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Turkey: Constitutional Court Rules on Reasonable Period of Imprisonment for Certain Crimes

(Nov. 4, 2013) The Constitutional Court of Turkey handed down a decision in June 2013 to annul the maximum term of imprisonment for certain crimes that fall under the jurisdiction of the High Criminal Courts. (Constitutional Court Decision No. 2013/084 [in Turkish] (June 4, 2013), Constitutional Court website.) The term of imprisonment upon conviction for those crimes, as indicated in article 75 of a July 2012 law, is generally up to five years (two years with a maximum three-year extension), but for crimes involving terrorism or organized crime, the term of imprisonment may be extended by up to twice that length, i.e., to up to ten years of imprisonment. (Yargi Hizmetlerinin Etkinlestirilmesi Amaciyla Bazi Kanunlarda Degisiklik Yapilmasi ve Basin Yayin Yoluyla Islenen Suçlara Iliskin Dava ve Cezalarin Ertelenmesi Hakkinda Kanun [Law on the Amendment of Some Laws to Increase the Efficiency of Judicial Services and to Reprieve Sentences and Postpone Litigation of Crimes Committed by the Press], Law No. 6352 (July 2, 2012), Grand National Assembly of the Republic of Turkey [hereinafter GNAT] website.)

According to the Law on the Duties of Civil and Criminal Jurisdiction Courts, High Criminal Courts are defined as first instance courts that hear cases on plunder, corruption, forgery of legal documents, aggravated fraud, and fraudulent bankruptcy, as well as cases involving criminal acts subject to aggravated life imprisonment (agirlastirilmis müebbet agir hapis cezasi), life imprisonment, and more than ten years’ imprisonment. (Adlî Yargi Ilk Derece Mahkemeleri Ile Bölge Adliye Mahkemelerinin Kurulus, Görev ve Yetkileri Hakkinda Kanun, Law No. 5235 (Sept. 26, 2004, as last amended Apr. 30, 2013), MEVZUAT BILGI SISTEMI.)

The Court ruled that ten years of imprisonment is too long for the crimes concerned and is contrary to articles 10 and 13 of the Constitution, on equality before law and restriction of fundamental rights and freedoms, respectively. Article 13 states, “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence.” (Constitution of the Republic of Turkey, GNAT website (last visited Oct. 31, 2013).) The Court decision also referred to related decisions of the European Court of Human Rights on the length of prison terms in Turkey. As a result of its findings, the Constitutional Court annulled article 10 of the Anti-Terrorism Law, under which the ten-year maximum term of imprisonment had become applicable through Law No. 6352. The Court found the duration of imprisonment that could be imposed under the Law to be “outrageous,” but avoided indicating what the specific maximum period of imprisonment should be. (Constitutional Court Decision No. 2013/084, supra; see also Terörle Mücadele Kanunu [Anti-Terrorism Law], Law No. 3713 (Apr. 12, 1991, as amended Aug. 2, 2013, effective Aug. 2, 2014).)

The Court postponed the entry into force of the decision for one year. (Part VI on Date of Entry into Force, Constitutional Court Decision No. 2013/084, supra.) The decision has thus created an expectation in public opinion that in one year’s time the legislature will re-regulate the permissible applicable period of imprisonment for the crimes in question. (See, for example, Faruk Bilir, Tutukluluk Süreleri Ile Ilgili Anayasa Mahkemesi’nin Iptal Karari [Decision of the Constitutional Court Canceled Duration of Imprisonment] (July 12, 2013), Ankara Strategy Institute website.)

Prepared by a visiting Parliamentary Fellow from Turkey, under the supervision of Wendy Zeldin, Senior Legal Research Analyst.