Questionnaire for the preparation of the Opinion No. 11 of the Consultative Council of European Prosecutors (CCPE)

Answers to the “Quality and efficiency of the work of prosecutors, including as regards the fight against organised crime and terrorism”by HCJP

1- Does the prosecution service in your country work strategically with ensuring quality in the work of prosecutors? If yes, how is that done?

The prosecution system in Turkey functions with the procedures that guarantees quality in the prosecutors’ work; and recently, also with the effect of the amendments in the laws, the prosecution system not only guarantees quality, but also obligates a quality prosecution service. That is to say, the quality in the work of the prosecutors were guaranteed by the removal of the obstacles before the impartiality and independence of the judiciary with the amendments in the legislation in the recent years, and in the meantime, the renewal of the existing service buildings and the enhancement of physical conditions as far as the conditions in hand allowed; and therefore, judicial service of high quality became an obligation.

In addition, pursuant to Articles 16 and 17 of the Law No. 5235 on the Establishment, Tasks and Powers of the First Instance and District Courts of Jurisdiction; in Turkey, the prosecution services at the cities and districts with a court institution are carried out by the Chief Public Prosecutor’s Offices of that city or district. There is one public prosecutor and a sufficient number of prosecutors at a Chief Public Prosecutor’s Office. In order for the quality to be guaranteed in the conduct of prosecutorial services, the efficiency of the carried out investigations must be improved. One of the objectives (Objective 3.11) stated in the Judicial Reform Strategy document prepared by the Ministry of Justice is the improvement of the efficiency of investigations. It is significant both for the implementers and for the beneficiaries of the judicial services that the investigation stages be identified for each type of crime and the information on the procedures to be followed be available beforehand. The works of the Department of Strategy Development of the Ministry of Justice are still in progress in line with this purpose.

2- Which criteria are considered crucial in your country for securing the highest quality and efficiency of the work of prosecutors: their independence, impartiality, human and material resources, conditions of work etc.? Please briefly describe.

The most important criterion for the public prosecutors to be able to reach the highest level of quality and sufficiency is being independent and impartial while carrying out their duties. In Turkey, the main duty of the public prosecutors is the criminal proceedings. Criminal proceedings consist of two stages: investigation and prosecution. The authority of initiation of criminal investigation and reaching to a conclusion as a result of the investigation belongs to public prosecutors, who are independent and impartial in carrying out judicial proceedings. This is ensured by the Tenure of Judges and Prosecutors in Article 139 of the Constitution. On the other hand, the Ministry of Justice also provides financial resources to enable the procedures to be carried out in an efficient investigation. Thanks to this resource, which is called the “Fund for Trial Expenses”, the prosecutors carry out their work with ease. The prosecutors are also provided with a sufficient number of personnel to assist them in their work.

3- Are there any indicators, formal or informal, used in your country in order to assess the quality and efficiency of the work of prosecutors, for example, the number of cases considered, the length of the consideration, the complexity of the cases considered etc.? Please briefly describe.

The advancement of degrees and promotions of the public prosecutors are conducted by the High Council of Judges and Prosecutors of Turkey within the framework of the principles drawn by the provisions of the Law No. 2802 on Judges and Prosecutors as well as the High Council of Judges and Prosecutors. During the promotion period of the public prosecutors, the number of investigation files that they are obliged to finalize are taken into consideration in terms of their promotion.

4- Is there a formal or informal procedure for evaluation of the work of prosecutors, how often it is evaluated, by whom, and with what consequences? Do the prosecutors have the right to raise formal or informal objections to the results of the evaluation and to its consequences?

There are official procedures followed in the evaluation of the work of the prosecutors. The chief public prosecutors of the assize courts prepare reports evaluating the work of the prosecutors within their jurisdiction for a two-year period. In case the prosecutors think that these reports by the chief public prosecutors do not reflect the truth, they have the right to initiate proceedings for the abolishment of the relevant reports before administrative courts.

The administrative inspections of the prosecutors are carried out by justice inspectors under the Ministry of Justice pursuant to Article 144 of the Constitution, and the judicatory inspections are carried out by the board inspectors under the High Council of Judges and Prosecutors pursuant to Article 159 of the Constitution every two years. With these inspections, the work of the prosecutors are evaluated, and at the end of these evaluations, inspectors prepare status reports as well as performance assessment and development forms.

The prosecutors have the right to object to the status reports prepared by the inspectors before the Inspection Board of the Ministry of Justice, and to the performance assessment and development forms before the Inspection Board of the High Council of Judges and Prosecutors. If their objection gets rejected, they may initiate proceedings before the administrative courts for the abolishment of the relevant procedures carried out by the inspectors.

5- As regards the fight against organised crime and terrorism, are there any specific conditions, criteria, procedures or indicators created for prosecutors in your country in order to:

         - facilitate their work?

         - evaluate their work?

In the chief public prosecutor’s offices in Turkey, there is a division of labour among the public prosecutors in order for the chief public prosecutors to be able to conduct tasks in a rapid and efficient manner. It is possible to establish bureaus that are only in charge of the investigations into organised crime and anti-terrorism, and assign to these bureaus public prosecutors who are distinguished with their professional seniority and sufficiency. These public prosecutors are only assigned with the conduct of investigations on these matters and cannot be referred a general investigation file. Thanks to this method of assignment, the public prosecutors are enabled to carry out investigations more efficiently.

Moreover, in terms of organised crime and anti-terrorism, there are procedures that are benefited from with the purpose of facilitating the work of the prosecutors. To clarify, due to reasons such as the difficulty in gathering of evidence or the high number of suspects, certain measures such as audio surveillance or recording of communication envisaged in the Code of Criminal Procedure are applied for longer periods of time in these types of crime; and pursuant to the same Code, in case the said crimes are committed within the activities of a company, an assignment of a trustee is possible upon the request of a prosecutor in order for the work of the company to be continued; in order to fight these types of offences, the prosecutors may request from the court the assignment of a confidential investigator and/or the implementation of surveillance with technical means; and in order to get the fugitive suspect charged with these types of offences to appear at the hearing, the prosecutors may also request a decision of confiscation from the court regarding the suspect’s properties, rights and assets in Turkey in a way that is proportionate to the purpose.

 6-Are there in your country recent legislative reforms to fight more effectively against organised crime and terrorism and how are these reforms seen in relation to the quality and efficiency of the work of prosecutors? Please briefly describe.

 The Draft Law on Making Amendments to Certain Laws In Order To Reduce the Workload Regarding the Criminal Procedures, which was prepared since the classical protection measures do not suffice to fight against the funding of the channels of terrorism, which is a cross-border organized crime; and since some additional regulations on Article 4 of the Law no 6415 on the Prevention of the Funding of Terrorism have been considered necessary in order to more effectively fight against the funding of terrorism and to apply, during the investigation and prosecution of a relevant crime, certain prosecution techniques such as appointing trustees to the administration of companies, identifying, wiretapping and recording any communication between suspects, the assignment of a confidential investigators, and doing the monitoring work via technical tools, was presented to the relevant public organisation on July 10th, 2015.

The fundamental law on fight against terrorism in force in our country is the Anti-Terrorism Law no 3713, which was passed on April 12th, 1991. The aforementioned law regulates issues such as terror and terror criminals, actions that constitute a terror crime, and the execution of penalty sentences regarding terror crimes.

The amendments to the aforementioned law have been made with the following laws:

The Law no 3842 passed on November 18, 1992; the Law no 4082 passed on February 28, 1995; the Law no 4131 passed on November 13, 1995; the Law no 4178 passed on August 29, 1996; the Law no 4928 passed on July 15, 2003; the law no 5532 passed on June 29, 2006; the Law no 6008 passed on July 22, 2010; the law no 6352 passed on July 2, 2012; the Law no 6353 passed on July 4, 2012; the Law no 6415 passed on February 7, 2013; the Law no 6459 passed on April 11, 2013; the Law no 6495 passed on July 12, 2013; and the Law no 6526 passed on February 21, 2014.

Article 10 of the Anti-Terrorism Law, which regulated the procedures regarding the investigation and prosecution of the actions that constitute a crime in accordance with the law, and the courts that are in charge of hearing the cases launched in relation to the law, was abolished in accordance with Article 19, Paragraph 1, Subparagraph B of the Law no 6526 regarding the Amendment on the Anti-Terrorism Law, on criminal procedures, and on Some Laws, which was passed on February 21, 2014.

After the abolishment of Article 10 of the Anti-Terrorism Law, the pending cases and the duties of the courts formerly authorised in relation to the law were transferred to High Criminal Courts. In order to carry out this transfer, Article 12 of the law no 5235 on the Establishment, Jurisdiction and Competencies of the Judicial Justice Courts of First Instance and the Regional Courts of Judicial Justice was amended.

Upon the abolishment of Article 10 of the Anti-Terrorism Law with the Law no 6526, the duties of the public prosecutors in charge of investigating the terror crimes were terminated, and the general rules of procedures provided by the Law no 5271 on the Criminal Procedures started to be implemented.

In accordance with the abrogated article 10 of the Anti-Terrorism Law, during the detention period, the suspect was able to receive the legal assistance of only one defendant. With the amendment in 2014, however, this exception was abolished, and the general rule provided by Article 149 of the Law no 5271 on the Criminal Procedures has become valid.

Article 95 of the Law no 5271 on the Criminal Procedures provides that when the suspect is arrested, detained or his/her detention period has been extended, the situation shall be communicated to a relative or a person that the suspect has chosen, as soon as possible, with the order of the public prosecutor. The abrogated article 10-3-d of the Anti-Terrorism Law, on the other hand, provided that only a relative of the suspect would be informed of the situation. However, the general rule was being implemented for the crimes regulated by Article 10-4 of the Anti-Terrorism Law, and both a relative, and another person the suspect chose were being informed about the situation. This exception as well has been abolished as of 2014.

Article 91 of the Law no 5271 on the Criminal Procedures provides that the detention period may not exceed 24 hours, yet if the crime has been committed collectively, the detention period may be extended for three days by public prosecutor, for one day each time, due to the difficulty in collecting the evidence, or the number of suspects. The exception that the detention period which is regulated by the Law no 5271 on the Criminal Procedures as 24 hours to be executed as 48 hours, provided by the abrogated article 10 of the Anti-Terrorism Law no 3713, also has been abolished the regulation on Article 91 of the Law no 5271 on the Criminal Procedures has again become valid.

On the other hand, a regulation has been added to Article 91 of the Law no 5271 on the Criminal Procedures with the article 13 of the Law no 6638 on the Amendment of the Law on the Police Powers, the Law on the Gendarmerie Organisation, Duties and Competencies, and Some Laws, passed on March 27, 2015. This regulation provides that the chief police officers determined by chief administration officers shall be able to order for a twenty-four-hour detention period and can order for a forty-eight-hour detention period on condition that the acts of violence that happen during social events become widespread enough to destroy the public order, within the context of crimes committed collectively, and within the context of crimes that contain force and violence committed during social events; crimes regulated by the Turkish Penal Code no 5237, which are intentional killing, reckless killing, intentional injury, sexual assault, the sexual abuse of children, theft, looting, drug or stimulant material trafficking, offending against measures taken against infectious diseases, prostitution and maltreatment; crimes regulated by the Anti-Terrorism Law no 3713; crimes defined on article 33, Paragraph 1, Subparagraph A of the Law no 2911 on Meetings and Demonstrations; the crime of offending against curfew, which is declared based on the Provincial Administration Law no 5442; and in the act catching of criminals committing the crimes defined on Article 3 of the Anti-Smuggling Law no 5607.

In accordance with the amendment made on Article 94 of the Law on Criminal Procedures with the Law no 6526, the person arrested during investigation or prosecution upon the warrant of arrest issued by the Judge or the Court has to be brought before the competent judge or court no later than 24 hours. If this is not possible, the contact of the suspect with the competent judge or court will be established via the audio and video communication system installed in the judicial premises located in, or near the place of arrest.

The statement “facts” on Article 100 of the Law no 5271 on the Criminal Procedures, the heading of which is “the reasons of arrest”, has been changed as “concrete evidence” with Article 8 of the Law no 6526.

7- Do you consider that current international conventions, as well as international organisations, like EuroJust, Europol and Interpol, are sufficient to effectively fight against organised crime and terrorism?

Regarding organised crimes and fight against terrorism, our country has been a party to fundamental conventions of the United Nations and the European Council. We consider that the aforementioned conventions suffice to deal with organised crimes and fight against terrorism.

The judges that serve at the Ministry of Justice have been determined as contact points as for the follow-up of the judicial cooperation requests made before the EuroJust and the European Judicial Network that acts under the umbrella of the EuroJust, and enabling the necessary coordination regarding such requests. The judicial cooperation on responding to requests related to all the criminal issues including organised crimes and fight against terrorism can thus be strengthened, and necessary information can be shared with the contact points in relevant countries.

On the other hand, as already known, Interpol is a unit established in order to enable cooperation between the security forces of the member states on international organized crimes and terrorism; and Europol carries out the same function between the member states of the European Union.

The Ministry of Justice does not have a central authority in terms of the Interpol applications. Yet the operations related tracking and tracing of the wanted suspects fled abroad, identifying their location, and their extradition can be easily followed up and carried out via Interpol.

8- What are the major challenges in your country as regards the quality and efficiency of the work of prosecutors and, in particular, their fight against organised crime and terrorism?

The biggest problems encountered by public prosecutors in our country in terms of organised crimes and fight against terrorism are the facts that investigation files regarding such issues are too extensive, and that an effective cooperation with the countries that the files are related to may at times not be fully established.