Seri Muhakeme Usulü
Abdullah Batuhan Baytaz7188 sayılı Ceza Muhakemesi Kanunu ve Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun’un 23. maddesi ile 5271 sayılı Kanunun mülga 250. maddesinin başlığıyla birlikte yeniden düzenlenmesiyle Alternatif bir çözüm yolu olarak 24.10.2019 yürürlüğe giren seri muhakemesi usulü, 1 Ocak 2020 tarihinden itibaren uygulanmaya başlamıştır. Temelini Anglo-Amerikan hukuk sisteminde yer alan ceza pazarlığı sisteminden alan seri muhkeme usulü, son dönemde Kara Avrupası Hukuk sistemi temsilcileri tarafından kabul görmeye başlamış ve başta mehaz kanun niteliğine sahip olan AlmCMK’nunda da 2009 yılından beri yer almaktadır. Ancak belirtmek gerekir ki, seri muhakeme hukuku adıyla yürürlüğe giren kurumun ne Amerikan ve ne de Alman hukukunda yer alan benzer düzenlemelerden farklıdır. Kanun koyucunun ortaya koyduğu gerekçede ifade edildiği üzere yargı mercileri üzerinde mevcut olan yoğunluğun azaltılması amacıyla alternatif çözüm yolu olarak yürürlüğe giren Seri Muhakeme Usulü, 2005 yılında yürürlüğe giren 5271 sayılı Ceza Muhakemesi Kanunuyla ortaya konulan ceza muhakemesi sistemimize uygun bir kurum değildir. Bu çalışmada seri muhakeme usulünün düzenlendiği Ceza Muhakemesi Kanununun 250. maddesi ve Ceza Muhakemesinde Seri Muhakeme Usulü Yönetmeliğinde bağlamında Türk hukuku bakımından yeni olan bu müessesene dair açıklamalar, eleştiriler ve öneriler yer almaktadır.
The Serial Judgement Procedure
Abdullah Batuhan BaytazThe Serial Judgement Procedure (SJP) entered into force in October together with the law regarding the Amendment of the Turkish Penal Procedure Code (TPPC). The SJP began to be implemented on January 1st, 2020. SJP is a process that enables a public prosecutor to propose decreasing a penalty. To make this proposal, the public prosecutor must have sufficient evidence to initiate a trial regarding a crime, as set forth in Article 250 of the TPPC. To do this, the prosecutor makes a proposal stating that the sentence will be reduced by half if he accepts the offer. If this proposal is accepted in the presence of his defense counsel, the public prosecutor prepares a written request and sends it to the court. The court then listens to the suspect in the presence of his defense counsel. If the suspect accepts the offer, the judge will adjust the sentence according to the proposal. This study examines the conditions of Article 250 of the TPPC, which regulates the SJP. Moreover, the disapproval of the current SJP system, which is new in the Turkish criminal procedure law system, is argued.
The Serial Judgement Procedure (SJP) was introduced in October 2019 together with the law regarding the Amendment of the Turkish Penal Procedure Code (TPPC) no. 5271. The SJP began to be implemented on January 1st, 2020. The procedure is a novel alternative dispute resolution process in the Turkish criminal procedural system. This process enables a public prosecutor to propose the decreasing of a penalty. For this proposal to be made, the public prosecutor must have sufficient evidence to initiate a prosecution regarding a crime, as stated under Article 250 of the Turkish Penal Procedure Code. To begin the process, the prosecutor makes a proposal that the sentence be reduced by half. If the defendant accepts the proposal in the presence of his defense counsel, the public prosecutor prepares a written request and sends it to the court. The court then listens to the suspect in the presence of his defense counsel. If the suspect accepts the proposal, the judge adjusts the sentence according to the proposal.
This study explores the conditions of Article 250 of the TPPC, which regulate the SJP. Moreover, criticisms against the SJP system are also examined.
Plea-bargaining, which is mainly a characteristic of the common law system, is the basis of SJP. Similar processes have also been introduced recently within some civil law jurisdictions in Europe. For instance, the “Negotiated Agreement” has been implemented since 2009, as set forth in Article 257C of the German Criminal Procedure Code. However, SJP, which is regulated under the Turkish law system, is different from similar regulations under the American and German law systems. When comparing the SJP with procedures in similar law systems, it is clear that the outstanding difference of the procedure is the fact that it is not dependent on the suspect’s admission of guilt. In the Turkish law system, the acceptance of the public prosecutor’s proposal does not equal an admission of guilt.
It is important to note that the aim of SJP is to reduce the workload of the courts. However, SJP is unsuitable for the Turkish procedure law system, which is governed by the Turkish Criminal Procedure Code no. 5271. Further, the SJP is also incompatible with the Constitution of the Republic of Turkey. According to Article 9 of the Constitution, jurisdictional powers can only be used by the court. However, in SJP, the determination of the penalty within the scope of jurisdictional power is effected by the prosecutor, not by the court or judge. The only function of the court in the SJP is the approval of the sentence set forth by the prosecutor.
There are deficiencies and inaccuracies in some of the provisions under Article 250. It is important to identify and correct these inaccuracies and deficiencies before they cause problems in practice. In this regard, the issues identified in this study and the current regulation should be analyzed. These include the name chosen for the process, conditions required for the implementation of the process, proposal of the process, role of the defense counsel in the process, power of supervision of the court, legal characteristic of the court’s decision, and legal remedies against the court’s decision.
As the SJP is not properly integrated into the Turkish law system, it is crucial that the regulation of the process be overhauled as soon as possible. Otherwise, many different problems related to the practical application of the SJP will arise. In this regard, failure to execute amendments may result in forfeiting the rights of the suspect and disrupting the fight against the crime.
In this study, the overview of the SJP and the conditions for its application were explained. The conditions under which a public prosecutor can make a proposal to decrease a penalty were also explored in detail. Further, how a judge can control the written request of a public prosecutor and the type of decisions that can be made by the court at the end of the SJP were delineated. Thereafter, the impact of the Jointly Committed Offences and Aggregation of Offences on the SPJ were emphasized. Parties responsible for enlightening the suspect and proposing the offer of the SJP were also identified and their responsibilities elucidated in depth. The contents of the offer were also discussed. Moreover, the powers of the defense counsel, content of the requisition, and role of the court in this process were emphasized. Finally, the legal remedies against the decision made at the end of the SJP were explored.
