The Investigating Judge in Ottoman Criminal Proceedings
İbrahim ÜlkerThe investigation phase involves making the decision about whether a person will be prosecuted or not and is very important in terms of protecting personal rights. Due to the importance of the investigation phase, some legal systems have assigned various duties to the investigating judge in this process apart from the prosecutor. Significant reforms were made in 1879 to Ottoman criminal proceedings with the Criminal Procedure Code, which was made on the basis of the French Criminal Procedure Code. The concept of the investigating judge was included into the Ottoman legal system with this law. Ottoman criminal procedure law was renewed after 1879 to arrange the investigating judge as the main element who carried out the investigation phase. The investigating judge was able to conduct a direct investigation in the case of flagrante delicto and would take action upon request from the prosecutor in normal cases. This judge would complete the investigation phase by using the powers legally granted to him to clarify the incident. This study discusses how investigating judges were appointed in Ottoman criminal law, as well as their duties, decisions, and ways to object against these decisions.
Osmanlı Ceza Yargılamasında Müstantik (Sorgu Hâkimi)
İbrahim ÜlkerKişilerin yargılamaya tabi tutulup tutulmamaları kararının verileceği soruşturma aşaması kişilik haklarının korunması açısından çok önemlidir. Soruşturma aşamasının önemi nedeniyle bazı hukuk sistemleri savcı dışında sorgu hakimine de bu süreçte çeşitli görevler vermiştir. 1879 yılında Fransız Ceza Usul Kanunu temel alınarak yapılan Ceza Usul Kanunu ile Osmanlı ceza yargılamasında önemli değişiklikler yapılmıştır. Sorgu hakimi Osmanlı hukuk sistemine bu kanunla dahil olmuştur. 1879 yılından sonra yenilenen Osmanlı ceza yargılamasında sorgu hakimi, tahkikat aşamasını yürüten ana öge olarak düzenlenmiştir. Suçüstü halinde doğrudan tahkikat yapabilen sorgu hakimi normal durumlarda savcıdan gelen bir talepname ile harekete geçer. Olayın aydınlığa kavuşturulması için kanunun kendisine tanıdığı yetkileri kullanarak tahkikat aşamasını tamamlar. Bu aşamada dosyayı savcıya tekrar gönderir ve savcının iddianamesini aldıktan sonra dosya kapsamını düşünerek özgür iradesi ile zanlı hakkında kamu davası açılıp açılmayacağına karar verir. Cumhuriyet döneminde de Türk yargı sisteminde varlığını devam ettiren sorgu hakimi, 1985 yılında yapılan yasal değişiklikler ile hukuk sisteminden çıkarılmıştır. Bu çalışmada Osmanlı ceza hukukunda sorgu hakiminin atanması, görevleri, kararları ve bu kararlara karşı itiraz yolları ele alınmıştır.
Many reforms were made in the Ottoman Empire after the Tanzimat Edict. One important aspect of these reforms occurred in the field of law. These changes in the field of law can be divided into two: changes made in the field of judicial organization and codification. In 1879, the Criminal Procedure Code (Usul-i Muhakemat-ı Cezaiye Kanunu) was made based on the French Criminal Procedure Code. The concept of the investigating judge had entered the Ottoman legal system for the first time in 1879 and formed an institution that was accepted in the 1929 Code of Criminal Procedure after the proclamation of the Republic. Even if a defendant was ultimately acquitted, the fact that a criminal case had been opened against a person had serious consequences. In order to minimize any unjustness in this situation, the investigation phase should be carried out very carefully. For this reason, investigating judges also served as prosecutors during the investigation phase following the changes made to Ottoman criminal law in 1879. This study discusses how investigating judges were assigned in the Ottoman criminal legal system, their powers and decisions, and how these decisions were appealed. According to the Criminal Procedure Code of 1879, an investigating judge was appointed by the sultan to serve for three years. The term of office could be extended for an investigating judge whose term of office had expired. Administratively, this judge is subordinate to the prosecutor, yet also acts independently as a judge. In case of flagrante delicto, the investigating judge may actsua sponte and conduct an investigation. In this context, the investigating judge collects the evidence, listens to the witnesses, and keeps the necessary minutes. At this stage, this judge asks for help from law enforcement if necessary. In this phase, the investigating judge should inform the prosecutor about the actions he has taken. Apart from cases of flagrante delicto, the investigating judge may conduct an investigation only if requested by the prosecutor in writing. The prosecutor cannot conduct an investigation, with some exceptions. According to this law, the investigating judge has the duty of carrying out the investigation. The investigating judge must collect evidence in favor of and against the accused. A judge who serves in the investigation stage cannot participate in the trial of the accused as a judge. In order to complete the investigation, the investigating judge is to perform many operations, such as conducting an inspection, investigating traces and signs, taking statements from both sides, listening to witnesses, conducting an expert examination, and receiving reports from forensic experts. After completing the investigation, the file must be sent to the prosecutor in order to prepare an indictment. The prosecutor examines the file, and if it contains any deficiencies, the prosecutor may ask the investigating judge to correct these. If the file is complete, the prosecutor prepares the indictment and sends the file back to the investigating judge. In this phase, the investigating judge will decide whether the accused needs to be prosecuted by considering the information in the file and the indictment. The investigating judge is not bound by the prosecutor’s indictment when making a decision. The investigating judge may make a different decision based on the characteristics of the crime. If the crime is a misdemeanor, the investigating judge will send the relevant documents to the civil court of peace. And if the accused is in custody in this case, the decision to release the accused will be made. If the committed act is considered criminal, the investigating judge will send the file to the court, and if the crime does not require a prison sentence, the judge will make the decision to release the accused. In this stage, the investigating judge will need to obtain a certificate of residence from the accused. A person who has been accused of a serious crime may eventually be acquitted. However, until the acquittal, this person will feel torment and anxiety throughout the trial and be exposed in front of the public. This situation will cause material and immaterial damage that cannot be easily compensated for, both for the accused and the family of the accused. This is why the investigation conducted against a person must be carried out very carefully. For this reason, having the investigating judge as well as the prosecutor take part in the investigation phase is important. One of the results this study has reached is that it has revealed to an extent the level the Ottoman judicial system had achieved in the Tanzimat Period. As a result of the transformation that started with the Tanzimat Period in the Ottoman Empire, a comprehensive judicial structure had been established that was able to meet the needs of the day. This structure was also bequeathed to the newly established Republic of Turkey.
