Alternative mechanisms of punishment and diversion in criminal proceedings - Experiences in Turkey Dr Mehmet Arslan Institute of Criminal Law and

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1 Alternative mechanisms of punishment and diversion in criminal proceedings - Experiences in Turkey Dr Mehmet Arslan Institute of Criminal Law and Criminology. University of Tehran 12th April 2017

2 Content of presentation I. Basic principles of crime and punishment 1. Classical concept 2. Prison sentence as main punishment 3. Alternatives to imprisonment a) Former Turkish Penal Code b) First reform by Penal Enforcement Code of 1965 c) Uninterrupted increase in prison population and administrative measures d) The new Turkish Penal Code of 2004 II. Basic principles of criminal prosecution 1. Classical concept 2. Limits of principle of legality 3. Diversion mechanism of the new Turkish Procedural Code a) Course of investigations b) Mediation by public prosecutor office

3 I. Basic principles of crime and punishment 1. Classical concept Criminal law: protection of some legal interests. Punishment: retribution based on the idea of principle of free will; prevention, only of a subsidiary importance limited by principle of a fair sentence; redemption, possible. Retribution: as a consequence of self-preservation-drive.

4 2. Prison sentence as main punishment Imprisonment: an achievement and enabling resocialization/rehabilitation by education. Doubts about an educative function of prisons; rather crime schools and drawbacks of imprisonment. Attempts to differentiate: imprisonment in some cases not an appropriate sanction.

5 3. Alternatives to imprisonment a) Former Turkish Penal Code prison sentence as main kind of punishment. fine only for minor offences. suspension of a prison sentence up to 6 months. Judicial warnings: instead of a maximum sentence of 1 month. Results (1962): 91% prison sentence less than 6 months; 71% of inmates serving a prison sentence less than 6 months.

6 b) First reform by Penal Enforcement Code of 1965 extension of suspension to up to 1 year, Introduction of alternative sanctions; 1. Fine 2. Performance of work in a state, municipality and public or private enterprise 3. Restitution and compensation 4- Attendance at an educational or reformatory institution 5. Refraining from going to certain places or performing certain professions and activities 6. Withdrawal of driver s license or other license. New principles to fix the amount of fine. New execution modalities of prison sentence. No execution of prison sentence for negligently committed offences.

7 Reasons of ineffectiveness: lack of institutions, difficulties in interpretation, overlapping application of provisions, minimum statutory sentence.

8 c) Uninterrupted increase in prison population and administrative measures Incarceration rate ( ) Development of prison population in Turkey Detained Convicted

9 Prison rate in Turkey ( ) per 100,000 population in total:

10 c) The new Turkish Penal Code of 2004 International analyzes: six main causes located in material criminal law which lead to an increasing use of imprisonment and overcrowding a punitive criminal justice policy mandatory minimum sentences extensive use of imprisonment lack of rehabilitative measures/priority of deterrence long sentences/extensive use of life imprisonment long terms for early release International recommendation: decriminalization less use of prison sentence/a fair sentencing policy alternatives to prison sentence: at the pre-trial and at the trial stage.

11 Novelties by the new Turkish Penal Code: decriminalization by a new code for regulatory offences: disobeying of an official order, drunkenness or not-showing of the ID. prison sentence: regular (from 1 Month up to 20 years), life imprisonment (earliest release: after 24 years), aggravated life imprisonment (earliest release: after 30 years); in some cases till death in prison. alternatives to imprisonment: converting of a short term imprisonment into an alternative sanction; delaying the pronouncement of the judgement and suspension of imposed sanction. 2015: Convictions by criminal Courts in Turkey Prison Fine Suspension Security Disciplinary Other sentence measures prison sanctions 28,1% 26,4% 6,0% 19,8% 7,2% 12,4%

12 Total criminal courts decisions 2015 in Turkey Conviction 2% 2% 8% 17% 10% 21% 40% Acquittal Delay of pronouncement No reason for a penalty Mediation Dismissal Other decisions

13 Applications of new institutes in court practice need of specification by courts. judge's justice. unclarified questions about the objectives of punishment. method of fixing the punishment.

14 II. Basic principles of criminal prosecution 1. Classical concept Principle of legality: legal duty to investigate every suspicion of crime and to file charge against all suspects. Some minor offences prosecutable upon a complaint by victim: exception; mediation with victim, belongs to ancient times. No legally regulated discretion for prosecutor. In practice: investigations on basis of existing and available resources and with difference intensity (cases of divergent importance, urgency and complexity). Unregulated filtering out of some cases.

15 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% : investigated cases according to status of suspects Unknown suspects Identified suspects

16 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% : investigated cases according to status of suspects Unknown suspects Identified suspects

17 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Conclusions by public prosecutors Discontinuation Charged Other Decisions

18 2015: Decisions by Prosecutors Office 11% Discounted 44% 45% Charged Others

19 3. Diversion mechanism of the new Turkish Procedural Code a) Course of investigations Police Investigation No confirmed suspicion Confirmed suspicion Prosecutorial review and decisions Discharge (Insufficient evidence, no crime or lack of legal conditions) Sufficient evidential and legal grounds to file public charge Mediation Other decisions Fine Order Conditional dismissal of prosecution Filing the public charge

20 Fine order in case of fine or prison sentence not exceeding six months, for instance benefiting from a public service without compensation (Art. 163), Pollution of environment by negligence (Art. 182) or Attempt to influence a just trial (Art. 288). Decision of discontinuation by prosecutor (Turkey) Year Fine Order Mediation Time-barred Other reasons Total

21 b) Mediation by public prosecutor office offences that are to be prosecuted only upon the complaint of the injured person and some other offences that are explicitly mentioned by law: Intentional and negligent bodily harm (Art. 86, 88, 89) except for aggravated cases (Art 86 par 3 and 87), Threat (Art. 106 par 1) except for aggravated cases (Art 106 par 2), Violation of Dwelling Immunity (Art 116), Violation of freedom of Work and Labor (Art 117), Deterioration of peace and order (Art. 123), Defamation (Art 125), Violation of Communicational Secrecy (Art 132), Tapping and recording of conversations between the individuals (Art 133), Violation of Privacy (Art 134), Theft (Art. 141, 144, 146), except for aggravated cases (Art 142) Damage to property (Art 151), Misuse of trust (Art 155), Use of blank bill (Art 156), Fraud (Art 157, 159), except for aggravated cases (Art 158) Possession on a lost or inadvertently found property (Art 160) Kidnapping and retention of a child (Art 234) Disclosure of business secrets, banking secrets or information relating to customers (Art 239)

22 in practice, the offences against property, integrity of body and personal liberty make up in average roughly 65% of workloads of prosecutorial offices in Turkey. Procedural Code before the amendment in 2016: the cases of regular-medium seriousness of theft, fraud and threat were not falling within the scope of mediation. Decision of discontinuation by prosecutor (Turkey) Year Fine Order Mediation Time-barred Other reasons Total

23 After the amendment in 2016: theft, fraud, damage to property (first group), bodily harm (second group) and threat, violation of dwelling immunity and defamation (third group) are eligible for mediation. Aggravated case of theft, fraud, threat and of bodily harm not covered; also all offences against sexual integrity. Extended application scope and new structure within the prosecutorial office. 2015: Decision of Discontinuation (Local) Provinces Fine Order Mediation Time-barred Other reasons Total Istanbul Ankara Izmir Antalya Bursa Konya Adana Mersin Kocaeli Gaziantep

24 Thank you for your attention Dr Mehmet Arslan Senior Researcher Max-Planck-Institut für ausländisches und internationales Strafrecht Günterstalstr Freiburg i.br. Tel.: +49 (761) Fax: +49 (761)

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