Name: Hacı İbrahim Açıkel
ID-No. I 6037383
Supervisor: Johannes Keiler
MASTER THESIS
FOUNDATION OF EUROPEAN PUBLIC PROSECUTOR’S
OFFICE
and
ITS PROSPECT EFFECTS ON TURKISH PROSECUTION
SYSTEM
EUROPAN LAW SCHOOL
FACULTY of LAW
MAASTRICHT UNIVERSITY
2011/2012
Table of Contents
1.Introduction ................................................................................................ 1
2. Turkish Prosecution System...................................................................... 8
2.1.Historical Background ...................................................................................................... 8
2.2. Organization ................................................................................................................... 10
2.3.Court of Cassation Chief Prosecution Office ................................................................... 11
2.5. Special Competent Prosecutors ...................................................................................... 16
2.6. Status of the Prosecutor ................................................................................................. 17
2.7.Hierarchy .......................................................................................................................... 21
2.7.1.Minister of Justice ......................................................................................................... 22
2.7.2.HSYK (High Council of Judges and Prosecutors) ........................................................... 23
2.7.3.Prosecutor and Chief Prosecutor ................................................................................. 25
2.8.Public Prosecutor and Police ........................................................................................... 27
2.9.Cooperation In and Among Prosecution Services ........................................................... 29
2.10.Legality Principle and Prosecution Policy ...................................................................... 32
2.10.1.Principle of Legality ..................................................................................................... 32
2.10.2.Prosecution Policy ....................................................................................................... 32
2.11.Transparency and Accountability .................................................................................. 33
3.European Public Prosecutors Office .................................................... 34
3.1. Historical Development Background Information ......................................................... 34
3.2. Legal Base and Scope ...................................................................................................... 39
3.3. Organizational Structure ................................................................................................. 42
3.4. Status of the European Prosecutor ................................................................................ 44
3.5. Accountibility................................................................................................................... 45
3.6. Competencies .................................................................................................................. 47
3.6.1. Substantive Jurisdiction ............................................................................................... 47
3.6.2. Territorial Jurisdiction .................................................................................................. 48
3.6.3. Case Allocation ............................................................................................................. 48
3.7. EPPO and Police............................................................................................................... 51
3.8. Criminal Cooperation ...................................................................................................... 51
4.Conclusion ............................................................................................... 53
Bibliography .................................................................................................I
1.Introduction
The Republic of Turkey was founded at 1923 leaving behind its imperial identity and its
traditional roots from the Ottoman Empire. In the minds of ordinary European people
until that time and even today her ancestor, the Ottoman Empire, is regarded as being
the flag carrier of the Islamic ideology that represents “the other” of the so called
“European identity”. 1 On the core, this argument has some valid arguments. The
Ottoman Empire was founded on the strict rules of Islamic religion and sharia law and
her encounters with Europe took place mostly in wars and resulted in occupations that
lasted for hundreds of years in European regions.
In addition to historical conflicts and hostilities at the time that the Republic of Turkey
was founded the social structures and life perspectives of both societies were
completely different. On the one hand an Empire whose fabric was woven upon oriental
values and governed by an Islamic monarchy for hundreds of years on the other hand a
group of European nations that suffered in the dark days of the middle ages and with the
lessons from the middle ages awakened by the renaissance and developed principles
such as the rule of law, respect for fundamental rights and democracy to be assessed. It
would not be wrong to say that both societies represented contradicting life and
governance styles. Historical diversities in living perspectives created a gap and even an
opposition against each other in the mind sets of both societies.
Conversely, at the very end of the Ottoman Empire, in order to save the falling empire
as a last resort, the Empire, without success, tried to reconcile European values and
oriental values in its structure under the so called “Tanzimat” reforms. 2 The “Tanzimat”
Reforms mostly attempted to ameliorate and improve military powers and the finance
sector but they ended up having effects in all facets of Ottoman life.
1
Bernard Lewis, Europe and the Turks: The Civilization of the Ottoman Empire,See Article:
http://www.historytoday.com/bernard-lewis/europe-and-turks-civilization-ottoman-empire Last
visited:29.08.2012
2
Known as Ottoman Reform in western sources, meaning reorganization of the Ottoman Empire, was a
period of reformation that began in 1839 and ended with theFirst Constitutional Era in 1876, Cleveland,
William L & Martin Bunton, A History of the Modern Middle East: 4th Edition, Westview Press: 2009,
p. 82
1
The legal system of the Empire was one of the facets that was amended by the reforms.
The Ottoman Empire in the context of the “Tanzimat” reforms transplanted 3 institutions
and legal texts from western countries with the expectation to function alongside sharia
law institutions and norms. However, the Ottoman attempt to create a mixture of
European and Ottoman systems was wrought with frustrations. It achieved nothing and
created a fragmented and complex social, and legal system that merely delayed the fall
of the Ottoman Empire.
The Ottoman Empire left its role in history to the Republic of Turkey in 1923 4. The
young Turkish Republic, with the experience gained from the Ottoman Empire,
followed a more diverse path then her predecessor. Unsuccessful reconciliation attempts
for western and eastern systems were totally abandoned. Turkey left aside the traits of
the old regime and abolished sharia law. In a relatively short period of time it adopted
European legal systems, and developed contemporary European values. Revolutionary
decisions were taken and in a “finger shot time” Turkey imported the Civil Code from
Switzerland, Penal Code from Italy, Criminal Procedure from Germany, and Tort law
and administrative law from France.
Soon after, along the lines of western legal systems, institutional bodies were adopted
and institutions that were founded on the basis of sharia law were abolished.
Transformation happened in such a fast manner that society and the judiciary could not
find time to respond or adapt to the changes.
Despite the fact that there was not sufficient infrastructure nor educated man power to
support the reforms, it did not preclude the leaders of Turkey to continue reforms.
In this picture it must be stressed that in the model states from which Turkey borrowed
Watson has defined a legal transplant as “The moving of a rule or a system of law
from one country to another, or from one people to another.” A. Watson, Legal Transplants:
3
An Approach to Comparative Law, Edinburgh, 1974,p.21
4
On Oct. 29, 1923, the assembly declared Turkey to be a republic and elected Mustafa Kemal as its first
president.To have an overview information on Turkish History see:
http://www.britannica.com/EBchecked/topic/609790/Turkey/44426/The-Fundamental-Law-andabolition-of-the-sultanate#toc44427 Last visited.29.08.2012
2
legal and institutional contexts, values and norms were developed over the span of
hundreds of years, and through suffering and struggle. Institutions and norms were
formed according to their national social and economic necessities and demands. A
country’s law and the institutions reflect the characteristic and social identity of the
nation that into which they are born. In the states of origin, application of the law was
also left to experienced leaders. Contrary to the situation in Turkey, the judiciary was
acquainted with the systems and had the ability to cope with deficiencies.
It must also be considered that the borrowed legal context was not supposed to function
in a society alien to underlying facts that caused the creation of it. Additionally chosen
procedure, translate and adopt, without any proper impact assessment, to implement the
newly adopted legal norms were not sufficient to introduce western legal framework to
Turkey. Since they were not tailor-made rules for Turkey, newly adopted rules could
not correctly be understood and applied in the oriental mind set of Turkey at that time.
The natural consequence of the culmination of these factors was that these legal
transplants did not function as they functioned in their original sources. Furthermore,
they even created unexpected problems precluding society to advance.
The judiciary could not find timely solutions to arising conflicts with the expectations of
society and newly adopted rules governing the system. Systemic problems arose. In
order to save the day the problems were mostly solved by the legislature by amending
the problematic provisions or adding alien provisions borrowed from some other legal
context into the general text without watching the coherence of the whole system 5.
In this context legislative correcting acts, most of the time, neglected the bigger picture.
Temporary solutions were introduced as miracle cures. In a casuistic manner legislation
tried to cover every single detail in legal texts leaving no area to maneuver to the
judiciary and administration. From the very first days of the young republic the Turkish
5
For example: Recently Judge of Freedoms introduced to Turkish legal system out of blue.Aiming to
secure fundamental rights. Statute no:6352, namely Yargı Hizmetlerinin Etkinleştirilmesi Amacıyla Bazı
Kanunlarda Değişiklik Yapılmasına Dair Kanun Date of Acceptence :02.07.2012
3
Parliament regarded as superseded the Ottoman Sultan 6 and with that power as the only
authority to create law. Slowly the judiciary was set as aside as dysfunctional and, due
to the rapid change in the legal context, lost its authority to produce case law. 7
Furthermore, society stopped questioning the legitimacy and compliance of legislative
acts to the whole system and found itself lost in the abundance of chaotic norms and
institutions sometimes contradicting each other.
We must also acknowledge that the above mentioned reforms and harmonization efforts
did not have its roots in the will of society and neither had broad support from it. From
the very first days of the Republic of Turkey reforms were being made from top to
down, on the level of legislature and executive. The new legal fabric was imposed on
the society. Society, on the other hand, did not overtly oppose or support the reforms,
and stayed oblivious to the action taken by the legislature which is also the case
nowadays. The legislature, enjoying the freedom of non-accountability and
responsibility, played with the system like a jigsaw puzzle. Governments who had the
majority to change the system added, amended or abolished basic legal texts without
proper scrutiny into them. Constant change in legal context turned into a trait of
democracy in Turkey and it is, to this day, being regarded as the normal functioning of
the democracy.
After all, it must be admitted that the Turkish experience is unique and comes with its
own problems and challenges. Before Turkey adopted western governance and legal
systems the world had nor witnessed a Muslim state cut its bonds from its original roots
and adopt an alien, even a hostile, system and melt it in its core. The challenge was to
acquire the success in a few years that Europe accomplished in a thousand years, but the
chosen method, trial and error, must be evaluated with a critical eye.
In addition to these general assessments of the Turkish legal system we should not
disregard the influence of the EU on Turkish legal system. In this context Turkish
6
Ottoman Emperors title “Sultan” refers the most powerfull actor in the Ottoman system.
Turkish Criminal Code accpted in 2004 and get in to force in 2006.From the acceptance day to present
day 87 Artciles out of 319 had been amended .Additonally some of the provisions amended more then
once
7
4
governments from the foundation of republic were inspired by the western systems and
western model most of the time embodied itself in the EU and its institutions.
Turkey, even at the early days of its European adventure, wished to be a part of the
European community. Turkey’s accession efforts to the EU began with the creation of
the community and found flesh and bones in the Ankara Agreement in 1960 seeking full
membership. Under the political realities of present day Turkish accession efforts to the
EU is unlikely to find an end in the near future. 8 For over fifty years the relations
between Turkey and the EU is regulated by the transitional provisions that were
envisaged in the Ankara Agreement and their status is increasingly coming under
suspicion. Some member states even offers privileged partnership status 9 instead of full
membership but for now it will not be wrong to say that Turkey already gained a
special partner status “permanent status of candidate ”.
Conversely, since the accession negotiations have hit a political deadlock and it’s
apparent that the accession is not likely to happen in the near future, Turkey, under the
so called, “proactive approach” 10 policy continues to implement EU acquis into its
internal system with her own initiative. Compliance to the EU legal framework is being
regarded as a priority. Even politically stacked negotiations do not hamper Turkey’s
will to be a part of EU. Turkey, after the opening of the accession negations, 11 in order
to harmonize its internal legal system with EU, made amendments on most of the basic
laws. 12
The above mentioned facts and evaluations regarding the general picture of the Turkish
system are also applicable to the Turkish Prosecution System. Prosecution service, or in
more appropriate terms, the status of the public prosecutor ,was first introduced to the
Turkish legal system by the Ottoman Empire in the Tanzimat era. The Ottoman Empire
8
Current sitiuation in Turkey-EU accession negotiations : http://www.abgs.gov.tr/index.php?p=1&l=2
Last visited:29.08.2012
9
http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=24900
10
See details:http://www.abgs.gov.tr/index.php?p=42260&l=2
11
Accession negotiations have been launched on October 3, 2005 with the adoption of the Negotiation
Framework by the Council of the European Union.See details:
http://www.abgs.gov.tr/index.php?p=37&l=2
12
From 2001 to present day Turkish Criminal Code,Turkish Civil Code ,Turkish law of contracts and
torts and so many other legislation had been abolised and new versions adopted.
5
borrowed the system from the French Prosecution model. After the inception the
Turkish prosecution system evolved under similar conditions that affected Turkish
system laid down above.
Since it was not part of a grand design and borrowed from French law, as it was found
workable at that time, the piecemeal approach regarding the general structure of Turkish
legal context had also similar effects on the Turkish Prosecution System.
The Turkish prosecution system, like all other institutions in Turkey, after constant
changes, displays a fragmented and scattered structure without a clear and precise legal
base. In addition to structural problems, vague procedural rules, limited cooperation
among prosecution offices and strict application of confidentiality and territorial
competence create hurdles in the fight against crime. Constant change in legal
framework also diminishes effective prosecution efforts. To acquire an effective and
accountable prosecution service Turkish prosecution service needs a sound legal base to
gain steady administration and prosecution policy.
On the parallel (European Union) side the Treaty of Lisbon introduced the European
Public Prosecutors Office (Hereafter EPPO) to the European Criminal Law system,
aiming at a more coherent and strong fight against crimes related to the financial
interests of EU with possibility to extend serious cross-border crime. However, the
Treaty of Lisbon gives only limited clues on the structure and competencies of the
EPPO. Article 86 of the Treaty of Lisbon creates the general framework but leaves the
details of regulation to be adopted.
The foundation of the EPPO will have severe consequences on national criminal
systems of EU member states. It will affect both the procedural and substantive criminal
law of the member states. Some member states are reluctant in their aspirations for the
EPPO to function in their territories and in general do not want to make concessions in
their systems in order to support foundation of EPPO. 13
13
Reactions for EPPO in UK, http://www.parliament.uk/briefing-papers/SN06105
6
Between these discussions with the Treaty of Lisbon EPPO found the chance to surface
but the questions of how EPPO will function, how is it going to be structured, how will
the status of deputy prosecutors be regulated, how the case allocation is going to be
made, what will be the applicable substantive and procedural rules still need to be
answered.
Since the EPPO is designed to function in diverse criminal law systems and a broad
territory, it has to function like a skeleton key and will have to have the ability to
comply with the domestic criminal law systems or persuade them to comply with the
rules set by the EPPO.
In both cases, The EPPO, must be set up in such an organizational and legal context that
it must represent universally acceptable procedural and substantive rules with
democratic legitimacy and accountability.
From this perspective, in any case, the foundation of the EPPO will effect Turkish
Prosecution System. Firstly, ongoing debates on the EPPO overlap with most of the
problematic issues in Turkish system. Solutions found for the EPPO to enable it to work
in diverse legal contexts may also be applied to the Turkish prosecution system.
Secondly, since Turkey is still aiming to be a full member to the EU, in order to
converge its system with the EU, it will be prudent to harmonize its legal system
according to the EPPO’s set-up on both procedural and substantive law.
Thirdly, due to the long term relations, EU institutions are functioning in Turkey and, in
order to support Turkey and prepare for accession, EU funds are being distributed
generously. It would not be far off to say that the expenditure of EU funds will
unavoidably create cases of EU fiscal fraud involving Turkish and EU citizens. Also
since Turkey is on one of the main routes of drug and human trafficking in case of an
extension in the crimes that the EPPO is going to deal with, the EPPO will need
cooperation from Turkish authorities.
7
The aim and context of this study is not to discuss whether the reforms in Turkey were
triggered by social or economic necessities or applied democratically or whether they
have legitimacy in the society or the suitability of transplanting legal systems and
institutions to Turkish system. These questions should be subjected to a more broad and
multi-disciplinary research study. The brief explanations above only seek to give a
deeper understanding to the reader on the underlying facts of reform efforts in Turkey
and principally its effect on Turkish Prosecution system. However, it is also worth
stressing that the study is mostly developed on criticizing deficiencies of the Turkish
system, but one should not disregard the fact that Turkey is the only secular country in
the Muslim world with a working democracy that successfully embraced rule of law
and respect for fundamental rights and has the tendency to go further.
In this context, the study will try to answer the question “How will the foundation of the
EPPO effect the legal framework of the Turkish Prosecution system and what will be
the practical consequences and reflections in the Turkish Prosecutorial service”
In the first section I will give the reader an insight on the Turkish Prosecution System.
The second section will be devoted to the EPPO and its prospective organizational and
legal structure. The third section will elaborate on both systems and will supply an
answer to the research question in a comparative manner.
2. TURKISH PROSECUTION SYSTEM
In the Turkish legal terminology, “prosecutor” is a common term used for the public
officials representing the public interest in diverse branches of law. However, since the
context of the study is confined to the criminal law in the following chapters the focus
will be given on the prosecution services specialized in criminal law.
2.1.Historical Background
Technically speaking the Ottoman Empire, until the Tanzimat era, did not have a
prosecution service as we know it today. Some Ottoman officials
14
14
, on behalf of the
Üçok, Coşkun., p.46, Keyman, Selahattin, a. g. e. , p.63.;
8
“Sultan”, were executing functions similar to the prosecutor. 15 Their mandate was
confined to investigating - arresting criminals, dispatching them to sharia courts and
executing court sentences. They neither hadany jurisdictional function in the court
proceedings nor did they have the power to appeal decisions. If we have to define their
position in modern day terms their position resembles a combination of today’s law
enforcement authorities and executor public prosecutors.
In the “Tanzimat” Era, the Ottoman Empire’s first constitution, “Kanuni Esasi”,
envisaged the prosecution service functioning Empire-wide. First, prosecution offices
were founded three years after the adoption of “Kanuni Esasi”, in 1879.
16
“Mehakim-i
Nizamiyye’nin Teşkilat-ı Kanun-ı Muvakkatı” was the first legal text to lay out the
structure and competencies of prosecution offices in Ottoman Empire. They were
designed to function in the western style courts and were inspired from the French
prosecution system.
After the fall of the Empire and declaration of the Republic of Turkey, Turkey on the
tail of the Ottoman Empire, founded prosecution offices in-line with the French style
prosecution system.
The French term “Procureur de la république” translates to Turkish as “Cumhuriyet
Savcısı” 17, meaning prosecutor of the republic. According to the system, the prosecutor
operates as an agent of the Republic and he/she represents the executive. Since the
prosecutor was regarded as an agent of the government their tasks extends from fighting
against crime to representing the republic in civil cases due to supervisory tasks
determined by law.
Statute no.469 “Mehakimi Şer’iyenin İlgasına ve Mehakim Teşkilatına Ait Ahkamı
Muaddil Kanun” 18 was the first and main text covering the status, rights and
responsibilities of the prosecutor and prosecution offices in Turkey. Statute no:469 was
15
Subaşı,Asesbaşı and Çavuşbaşı were these Ottoamn officalls.
for detailed information .
KEYMAN, Selahattin, BÜLENT, Tanör.Osmanlı-Türk Anayasal Gelişmeleri(1789-1980), İst. 1995, P.
121.; ŞAKAR, Müjdat . , 1982Anayasası Ve Önceki Anayasalar, İst. 1994, P. 295.
17
EREM, Faruk Ceza Yargılaması Hukuku, Ankara 1986 p. 148
18
Satute no. 469 Enacted in 1924, amaneded 1929
16
9
abolished in 1983 with the enactment of
the Statute no.2802 “Hakimler Savcılar
19
Kanunu” . From that time the statue no. 2802 was revised several times 20 to find its
current structure. Nonetheless it is still the main text that’s regulating the basic aspects
and guarantees of the judiciary and sets down the main rights and responsibilities of
judges and prosecutors.
In addition to the Statute on Judges and Prosecutors defunct Turkish Criminal
Procedure Law 21 also has had provisions involving the operational and institutional
capacity of prosecutors and prosecution offices.
In the current legal framework Turkish Prosecution system is regulated by three main
statutes; Statute of Judges an Prosecutors,Staute no 2802, Criminal Procedure Law,
Statute No. 5237, 22and Statue No:5235 23, statute of Organization, Functions and
Jurisdiction of First Degree Courts of General Jurisdiction and Regional Courts of
General Jurisdiction.
2.2. Organization
In the legal context, Turkish Prosecution Service is organized over three tiers. The
highest level is formed by the Yargıtay Cumhuriyet Başsavcılığı(Court of Cassation
Chief Prosecution Office) at the Yargıtay(Court of Cassation). The next level is Bölge
Adliye Mahkemesi Cumhuriyet Başsavcılığı(District Appellate Court Chief Prosecution
Office )and the lowest tier is made up of the Cumhuriyet Başsavcılıkları (Chief
Prosecution Offices).
Conversely, currently a two-tier system functions in Turkey. Although, regional
appellate courts and prosecution offices were introduced to Turkish judicial system as a
19
Statute of Judges and Prosecutors,Statute No:2802,Date of Acceptance:24.02.1983,Entry into
Force:26.02.1983
20
Statute no:2802 has 122 articles but had 85 amendments took place,including additions and
abolishments had been done from the adoption of the statute untill today.
21
Statute no:1414 Abolished in 2004 with the enectment of the new Criminal Procedure law,statute
no.5237
22
Statute No.5237, Date of acceptance: 26 September 2004; Entry into effect: 1 June 2005
23
Statute No.5235, Date of acceptance: 26 September 2004; Entry into effect: 1 April 2005
10
third tier with the Statute No:5235 in 1 April 2005, however, they have not started to
function yet. 24
To have a deeper understanding on the Turkish Prosecution system all three tiers above
will be examined. Since the higher two levels do not have investigative actions
regarding our subject the emphasis will be given on the first instance prosecution
offices.
2.3.Court of Cassation Chief Prosecution Office
The institutional and organizational context of the Court of Cassation Chief Prosecution
Office’s is regulated by a separate statute, the Statute of Court of Cassation. 25 In the
Statute of Court of Cassation’s organizational scheme of the Chief Prosecution Office
listed as following, Yargıtay Cumhuriyet Başsavcısı (Chief Public Prosecutor), Yargıtay
Cumhuriyet Başsavcı Başyardımcısı (Chief Deputy Chief Prosecutor) and Yargıtay
Başsavcı Yardımcıları( Deputy Chief Public Prosecutors).
The Chief Public Prosecutor and the Deputy Chief Public Prosecutor of the Court of
Cassation is appointed by the President of Turkey among five candidates who are
nominated by the Grand General Council of the Court of Cassation after an election. 26
Deputy prosecutors are appointed by Hakimler ve Savcılar Yüksek Kurulu (Here an
after HSYK) (High Council of Judges and Prosecutors) 27 in a similar procedure
applicable to regular judges and prosecutors.
Court of Cassation Chief Prosecution office’s mandate is mostly limited to examining
appealed decisions coming from first instance courts and preparing legal opinions
“Tebliğname” 28 to the High Court. Court of Cassation is not bound by the opinions.
Besides opinions do not have the power to aggravate the penalty or can lead to a new
24
For details see title below “Regional Courts of General Jurisdiction Chief Prosecution Office”
Statute No.2797, Date of acceptance: 04 February 1984 2004; Entry into effect: 2 February 1984
26
Article 32 of the Law on Court of Cassation
27
For detailed information see title HSYK below
28
Legal value of “tebliğname “ is a contentious issue. According to settled case law of European Court of
Human Rights28, tebliğname is a document having legal value as an eminent part of accusations and has
to be notified to the defense. ECtHR, Case of Çelik and Others v. Turkey
25
11
prosecution even if a fact is being missed or a rule miss applied unless it is not exactly
asserted and demanded the by first instance public prosecutor or the complainant.
We should stress that investigative powers of the Court of Cassation Chief Prosecution
Office are very scarce.
Technically, on two main domains it has competency to
investigate and prosecute.
One of the main prosecutorial powers of the Court of Cassation Chief Prosecutor is, in
fact, mostly related to constitutional law. The Court of Cassation Chief Public
prosecutor is empowered to initiate and conduct dissolution procedure against political
parties. Court of Cassation Chief Public Prosecutor himself or a delegated deputy
prosecutor conducts the prosecution and attends dissolution trial held on in
Constitutional Court.
He is also empowered to prosecute in front of the Constitutional Court, in its capacity
as Supreme Court, against the representatives of State authorities, such as the President
of the Republic, presidents and members of the Constitutional Court, members of the
Council of Ministers of the High Court of Appeals, of the Military High Court of
Appeals, of the Council of State, of the High Military Administrative Court of Appeals,
their Chief Public Prosecutors, Deputy Public Prosecutors of the Republic, and the
presidents and members of the Supreme Council of Judges and Public Prosecutors, and
of the Audit Court 29
Apart from his role in the Constitutional Court, Court of Cassation Chief Prosecutors
mandate and role resembles the “Advocate general” status in French and Dutch legal
systems. The Court of Cassation Chief Public Prosecutor neither have an organic
connection with first instance prosecution offices nor a hierarchical relationship with
them.
2.4.
Regional Courts of General Jurisdiction Chief Prosecution Office (First
Degree Appellate Court Chief Prosecution Office) (Bölge İstinaf Mahkemeleri
C.Başsavcılıkları)
29
Article 148(3) of Turkish Constitution Law on Court of Cassation
12
In 2005 the Statute on Establishment, Duties and Competences of the Civil Courts of
First Instance and the Regional Courts of Appeal created the legal basis for the first
degree appellate prosecution offices to be found. According to the law, the existing
two-tier system will be replaced by a three-tier system. The law envisaged the starting
date for functioning of the regional courts and prosecution offices to be as of 1st June
2007 by the Provisional Article 2. At the time the Statute enacted delay was sound
since system required
preparations on physical and technical infrastructure,
appointment of judges, public prosecutors and auxiliary personnel and their training on
the new system etc.
As a part of preparations The Ministry of Justice has taken a decision on 18 May 2007
after receiving a positive opinion from the HSYK to establish regional courts of appeal
and prosecution offices in 9 provinces. In compliance with that decision HSYK
appointed
nine chief public prosecutors to respective regions 30 to carry out and
coordinate the preparations. The only achievement until today on the path to a threetier system were appointment of these nine chief public prosecutors. However, from
2007 to present day, preparations have not been completed. After 2007 every single
year functioning of Appellate prosecution offices postponed. Additionally, the Ministry
of Justice has still not proclaimed a certain date for the First Degree Appellate
Prosecution offices to start to function.
Since the First Degree Appellate prosecution offices are not functioning we don’t have
any sound information on the functioning of the Appellate District Prosecution Office in
practice beyond assumptions. For that reason, the question how will its relations with
upper and lower prosecution offices be is still a dilemma. In the legal framework, the
Law, in a similar way with the first instance prosecution offices and with nearly the
same wording , states the rights and responsibilities of Chief Appellate Public
Prosecutor and prosecutors and internal functioning of the office in very broad and
general terms.
30
The regional courts of appeal and prosecution offices to be found in 9 provinces namely; İstanbul,
Bursa, İzmir, Ankara, Konya, Samsun, Adana, Erzurum and Diyarbakır. The jurisdiction of 9
prosecution offices will cover the whole territory of Turkey.
13
From the legal framework it will not be a wrong assumption to say that its functioning
and relationships with upper and lower prosecution offices will represent similar
features with those of the first instance prosecution offices.
However, since Turkish legal context changes daily and spontaneously, it will be
prudent and safe to say that the exact functioning and status will be determined by traits
of the Turkish legal system and the necessities of the day that it starts to function.
In Turkish prosecution system every prosecution office is affiliated to a criminal court
and its respective territorial and material jurisdiction is determined by the court that it is
affiliated with. More precisely, Turkish first instance prosecution system, in the
organizational structure, corresponds with Turkish criminal court system. In this regard,
to have a deeper understanding on Turkish prosecution system one should at least have
an overview of information on Turkish Criminal Court system.
The Turkish first instance criminal court system, in general, is composed of three main
courts, Criminal Court of Peace (Sulh Ceza Mahkemesi); Basic Criminal Court(Asliye
Ceza Mahkemesi) and Heavy Criminal Court(Ağır Ceza Mahkemesi). Additionally,
there are criminal courts 31 with special jurisdiction and competencies, which are also
regarded as on the level of basic and heavy criminal courts in respect to their material
jurisdiction.
Locations where Heavy Criminal courts are founded are deemed Heavy Court Centers
(Ağır Ceza Merkezleri). In heavy criminal court centers the three general criminal
courts operate. Additionally, there are
basic court centers, in which only basic and
peace criminal courts are founded mostly in relatively smaller districts or counties.
District or county courts operating in the basic and peace court levels are regarded as in
the territorial jurisdiction of the heavy criminal courts. It is the HSYK to determine the
31
traffic courts; courts with trial jurisdiction over offenses involving foreign exchange; courts dealing
with smuggling offenses;courts dealing with offenses affecting consumers, juvenile courts of first
instance and heavy criminal juvenile courts; military courts and military discipline courts; courts of
martial law, tax courts; family courts, etc.
14
heavy court centers and the courts that are to be regarded as in the territorial jurisdiction
of the heavy courts.
In a similar vein, by virtue of Statute no.5235, at every province and county where there
is a basic Criminal court there is established the Chief Public Prosecution Office. The
Chief Public Prosecution Office is referred to after the name of the location its office is
organized. The office of the Chief Public Prosecutor’s prosecutorial jurisdiction is
determined with the territorial jurisdiction of the court it is found.
Chief Prosecution Offices affiliated with basic criminal courts are regarded as in the
hierarchical chain of
Chief prosecution office founded in Heavy Criminal Court
Centers. Heavy Criminal Court Chief prosecution offices, in its territory and in bound
chief prosecution office’s territories do exercise prosecution powers in regard to the
crimes falling under the material jurisdiction of heavy criminal court. Additionally,
Heavy Court Chief Prosecution Offices review and go for first instance court decisions
that are falling under the jurisdiction of the bound prosecution offices. Additionally,
Heavy Court Chief Public prosecutor has the mandate to monitor and supervise lower
offices.
According to Art.17 of Statute No.5235, the chief public prosecutor at the first
instance level has the following duties; to conduct investigation or have investigation
conducted in order to determine
whether there are grounds to initiate public
prosecution; to carry out necessary formalities with respect to the execution of finalized
court judgments and do the relevant follow-up; to follow trial functions on behalf of the
Public, to participate in the trials and when necessary to resort to legal remedy by virtue
of law; supervise and monitor subordinate prosecutors, and to perform other duties
bestowed upon by law.
At the office of the Chief Public Prosecutor, besides the Chief Public Prosecutor, there
is inadequate number of Public Prosecutors. 32 Duties of Public Prosecutor are to; carry
out formalities concerning judicial function, attend trials, resort to legal remedy; to
32
Article 16 of Statute no 5235
15
carry out judicial and administrative duties assigned by the Chief Public Prosecutor; to
represent the Chief Public Prosecutor, when necessary; to fulfill other duties bestowed
upon by law. 33
In the organizational context we cannot neglect the budget. On monetary issues every
prosecution office is under the control of the Ministry of Justice. The budget is
determined by the central government each year in general budget. The Prosecution
Offices do not have any role in regard to planning administrative and investigational
spending.
2.5. Special Competent Prosecutors
In the fight against serious and armed organized crime and to tackle terrorism the
Turkish legal system developed special competent prosecutors. The Constitution of
1982 introduced special competent courts and prosecutors to the Turkish legal system.
These prosecutors were called State Security Prosecutors. In 2004, as a part of EU
compliance reform packet, provisions on the State Security Courts and prosecutors in
the Constitution abolished and
transformed to
State Security Prosecutors with some erosion
so called prosecutors authorized by article 250 of the Statute No
5271(Turkish Criminal Procedure Code).
According to Ex-Article 250 of Turkish
Criminal Procedure Code special competent prosecutors assigned to investigating and
prosecuting crimes regulated in Article 10 Statute no:3713( Anti-Terror Law) namely
offenses of terrorism 34, offenses related to drug dealing, organized corruption, mafia
and coup crimes.
Special competent prosecutors used to
subordinate to the
operate under hierarchical control of the
heavy court chief prosecutor in the location he is appointed.
However, since they were tasked to deal with organized crime, unlike regular
33
In the Turkish legal context ”to fulfill the other duties by law” is constantly used by the
legislature.Public prosecutors in Turkey exercise jurisdictional functions to administrative functions in
broad and diverse areas. For example regularly controlling accounts and acts of notaries to, attending
and reviewing civic court trials, managing procurements and making employee payments and etc.
34
Art.10 of Statute 3713 stipulates offenses against the indivisible integrity of the State, the free
democratic order, and internal and external security of the State.
16
prosecution service they were bound they do exercise prosecutorial powers in regional
base. 35
Recently, 3 Judicial amendment packages have been enacted 36 and provisions on special
competent prosecutors abolished. Instead of special competent prosecutors the so called
“Terror Prosecutors”, prosecutors who are specialized only on terror offences, were
introduced. Newly appointed were prosecutors deemed to specialize in offences against
indivisible integrity of the State and crimes related to terror. Offences related to drug
dealing, organized corruption and mafia crimes are left to the jurisdiction of the general
prosecution offices.
There used to be a gap in the fight against organized crime even when the special
competent prosecution offices were functioning. From now it is obvious that fighting
against organized crime will be hindered with procedural and institutional deficits.
Coherent and effective application of the law and fight against organized crime requires
central management of information and prosecution. In the current position without any
central coordination mechanism and specialization expecting success against organized
crime requires overworking wide imagination.
2.6. Status of the Prosecutor
In accordance with the Turkish legal system, the prosecutor is the only authority to carry out
the accusatory part of the public prosecution. The public prosecutor represents the public
interest in all criminal courts in its jurisdiction. Initiating investigations, making decisions to
prosecute or not to prosecute, attending court trials, reviewing rendered court decisions and
deciding on
whether to appeal or not
are the main competencies of the prosecutor. 37
Nevertheless, what kind of tasks he is expected to execute as the prosecutor in Turkish legal
context is controversial. Besides current anomalies in the legal context, constant change in the
legal framework raises the intensity of the debates on the status of prosecutor.
35
Article 250(2) of Turkish Criminal Procedure Code
Statute no:6352,Date :02.07.2012 namely : Yargı Hizmetlerinin Etkinleştirilmesi Amacıyla Bazı
Kanunlarda Değişiklik Yapılması ve Basın Yayın Yoluyla İşlenen Suçlara İlişkin Dava ve Cezaların
Ertelenesine Dair Kanun.
37
Dr. Sezer GÖKHAN, A Study on Turkish Criminal Trial System, Ankara Bar Publicaitons,2010,p.35-38
36
17
Under the current set up, public prosecutors in Turkey are professional lawyers. They are
subject to the identical educational and selection processes as judges. Only law graduates are
entitled to do the profession. The selection process takes place among law faculty graduates
or among lawyers. Lawyers are also law graduates but in addition to being a law graduate, an
extra condition, is that they must haveworked at least 5 years as an advocate. Selection is done
in two steps, 1) a written exam and 2) an interview. Written examination is organized by an
autonomous examination authority (OSYM). Candidates who passed the written examination
are entitled to enter the interview. Theinterview is done by a committee, composed of 5
Ministry of Justice bureaucrats and 2 members of the board of directors of the Turkish Justice
Academy. Under the current composition of the committee appointment as a candidate judgeprosecutor is mostly in the hands of the Minister of Justice since majority of the elimination
board is consist of bureaucrats subordinate to the Minister.
Law graduate judge-prosecutor candidates who successfully accomplished a two year training
are entitled to be appointed as judge or prosecutor. In the last 6 months of the training
division between judges and prosecutors takes place Division usually is done on voluntary
basis. In the case of an abundance of candidates that are willing to be judge or prosecutor
division is done by drawing lot. After the division in the remaining six months candidate
judges and prosecutors
follow diverse training programs to specialize on their prospect
professions at the Turkish Justice Academy.
On the other hand, candidate judge-prosecutors, who are selected among the lawyers, are also
subject to the same selection process but they are required only 6 months of training and after
the first three months of common training are divided as judges and prosecutors in a similar
procedure with the law graduates.
Candidates who successfully finished the trainings are appointed to open posts state wide by
HSYK. Without prejudice to guarantee of tenure, judges and public prosecutors are subject to
periodical rotation in their respective working places with intervals of 2 to 8 years. Mandatory
working durations in all regions is pre-determined and declared by the HSYK. HSYK is the
only authority to decide on the working locations and positions of the judges and prosecutors.
In case of necessity or demand from the concerned judge or prosecutor, although in practice,
application is very rare, can be appointed as a prosecutor or a judge in the next routine
18
periodical rotation term.
Additionally, judges and prosecutors enjoys identical financial
benefits and are subject to the same promotional rules and disciplinary measures.
As it is apparent from the explanations above, from career perspective, in the Turkish
legal framework there is a slight difference between a judge and a prosecutor. The main
differentiation between the two professions surfaces in the issue of independence.
From Turkish constitutional or criminal law perspective there is not any debate on the
independence and impartiality of the judge. Conversely status of the prosecutor is
controversial.
The Turkish Constitution enshrines independence of judges and envisages strict rules to
preclude anyone, even legislative or executive, to intervene in the functioning of the
courts. It explicitly bans giving orders or instructions or send courts circulars, or making
recommendations or suggestions 38 relating to the exercise of judicial power. Effecting
or even attempting to effect a judge or court is criminal offence.
The Constitution regulates security of tenure of prosecutors and the disciplinary and
financial guaranties within the same article with judges. However, it does not speak of
independence of the prosecutor. Article 139 of Turkish Constitution stipulates that:
Judges and public prosecutors shall not be dismissed, or retired before the age
prescribed by the Constitution; nor shall they be deprived of their salaries, allowances
or other rights relating to their status, even as a result of the abolition of court or post.
Exceptions indicated in law relating to those convicted for an offence requiring
dismissal from the profession, those who are definitely established as unable to perform
their duties on account of ill-health, and those determined as unsuitable to remain in the
profession, are reserved.
Additionally Article 140 of the constitution lays down applicable rules to judges and
prosecutors together and states guaranties to judges and prosecutors with respect to the
independence and security of tenure.
38
Article 138 of Turkish Constitution
19
The qualifications, appointment, rights and duties, salaries and allowances of judges and
public prosecutors, their promotion, temporary or permanent change in their duties or
posts, the initiation of disciplinary proceedings against them and the subsequent imposition
of disciplinary penalties, the conduct of investigation concerning them and the subsequent
decision to prosecute them on account of offences committed in connection with, or in the
course of, their duties, the conviction for offences or instances of incompetence requiring
their dismissal from the profession, their in-service training and other matters relating to
their personnel status shall be regulated by law in accordance with the principles of the
independence of the courts and the security of tenure of judges.
From the constitutional law perspective it is apparent that legislative envisages a special
position for prosecutor. On the one hand, a post which has the same constitutional
guaranties with judges to function as a part of judiciary on the other hand a post not to
be as independent as a judge.
The Turkish literature is divided on the independence of prosecutor. Some authors 39
assert that since prosecution on behalf of the republic is a function of executive and the
prosecutor is representing the executive in the courts, the legislature considering this
fact when preparing the Constitution, deliberately did not create a provision on the issue
of independence of the prosecutor. In the same token
it must be accepted that
prosecutor is a special executive servant with some additional guaranties.
This idea has had legal ground when the Minister of Justice and even district governor
used to have the power to give positive prosecution instructions and the Minister of
Justice was regarded as head of the prosecution service 40. However, under the current
set up, the executive has very limited powers over the prosecutor to influence the
judicial duties. It is not incorrect to say that independence of the prosecution service
against the executive is secured in general.
39
KÖNİ, Burhan, Ceza Muhakemesi Ders Notları, Ankara 1960-61, s. 28., TOSUN, Öztekin, Türk Suç
Muhakemesi Hukuku Dersleri, C. II,Muhakemenin Yürüyüşü, İst. 1976 C. II, p. 7.
40
Defunct Criminal Procedure Code Art.148
20
On the other hand, authors defending the opposite argument 41 assert that prosecutors,
just like the judge, are an inseparable part of the judiciary. The Turkish system belongs
to an inquisitorial tradition, in which the prosecutor is seen as a neutral and impartial
party. According to the traits of inquisitorial tradition the prosecutor, while exercising
his judicial powers, should be independent against executive and the legislative.
Although both arguments offer quite rational explanations and have some right to be
given under the current set up they are not valid anymore.
In the current situation, the prosecutor has double task in executing the administrative
and judicial. While he is exercising administrative powers, naturally he is subordinate to
the executive. In this regard it will not be proper to say that he is independent.
Nevertheless, while exercising his judicial powers he is independent against executive
and legislative. Guarantees are laid down in the constitution and specific regulations in
the Statute No.2802 and Criminal Procedure Code to ensure his independence.
Conversely, we cannot say that he is representing the same independence against HSYK
or chief public prosecutor.
His prosecutorial actions are under constant threat of
interventions from HSYK and the Chief public prosecutor.
The issue of hierarchical relationships and independence of prosecutor against these
actors is elaborated in the next part in detail.
2.7.Hierarchy
In general, hierarchy in Turkish prosecution service is a controversial issue. The An
arising problem is the reflection of the disease of the Turkish Legal system suffers in a
minor scale.(strange sentence.. reword) Wage wording of legal texts and constant
change in the legal framework.
The Constitution, as it is supposed to be, has broad regulation and in the legal chain all
the lower texts follows the constitution. Due to unclear and vague wording of the legal
41
Erem Faruk,Ceza Usulu Hukuku,p.141
21
texts Prosecutor’s relationship with other actors mostly left to the implementation. It is
hard to say that there is coherent common implementation in regard to hierarchical
relationships.
After these short explanations since the Turkish prosecution service, due to prosecutors
unique status, displays a minimum level of independence against the executive and the
legislative emphasis will be given to prosecutor’s hierarchic relationships with HSYK
and Chief Public Prosecutor. On the other hand Minister of Justice has a unique role in
Turkish Judiciary. His role will be elaborated on the first hand.
2.7.1.Minister of Justice
Until the abolishment of the defunct Turkish Criminal Procedure law at 2005 and the
amendment on the Statute no:2802 in 2010 Minster of justice was regarded as the
hierarchical leader of all prosecution authorities. According to Article 146 of the
defunct Criminal Procedure Law, Minister of Justice used to have the power to give
positive orders to prosecutor in individual cases. His position of being the head of the
old HSYK 42 was fortified with his special competencies on temporary change in the
work place of a prosecutor or temporary suspension and etc. Furthermore, in connection
with his position and natural membership of his under secretary in the old HSYK, he
used to have the power to influence prosecutor.
However, new Turkish Criminal Procedure law does not give any opportunity to the
Minister of Justice to intervene in judicial tasks of the prosecutor. None the less, he is
still head of the HSYK and with his under secretary, represents the government in the
High Council. Nevertheless, a new structure of the High Council does not allow the
Minister of Justice to be overtly or covertly as effective as on the prosecutor before the
amendments.
Conversely, it’s worth stressing that the above mentioned decrease in the powers of the
Minister is valid for the judicial capacity of prosecutor. The Minister of Justice, as the
head of the administrative branch, has still direct administrative powers over the
42
Old High Council of Judges and Prosecutors was composed of seven members.Miniister of Justice and
deputy minister of justice wasd the natural members of the HSYK.Other members of the High council
was elected by the Court of Cassation and council of state.
22
prosecutor in regard to the prosecutor’s administrative duties. These duties left on the
prosecutor covers a significant part of the job done by a prosecutor. Beyond regular
instructions and control mechanisms, on behalf of the Minister of Justice, delegated
inspectors periodically examines the administrative actions and decisions taken by
prosecutor and prepares evaluation reports. Conversely deciding on the disciplinary
measures incase of misconduct in administrative duties belongs to HSYK.
We should also stress that in the selection of candidates, judges and prosecutors, the
Minister of Justice has a decisive role. Also the ministry of justice has full control over
the budget of prosecution services. In theory, the combination of these powers makes
possible to Minister of Justice not directly but indirectly influence prosecutor even in
individual cases.
2.7.2.HSYK (High Council of Judges and Prosecutors)
High Council of Judges and Prosecutors is composed of 22 members. Minister of
Justice and Under Secretary of Minister of Justice is natural members of the High
Council. Minister of Justice is the chairman of the High Council. High Council, in
addition to natural members,
composed of appointed and elected members.
The
president of Turkey appoints 4 members among scholars and bureaucrats. The rest of
the members are elected with the votes of the judiciary. Distribution of the elected
members is done in the following order; 7 members from first instance judges and
public prosecutors,2 members from administrative
courts,1 member from Turkish
Justice Academy, 3 members from Court of Cassation and 2 members from Council of
State.
The High Council consists of 3 chambers and a plenary session. Each chamber has
specific duties to exercise. The plenary session, in addition to its specific duties, such
as the selection of high court members, functions as an appellate body against chamber
decisions.
HSYK is the only authority to decide on appointment, dismissal, promotions, vacations
and disciplinary sanctions on judges and prosecutors.
23
According to Article 4(c)(ç) of the Statute of High Council of Judges and Prosecutors 43,
the High Council is entitled to supervise and monitor judicial acts and decisions of the
prosecutor. It has the power to issue circulars and guidelines to prosecutor even when
exercising prosecutorial powers.
However, according to the Law, evaluation and discretion on evidence and legal
qualification of crimes is left to the discretion of the prosecutor. It is generally accepted
that HSYK does not have the power to intervene in the prosecutor’s legal discretion
and interpretation of law in individual cases but the provisions regulating the area is not
detailed enough to draw the limits and the scope of supervision and surveillance and
open to abusive interpretations.
We should accept that in the current framework in practice, however, the prosecutor
exercises a huge discretion and independence against HSYK. Currently ex-ante control
over prosecutor by HSYK is limited with issuing general circulars that are most of the
time nothing but repetition of legal texts and case law of international tribunals 44.
Regardless of current implementation, a decisive element should not be left to personal
capacities of the High Council members and its composition. Future policy changes in
HSYK may create pressure on the prosecutor to exercise its powers according to law
freely and may even cause consequences detrimental to fundamental rights of citizens.
It’s worth stressing that HSYK exercises very strict ex-post control over prosecutor.
Prosecution offices are under the periodic scrutiny of HSYK. Inspectors delegated by
HSYK visitoffices
periodically and examine nearly every single case. After
examination, a list of recommendations, based on the misapplications of substantive or
procedural rules detected by the inspector, is prepared and notified to the prosecution
office. Also, detected misapplications of law most common to all offices
is
disseminated on the website of HSYK 45.
43
Statute no.6087,namely Hakimler Savcılar Kanunu,Date of aAcceptance:11.12.2010
HSYK issued 34 inner circulars and 19 of these circulars are related to the functioning of prosecution
offices and appliciton of procedural rules during prosecotiral acts.See summary of circulars in English
http://www.hsyk.gov.tr/Mevzuat/Genelgeler/GENELGELER/Genelgelerin-ozetleri-ingilizce.pdf
45
See details: Recommnedations list 2012 http://intranet.hsyk.gov.tr/Teftis/tavsiyeler/cbs/cbstavsiyeleri.pdf
44
24
In addition to recommendation list inspectors do evaluate every single prosecutor from
their characters to professional achievements and prepares performance evaluation
form. Performance evaluation form is one of the most eminent documents in regard to
assessing promotional status of a prosecutor.
Furthermore, HSYK is the only competent authority deciding on disciplinary measures
far reaching to suspension and dismissal. Disciplinary measures and other decision of
HSYK other then dismissal cannot be subjected to judicial control. The law envisages
an internal appeal system for decisions to be reviewed in plenary chamber. It will be a
sound question as to how far the system can secure the prosecutor from arbitrary
decisions of HSYK considering the lack of judicial control. Far more, since HSYK is
the only authority to decide on the faith of the judges and prosecutors without proper
judicial control, the question on how will the transparency and accountability oh HSYK
be ensured arises. The Turkish legal frame work is silent on these issues. Apparently,
faith in the accountability is left to the hands of judiciary on the elections taking place in
four years of intervals and issue of transparency is totally missed. When it comes to
judicial control, the only solution likely to be presented comes from an external actor,
the ECtHR.
HSYK in its current structure is still at the very beginning of the road. It presents a
structure like the Italian High Council for the Judiciary model with far more reaching
powers.
2.7.3.Prosecutor and Chief Prosecutor
The Turkish Prosecution System operates on the principle of indivisibility of
prosecution office meaning that any act done by a prosecutor commits the whole
organization. Consistency and unity of the Office is usually regarded as priority. The
Chief Public Prosecutor represents the Office and has authority over the management
of human and operational resources at his headquarters. He is the one responsible for
the coherent and effective functioning of the office and if it is a heavy court chief
prosecution office he exercises the same powers on smaller offices as well.
25
However, inner functioning, and limits of the powers of the chief public prosecutor
over prosecutor is not regulated in detail. It’s, again, mostly left to the implementation.
In practice, inner functioning of prosecution offices and hierarchical relationships
between chief prosecutor and prosecutors differs from office to office.
The chief public prosecutor is entitled to evaluate and prepare performance evaluation
forms about lower prosecutors. These performance form with the form that HSYK
inspector prepares are
the main documents that HSYK uses in assessing the
promotional status of the prosecutor.
Additionally, the chief prosecutor may ask from HSYK to initiate disciplinary
procedures against a prosecutor. He, by himself, does not have the competency to
initiate and decide on disciplinary measures.
It is commonly accepted that case allocation and division of labor is under the discretion
of chief public prosecutor.
On the other hand, alleged competencies, based on
supervising and monitoring competency, like instructions related to a special case and
rejection of indictment or dismissal decisions is controversial.
It is the case that some chief prosecutors claimed to manage the prosecution office as a
military branch under strict command-control chain leaving no area for prosecutors to
maneuver. Some, however, leaving whole discretion to legal assessment and decisions
to lower prosecutors.
It is the case that some chief public prosecutors are exercising powers which are not
explicitly delegated to them by law. Giving orders on handling of a specific case
amounting to coercive measures related to individuals and rejection of indictment or
dismissal decisions on legal or what so ever grounds they do see as appropriate are most
common problematic areas.
Such interventions to legal discretion of the prosecutor could not be subjected to judicial
review since criminal procedure law does not envisage such a procedure and from
26
administrative law point they are judicial decisions not administrative actions to be
assessed.
From 2006 until today rejection of prosecutor decisions and specific instructions on
cases is being subjected to demands for legal opinion from the Ministry of justice and
HSYK. Ministry of Justice in
five different cases gave five diverse opinions
representing diverse approaches but in common it states that chief prosecutor has
hierarchical powers over prosecutor and he may intervene if indivisibility of the
prosecution office falls in danger. HSYK organized a study-group a study over the
issue on 2010 but results of the study is not published yet. 46
It is generally accepted that in case of a disagreement, the chief public prosecutor may
replace the lower prosecutor from the case can take the case and give the decision by
himself.
Since the Chief Public prosecutors are responsible from coherent and effective
functioning of the office it can be expected from them to, at least for his office, prepare
written
guidelines, or to follow
a prosecution policy it is never been the case.
Implementation of coherent application is done by intervening in individual cases.
2.8.Public Prosecutor and Police
Under the Turkish organizational structure police, gendarmerie, coastal guard command
and forest safety officers do exercise judicial police tasks. In regard to the term police
explanations below cover all four organizations.
According to Article 161 of the Turkish Criminal Procedure Law prosecutor either
directly himself or through the judicial police under his command conducts the
investigations.
46
http://www.calistay.hsyk.gov.tr/
27
However police operates under the hierarchical control of the Ministry of Interior.
Beneath their administrative tasks, they exercise judicial tasks. Under its organizational
structure the Ministry of Interior decides on the branch division among police officers.
Selection is made by the Ministry of Interior and most of the qualified personnel is
being appointed to the administrative duties .Personnel who is being tasked to function
judicial police duties is still under the obligation to fulfill other administrative duties
bestowed upon him by the Ministry of Interior. The double hat position of the police
creates hurdles for public prosecutor to conduct the investigation efficiently.
Police are under the obligation to notify Public Prosecutor immediately about the
incidents. Every incident with crime suspicion automatically triggers investigation and
it is the prosecutor to decide on whether it constitutes a crime or not. 47
After he had informed the prosecutor in every single case, the prosecutor instructs the
police on the way to handle the case and decides on what specific coercive measures to
be taken. The instructions should be given in a written format but in urgent cases orders
may be given verbally. 48 In practice most of the cases regarded as urgent and orders
given verbally and turned into written form after the order executed. Police are obliged
to comply without delay with the judicial orders of the prosecutor.
The method, in practice, prosecutor keep control over the investigation by calling or
writing to the police in charge with the investigation. There is not any time limit and
specific communication way set for the police to report to prosecutor about new
incidents and developments in the investigation. 49
Prosecutor keeps strict control over the handling of case and work of the police. It is
very common to issue written instructions for each individual case. Police are under the
obligation to carrying out the orders. Giving misinformation, negligence in carrying out
47
Article 160(1) of Turkish Criminal Procedure Code
Article 161(3) of Turkish Criminal Procedure Code
49
Luca Perilli,The Criminal Justice System ,Turkish Report, ,p. 4-5
http://www.avrupainfo.isomertest.com/Files/CRIMINAL%20JUSTICE%20SYSTEM.pdf
48
28
the task or in regular times acting with his own initiative can create criminal
responsibility of particular police officer. 50
Additionally, at the end of each year the Chief Public Prosecutors prepare an evaluation
report about the responsible persons in judicial police at the location and send the report
to their administrative superiors. 51 Evaluation report forms are the only administrative
competence that prosecutor have over the police. However, oversight of these reports in
their destination and their legal value is unknown. They do not present any direct legal
consequences over police far mor administrative superiors are not bound with these
reports while assessing promotional status of police.
According to legal context, prosecutors should have full supervision and control over
the police forces in judicial investigations and cases. However, in reality full
supervision cannot be ensured. Since police are still operating under the hierarchical
control of the Ministry of Interior the priorities most of the time are determined by the
executive. Written orders from prosecution offices are of course executed by the police
but timing, sources to allocate to the case, and priorities are most of the time decided by
the police. 52
Furthermore, prosecutors are under heavy workload of accumulated backlog of cases.
Since even cases carrying minimum importance are being reported and instructed by
prosecutor, prosecutors by time lost their attention to the investigation. Its so common
to see the tendency to leave the initiative to the police and not to involve with the case
until the case presented by the police. 53 As a result since police are not functioning as
specialized judicial police under direct control of prosecution offices actual
implementation of law varies from prosecutor to prosecutor.
2.9.Cooperation In and Among Prosecution Services
50
Under urgency police has capacity to act on his own but he still have to to give information to the
prosecutor and ask his orders as soon as possible.
51
Article 170 of Turkish Criminal Procedure Code
52
Luca Perilli, IBID,p 6-8
53
Luca Perilli,IBID,p,8
29
According to Article 157 of the Turkish Criminal Procedure Code procedural
interactions during the investigation phase shall be kept as a secret. In Turkish
prosecution system the principle of secrecy of investigation (principle of
confidentiality) mentioned above is being applied very strictly. Sharing and
disseminating information in regard to the content of the investigation to third parties is
a punishable criminal offence. 54 In a similar vein, the principle of confidentiality is
strictly
applied
to prosecutors even working in the same office. Even for
investigational purposes without a written demand, the prosecutor cannot examine his
colleague’s case. This situation creates deficits in the fight against crime, especially
cases related to organized crime. Due to a lack of information flow prosecutors dealing
with smaller offences it is highly likely to miss the greater picture. Minor crimes related
to the organized crime have the possibility to be prosecuted alone.Additionally, due to
lack of communication it is highly likely that double or more investigations may be
conducted for the same crime.
However, it must be admitted that for smaller offices, close relationships between
prosecutors and exchange of verbal information is a part of daily routine and
prosecutors are usually aware of the contents of the other prosecutor’s case files in his
office. Also chief prosecutors are mostly informed on eminent cases. They have the
possibility to intervene and coordinate the prosecution according to the combined
information at hand. However, for bigger and busier prosecution offices it is nearly
impossible to know which prosecutor is handling which case. Especially in organized
crime investigations over lapping, double investigations or prosecuting member of
organized crime as minor offenders is highly likely to take place. 55
Chief Public Prosecutor ,in similarity with smaller offices, is supposed to coordinate
and inhibit double prosecution but in regard to the bigger prosecution offices it is
nearly impossible to track all the case files 56and have a healthy picture of the situation.
54
Article 285(2)of Turkish Criminal Code
We donot have any statistical data or a study on the subject.Information is mostly based on authors own
professional experiences.
56
İstanbul Chief prosecution office,1 chief public prosecuor,12 deputy chief and 196 prosecutors. Last
visited 16.08.2012 http://www.istanbul.adalet.gov.tr/sayfagoster.asp?pageno=24
55
30
In this regard, we should add that Turkish court-prosecution system after 2006 fully
computerized and start functioning over an internal web system, UYAP 57. Every single
document is being scanned and stored. For a prosecutor it is possible to reach every
single detail of a case. However as a reflection of the principle of confidentiality and
presumption of innocence, prosecutors can only see the cases that they are in charge. 58
It is always possible to make a query on UYAP system and see whether there is other
cases or not but in practice due to heavy work load and busy schedules it is not so
common to a prosecutor to make queries in all his case files.
Cooperation between the chief prosecution offices is also problematic. Explanations on
internal cooperation and information sharing is also valid to the relations between Chief
Prosecution offices. There is not any forum to share information in regard to the crimes
involving more than one territorial jurisdiction or tackling double prosecution.
Additionally every single demand from the peer chief prosecution office must be made
in written form.
Special Competent prosecutors used to have gathering and unifying effect in the fight
against organized crime, at least in their respective jurisdiction. According to ExArticle 250 of the Turkish Criminal Procedure Code every Chief Prosecution Office
have had the obligation to give information and refer the cases to the special mandated
prosecutors
but since they are abolished and newly founded special competent
prosecutors meant to be deal with only terror crimes it is apparent that a chain in the
system is removed. Assessing the situation with the loss of specialized body against
organized crime in the near future we may witness emerging deficits of the system.
57
The Ministry of Justice has prepared a “National Judiciary Informatics System (UYAP)”, which is to
implement a very ambitious information system between the Courts and all other institutions of the
Ministry,
including prisons.See details: http://www.e-justice.gov.tr/presentation/generalinformation.html
58
Ministry of Justice,opinion,
31
2.10.Legality Principle and Prosecution Policy
2.10.1.Principle of Legality
The Turkish Prosecution system functions mainly on principle of legality. The
prosecutor is under the obligation to institute criminal prosecution if reasonable
suspicion exists that a criminal offence is committed. 59 Generally speaking, the public
prosecutor role is mostly limited to the legal assessment of the sufficiency of the
evidence against the suspect.
However, the system is not functioning purely on the principle of legality. The
Prosecutor still can exercise discretion in some cases even if reasonable suspicion exits.
Such discretion can be exercised in cases where the requirements for the application of
the provisions of effective remorse, that lift the punishment as a personal ground, or the
provisions of personal impunity are present. 60 Additionally, if the conditions for
mediation and postponement of prosecution are fulfilled the prosecutor has to stop and
decide to dismiss the case or postpone the prosecution for five years. 61 Nonetheless,
regardless of deviations from the principle of legality, mandatory prosecution takes
precedence in Turkish system.
2.10.2.Prosecution Policy
Due to mandatory prosecution, the
Turkish Prosecution System lacks an official
prosecution policy both nationwide and office. Nonetheless, inner circulars prepared by
HSYK and general recommendation lists mentioned in detail in the title “HSYK” above
displays similar features with officially adopted prosecution policies. On the same
token, these documents envisage rules to regulate prosecutor’s behavior in particular
cases. Despite these documents, it is obliged for prosecutor to act in a consistent
manner, they cannot be regarded as prosecution policy .It must be stressed that even
under legality policy, the necessity of
implementation of crime policy priorities,
59
Article 170(2) of Turkish Criminal Procedure Code
Article 171(1) of Turkish Criminal Procedure Code
61
Article 171(2) of Turkish Criminal Procedure Code
60
32
notably with respect to deciding which categories of cases should be dealt with first, the
means and methods used to search for evidence, application of coercive measures, the
staff used, the duration of investigations, and controls in so far as these are necessary in
order to monitor compliance with its instructions, coherent and effective prosecution
etc. still creates the need adopt a prosecution policy.
2.11.Transparency and Accountability
As explained in detail above Turkish Prosecution System, in its organisational context,
operates in a closed box. The first instance prosecution system from the lower to highest
level is bound by HSYK and are under strict control of HSYK. Thus it can be regarded
that the system, at least a minimum level, displays an inner accountability. However in
the structure that HSYK functions today its relatively hard to tell that members of the
High Council bears responsibility for their actions and decisions. The Law, Statute
No.6087, does not envisage a disciplinary system or dismissal procedure for the HSYK
members. Far more HSYK does not bear any responsibility against the Parliament.
Parliament as explained above does not have any relationship with the HSYK.
From this point of view Turkish Prosecution system on the top has some difficulties to
display the transparency and accountability that a modern prosecution system usually
does.On the other hand every single decision that a prosecutor takes , can be subjected
to judicial review. Parties can appeal the coercive measures, other than dismissals, of a
prosecutor to the peace criminal courts 62 and decisions on dismissals are reviewed by
the nearest heavy criminal court due to an appeal by the parties. 63 Additionally final
decisions taken by the prosecutor has to be notified to the parties and parties has in
every phase and in the condition of not to threat the investigation are entitled to examine
and take copies from the case files. Thus transparency and accountability of prosecution
offices ensured relatively by judicial control in itself. Nevertheless system still requires
correctional touches and implementation needs to be improved.
62
63
Article 265 of Turkish Criminal Procedure Code
Article 173 of Turkish Criminal Procedure Code
33
3.EUROPEAN PUBLIC PROSECUTORS OFFICE
This chapter is devoted to a newcomer actor to the European legal scene, European
Public Prosecutors Office. Since EPPO is not actually founded and started to function
yet most of the explanations below reflects the recent debates on foundation and
functioning of a prospect EPPO. Under its current broad and vague legal base EPPO’s
future shape and competencies encompasses most of the general discussions that
European criminal law. However in this broad context as the study’s aim and contend
is confined with the prospect effects of foundation of EPPO on Turkish Prosecution
system, emphasis is given to the areas that may make a contribution to the study.
3.1. Historical Development Background Information
The adventure of a united Europe started with the Treaty Establishing the European
Coal and Steel Community64 after the World War II. Founder generation of the Union
suffered from the bloodiest war ever seen in the history and found itself in the middle of
a cold war in a polarised world. In that political conjuncture, it was a dream to have a
united Europe living in peace. Nonetheless at that time six core states, in order to
distribute and share the resources efficiently among states and solve the conflicts on the
table, give a start to European adventure in 1951.This was followed by the Treaty
establishing the European Economic Community and the Treaty establishing the
European Atomic Energy Community in 1957. It was not a smooth path that EU go
thorough but from that time to present day 6 states became 27, the European Parliament
established and even a constitution for Europe, despite it was not successful, being
voted.
It must be admitted that evolution of EU from historical and political perspectives
presents unique features compared to classic states and international organisations. EU
from a blue print of an international organization developed through a multi-task, multipowered structure that resembles a federal state which has its own parliament, currency
and even rejected, constitution.
The ECSC Treaty was signed in Paris in 1951, See for details:
http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_ecsc_en.htm
64
34
In the early days, the main play ground of the Union was regarded as progressive
economic integration. Goal of eliminating internal borders and enhancing economic
relations between member states by supporting and developing European norms within
the context of four freedoms 65 was regarded as the main priority. However economic
freedoms that EU is seeking to attain have deep boundaries with the rest of the socialpolitical life and it is seen that it is nearly impossible to achieve the main goal, “full
economic integration”, without regulating other facets of social and political life.
In this context, the Union created its own legal order with the power conferred from the
Member States. The Member States shared their sovereignty allowing the EU to
regulate nearly all facets of life. Thus the EU legal order became an integral part of the
legal systems of the member states. 66
On the road to the Union to acquire the powers it exercises today, sensitive issues
mostly related to the sovereignty of the Member States, left to their disposal , immune
from the EU. 67 Criminal law was one of these soft bellies members states used to
protect.
However conclusion of the Maastricht Treaty was beginning of a new era in the EU
and criminal law was not an exception to the evolution. In the process of deepening of
the EU once the Community after the Maastricht Treaty, the Union, invaded and
covered many areas once left to states, including criminal law. EU with the Maastricht
Treaty under the third pillar gained competency on criminal law. However direct
enforcement of criminal law was still not in the agenda of the European legislature.
Treaty of Amsterdam was another benchmark in the field of criminal law. The Treaty
continued development of criminal law cooperation by introducing the so called Area of
65
For detailed nformation: Catherine Barnard,The Substantive Law of the EU,The Four Freedoms,3rd
Edition,Oxford,2010
nd
66
Klip,Andre, European Criminal Law, 2 Edition, Intersentia, 2011,p15
67
Article 4(2) of TEU
35
Freedom Security and Justice that will be the context for multi-annual programmes
Tampere and Hague 68 laying down ambiguous targets to the EU.
In the historical development of direct enforcement of European criminal law and
inception of a European Public Prosecutor, one cannot neglect the contribution made by
the Corpus Juris project 69.Two versions of Corpus Juris presented in 1997 and 2000.
It was the first time in EU history that a project envisaged common EU Criminal law
system. Corpus Juris designed a
full-fledged criminal law system functioning on
defined common crimes and procedures.
In this context Corpus Juris, in addition to substantive and procedural criminal law
issues, suggested introduction of the European Prosecutor. The design prescribed a
European Public Prosecutor that investigates and prosecutes pre-defined European
offences committed against the EU’s financial interests. Corpus Juris designed the
European prosecutor to have delegated Prosecutors in each State and operating under
the control of judge of freedoms. 70 Despite its ambiguous aims Corpus Juris stayed on
paper.
One other major step amongst the European Public Prosecutor was the Commissions
“Green Paper on the Creation of a European General Prosecutor” 71 presented in 2001
and its follow up report published on 2003. Green Paper envisaged the European
Public Prosecutor to prosecute on behalf of the Union, dealing crimes against EU in a
centralised manner and to operate in member state courts. However, unlike Corpus
Juris, Green Paper prescribed the European Public Prosecutor as a complementary actor
whose competence confined to the crimes related to the EU’s financial interest.
68
Martijn Zwiers, The European Public Prosecutor's Office - Analysis of a Multilevel Criminal Justice
System, Intersentia, 2011,p.3
69
The text of the Corpus Juris proposal of 2000(English and French) is available via the following
Internet site: http://ec.europa.eu/anti_fraud/green_paper/links.html
70
Articles 18-24 of Corpus Juris
71
Green Paper on criminal law protection of the financial interests of the Communityand the
establishment of a European Prosecutor, COM(2001) 715 final.The Green Paper, the documentation of
the public consultation, as well as furtherbackground information is available at:
http://ec.europa.eu/anti_fraud/green_paper Last visited:28.08.2012
36
In the meantime terrorist attacks to New York, Madrid and London provided the
fertilised soil for more consistent and close criminal law cooperation among the EU
member states. After years of silence from the day Green Paper presented, Article III273 of the Treaty establishing a Constitution for Europe, was the first attempt to create a
legal base for foundation of a European Public Prosecutor. In that provision the
Constitution prescribed the Office to be founded from Eurojust, to prosecute against the
crimes related to EU’s financial interest and with possibility to extend the scope of the
crimes to be dealt with. European Public Prosecutor shared the same faith with the
Constitution, rejected, rephrased and plugged to the Treaty of Lisbon.
The Treaty of Lisbon in a very similar wording with the Constitution, conceived a
gradual approach and supplied the necessary legal base for foundation of the EPPO.
Article 86 of TFEU came with flexible solutions; enhanced cooperation, emergency
brake and possibility of extension of crimes that the EPPO going to deal with. However
the gradual approach and limited
clarity did not let the debates to find an end.
Conversely it raised the heat over the debate.
The above mentioned facts draws the general picture. The study is about to focus on
direct enforcement and cooperation in criminal matters materialised on the EPPO. In
order to have a deeper insight parallel developments in the criminal cooperation area
given in the next paragraphs.
In this frame from the foundation of the Union to 1975, criminal cooperation among
member states mostly governed by conventional methods; bilateral agreements,
reciprocity or the cooperation structure that Council of Europe provided 72.The first
cooperation programmes under the Union roof were specific initiatives among the
Member States such as establishment of “Trevi Groups” to overcome the cooperation
and enforcement deficit. Conclusion of Schengen Treaties 1985 and 1990 and
72
The European Committee on Legal Co-operation (CDCJ) is an inter-governmental body, set up in
1963.For detailed information: http://www.coe.int/t/DGHL/STANDARDSETTING/CDcj/default_en.asp
Last visited:28.08.2012
37
consequently abolishment of borders opened the gates for police cooperation and
information exchange. 73
European Anti-Fraud Office (OLAF) established in 1999 and functions as an
administrative investigative agency. OLAF as a semi-independent agency operates
under the control of the Commission. OLAF investigates crimes detrimental to the
financial interest of the EU. However, it has an important limitation, it does not carry
out prosecutorial duties. It also does not have the power to enforce Member State
authorities to prosecute. It is dependent to the Member States and their will to
prosecute. In this prospect it has to conduct investigations conjointly with the Member
State’s authorities. Since OLAF is not a prosecution office or a body that has judicial
powers, admissibility of the evidence collected by OLAF also raises difficulties during
trials. Low conviction rates on the cases that prepared by OLAF displays the deficit of a
body that lacks of prosecutorial powers.
Eurojust 74 was established as an agency in 2002 under the Third Pillar competence
introduced by the Maastricht Treaty. It is designed as a coordination tool amongst
national investigational and prosecutorial bodies. In similarity with OLAF, it cannot
prosecute or order national authorities to prosecute. EUROJUST functions as a collegial
body that functions as an information pool, advisory body and a forum that prosecutors
from the Member States gather. Eurojust’s declared case-load in 2011 was 1441 and
majority of the cases that it deal are consist of trafficking of drugs and humans beings,
fraud and money laundering. 75 EUROJUST, despite in its current set up functions
successfully, suffers from the same deficit with OLAF; lack of direct enforcement and
control over the member state prosecutorial bodies.
Idea of EPPO in the first hand born from dissatisfaction about law enforcement in two
areas of activity; crimes against the financial interests of the EU and fight against
73
Martijn Zwiers, The European Public Prosecutor's Office - Analysis of a Multilevel Criminal Justice
System, Intersentia, 2011,p.3-4
74
For detailed information http://Eurojust.europa.eu/Pages/home.aspx Last visited 28.08.2012
75
Eurojust Annual Report 2011,p.11 For detailed information
http://Eurojust.europa.eu/doclibrary/corporate/Eurojust%20Annual%20Reports/Annual%20Report%2020
11/Annual-Report-2011-EN.pdf Last visited 26.08.2012,23.50
38
serious crime with a cross-border dimension. Responsibility to enforce the Union law is
usually a mixed responsibility of EU and national authorities. According to settled case
law of ECJ and codification of that case law the member states are under the duty to
enforce the Union law 76 and under the obligation of sincere cooperation. 77 Nevertheless,
it is not always the case that the Member States to enforce the Union law with in similar
diligence with respect to their own national law.
Lack of enforcement in the EU Criminal law by the Member States has manifold
reasons. First
high complexity of the Union cases in combination with limited
knowledge of the Member State authorities in the Union law hampers the will of the
States to enforce the Union law. Generally most of the time national authorities are even
unaware of the crimes related to EU. Secondly it will not be wrong to assert that
national priorities usually prevails over the Union’s interests. When two cases come in
front of a national prosecutor, for example on the one hand a regular crime committed
locally on the other a EU fraud case, the preference is usually made on to the local
crime. Furthermore due to the complex nature of the crimes committed detrimental to
the EU’s financial interest, cases involve more than one state actor. Investigating and
prosecuting the same crime in and every state leads to inefficiency and wasting sources.
To overcome the surfacing common pool problem a centralised approach must be
adopted. Consequently Treaty of Lisbon comes with the EPPO as solution to these
above mentioned deficits. 78
3.2. Legal Base and Scope
Treaty of Lisbon bestow on the EU the competence to create the EPPO. Article 86 of
the Treaty on the Functioning of the European Union(Here an after TFEU) creates the
autonomous legal basis for establishing the European Public Prosecutor's Office in order
to combat crimes affecting the financial interests of the Union, and provides, in Article
86(4), the possibility of the European Council at the same time or subsequently,
76
Case C-68/88,European Communities v Hellenic Republic, [1989] ECR 723
Case C-2/88 IMM,J.J. Zwartfeld and Others [1990]
78
Green Paper,p.12-15
77
39
extending the powers of the European Public Prosecutor's Office to include serious
crime having a cross-border dimension. 79
TFEU envisages a gradual development for the future of the European Public
Prosecutors Office. An authority which has competency to prosecute on behalf of the
European people, defender of the EU’s financial interests and guarantor of the Area of
Justice Freedom and Security. An authority that initiates maintains and decides on
crimes detrimental to the EU’s financial interest and may subsequently, cross-border
serious crime investigations.
From the provision it is apparent that even the Union legislature was not assured that in
the current political climate the EPPO to be founded with unanimity hence the gradual
approach is taken. Probably to save EPPO from a possible total rejection, Article 86(1)
of TFEU on the first hand lays down the conditions for creation with unanimity then
alternatively prescribes enhanced cooperation.
According to Article 86(1) TFEU the Council, under a special legislative procedure
acting unanimously, upon consent of the European Parliament shall establish the EPPO.
In the current picture, the Commission has no formal role during the creation of the
EPPO however in practice since it is in charge with the fight against fraud in the EU and
acts as the executive branch, the Commission prepares most of the documents and drafts
on the EPPO consequently it works like dynamo moving the EPPO forward.
On the establishment of the EPPO the Council is the decisive actor. However, one
should not disregard the position of the Parliament and the Member States. Since the
consent of the Parliament is one of the essential formalities on the road to establishment
of the EPPO, the Parliament also plays an eminent role in the process of establishment
of the EPPO .
The Member States has also prominent roles in the process. They may resort to
emergency break (conciliation procedure) or take the lead to start an enhanced
79
The Council of the European Union,Presidency Note on The European Public Prosecutor's Office in
the European judicial area, 8614/10,2010
40
cooperation. In case of consensus among the member states EPPO will be introduced
EU wide but in case of disagreement a group of nine may move forward and establish
the EPPO based on enhanced cooperation.
According to Article 86(1) of TFEU foundation of the EPPO had to be done by means
of regulations to be adopted under special legislative procedure. In the EU legal order
regulations are regarded as supreme law and does not have direct effect. Since EPPO
will have to deal with individual cases implementation of the rules on the EPPO will
require further lower level legislation.
Article 86(1) of TFEU stipulates that the EPPO to be found from Eurojust. With this
creation scheme The Treaty of Lisbon keeps Eurojust an arm length away from the
EPPO and even provides more secure legal base than it used to have. 80 The Union is
being criticized for its highly bureaucratic and complex structure. Establishing two
institutions working in the same area, even one is born from the other and keeping both
of them together can be interpreted as the Union’s skepticism to the future of the EPPO.
Or else it is probably more likely that the need for a coordination tool between the
EPPO and the Member States that did not attend the enhanced cooperation.
If we dig deeper on the EPPO’s legal base, it is apparent that the EPPO is to be found to
combat crimes affecting the financial interests of the Union and possibly serious crime
having a cross-border dimension. It is unclear from the wording of the text which
crimes effects the Unions financial interests and which crimes should be regarded as
serious. Also the questions will all the crimes, even minor ones, be subject to
jurisdiction of the EPPO and what is a serious cross border crime? 81
According to Article 86 of TFEU, the EPPO will “investigate, prosecute and bring to
judgment” crimes that falls under its scope. From classical view point it is convenient to
define the scope of “investigate” and “prosecute” but “bringing to judgment” is not as
clear as the first two tasks. However it is interpreted as the discretion of evidence to
80
Article 85 TFEU
The crimes that EPPO is expected to deal with examined in detail below.See title Substantive
Competence
81
41
amount a criminal law suit and forum choice of the prosecutor 82. Also one should not
disregard that “bringing to judgment” can be interpreted as a gateway for EPPO to
exercise discretion for out of court settlements and mediation.
It is also interesting to see that Article 86 of TFEU envisages the EPPO to prosecute
before the national courts. However it is ,again, silence on the actual implementation
and does not give any clue on how to ensure coherent application of law, in a realm that
diverse procedural and substantive rules govern.
3.3. Organizational Structure
For the study EPPO’s prospect organisational scheme plays an eminent role. The model
that EPPO to be structured may shed some light on Turkish Prosecution System and its
future development.
Article 86 of TFEU does not give details on the organisational structure of the EPPO.
Literature is divided in the organisational structure of EPPO. Green Paper 83 and Corpus
Juris envisages a full-fledged independent prosecution office that has supranational
identity. Meaning that EPPO to be independent from the member states and to exercise
prosecutorial powers in the EU territory. In this context the European Public Prosecutor
should be appointed by the Council and he should have discretion to appoint deputy
prosecutors to function in the office.
On the other hand some suggests a collegial structure, inspired from Eurojust, gathering
of prosecutors from the member states for sharing information and conduct
investigations under the roof of the EPPO. However this design of the EPPO is being
criticised
as to be insufficient and unnecessary. Since Eurojust functions under a
similar architecture and successfully carrying out the coordination and advisory
82
Martijn Zwiers, The European Public Prosecutor's Office - Analysis of a Multilevel Criminal Justice
System, Intersentia, 2011.p.402
83
Green Paper Foolow Up Report, Brussels, 19.3.2003 COM(2003) 128 final,p24 Text available:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0128:FIN:en:PDF Last visited
29.08.2012
42
functions, introducing an identical body with additional prosecutorial powers seen as
unnecessary.
The same group, on the same token, rejects the classical prosecution model. Asserting
that the classical state nation prosecution model will increase spending and may create
another budget endeavouring monster. Additionally such model criticized to design a
clumsy body which cannot response as quick as the pyramidal system.
Instead of a collegial system a pyramidal system, on the top, European Public
Prosecutor and delegated double hat prosecutors complemented by professional service
from OLAF is being defended. 84
It must be asserted that the idea of delegated prosecutors wearing double hat displays
three main disadvantages. First of all specialisation could not be ensured. Double hat
prosecutors had to master on two diverse systems; on the one hand domestic criminal
law on the other European Criminal law. Additionally they have to recourse these
diverse systems as a part of their daily professional routine. It would not wrong to say
that this situation may cause misapplication of law and confused prosecutors. Secondly
it may cause frictions among domestic prosecutors and delegated prosecutors while
exercising their powers. Third of all delegated prosecutors will stay under the
hierarchical control of their respective prosecution authorities. In this position the
delegated prosecutors will stay under the constant threat of domestic workload and
disciplinary measures. If this is the case to happen unavoidably
focus will stay on
domestic crimes and crimes related to EU will be given less attention.
On the other hand, multi-level multi task prosecution office model, based on the
principles that EU competition law system is also suggested by some. The model
requires close cooperation with supranational body of the EPPO
and national
authorities. 85This model will also suffer from similar problems that pyramidal model
84
Jorge Ángel Espina Ramos, Towards a European Public Prosecutor's Office: the long and winding
road, in: André Klip (ed.), ‘Substantive criminal law of the European Union’, Maklu, 2011, pp.
85
Martijn Zwiers, The European Public Prosecutor's Office - Analysis of a Multilevel Criminal Justice
System, Intersentia, 2011.p.
43
has. The system
requires EPPO to work with unspecialised national authorities.
Reluctance on the compliance of domestic authorities to the orders from EPPO and the
low level of hierarchy that can be maintained during investigations may limit the
abilities of EPPO.
However classic nation state model lacks of above mentioned problems and to operate
under national law can be overcome by recruiting deputy prosecutors from every
member state. Deputy prosecutors will represent the EPPO and exercise prosecution
powers in and every single member state.
3.4. Status of the European Prosecutor
The status of the
European Public Prosecutor, like most of other fundamental
issues,will be designed by the regulation to be adopted. On what procedure is the
European Public Prosecutor be appointed, dismissed and in case of a misconduct how
will the disciplinary sanctions be applied yet a nothing more than an assumption.
However it is known that the EPPO will function beneath the Council and the Council
may have hierarchical control over EPPO. The level of control , probably, will not be a
strict hierarchical control but the Council, by giving soft instructions according to the
priorities of the EU, may guide and direct the EPPO. From this assumption it can be
deduced that the Council will have full discretion on the appointment and dismissal of
the prosecutor.
Inner structure and hierarchy of the EPPO also raises questions. Will the European
Public Prosecutor exercise strict hierarchical control over the subordinate deputy
prosecutors or may function as a conciliation and coordination mechanism among
them. Majority of the literature envisages a hierarchical model. A model at least
displaying minimum level of hierarchy over the deputy prosecutors but leaving some
discretion to manoeuvre.
Essentially and probably the status of the deputy prosecutors will depend on the
respective principle that the EPPO to function in accordance. Which principle EPPO to
44
function on, legality or opportunity? The answer of this question may also give some
clue on the prospect status of the European prosecutor.
Until now, most of the preparatory studies; Corpus Juris,Green Paper,Spanish
Presidency Note on EPPO and “The European Model Rules for the Procedure of the
future European Public Prosecutor’s Office” 86 envisaged the prosecution system
functioning on principle of legalitywith some devitiaotins. 87However suggested
deviations does not seem to amounting to effect the main characterestics of the
principle of legality.
If the Office is going to operate on the principle of legality and as a feature of this
princible, legislative bestows limited discretional powers to the prosecutor, this set up
may trigger a semi-independent prosecution office that work internally independent but
on the control of the Council. In that set up similar approach will apply to inner
functioning of EPPO. Deputy prosecutors will probably have some discretion on cases
unless it contradicts with the indivisibility of EPPO and its general prosecution policy.
3.5. Accountibility
EPPO, unlike most agency and institutions in the EU, will be found on the auspices of
the Council. The Commission, executive branch of the EU, does not have any overt
influence over EPPO. In this framework political accountability of the EPPO seems to
fall over the Council. However, the question, on how and what degree the Council can
be held politically accountable for the acts of EPPO can only be answered according to
the future level of independence of the EPPO. If EPPO to set up in a full independent
design, for example if it is to be set up in the Italian Prosecution model, the level of the
political accountability of the Council will be lower or none but if it is to be set up in
Belgian or Dutch model the Council will display a high level of responsibility and
accountability.
86
The research project carried out at the University of Luxemburg. See details http://www.eppoproject.eu/index.php/EU-model-rules Last visited:29.08.2012
87
It must be asserted that not all of them envisages pure application of principle of legality.There are
deviations from principle of legality to oppurtunity prinicple.
45
One should also consider that the Council is composed of the Member State
governments and represents their will. Regardless of the independence of the Office it is
practically problematic to held the Council accountable for the acts of the Office. What
will happen if the Office mal-functions, shall the Council resign or dismissed? The
answer is obviously negative. On this ground how and on what level can the Council be
held politically accountable for the acts of EPPO is yet unknown. However it is
indispensable to create a set up that ensures transparency and democratic control over
EPPO.
The question on how to ensure judicial accountability is another remarkable issue. In
order to have deeper understanding on the subject division between pre-trial and trial
stages must be done.
In the pre-trial stage there are three significant proposals to ensure the accountability.
First of all since EPPO is an institutional body of the EU. Article 263(1) of TFEU states
that ;
The Court of Justice of the European Union shall review the legality of
legislative acts, of acts of the Council, of the Commission and of the European
Central Bank, other than recommendations and opinions, and of acts of the
European Parliament and of the European Council intended to produce legal
effects vis-à-vis third parties. It shall also review the legality of acts of bodies,
offices or agencies of the Union intended to produce legal effects vis-à-vis third
parties.
According to the provision above any act of the EPPO can be subjected to judicial
review of ECJ. However how feasible will be the outcome and how can fundamental
rights of the defendants will be ensured raises questions. First of all ECJ is not a
specialised criminal court, secondly under its current set up it will not be able to handle
the workload that will derive from the EPPO.
46
Second solution, establishment of freedom judges in every member state to review the
decisions taken by the EPPO sounds reasonable. However establishment of judge of
freedoms requires states to adopt an alien judicial element in their respective criminal
law systems. Status, prospects duties, independence of the judge of freedoms and
financial aspects and where exactly be these judges will position in the national criminal
law systems had to be elaborated more deeply. 88
Suggested third option is leaving the judicial control of the EPPO to the national courts
according to their procedural rules. However leaving judicial control of the EPPO to
diverse member state courts operating under
diverse procedures will create
fragmentation and diverse implementation’s even amounting to create breaches to the
right to a fair trial.
It must also be stressed that in case of adoption of freedom judges or leaving the judicial
control to the national courts, EPPO’s decisions involving more than one state will
create territorial jurisdiction conflicts or even more may come up with diverse decisions
under diverse procedural laws.
In the trial phase it is apparent that member courts are competent to assess EPPO’s acts
and decisions. However it is yet unknown which procedural rules will apply and how
the coherent application be ensured.
3.6. Competencies
3.6.1. Substantive Jurisdiction
According to Article 86(1) of TFEU EPPO is established to deal with the crimes
detrimental to EU’s financial interest. Crimes related to the EU’s financial interest can
be examined under two main case types; defrauding of EU expenditure, crimes mostly
related to the Unions spending, procurements and subsides. Additionally defrauding of
EU revenue mostly related to import levy evasions and smuggling and may be more.
88
Model Rules does not explicitly calls the judge “judge of freedoms” however attains similar
assignments on it.Model rules,Rule 7
47
In case of an extension in the scope of the EPPO, prospect serious border-crossing
crimes that EPPO deal with could be trafficking in human beings, drug trafficking,
racketeering, extortion and etc. 89
3.6.2. Territorial Jurisdiction
The question on how the territorial jurisdiction of the EPPO to be determined have
manifold answers. In case of an unanimity among member states and the EPPO to be
established Union wide, the EPPO will have the competence to prosecute in all over
the EU territory. However in case of an enhanced cooperation, its jurisdiction will be
limited to the Member State territories that are in the ring of the enhanced cooperation.
Oddly, crimes that EPPO supposed to fight are not confined to the respective territorial
jurisdiction of the Office. Furthermore Article 86 of TFEU does not seem to dismiss the
Office from the responsibility to combat crimes detrimental to the EU’S financial
interest which committed in the third States or in the third countries. The questions how
will the EPPO to investigate and prosecute these crimes and where stays unanswered.
3.6.3. Case Allocation
EPPO, a sophisticated and complex legal body is to be extracted from a single article,
Article 86 of TFEU and as repeated often in the study , the provision leaves most of the
discretion to the future regulation or regulations to consider which rules to be applied to
the EPPO to exercise its functions including those rules relating
to territorial
competence and conflicts of jurisdiction. Nevertheless in this field legal clarity is
essential. Theoretically pursuant to Article 86 TFEU, the EPPO can prosecute in all
criminal courts established in the EU. Deciding on competent state court then
determining the competent states competent criminal court to initiate prosecution will
be in the discretion of the EPPO. On what grounds allocation is going to be made and
how the fundamental rights of the EU citizens guaranteed in this process is one another
question that must be answered.
89
See Article 4(1) of Annex I Europol Decision for full list
48
In this framework some suggests the EU competition law model which proved its
success in that area to be taken as a model. According to Regulation 1/2003 90
competition allocation system basically works on close cooperation between national
competition authorities and the Commission with the support of
Competition Law
Network and Advisory Committee. If there is a material link between the state and case
and if the State authorities can effectively end the infringement, case will be handled by
that national state authority. However in any case the Commission has the supremacy
and if Commission starts proceedings any national authority will have to step back.
Considered to the complex structure of criminal offences, relatively high number of
parties and the lack of a European criminal court, to undertake the responsibility of the
Commission in competition law and to step in when needed, it will not be proper to
analogously apply the competition law model to the EPPO.
If we are to examine the conditions for allocation of cases to national authorities in the
competition law model, “effectively handing case” and “material link” requires special
attention. First of all effectively handling case criteria is a vague term. What is effective
in criminal law? Handling the trial, sanctioning the offender with the highest penalty or
improving the condition of victims or supplying fundamental guaranties to defendants?
It is nearly impossible to transfer economic terms into criminal law. In criminal law if a
party, does not matter victim or defendant, is a national of a state that state regarded to
have material link with the case. This approach also does not suffice for determining
the place of adjudication. Competition law deals with economic activity and its
sanctions are also economic. When it comes to criminal law lives of real people are at
stake. Rules governing the procedure and allocation of cases must strictly regulated
beforehand in order to ensure legal certainty.
Another suggestion is in order to ensure efficiency, allocating the case to the State,
where most of the parties and evidence located. In this situation, however, the question
will counting the number of parties and evidence and determining the jurisdiction
90
Articles 11-16
49
according to it justify the preference, arises. The answer to the question cannot be
affirmative.
Ignoring complexity of the offence or its cross border implications and dividing the
offences and criminals and rendering trials on the state base is another suggestion. It
does not matter what should be made on territorial base, every national court should
take care of the offences that take place in its jurisdiction. In general this idea is
contradicting with the foundation of EPPO and the underlying main ideas to create
such a body.
Additionally not all the State criminal systems are alike, they do display discrepancies.
From the beginning of
pre-trial measures, evaluation of evidence, guarantees for
defendants all other differentiations will have effect on the outcome of the trial.
Furthermore despite harmonization efforts taking place in all among the Europe and
even in uniformed criminal offences are to be introduced, due to discrepancies in the
general parts of the criminal systems, outcome of the trials made in diverse states may
vary. Even for the same criminal conduct and under the same conditions accomplishes
may be subjected to diverse penalties.
Another suggestion is to allocate the case to the State that greater part of the conduct
occurred. 91 However it is not that easy to determine where and when a crime is
committed and which is the great part? There are many approaches and far many thesis
on how to asses and determine the exact location and time of the crimes committed.
Additionally as a fall-back clause it is suggested to allocate the case to the State court
where EPPO’s seat located. 92 This idea cannot find legal ground in any of the Member
States criminal law systems. Such a fall-back clause may only serve as a prestige tool
for the State that the EPPO located but this does not justifies the wrongfulness of a such
a preference.
91
92
Model Rules,Rule 64(1)(a)
Model Rules,Rule 64(2)
50
3.7. EPPO and Police
In this title the term “police” refers to national law enforcement bodies and Europol 93
and the study will try to shed some light the relationships between EPPO and the police.
Article 86(2) stipulates that the EPPO while exercising its functions may liaise with
Europol. ”Liaison” does not refer to a hierarchical relationship among two bodies. It is
most likely points a bilateral relationship based on equal rights and responsibilities. In
this context Europol may only be an auxiliary tool for the EPPO to benefit often. It
cannot serve as the police force of Europe under the control of the EPPO.
If we are to focus on national police forces, during investigations the EPPO will need its
decisions, especially decisions on coercive measures, to be executed. Since Europe
does not have a police force to execute, EPPO is dependent on the national police.
However the EPPO does not have any tool to force national police forces to obey
orders originated from the EPPO. Infringement procedure against the State or classical
criminal cooperation tools may only slow down the investigation. In order to attain the
aims that EPPO seeks for its relationships with the State police should also be regulated
in the founder regulation.
3.8. Criminal Cooperation
If EPPO to be active on the serious cross-border crime unavoidably its investigations
will require cooperation from third countries and the member states that stay out of the
EPPO cycle.
It is relatively easy to find a solution to the problem for the Member States which
preferred to stay out from enhanced cooperation. According to Article 4(3) of TEU,
codified version of sincere cooperation, these states are still under the obligation to
support EU and its institutions. Thus they may be obliged to execute EPPO’s
93
Europeol founded by the “The Convention establishing Europol under Article K3 of the Maastricht
Treaty “ 1998. It has no direct powers of arrest, supports law enforcement by gathering, analysing and
disseminating information and coordinating operations. For details see:
https://www.europol.europa.eu/content/page/introduction-143 Last visited 29.08.2012
51
cooperation demands with out seeking for reciprocity otherwise they may be subjected
to infringement procedures.
However for the third countries the problem is some more complex.Why should a third
country,for example Turkey,feel obliged to cooperate with EPPO since EPPO in
response will not be able cooperate. On the same point the third counrty still have to
adress her cooperation demands to the Member State authorities. This type of
relaitonships is defined as symbiotic relationship in bilology and any ratinal country
will oppose the idea. Why should a third country will devote its sources to fight against
the crimes related to EU financial intrests, copeaterate or share information even in the
cost of his citiezens to be convicted. Eurojust operates on the same area and its
experience may shed some light to the problem. Eurojust’s Annual report 2011 94 speaks
of an actual operation turn into a failure due to Turkish authorities non compliance to
the original plan.
When the Slovak authorities received information about a new plan to ship 10 tons of
acetic anhydride to Turkey and to take a return delivery of 300 kg of heroin via Italy,
Bulgaria, Romania, Hungary, the Slovak Republic and Austria, they contacted Eurojust
so that a cross-border controlled delivery under judicial supervision could be arranged.
Eurojust involved Europol in providing intelligence cross-match analysis, with the
result that links to investigations in other countries were established. In November
2011, all affected countries (including Turkey) attended a coordination meeting at
Eurojust to agree a plan of action. The controlled delivery of acetic anhydride across
the Member States proceeded as agreed, but once in Turkey the shipment was seized
and the innocent truck driver arrested, contrary to the agreements reached at the
coordination meeting. Eurojust played a crucial and active role in the release of the
truck driver.
Although the operation was not able to continue in Turkey, eight ringleaders were
arrested in the European Union, and in total 32 tons of acetic anhydride, together with
drugs, illegal weapons and false documents, were seized.
94
Eurojust Annual Report 2011,p.29
http://Eurojust.europa.eu/doclibrary/corporate/Eurojust%20Annual%20Reports/Annual%20Report%2020
11/Annual-Report-2011-EN.pdf Last visited 26.08.2012,23.50
52
From the grand picture Eurojust in its operational mind set inflicts failure on the
Turkish authorities. However on the other side, one should check the level of relations
with Eurojust and Turkey. A couple of meetings and monitoring Eurojust gatherings.95
Turkey does not have a legal obligation to fulfill the orders or demands from the
Eurojust since Turkey and Eurojust or does not have an agreement on criminal
cooperation.
In order to preclude such problems criminal cooperation agreements between the EU
and the third countries should be signed. However since mentioned above why a third
country should accept to help the EU without any reciprocal rights stays in minds.
4.Conclusion
The study, from the beginning to the end draws two separate pictures. On the one hand
a nation state, struggling to get rid of its ancient boundaries on the other hand a group of
nations endeavoring to reach a united Europe.Both pictures has its own unique
stories.The study focused on prosecution systems of this two unique structures. Even an
inexperienced reader must have seen the gaps and differences between the two systems.
However Turkish legal tradition has one specific trait, borrowing western institutions
and systems and melting them in its core. The prosecution system is not an exception.
However this processes usually does not take place according to a master plan.
Surprisingly this time the same piecemeal approach showed itself during the
establishment of the EPPO. EPPO is not designed to be a part of one and only European
Criminal Law System. Reader until now may have gained the insight that the EPPO’s
legal base is insufficient and due to difficulties .
Turkish legal system and lawyers gained experience and flexibility from decades of
constant change in legal context. It will be interesting to see settled European system’s
reaction against a flexible EPPO and its slippery legal texture.
Turkey, however, in itself needs a central prosecution service and coherent application
of law among prosecution services. European experience EPPO, with its all mistakes
95
See http://www.uhdigm.adalet.gov.tr/uluslararas%C4%B1_isbirligi/uluslararasi_orgutler/eurojust.html
53
and right approaches, can lead a transformation in Turkish prosecution system. First of
all above mentioned weaknesses on the status, independence and problematic
relationships with other actors, cooperation etc. should be reviewed then a central
Turkish Prosecution service, with nationwide jurisdiction and hierarchical bonds with
lower offices should be introduced. This new structure should have a sound legal base
and powers to function it properly. The Turkish
Public Prosecutor can be easily
established and mesh with the rest of the criminal law system. Lessons learned from the
mistakes of the EPPO and its strengths will shed light to the Turkish Prosecution
system.
54
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IV