Body of laws, norms, and rules governing international crimes and their repression, as well as rules addressing conflict and cooperation between national criminal law systems. The term international criminal law refers variously to at least three distinct areas: cooperation between different national legal systems through extradition and other forms of mutual legal assistance; the prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole; and the operation of autonomous international legal systems, including courts and other mechanisms of enforcement, that exist alongside national criminal law.
To facilitate the enforcement of their domestic criminal laws, national governments cooperate with each other in the transfer of offenders from one jurisdiction to another and in a number of other ways relating to the investigation of crimes and the gathering and production of evidence within the framework of international criminal law.
Extradition is governed essentially by a complex web of bilateral treaties by which states agree to the rendition of fugitives from other jurisdictions so that they can stand trial in the country where the crime took place or, in exceptional cases, where there are other jurisdictional links, such as the nationality of the offender or of the victim.
Turkey has enacted a range of legislation regarding cooperation with foreign states on criminal matters, including criteria and procedures for making and executing requests. The updated legislative framework outlines criteria for extradition from Turkey to a foreign State and Turkey’s requests for extradition, including circumstances Turkey can refuse extradition requests. Turkey also recently ratified the European Convention On Mutual Assistance in Criminal Matters, along with related protocols.
Turkish Legal Authorities can request legal cooperation from foreign states in any necessary circumstances, including:
- Finalizing the investigation or prosecution process.
- Fulfilling imprisonment sentences.
Turkey’s cooperation with foreign authorities on criminal matters will be fulfilled according to Turkish law. However, special procedure requests by foreign states can also be implemented, provided these do not contradict Turkish law.
The Law allows use of visual and audio communication techniques to be used to fulfil cooperation requests. These operations will be carried out according to the laws of the state fulfilling the request.
The Law addresses extradition of foreign criminals who face criminal investigation and prosecution in Turkey, as well as Turkish criminals imprisoned in a foreign state.
Extradition from Turkey to a foreign State
At the investigation and prosecution stage, extradition from Turkey is only available for offences which are subject to maximum imprisonment of more than one year. If the maximum sentence available for an offence is less than one year, extradition is not possible.
If a requests relates to circumstances where a sentence has already been given, the sentence imposed must be at least four months’ of liberty binding punishment.
Refusal of extradition requests
Turkey can refuse extradition requests from foreign countries if:
- The request concerns a Turkish citizen, except for obligations arising from affiliation to the International Criminal Court.
- A strong presumption exists that the person subject to the request will face torture, cruel treatment or will be subject to investigation based on their race, ethnic background, religion, nationality, affiliation to a certain social group, or political views.
- The person subject to the request has already been imprisoned or acquitted in Turkey.
- The request concerns a crime subject to the death penalty, or a sentence could be imposed which is incompatible with human dignity.
- The action subject to the extradition request is:
- A crime of thought, political crime, or crime linked to a political crime.
- Only a military offence.
- Contrary to national security, to the detriment of the Turkish State or Citizens, or a Turkish legal entity which is established accordingly to Turkish laws.
- A crime subject to Turkish jurisdiction.
- The offense is barred by the statute of limitations or has been pardoned.
On 22 March 2016, Turkey also ratified the European Convention On Mutual Assistance In Criminal Matters (“Convention”), along with related protocols. The Convention and protocols were ratified into local legislation on 25 April 2016.
Collectively, the Convention and protocols outline procedures and principles for international legal cooperation on criminal matters. They aim to create harmony and maximum unity between European Council members’ legal systems on this issue.
Comparative Perspective: Criminal Investigations in Turkey and the United States
Unlike the United States, Turkey is not a federal system. Although the overall level of crime in Turkey is markedly lower than that in the United States, there is increasing concern about crime, particularly about problems with drugs and organized crime.
Criminal justice Systems
Turkey criminal justice contrasts sharply with the American system in a number of important ways. As in the United States, the Turkish state is responsible for the administration of criminal justice. Turkey has a single national criminal code, a single national code of criminal procedure, and a much more unified court system. The police and the prosecution are state-level rather than local agencies. The prosecutor is not an elected official, but a civil servant operating within a hierarchical system. There is no death penalty, and sentences for all crimes, both major and minor, are considerably lower than in the United States.
In both countries cases are investigated by the police, sent to the prosecutor, and then taken to court. The formal structures in the two countries look quite similar. Turkey does not use a jury, however, and the trial process is very different from that in the United States.
The judge, rather than the lawyers, organizes the evidence and asks most of the questions. The prosecutor and the defense counsel are allowed to ask questions only after the judges have finished. The prosecutor and the defense counsel may ask the judge to call additional witnesses. The decision as to whether the additional witnesses will be called, however, is up to the judge. Disclosure of the prosecution case to the defense in advance of trial is virtually automatic. The judge receives a written file with all the evidence when charges are filed. Upon request (almost always made), the defense counsel also receives access to the written file.
Guilt or innocence is decided by the judge in minor cases, a panel of 3 judges in more serious and the most serious cases. When a panel is involved, conviction requires at majority. Sentences also require majority votes of panel.
Control over police investigations
There are also major differences between Turkish and American concepts of police and prosecution. The American prosecutor has little control over police investigations, but almost unlimited discretion as to whether a particular crime should be charged and prosecuted. Turkish law is almost the exact reverse.
The Turkish prosecutor has formal responsibility for investigation, and the police are considered to be a subordinate helping agency. Turkish law has traditionally taken a strong stand against prosecutorial discretion, considering such discretion to be inconsistent with the rule of law and a violation of the principles of equal justice.
Even today Turkish law gives the prosecutor little discretion in the most serious cases and explicitly requires the prosecutor (and therefore the police as well) to investigate and prosecute every crime that is committed. In the last decate Turkish law has been changed to allow the use of discretion in the more minor crimes. The use of discretion now appears to be expanding to medium level crimes.
American police have wide discretion in investigating crimes and may investigate a suspect without any proof whatsoever that the suspect has committed a crime. American law requires, however, that there be probable cause before the police arrest a suspect. The amount of proof required for the filing of a charge by the prosecution or an indictment by the grand jury is formally the same as for arrests, probable cause.
The quantum of proof required as a practical matter, however, varies considerably from locality to locality. Many district attorneys require a likelihood of conviction before filing charges, and some states require more proof for preliminary hearings or indictments than for arrests. For conviction all states require proof beyond a reasonable doubt.
Turkish law is more restrictive on the police. Turkish police must have “suspicion” in order to investigate, and the prosecutor must have “sufficient suspicion” in order to file a charge. Arrest requires both “suspicion” and either a risk of flight or a problem in identifying the suspect. Longer term detention requires both a very high level of proof and strong reason for detention (risk of flight, or harming evidence). Longer term detention also requires a court order unless there is a need for immediate action.
Although Turkish prosecutors lack formal discretion in the most serious cases and are legally obligated to prosecute all cases where they lack discretion, they may refuse to charge even these cases when there is insufficient evidence. Prosecutors differ greatly from one another in their charging practices, The range of variation is perhaps not as extreme as in the United States, but is still quite wide.
In the United States the actual amount of proof required for charge by the prosecution is often greater than the amount of proof legally required for arrest. The formal standard for charge by the prosecution in most states, however, is the same as that the formal standard for arrest by the police: “probable cause.” In Turkey the formal standard for charge by the prosecution requires more proof (“sufficient suspicion”) than that necessary for formal identification of a suspect by the police “suspicion.”
End of police investigation
Another important difference in Turkish and American prosecutorial practice concerns when charges are filed. In the United States, prosecutors generally file charges within a few days of arrest by the police. Prosecutors generally require that the police investigation be complete enough to provide the level of proof they need to file the charge, but it is not at all uncommon that the investigation is not fully completed. In Turkey, prosecutors generally wait until the police investigation is fully completed before filing charges.
In most American States prosecutorial charges are reviewed by a court or a grand jury before the defendant is placed on trial. In States where prosecutors review the police charges carefully, courts and grand juries approve 90% or more of the prosecutorial charges. In States where prosecutors uncritically adopt the police charges, the approval rate is often much lower.
Turkey has no grand jury, and there is no evidentiary hearing to review prosecutorial charges. Before a defendant is placed on trial, however, a judge must approve the opening of the trial proceeding. The judge’s review is based on looking at the case file rather than a hearing, and results in approval of the filing in roughly 99% of the cases.
Conviction in the United States requires proof beyond a reasonable doubt. Although the verbal formulas do not appear to be as strong, Turkish law also has doctrines requiring uncertainties to be resolved in favor of the defendant. Conviction requires that the judge or judges be personally convinced of guilt. In case of doubt, judges are instructed to acquit.
The United States has a large number of dismissed cases, a low number of acquittals at trial, and most convictions result from pleas or plea bargaining. Turkey has fewer dismissals, many more trials, and for most offenses more acquittals.
Turkish defendants are not asked to plead whether they are innocent or guilty, and there is some kind of trial in most cases. If the defendant admits guilt, the trial is sometimes truncated, and prosecutors sometimes offer concessions on the sentence to be recommended in exchange for admissions of guilt. Even in these cases, however, there is a trial. The only instance in which there is no trial in the Turkish system is when a “penal order” is entered. In cases of lesser seriousness, Turkish prosecutors may dismiss the case on condition that the defendant voluntarily accepts a lesser penalty. If the defendant and the judge accept the prosecutor’s proposal, there is no trial.
The Turkish penal code gives judges considerable sentencing discretion. On the whole, however, both the sentencing structure contained in the Turkish penal code and the actual sentences imposed by Turkish judges are lower than those for similar offenses in the United States.
Because the Turkish constitution forbids use of the death penalty, none of the defendants arrested or referred for intentional homicide in Turkey was sentenced to death, as opposed to same states in the United States.
Turkish law, like American law, punishes drug dealers more severely than casual users.
Arrest of the suspect
Most felony cases in the United States begin with arrest of the suspect. The police make the vast majority of these arrests without a warrant. The suspect is then brought before a court that decides whether the suspect is to be released on bail or on the defendant’s own recognizance.
The Turkish law is quite different. The Turkish police are not allowed to arrest a suspect simply because they have probable cause to believe that the suspect has committed an offense. They are permitted to arrest without a warrant only when the suspect is caught in the act or when there is a risk of flight or a problem in identifying the suspect. Detention for longer than 1 day requires a warrant issued by a court. Courts are allowed to issue warrants only when there is “urgent suspicion” of guilt (a standard higher than that required for filing charges) and a risk of flight or some other grounds for holding the suspect. The consequence of these tight Turkish laws is that far more cases begin without arrest even for serious offenses than in the United States.
Both the United States and Turkey have developed procedures for handling minor crimes on an expedited basis. In the United States these procedures include guilty pleas, diversion, and prosecutorial dismissals. For infractions and some very minor crimes, fixed payment schedules are also widely used.
Turkey makes no formal use of the guilty plea. Turkey makes extensive use of fines, however, instead of jail for minor offenses. The fines imposed are day fines that attempt to establish punishments related to the defendant’s ability to pay. Frequently the fines involve installment payments.
Turkey also uses fixed payment schedules but only for administrative offenses that are not considered criminal. Turkey has developed a prosecutorial diversion procedure that is widely used for minor crimes. Under this procedure prosecutors do not formally prosecute defendants who make specified payments to specified charities or other good causes. Although quite differently administered, this scheme, like fixed payment schedules, allows large numbers of cases to be handled administratively.