Amendments to the Law on the Execution of Sentences: What Has Changed and Who Will Benefit

Murat Volkan Dülger*/Ruhsar Köse*/Onur Özkan*/Merve Bakdur*

One of the most important developments to have occupied the public agenda recently is the package of amendments made to Law No. 5275 “on the Execution of Sentences and Security Measures” by Law No. 7242 “Amending the Law on the Execution of Sentences and Security Measures and Certain Other Laws”¹. Although there are no official figures, it is thought that, as a result of the amendments made to the Execution of Sentences Law, 45 thousand prisoners will be released from prison in the first stage, and a total approaching 90 thousand together with those in the second stage.

An examination of the public reaction to the amendments shows that there are many differing views on the subject and that no consensus has been reached on whether the amendments are positive or negative. Many academics and lawyers in particular, however, are opposed to them. It is argued that the amendments introduce a disguised amnesty and make the practice of executing sentences more complicated. We share this view; if an amnesty is to be granted, the manner in which this is to be done is expressly regulated in Article 87 of the Constitution, and to bring it about in a “disguised” manner is contrary to the Constitution and to law. In addition, as will be examined below, the amendments render the system of execution unjust, unequal and uncertain.

First of all, the essential purpose of the amendments is unclear. On the one hand the coronavirus pandemic is taken as the basis; on the other, in a Turkish classic, the aim is also to empty the prisons. While the prisons are being emptied, the penalties for certain offences are at the same time being increased. While the coronavirus pandemic is taken as the basis, a great many pre-trial detainees whose sentences would not even be executed if they were convicted have been abandoned to their fate inside.

In particular, those detained for “crimes of thought”, which ought in no way to constitute an offence,

are being held in prison under the label of “terrorism” or under various other guises. Yet these people, even if we do not like their ideas, continue while in prison to think, to express what they think and hence to “commit offences”.

The legislation contains temporary and permanent provisions side by side. Of the two most important concepts of the system of execution, a temporary arrangement is made for probation, while a permanent change is made to conditional release. The legislation attempts to solve structural problems (the occupancy rates of prisons) and temporary problems (the coronavirus pandemic) together. This in turn causes the amendments to produce unjust and unequal results.

The amendments have first been presented visually in the form of a table. In the table below the changes made can be examined, by offence and by offender, in a clear, detailed and colour-coded manner:

PROBATION

TYPE OF OFFENCE

Offences of Intentional Killing (Turkish Criminal Code [TCK] 81-82-83)

Offences of Torture and Torment (TCK 94-95-96)

Intentional Injury (TCK 86/3-a, b – in conjunction with 87)

Intentional Injury (other than TCK 86/3-a, b)

Injury Aggravated by its Result (TCK 87/2-d)

Injury Aggravated by its Result (other than TCK 87/2-d)

Sexual Offences (TCK 102/1-

104/1-105)

Sexual Offences (TCK 102/2-

103-104/2,3)

Sexual Offences (All)

Sexual Offences (all those before 28.06.2014)

Offences against private life and the confidential sphere of life (TCK 132-138)

Offence of manufacturing and trafficking in narcotic or stimulant substances (TCK 188)

Offence of manufacturing and trafficking in narcotic or stimulant substances (TCK 188)

Offence of manufacturing and trafficking in narcotic or stimulant substances (before 28.06.2014

TCK 188)

Criminal Organisation Offences (TCK Art. 220)

Espionage Offences (TCK

326-339)

Offences against the security of the State etc.

(TCK 302-325, those falling within Art. 3 of the Anti-Terror Law [TMK])

Terrorist Offences Terrorist Offences Offences under the

MİT Law Recidivists Other Offences

CONDITIONAL RELEASE

2/3

1/2

1/2

2/3

1/2

2/3

3/4

2/3 2/3

2/3

3/4

2/3

2/3

2/3

2/3

3/4

3/4 2/3 2/3

2/3 1/2

30.03.2020

offences committed before that date

1 year

1 year

1 year

3 years

1 year

3 years

1 year

1 year

1 year 1 year

1 year

1 year

1 year

1 year

3 years

1 year

1 year

1 year 1 year 3 years

3 years

30.03.2020

offences committed after that date

1 year

1 year

1 year

1 year

1 year

1 year

1 year

1 year

1 year 1 year

1 year

1 year

1 year

1 year

1 year

1 year

1 year

1 year 1 year 1 year

1 year

CONVICTED PERSON

Adult/Child

Adult/Child

Adult/Child

Adult/Child

Adult/Child

Adult/Child

Adult

Adult

Child Adult/Child

Adult/Child

Adult

Child

Adult/Child

Adult/Child

Adult/Child

Adult

Adult Child Adult/Child

Adult/Child Adult/Child

I. What Is Changing in the Execution of Sentences Law²?

1. Conditional Release

Before the amendment the conditional release ratio was 2/3. After the amendment, the main rule has been set at 1/2. For aggravated life imprisonment the period has been reduced from thirty-six years to thirty years, and for life imprisonment from thirty years to twenty-four years. In other words, there has been a return to the position before Law No. 5275. What scientific data have been obtained from the standpoint of penology, the science of sanctions (punishment), such that the execution of sentences in this manner has been abandoned? Not a single word has been said on this. This shows that these amendments were made not in accordance with reason and science but for other purposes, to save the day. Yet the provisions of Law No. 647 on the Execution of Sentences containing those ratios were themselves repealed during this government’s term of office, and Execution of Sentences Law No. 5275, with its high execution ratios, was introduced. What has changed in the 15 years that have since passed? We believe that all criminal lawyers, like ourselves, are curious about the answer to this question.

However, as indicated in the table above, certain offences have been made exceptions and excluded from the 1/2 ratio. For some offences the ratio is 2/3, while for others it is 3/4. The exclusion of certain offences may be found contrary to the “principle of equality” (Constitution, Art. 10) and annulled by the Constitutional Court. Indeed, it has been reported in the press that the Republican People’s Party will bring the legislation before the Constitutional Court and lodge an application for annulment. One wonders whether the parties that passed the law in this form foresaw that, as has happened before, it would be taken to the Constitutional Court for abstract review of norms (an action for annulment), and wished, in the event of an annulment, to shift the public reaction that an extension of the legislation would provoke onto the main opposition party bringing the action for annulment and onto the Constitutional Court that would give the eventual decision. Of course, since we are not politicians, we do not, and cannot, think of such subtle matters. Yet a village that is already in sight needs no guide!

When the offences brought within the 1/2 ratio for conditional release and those left outside it are examined, “disproportion” and “inequality” are striking. For example, it cannot be, and ought not to be, the case that the ratio for migrant smuggling is 1/2 while that for drug smuggling is 3/4, or that it is 1/2 for trafficking in human beings while it is 3/4 for drug trafficking.

Likewise, the basic form of sexual assault is an exception, with a ratio of 2/3. To give an example, a perpetrator who strokes an adult’s hair with sexual intent must serve two-thirds of his sentence in a penal institution, whereas if the perpetrator “drags” the same person “into prostitution” (trafficking in human beings), it is deemed sufficient for him to serve only half. Similarly, while “offences relating to privacy” are exceptions, aggravated fraud, for example, is not. For instance, subjecting a perpetrator who disseminates another person’s private images on social media to harsher conditions of execution than the “Çiftlik Bank” fraud creates inequality.

A similar situation applies to the forms of intentional injury aggravated by their result. The case in which the act of intentional injury causes “permanent disfigurement of the face” of the victim (TCK Art. 87(2)(d)) has been made an exception, and it is provided that it will be subject to a conditional release ratio of 2/3. For the other forms aggravated by their result, on the other hand, the 1/2 ratio will apply. For example, for one and the same act the perpetrator will benefit from conditional release at 1/2 if the victim has “contracted an incurable illness or entered a vegetative state”, and at 3/4 if he has caused “permanent disfigurement of the face”. When even the Turkish Criminal Code does not distinguish between these results and subjects them to the same penalty, why the difference in their execution? It follows that if, instead of what happened to Berfin Özek, some other distressing event had come onto Turkey’s agenda and been talked about, it is that provision which would this time have been made an exception and its execution made more severe. The legislature must abandon its habit of introducing permanent rules in response to temporary and subjective situations and of “dabbing a little honey on everyone’s lips” so as to appease the sense of justice. People’s lost sense of justice cannot be restored by permanent rules introduced in a make-and-unmake fashion and in the heat of the moment. That sense can be restored only by a scientific, just, equal and orderly practice of execution.

In conclusion, we are of the view that the amendment to conditional release creates inequality and that, while execution is more lenient for certain serious offences, the conditions of execution for comparatively less serious offences are more severe, following a logic of pandering to the public mood. In this respect it appears likely that the Constitutional Court will find the legislation contrary to Art. 10 of the Constitution and, just as in the “Rahşan Amnesty”, extend its scope.

Questions

• Whom does the legislation cover?

The legislation has made a permanent change. From now on, conditional release will be calculated on the basis of the 1/2 ratio. Since the legislation reduces the period from 2/3 to 1/2, it is a more favourable provision. It will therefore be applied immediately (TCK Art. 7(3)). In this respect it applies immediately to persons whose convictions have become final.

• Do pre-trial detainees and detainees with a non-final conviction (those convicted by the court of first instance who have had recourse to a legal remedy such as an appeal on facts and law or

an appeal on points of law) benefit from the legislation?

Persons in pre-trial detention whose convictions have not become final and who are still at the investigation or prosecution stage will benefit from the 1/2 rule when they are convicted. Indeed, even if the legislature subsequently amends the provision and makes the conditions more severe, they will benefit from it, since the 1/2 ratio is the more favourable (TCK Art. 7(3)). However, as we have stated, the failure to make any provision for pre-trial detainees and detainees with a non-final conviction before they are convicted is an injustice. To keep in detention suspects or accused persons whose sentences would not be executed, and who could be released, if they were convicted is disproportionate and unlawful.

• How will conditional release be applied to recidivists?

The conditional release ratio for convicted persons who are recidivists has been reduced from 3/4 to 2/3. Thus a change in their favour has been made to the conditional release ratio of those who reoffend. However, if the offence committed by the recidivist carries a ratio higher than 2/3, that ratio applies. For example, on the assumption that the offence committed by the recidivist is “sexual assault committed by inserting an organ”, conditional release will be applied at a ratio not of 2/3 but of 3/4. It should be noted that persons to whom the provisions on recidivism are applied for a second time will not be able to benefit from conditional release (Execution of Sentences Law, Art. 108(3)).

• Will there be any change in the execution of the sentences of those who benefited from Decree-Law (KHK) No. 671?

As is known, under Decree-Law No. 671 the conditional release ratio was applied as 1/2 for offences committed before 1.7.2016. An important question is whether there will be any change in the execution of the sentences of convicted persons to whom the conditional release ratio is applied as 1/2 under Decree-Law No. 671. No; it is not possible to apply a second “reduction” in respect of these persons. Their current legal position is 1/2. The Law does not improve this; it makes it the same for everyone. Consequently there will be no change in the execution of their sentences.

2. Probation

Under the provision in provisional Article 6 of the amendment, the probation period for offences committed up to 30.03.2020 (inclusive) has become 3 years. Those convicted of the offences specified in the law as exceptions will not be able to benefit from this³. For the period after 30.03.2020 , the probation period is 1 year.

One of the important changes here is the permanent abolition of the previous condition for probation, namely the “requirement to spend the last 6 months in an open prison”. With the amendment, a convicted person can complete the execution of his sentence without ever seeing a prison. He does not need to spend 6 months in an open prison in order to benefit from probation. Consequently, persons sentenced to imprisonment of 6 years or less will, by decision of the execution judge, complete the execution of their sentences without seeing a prison.

As first submitted, the proposal provided for 1/5 of the sentence imposed to be the probation period. The aim of that proposal was that even persons sentenced to terms of imprisonment that could be regarded as very short should enter prison, if only for a short time, and that victims should be given satisfaction. The provision was subsequently changed and the probation period was altered to three years. Thus this provision, which initially set out with the aim that every offender, minor or serious, should see the inside of a prison and that the perception of “impunity” should be broken, was turned, through the changes made during the drafting process, into one that serves that perception.

As regards the offences treated as exceptions, the criticisms of injustice and inequality made in relation to conditional release must be repeated. Once again offences have been classified as exceptions (1 year) or as non-exceptions (3 years) without their nature and their content of wrongfulness being sufficiently assessed. For example, as regards convicted persons who have committed the forms of injury aggravated by result under Article 87, also discussed in relation to conditional release: where a person has caused the victim to lose the ability to have children by kicking him or her and has been sentenced to imprisonment of six years or less, the sentence will be executed without his seeing a prison. On the other hand, persons who cause permanent disfigurement of the victim’s face, for example those who throw acid or otherwise bring about a change to the face, will, given a conditional release ratio of 2/3 and a probation period of 1 year, have to spend 3 years of the sentence imposed on them in a penal institution. As will be seen, there is inequality, just as with conditional release, between the offences to which probation will be applied for three years and those to which it will be applied for one year.

Irrespective of the amendment, it should be recalled that probation is, in a manner unparalleled anywhere in the world, applied “before” conditional release. The aim of probation is to monitor whether the convicted person is able to adapt to social life. Releasing a person on probation without even carrying out the assessment of “good conduct” on which conditional release is based, and before he has yet benefited from conditional release, is contrary to the logic and purpose of the institution. Indeed, this practice of the Turkish system of execution is not encountered anywhere else in the world. In its present form probation cannot go beyond being an institution that merely brings forward the convicted person’s release and shortens the time spent in a penal institution.

Questions

• Whom does the legislation cover? Can the 3-year probation period be applied to pre-trial detainees

and detainees with a non-final conviction?

Provisional Article 6 specifies those who will benefit from the 3-year probation period as follows: “In respect of offences committed up to 30/3/2020 (…) the period of ‘one year’ in the first paragraph of Article 105/A shall be applied as ‘three years’.” Accordingly, in applying the 3-year probation period the legislature takes as its basis not whether the person has been convicted but the date on which the offence was committed. Take, for instance, a person held in pre-trial detention for the offence of theft

whose conviction became final in 2021. If the offence committed, that is the theft, was carried out before 30.03.2020, the three-year probation period will still be applied to the convicted person. Likewise, persons who have been convicted of offences not falling within the exceptions and who are in a penal institution will also benefit from the three-year probation period, since they committed the offence before 30.03.2020.

• Can those convicted of organised crime offences, other than terrorism, benefit from the 3-year probation

period?

Because they are not listed among the exceptions in the article, a question mark arises as to whether they can benefit from the three-year probation period provided for in the provisional arrangement. Before the amendment, the reason why those convicted of criminal organisation offences could not benefit from the improved probation in provisional Article 6 of the law was the condition laid down in the regulation governing the rules on transfer to an open penal institution, namely that “less than 1 year remains until the conditional release date of those who are established, by decision of the administration and observation board, to have left the organisation of which they were members” (Regulation, Art. 6(2)(ç)). Since the precondition for benefiting from probation is to be in an open penal institution or to have earned the right to be transferred to one, it was not possible for persons convicted of criminal organisation offences to move to an open penal institution, and to benefit from probation, until less than 1 year remained before their conditional release. However, under the new provision (paragraph 3 added to provisional Article 6) convicted persons of good conduct in closed penal institutions will also be able to benefit from probation, without being required, on a temporary basis, to fulfil the condition of having moved to an open prison or having earned the right to do so.

The conclusion to be drawn from this is that it may be said that convicted persons of good conduct who have been convicted of organised crime offences falling within Article 220 of the TCK can benefit from the 3-year probation period introduced by the provisional arrangement. (It will not be applicable to TCK Art. 314, since that is deemed a terrorist offence under Article 3 of Anti-Terror Law No. 3713.)

• The much-debated question: can those convicted of offences under the MİT Law benefit from the 3-year

probation period?

Another exception that is not listed is the offences under the Law on the National Intelligence Organisation (MİT Law). Since the offences that appear among the exceptions listed above for conditional release were, knowingly or unknowingly, not listed in the probation provision, those who cannot benefit from conditional release will be able to benefit from the reduction afforded by the 3-year probation period. What this brings to mind above all is the detained journalists who have attracted public attention. In our opinion, since the MİT Law was not made an exception by the legislature, the present legislation has opened up the possibility of release for the detained journalists as well. However, statements made by their lawyers indicate that their requests for release were not granted and that they will lodge individual applications with the Constitutional Court. Since it is not possible to explain this by reference to the legal order and legal norms, we leave this practice to the judgment of history!

• How will probation be applied in respect of recidivists?

When the execution regime specific to recidivists and the supervision period are determined, regard will be had to the offence committed (the underlying offence). If that offence is one of the specified excepted offences which we have listed above in accordance with provisional Article 6, the probation period will be applied as 1 year. If, however, the underlying offence, that is, the offence committed, is not one of the specified excepted offences, the probation period will be applied as 3 years.

• Convicted persons who commit a new intentional offence during the supervision period:

what is their position?

Previously, where it was decided to revoke the conditional release of a convicted person who had been conditionally released and who committed an intentional offence during the probation period, it was provided that the entire period from the date on which he committed the second offence until the date on which he would be released on completion of his sentence was to be executed in a penal institution. Under the new provision, by contrast, he will serve in a penal institution a period equal to twice the sentence imposed for each offence he committed during the supervision period, starting from the date on which he committed the subsequent offence and provided that the date of release on completion of sentence is not exceeded.

Furthermore, while the legislation provides that a convicted person who commits an intentional offence during the probation period is to be taken into an open penal institution, it provides, for a convicted person who commits an intentional offence while on conditional release, that the remainder of the sentence is to be executed as it stands; in other words, return to a closed penal institution may be at issue. This contradiction too must be removed, or the reason for it stated.

• How will probation be applied to persons convicted of more than one offence?

If a person is convicted of more than one offence, his sentences are aggregated. The conditional release ratios must first be determined by calculating them offence by offence. Suppose, for example, that a person has been sentenced to 6 years’ imprisonment for robbery and 8 years’ imprisonment for trafficking in narcotic substances. Conditional release is applied at a ratio of 1/2 for robbery and 3/4 for trafficking in narcotic substances. On calculation, the time that must be spent in a penal institution is 3 years for the robbery and 6 years for the narcotics offence. The total is 9 years.

As we stated above, if this person had been sentenced only to 6 years’ imprisonment for robbery, he would be able, with the 3-year probation period, to complete the execution of his sentence without ever entering prison. Where there is more than one offence, however, the position is different.

How matters are to be handled where there is more than one offence and there are different probation periods has not been regulated by law or by regulation. In practice, Art. 6(3) of the Regulation on Transfer to Open Penal Institutions, which concerns conditional release and transfer to an open prison, is applied by analogy. Where, as in the example above, a person has probation periods of 3 years and 1 year, the one that is to his detriment, that is, the 1-year probation period, is applied. Accordingly, a convicted person who, on a 6+3

basis, must spend 9 years in prison in order to benefit from conditional release will be able to benefit from only 1 year of probation, and his release will be possible after 8 years. This practice, which worsens the convicted person’s position, is contrary to the prohibition of analogy to the detriment of the person concerned and is therefore unlawful. The more favourable probation period ought to be applied. We are nonetheless obliged to convey to you how matters stand in practice.

3. Determination of the Convicted Person’s Good Conduct and the Amendment Made

During the preparation of the legislation it was stated that one of the primary aims in relation to the execution law was to eliminate the perception of “automatic good conduct”. In this connection, Article 89 of the Execution of Sentences Law lays down the principles for “the assessment of convicted persons and the determination of good conduct”. The provision aims to tie good conduct to objective criteria. In truth, we can say that a sound appraisal will be possible only after seeing how it is applied. However well the provisions may be drafted, it is open to question whether the ingrained habits of practice will change.

II. What Is Changing in the Turkish Criminal Code?

1. The Offence of Intentional Injury (TCK Arts. 86 and 87)

By the amendment made to Article 86 of the TCK, the case in which the offence of intentional injury is committed with a monstrous motive has been added to the aggravated forms listed in paragraph 3. The penalty for this form of the offence is to be doubled, unlike the other aggravated forms, where the increase is one half. In connection with this, in paragraph 4 of Article 87, for the case where death results from the offence of intentional injury and this occurs in the aggravated forms under paragraph 3 of Article 86, the upper limit of the penalty prescribed has been raised from 16 years to 18 years. On the other hand, how and in what way the “monstrous motive” form, which has only a very limited application even in the offence of killing, can be applied to intentional injury is a great question mark.

It should be noted that it is contradictory that, while Article 86 prescribes a higher increase in penalty for intentional injury committed with a monstrous motive than for the other aggravated forms, Article 87 treats the occurrence of death as a result of this aggravated form as equal to the other aggravated forms. If the intentional injury is committed with a monstrous motive and the victim does not die, the perpetrator will be punished more severely than in the other forms of injury; whereas if the victim dies, commission with a monstrous motive will be punished at the same rate as the other aggravated forms of injury.

2. The Offence of Establishing an Organisation for the Purpose of Committing Offences (TCK Art. 220)

As regards the penalties for the offences of establishing and directing a criminal organisation under TCK Art. 220(1), the lower limit has been raised from 2 years to 4 years and the upper limit from 6 years to 8 years. For membership of a criminal organisation, regulated in paragraph 2 of the same article, the lower limit has been raised from 1 year to 2 years and the upper limit from 3 years to 4 years.

However, as noted above, it is contradictory to reduce the duration of execution for organisation offences in conditional release and probation while at the same time increasing the penalties. On the one hand penalties are increased; on the other, there are complaints about prison overcrowding, and almost every 2 – 3 years the periods of execution are shortened and the conditions of execution relaxed. This shows that the same mistakes have by now become a vicious circle and are still being made.

In addition, increasing to this extent the penalty for organisation offences, which have the character of an “instrumental offence” for committing “target offences”, runs counter to the logic of criminal law. Organisation offences are “endangerment offences”. The establishment of the organisation is aimed at the commission of certain offences.

For instance, the aim in forming the organisation may be to open and run an illegal gambling house. This constitutes the offence of “providing a place and facilities for gambling” under Article 228 of the TCK. The penalty for the target offence is imprisonment for 1 to 3 years (Art. 228(1)). If this offence is committed within the framework of the activities of an organisation, its penalty is increased by one half and imprisonment for 1 year 6 months to 4 years 6 months is prescribed. The “instrumental offence” of establishing an organisation, on the other hand, is punished by imprisonment for 4 to 8 years. As will be seen, the perpetrator is punished more severely for the offence of “establishing an organisation”, which is in essence a preparatory act and has the character of an instrumental offence, than for the offence of “providing a place and facilities for gambling” which he aimed at and carried out. Moreover, although the penalty for the target offence is increased on account of the organisation, it cannot catch up with the penalty for the instrumental offence. This is at odds with the wrongfulness content of the offences, with criminal justice and with the logic of punishment.

3. The Offence of Usury (TCK Art. 241)

Under the new provision, as regards the penalty for the offence of usury, the upper limit has likewise been raised from 5 years to 6 years and a judicial fine of 500 to 5000 days has been introduced. It is further provided that the penalty is to be doubled where the offence is committed within the framework of the activities of an organisation.

III. The Amendments to the Code of Criminal Procedure and the Position of Pre-trial Detainees

The repealed fourth paragraph of Article 109 of Code of Criminal Procedure No. 5271 (CMK) has been re-enacted; it provides that, in respect of persons who are unable to sustain their lives on their own because of serious illness or disability, and of persons who are pregnant or who gave birth not more than 6 months earlier, a measure of judicial control may be ordered instead of pre-trial detention, and that, where such persons are convicted and have recourse to the legal remedies of appeal on facts and law or appeal on points of law, the measure of judicial control may likewise be applied by a decision of the court of first instance that delivered the judgment (CMK Art. 109(4)). However, where the conditions laid down in Arts. 100, 101 and 109 of the Code of Criminal Procedure are met, it ought already to be possible to lift pre-trial detention and order a measure of judicial control in its place, without being bound solely to the situations listed in the provision. For in the law of criminal procedure and in the Code, judicial control is the “rule” and pre-trial detention the “exception”. In our country, however, this wheel turns in exactly the opposite direction. A major cause of prison overcrowding is to be sought in this tendency and practice, which is contrary to law and to statute.

In our opinion, limiting the scope of these measures for reducing the execution of sentences to convicted persons alone will – particularly in the case of persons held in long-term pre-trial detention, and bearing in mind that pre-trial detention is nowadays applied, unlawfully, virtually as a punishment – amount to a violation of the “right to life” protected by the International Conventions to which we are party and by our Constitution. At this point, in respect of pre-trial detainees too, the measure of “judicial control” needs to be applied in order to forestall harm that would be difficult or impossible to repair and that might arise in the event of an outbreak.

Conclusion

In our country the severity of sentences on the one hand and the length of time spent in penal institutions on the other have resulted in our prisons reaching an occupancy above their capacity. At the point now reached, this overcrowding has attained a scale that no longer permits the institutions to be administered. Particularly in the sensitive period we are going through, in order that the use of pre-trial detention may be reduced and its duration brought to a reasonable level, priority must be given to the measure known as “judicial control”, which imposes bail, a ban on leaving the country and an obligation to remain in a specified place for the remainder of the investigation and prosecution, and the scope of application of this measure must be widened.

Unfortunately, because it can be applied frequently and for years, pre-trial detention is now regarded in Turkish criminal procedure law almost as a “penalty” rather than a “measure”. Society, too, believes that if pre-trial detention is not applied, no result will be obtained from investigations and prosecutions that already last a long time and that the offender will get away with the offence he has committed; and so it is seen that pre-trial detention is applied without limit and without time-limit, at the cost of disregarding the principles and foundations of criminal procedure law, including the presumption of innocence.

At this point we must state that the new execution legislation, instead of solving the problems of execution permanently, is focused on temporary solutions that afford an extremely limited relief. It is not difficult to predict today that such temporary solutions will, as before, lead us to debate the problems of execution all over again within the next few years. It is also evident that the urgent problems of the country’s judicial system cannot be solved by amendments to execution alone. As Beccaria too observed in the 18th century, “One of the most important brakes on crime is not the severity of punishments but their inevitability.”

Every country has a system that it has adopted and principles and foundations that it has determined within that framework. The legislative, executive and judicial powers of the country, for their part, naturally exercise their powers within the framework of the universal principles and foundations of law, in such a way as to protect the system adopted by the Constitution. The judicial power gives its decisions on the basis of right and justice. These decisions are founded on the judge’s conscience and, alongside it, on the rules of law in force.

While seeking to correct errors in the application of legal rules, one must at the same time avoid dangerous amendments and provisions that could open the way to the subjective and biased exercise of judicial power. Otherwise the “Boomerang Effect” may make itself felt; that is, the negative consequences of practices that are unlawful, partial and contrary to the principle of equality will come back not only on the opponent but also on whoever is wielding public power at that moment.