Judicial Reform: Very limited progress on the detention issue

One of the leading issues today concerning the European judicial system about Turkey is that Turkish courts frequently opt for direct arrests instead of applying less restrictive alternative measures for suspects. 

Despite the fact that European Court of Human Rights (ECHR) regards arrests as an exceptional measure and that priority is given to trial without arrest by way of less restrictive alternative measures, arrests have become almost routine practice in Turkey - especially in specially authorized courts - in sharp contrast to the ECHR practices. 

Does the new judicial reform package announced by Justice Minister Sadullah Ergin bring a solution to this problem? 

Let’s look for an answer to this question in the preamble of the draft law announced by the government. The preamble says: “Arresting is a protective measure that intervenes with individual rights and freedoms at the most extreme level. For this reason, as a result of the principle of proportionality, detention measures should be applied as a last resort.” It is also emphasized that less restrictive alternative measures are “a better solution” than arresting. These are very good words. 
In the presentation the Justice Minister made about the draft, it was stated that in the new order proposed “the decision to arrest has become more difficult.” It seems Ergin regards the obligation “to write a detailed justification” in arrest warrants as the most important tool toward this goal. But the outcome of this practice needs to be seen. 

Apart from this one, there is also another amendment in the package that directly focuses on alternative measures. This amendment eases, to some extent, the penal limits that allow for alternative measures in the Code of Criminal Procedures Numbered 5271. In Article 109 of this code, it says: “it can be decided that the suspect, if the charges the investigation is based on do not exceed a crime that requires a maximum three years imprisonment or less, then instead of arresting the suspect, applying less restrictive alternative measures can be decided.” 

In the government’s draft, this three-year limit is extended to five years. In this case, if a suspect is being investigated because of a crime that is penalized with a jail sentence of maximum five years or less, then the judge can, within his or her judicial discretion, decide to proceed by less restrictive alternative measures and without arrest. 

Major cases will not be affected 

Which crimes are covered with this flexibility introduced? Will it affect the major cases that have prompted debates in the public and in the political arena? 

When we take a look at such cases as Ergenekon, KCK and OdaTV, the common denominator against the suspects is Article 314 of Turkish Penal Code. (Except for additional charges based on other articles) 

In Article 314, being a member of an illegal organization is punished with 5 to 10 years imprisonment. Minimum limit is 5, maximum limit is 10 years. 

In the government’s draft, the maximum limit for less restrictive alternative measures is defined as five years. For this reason, it is out of the question that suspects who are charged with being members of a terror organization in these cases will benefit from the amendment in any way. 

Also in the Balyoz (sledgehammer) case, because the charges are much higher, there is no such effect in question.

Proposed solution will have limited effects 

The only category that will benefit from this amendment will be those suspects charged with supporting organizational activities, without being members of the organization. With the newly introduced reductions in sentences, the maximum sentence for those suspects, charged with supporting the organization without being a member, is reduced to five years from 10 years, thus allowing these suspects to benefit from the flexibility introduced for arrests. 

According to some legal experts, journalists Nedim Şener and Ahmet Şık, as well as some KCK suspects, may benefit from these amendments. 

As a result, we can say that those solutions introduced to solve the problem of “the duration and the extensiveness of detentions” will have a very limited effect. 


Sedat Ergin is a columnist for daily Hürriyet in which this piece appeared Jan 27. It was translated into English by the Daily News staff.