Political detention is a crime against humanity and no limitation period applies

Article 101 of our Code of Criminal Procedure sets out on whom, and when, detention orders that deprive people of their freedom may be imposed. At the investigation stage, only penal judgeships of the peace may pass detention orders. The ability of penal judgeships of the peace to pass detention orders is dependent on application by the public prosecutor for pre-trial detention. If the prosecutor does not apply for pre-trial detention, the penal judgeship of the peace may not pass a detention order of its own motion. Penal judgeships of the peace are not obliged pass a detention order just because the prosecutor seeks pre-trial detention, either. At the stage at which the trial has commenced and people appear before court, on the other hand, only the court holding the trial may pass a detention order.

The situations under which detention orders may be imposed are laid down in Article 100 of our Code of Criminal Procedure. For a detention order to be passed, it is not sufficient for there to exist concrete evidence pointing to the strong suspicion of guilt. There must also exist ‘grounds for detention’ ALONG WITH concrete evidence pointing to the strong suspicion of guilt.

As to what constitute grounds for detention, these are enumerated in Article 100 of our Code of Criminal Procedure. The person must flee and hide or there must exist concrete facts that give rise to the suspicion that they will flee. If there is no CONCRETE FACT of this nature, a detention order cannot be passed.

Apart from this, if the person’s conduct creates the strong suspicion that they are attempting to destroy, conceal or alter evidence or intimidate witnesses, victims or others, a detention order may be passed. As has been seen, there needs to exist, not an abstract suspicion as to intimidation, but a concrete attempt to intimidate. Also, if there exist grounds for strong suspicion that certain crimes that are enumerated in Article 100 and are known as ‘predicate crimes’ have been committed, a detention order may be passed.

Along with all this, the detention order must be proportionate to the punishment or security measure that is expected to be imposed on the person, and conditional release provisions (ban on leaving the country, being in certain regions, etc.) must be inadequate.

It is one possibility that a person who has been released pending trial will be convicted at the conclusion of the trial. But, another possibility is that a person held in detention while on trial will be acquitted at the conclusion of the trial. A corollary of this possibility of acquittal is that detention is not, as is widely imagined, a punishment, but a measure and that a thorough examination must be made before a detention order is passed. However, especially the detention orders depriving people of the freedom which are passed by penal judgeships of the peace at the investigation stage and are extended following examination for thirty-day periods are frequently employed by penal judgeships of the peace as if a sentence were being executed at a stage at which it is impossible to determine whether a sentence will be handed down. It is uncertain whether the ironic proposal suggesting that prosecutors and judges need to spend at least thirty days in jail during their internship periods so that they may understand this importance of a detention order that tears people away from a free life would amuse or provoke contemplation in those who implement them, but it is a fact that detention orders that are passed contrary to the law may constitute an offence under Articles 109 and 257 of the Turkish Penal Code. Despite this, the endeavour has been made through Article 141 of our Code of Criminal Procedure to provide rectification for the injustice of a person who has been unlawfully detained. The person may seek compensation for material and non-material damages from the State. Moreover, this application does not apply solely to those who have been acquitted at the conclusion of the trial following detention. According the paragraphs (a) – (d) of the Article of our Code of Criminal Procedure, it also applies to ‘those who are apprehended, detained or whose detention is ordered to be extended outside the conditions laid down in statutes’ and ‘those who, despite being detained in accordance with statute, are not brought before a judicial organ within a reasonable time and on whom judgment is not passed within this time.’

Unlawful procedures by prosecutors and judges that are in violation through error, negligence or intent of the rules governing the institution of detention constitute the offences of ‘abuse of duty’ in Article 257 of the Turkish Penal Code and ‘depriving a person of their freedom’ in Article 109 of the Turkish Penal Code. However, if ‘depriving a person of their freedom’ is conducted systematically in line with a plan against a segment of society for political, philosophical, racial or religious motives, in this case a crime against humanity comes into play. The penalty when depriving a person of their freedom is conducted for the enumerated motives is contained in Article 77 of the Turkish Penal Code.

Article 77 included under the heading of ‘Crimes against humanity’ of the Turkish Penal Code was drafted, as is stated in the justification for the article, inspired by Article 6 (c) of the Nürnberg Charter. The notion and perspective of ‘crimes against humanity,’ which found inclusion for the first time in the Nürnberg Charter, was also included in Article 7/1 of the Rome Statute. The Rome statue considers ‘imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ to be a crime against humanity. However, the crime, just as it can be committed in time of war, can also be committed in time of peace. (*)

In order for the crime to be constituted, while according to the Rome Statute the perpetrator must act in a systematic and widespread manner, the precondition of being widespread is not imposed in the Nürnberg Charter and Article 77 of our Turkish Penal Code. According to Article 77 of the Turkish Penal Code, it is sufficient for the act to be planned and systematic.

The detentions of certain members of parliament, the detentions of certain journalists and the detentions due to the posting of certain tweets made in Turkey in recent times are candidates for examination under Article 77 of the Turkish Penal Code.

And, pursuant to paragraph four of Article 77 of the Turkish Penal Code, ‘no limitation period applies to these crimes.’

(*) It is of no significance if the perpetrator of the act is a person who is authorised to detain.