The participation of public prosecutors in proceedings before criminal courts of first instance after nine years of absence is not a novelty; it cannot be considered a reform
Att. FİKRET İLKİZ
As of 1 September 2020, the new judicial year has started. In this judicial year of 2020-2021, a total of 21,863 judges and prosecutors and 79,482 personnel will work in 592 courthouses, 15 regional courts of appeal, seven regional administrative courts and the high judiciary.
With the opening of the new judicial year, new practices will be introduced in the judiciary. One of these “innovations” is that after a nine-year hiatus, prosecutors will return to criminal courts of first instance and be present at hearings.
Nine years ago, through a law enacted in 2011, the practice requiring public prosecutors to attend the hearings in the criminal courts of first instance was terminated.
Prosecutors were temporarily suspended from attending hearings in criminal courts of first instance until 2014 in order to allow them to devote more time to investigations and thus conduct more effective and efficient investigations.
The insufficient number of prosecutors was shown as the reason for this change made in 2011.
While 4,098 public prosecutors were on duty in 2011 according to the Ministry of Justice data, with the increase in the number of judges and prosecutors in recent years, there is a return to the previous system in the criminal courts of first instance. During this period, the number of prosecutors has increased by 68 percent to 6,902. It has therefore stated that the practice, where public prosecutors do not attend the hearings at criminal courts of first instance, which was in force for temporarily and compulsory reasons, has been ended.
A period of nine years where public prosecutors did not attend hearings at criminal courts of first instance cannot be regarded as a "temporary" period.
Taking into account the current situation of the justice system, can the presence of public prosecutors in hearings at criminal courts of first instance be considered a guarantee for the accused and victims?
Nine years ago, public prosecutors were suspended from hearings before criminal courts of first instance. According to the regulation adopted in 2011, public prosecutors’ opinion will have not been taken regarding their participation until 1 January 2014. The files will have been referred to the chief public prosecutor's office in order for the public prosecutor to apply for a remedy against the verdicts and the decisions of detention or release given by the criminal court of first instance.
The regulation regarding the removal of public prosecutors from hearings at criminal courts of first instance started to be implemented in 2011.
The regulation was followed by similar regulations that only extended the period of the practice for nine years. When the first regulation’s deadline expired in 2014, a second amendment was made, extending the period until 31 December 2019.
The Judicial Reform Strategy document dated 31 May 2019 stated that due to the increase in the number of public prosecutors, the prosecutors would again be present at hearings in criminal courts of first instance.
While the number of judges and public prosecutors was 14,500 in 2014, this number reached 19,394 as of February 2019.
Taking into account the increase in the workload of judges, the increase in the number of judges and prosecutors, and the closure of the criminal courts of peace and the transfer of their work to criminal courts of first instance, the government aimed to reintroduce the practice of “hearing prosecutors” in criminal courts of first instance.
With the latest amendment in 2019, the period was extended for a third time until 1 September 2020.
In parallel with the objectives of the Judicial Reform Strategy, it has been adopted with the third amendment that public prosecutors will now be present at criminal courts of first instance as of 1 September 2020.
Top court: Not a violation of the right to a fair trial or judicial impartiality
Claims of unconstitutionality regarding the removal of public prosecutors from hearings in criminal courts of first instance were rejected by the Constitutional Court in two separate judgments dated 19 January 2012 and 22 October 2015.
The Constitutional Court did not find the regulations that were introduced to speed up the justice system, to conclude trials within a reasonable time, and to enable public prosecutors to carry out investigations more effectively and quickly, unconstitutional.
The common opinion of both Constitutional Court judgments is that the absence of a public prosecutor at hearings in criminal courts of first instance is neither against the right to a fair trial nor the independence and impartiality of the judiciary.
Leaving aside the discussion of the reasons put forward by the Constitutional Court, after nine years, will the re-attendance of prosecutors in criminal court of first instance hearings make a difference in the judiciary’s activity?
The purpose of criminal procedure is to reveal the factual truth. The indictment prepared by the prosecutor's office is the materialization of the claim.
The chief public prosecutor's office is obliged to monitor the judicial activity on behalf of the public and to attend hearings. In practice, these prosecutors are called "hearing prosecutors" and must be present at the hearing.
The main problem is not the attendance of public prosecutors in hearings. In practice, the indictments are neither lawful nor based on legal grounds. Again, in practice, the prosecutors’ final opinion on the merits are not presented according to the insight and evidence obtained by the prosecutor during proceedings, but often by repeating the initial indictment.
The dialectic of "equality of arms" has been distorted in the judgments rendered by criminal courts of first instance, because judges have acted as if they were prosecutors due to the absence of prosecutors for nine years.
The participation of public prosecutors in the proceedings before criminal courts of first instance is not a novelty; it cannot be considered a reform. It is clearly the preference of the lawmaker, who has extended the terms since 2011 by enacting three separate amendments.
Will not contribute to the right to a fair trial
In terms of the principles on concluding trials in criminal courts of first instance within a reasonable or indicated period, the presence of public prosecutors at hearings will not make a significant contribution to ensuring the right to a fair trial. On the contrary, new problems will arise, especially with regard to the courts’ decisions for detention and release.
In practice, distrust in the judiciary will not improve as long as the prosecutors’ final opinions continue to be a repetition of the indictment.
The presence of prosecutors in hearings at criminal courts of first instance as of 1 September 2020, after nine years of absence, just because “the number of public prosecutors is now sufficient,” will not count as an improvement in the Turkish judiciary, which has already lost its independence and impartiality.