A Different Approach to Law Enforcement Discussions in Turkiye: Evaluation of The Separate Organisation of The Judicial And Administrative Police Considering The Constitutional Court’s Decisions on Individual Applications
Various opinions have been expressed on how law enforcement should be organised. In this context, theses about law enforcement forces being organised together or occurring in different institutions are defended for diverse reasons. However, it is not common to examine this fundamental issue regarding law enforcement from the perspective of constitutional law. This study aims to examine the aforementioned debate from a different perspective by examining some of the decisions of the Constitutional Court during the practices of individual application, which is a tool of the constitutional jurisdiction. As a result of the examination of the individual application decisions, it can be determined that the judicial police could not conduct an adequate and effective investigation of the incidents in which the administrative police officers were suspicious. After discussing these decisions in detail, it is concluded that the separate organisation of the judicial and administrative police will be extremely beneficial in terms of conducting an independent and effective investigation and thus protecting constitutional principles.
Türkiye’de Kolluk Tartışmalarına Farklı Bir Bakış: Anayasa Mahkemesinin Bireysel Başvuru Kararları Işığında Adli ve İdari Kolluğun Ayrı Teşkilatlanmasının Değerlendirilmesi
Kolluğun nasıl teşkilatlanması gerektiğine ilişkin muhtelif görüşler ortaya konulmuştur. Bu kapsamda kolluk güçlerinin birlikte teşkilatlanması kadar farklı kurumlar içinde yer almalarına yönelik tezlerin, çeşitli gerekçelerle savunulduğu görülür. Ancak kolluk hukukuna ilişkin bu esaslı meselenin anayasa hukuku perspektifinden ele alınması yaygın bir yöntem değildir. Bu çalışmada anayasa yargısının bir aracı olan bireysel başvuru uygulaması sırasında Anayasa Mahkemesince verilen bazı kararlar ele alınmak suretiyle, anılan tartışmaya daha farklı bir açıdan bakılmak istenmiştir. Nitekim bireysel başvuru kararlarının incelenmesi sonucu, idari kolluk memurlarının şüpheli olduğu olayların soruşturulmasında, aynı teşkilat bünyesinde birlikte görev yapan adli kolluk personelinin yeterli ve etkili bir tahkikat yapamadığı, bu durumun ise ilgili haklar yönünden usul yükümlülüklerinin ihlaline yol açtığı saptanabilmektedir. Çalışmada bu yöndeki kararlar detaylıca ele alındıktan sonra, adli ve idari kolluğun ayrı teşkilatlanmasının, bağımsız ve etkili bir soruşturma yapılması ve böylece anayasal ilkelerin korunması bakımından son derece yararlı olacağı tespitine varılmaktadır.
It can be seen that the police service, which is provided by the state and carries the authority to use force, can be divided into different types in terms of their nature. Regardless of its type, it is clear that police activities are in a serious relationship with the fundamental rights of individuals. In this regard, how the police service is organised in a country will have extremely important consequences on individual rights. Because it is undeniable that police officers who have the authority to use force on individuals carry a potential risk to their fundamental rights.
The relationship between the police and the fundamental rights of individuals is not just about having the authority to use force over them. As a matter of fact, the difference in quality between the administrative police, which emerged before the crime and works for the protection of public order and security, thus called preventive law enforcement, and the judicial police, which started to work after the crime and assisted the investigation carried out by the prosecutor, is an extremely important aspect. In this context, although it is understandable for the administrative police to work under the hierarchy of administrative authorities, it is a serious problem how and where the judicial police, which takes part in independent and impartial criminal investigations, should be located. This is important both in terms of the expectation of a fair trial of those who are investigated as suspects and in terms of satisfying the wishes of the victims of the crime to clarify the act of crime and punish the responsible. Because administrative police officers who served before the crime and worked under the command of the administration, re-entering the field after the crime may cause serious problems, especially in terms of independence. The biggest problem that may occur in this context is investigations in which the perpetrators of the crime are the administrative police officers themselves. There is a high probability of serious violations against individuals, especially in the context of the right to life and the prohibition of torture and inhuman or degrading treatments, due to the force used while performing administrative police activities. Therefore, while investigating these acts, it is of great importance for judicial police to be separated from these administrative police officers.
Administrative and judicial law enforcement in Turkiye are organised under the same organisation. Indeed, when the criminal procedure law is examined, it is understood that both law enforcement agencies are separated not in terms of organisation, but in terms of duty. Accordingly, some police officers working in the same organisation are engaged in administrative affairs, while others take on judicial duties. Although the job definitions of the personnel in question are made in this way, both types of law enforcement work within the same organisation and are subject to the same status in terms of appointment, disciplinary regulations, and other aspects. In addition, as the law provided that the judicial police would work under the command of the prosecutor when carrying out judicial proceedings, it stated that at other times, they would be subordinate to the hierarchy of their administrative superiors. In addition, the law states that administrative police officers will assist in judicial affairs when necessary. In this case, we come across a view where law enforcement in Turkiye is completely intertwined and entangled in terms of judicial and administrative polices. This issue has been discussed in the criminal and administrative law literature for a long time, and various remarks have been made. Some have defended this system, but on the contrary, opinions suggest that both police agencies should be completely separated from each other. However, it is rare to find that the issue is examined in constitutional law.
In this study, after summarising the opinions in the criminal and administrative law literature, it has mainly been tried to examine the issue with the data of constitutional law. In this context, during the practice of individual application, which has become the dominant tool of the constitutional judiciary, serious violations have emerged because of the current structure of law enforcement. Indeed, the Constitutional Court has issued many violations in the context of investigating crimes such as murder, injury, or degrading treatment in which administrative police officials are potential perpetrators. The reason that led the Court to this conclusion in these cases is often the fact that the incident was not investigated independently and effectively. There is no doubt that Turkiye is in direct contact with the above-mentioned organisational form of law enforcement. In this article, some of the decisions of the Constitutional Court are examined in detail, and it is tried to be revealed in all clarity how the judicial police, which is under the same organisation with the administrative police, cannot effectively investigate such events. Thus, it has been concluded that a judicial police agency separate from the administrative police is necessary to protect fundamental rights more effectively and fulfil the state’s positive obligations in this context.
