on this matter is taken by the institutions serving these persons. The risks about vulnerable persons is defined with the examinations carried out. The examinations on this matter is led by Ministry of Family and Social Policies and Ministry of Justice. The measures related to vulnerable children are given by Child and Family Courts.

2.11 In Criminal Procedure Code No. 5271, the voice and image recording matters are regulated. According to this, during witness-testimony, it is permissible to make voice and image recording. However, recording is required in cases, where;

a) A child victim is the witness, or;

b) The witness is an individual, who cannot be brought before the court because of some impossibility but their testimony is indispensable for revealing the factual truth.

2.12 Re-victimisation is prevented via Child Monitoring Centres and Judiciary Interview Rooms.

Child Monitoring Centres:

- Provides services in coordination with other public institutions of different fields such as health, education, law enforcement, law and justice needed in the examination and treatment of sexually abused children;

- Decreases the effects of trauma thanks to the safe and child-friendly environment created in the centre;

- Provides shelter, nutrition, clothing, health services and security under the conditions where protection is needed, until a setting where the child can stay is fixed;

- Interviews the family in order to better evaluate the trauma and the incident the family is going through and provides the first family consulting;

- Increases the awareness about crimes directed to children and protection from these types of crimes via education;

Bearing the following conditions, the Child Monitoring Centres are affiliated with Ministry of Health Turkish Public Hospitals Institutions:

- They are placed within a hospital of Ministry of Health

- They are not physically different from other clinics of the hospital,

- They are child-friendly environments where all legal and medical services are available so that the child is not exhausted.

Judiciary Interview Rooms

In judicial interview rooms, that has a very special environment and coordinated by Victim Rights Department in 23 cities in 26 courthouses, victims that should bear testimony and give statements in a special environment and whose encounter with perpetrator bear a risk; children witnesses and juvenile pushed to crime; the victims of domestic violence and other vulnerable persons; bear testimony and give statements.

2.13 In Regulation on Fight against Human Trafficking and Protection of Victims, the rights of foreign victims are regulated.

Approach to Victims Guide

“Approach to Crime Victims Guide” prepared by Victim Rights Department aims to fill a gap about the protection and popularisation of crime victims’ rights in our country. This guide was prepared with the participation of well-known academicians, pragmatic judges and prosecutors, officials of law enforcement and social workers.

This guide aims; to gather basic approach standards and principles in a single document; to guide service providers in contact with crime victims; to support their respectful and sensitive approach to victims’ rights.

In universal law victim right is a fundamental human right. For this reason, the use of this guide as a guidebook and reference instrument by the officials of service providers such as law enforcement, health and judiciary to victims will create awareness from the point of victims that are subject to physical, psychological and emotional effects of the crime.

Victims within the framework of this guide are individuals whose rights are violated as a result of a crime and who appeal to judicial authority. General principles on approach to victim in judicial process and the points to which the officials of judiciary, health and law enforcement should pay attention are included in this guide.

3. The Duties of Prosecutors on the point of Protection of Victims’, Witnesses’ and Vulnerable Persons’ Rights

3.1 Victims’, witnesses’ and vulnerable persons’ rights are applied within the framework of above-mentioned legal framework.

Prosecutor’s Rights and Powers in Criminal Procedure;

- To research and to investigate

- To file a criminal case and to carry it out

- To resort to legal remedies

- To prosecute crimes

- To demand protection order and measure from child and family court about the vulnerable victim

3.2 The duties of prosecutors are regulated in detail in Criminal Procedure Code.

3.3 If the prosecutor evaluates that a measure is needed about victimised children, he/she may demand protection order and measure from child and family court.

3.4 Victims, witnesses and vulnerable persons may apply to prosecutors concerning their power and duty field.

3.5 Prosecutors may ex officio take action concerning the protection of victims’, witnesses’ and vulnerable persons’ rights.

3.6 The respective prosecutors attend to Provincial Coordination Council that is organised province-wide. The representatives of other institutions and the representatives of NGOs participate in these councils. Via these councils, prosecutors are able to coordinate with other institutions and NGOs that provide service for victims.

3.7 Turkish Justice Academy provide education to judges and prosecutors during their internship period. Moreover, if needed, in service training programmes are organised for judges and prosecutors after having taken the office. In this framework, Victim Rights Department organised seminars for judges and prosecutors on the approach to victim. Victim Rights Department organised trainings within framework of in service training programmes.