Avoiding Bail

The Turkish Constitution prohibits torture and self-incrimination and holds state actors responsible for their actions, but at the same time allows for detention periods of up to fifteen days. Such lengthy periods of detention facilitate maltreatment and torture. Article 17 states that, "The physical integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; he shall not be subject to scientific or medical experiments without his consent. No one shall be subjected to torture or ill-treatment; no one shall be subject to penalty or treatment incompatible with human dignity."109 Article 38 states that, "No one shall be compelled to make a statement that would incriminate himself or his legal next of kin, or to present such incriminating evidence."

The Turkish Code of Criminal Procedure (CMUK-Ceza Muhakemeleri Usulü), Law No. 1412, is a translation of the German Code of Criminal Procedure of 1877, adopted into law with changes in 1929.113 Since that time, it has been amended many times, the most recent and important being in March 1997, as the "Law concerning amending the Code of Criminal Procedure (CMUK), the Law on the Creation of State Security Courts and their Judicial Procedures and Law No. 3842 of November 18, 1992, which amended the aforementioned laws" and in November 1992, as "Law No. 3842." On November 27, 1996, the present Refah/Do-ru Yol government of Prime Minister Necmettin Erbakan presented a bill targeted at reducing periods of detention for detainees suspected of crimes under the jurisdiction of state security courts, i.e. security detainees.114 The bill was passed into law on March 6, 1997. While it drastically reduces periods of detention (see below) for security detainees and removes some offenses from the jurisdiction of state security courts, it is flawed because it does not provide such detainees with guaranteed, immediate access to counsel. It maintains two legal standards, giving different rights to criminal and security detainees. The most important aspects of the law include the following: * Article 5 of the law abolishes Article 30 of Law No. 3842 of November 1992 amending the Code of Criminal Procedure (CMUK), which set detention periods of up to fifteen days for "collective" crimes committed under the jurisdiction of state security courts, i.e. security detainees, and allowed periods of detention to be doubled under a state of emergency. * Article 3 provides for the following detention periods for security detainees: individual crimes, forty-eight hours; "collective" crimes, those committed by three or more individuals, four days upon the consent of a public prosecutor, a period which can be extended to seven at the request of a public prosecutor and upon the order of a judge; in areas under a state of emergency, the seven-day period can be extended to ten at the request of public prosecutor and upon the order of a judge. 115 * Article 2 removes two articles of the Turkish Penal Code, 384 and 385, from the jurisdiction of state security courts.116 The law, however, does not give immediate, guaranteed access to counsel for security detainees, who have access to a lawyer only after the first extension of their detention period, i.e. on the fourth day for those charged with"collective" crimes. 117 Thereafter, under the law, they enjoy unlimited access to counsel. The United States State Department 1995 Country Report for Turkey stated that, "This lack of access [to counsel] is a major factor in the widespread use of torture by police and security forces."118 Once a suspect is arrested, he should have the right to confer with a lawyer at all times. Law No. 3842 amending the Code of Criminal Procedure (CMUK), which was passed in November 1992, was a flawed attempt to improve defendant rights by a DYP/SHP coalition government elected in 1991. Then Prime Minister Suleyman Demirel promised "police stations with glass walls".119 While the law reduced detention periods and introduced many legal safeguards for common criminals, it did not for security detainees. Until March 1997, detention periods for them remained as they were before: a maximum of fifteen days for "collective crimes" [i.e. committed by three or more people], which could be doubled in provinces under a state of emergency decree. Article 30 of the law, now abolished, stated that, The accused who is apprehended or arrested in relation with offenses within the jurisdiction of State Security Courts is arraigned before the judge at the latest within 48 hours and for crimes committed jointly within 15 days, excluding the time period necessary for transferring the person to the nearest court. For the person apprehended or arrested in regions in which a state of emergency has been declared the periods mentioned above are doubled.120 In addition, security detainees were exempted from many of the new legal safeguards introduced into the Code of Criminal Procedure (CMUK) by Law No. 3842, including access to a lawyer while in pre-trial detention. Previously security detainees de jure-if not de facto-had such a right. The "Law of March 1997 amending CMUK "grants access to a lawyer to security detainees charged in collective crimes after four days and those chargedin individual crimes after two. Article 31 of Law No. 3842 states that, "The Articles 4,5,6,7,9,12,14,15,18,19,20 and 22 of this Law shall not apply for the offenses within the jurisdiction of State Security Courts. For these, the provisions of Code of Criminal Procedure No. 1412 are implemented with its provisions before the amendment."121 The "Law of March 1997 amending CMUK " lets most of these exemptions stand, removing only articles "7", "9", and "20." Since incidents of torture are most severe in security detainee cases investigated by the anti-terror police, Law No. 3842 was severely hobbled. Below is a summary of the amendments still applicable to ordinary criminal cases but not applicable under Article 31 to security detainees. Where important differences with the pre-amended version exists, they are stated in bold face type. Article 4 (CMUK 104): Precisely defines and limits conditions for lawful arrest of a suspect.122 Article 5 (CMUK 106): Allows defense lawyer to be present during arraignment. Unamended CMUK 106: No lawyer present during arraignment. Article 6 (CMUK 108): Sets period of detention before arraignment before a judge to twenty-four hours in individual crimes. Unamended CMUK 108: Suspect must be arraigned within 48 hours. Article 7 (CMUK 110): Sets maximum period of arrest in pre-trial detention while preliminary investigation is being conducted. Applicable to security detainees under the "Law of March 1997 amending CMUK." Article 9 (CMUK 128): Orders that persons detained for an individual crime be brought before a magistrate within twenty-four hours and those detained for a collective crime (one committed by three or more people) within four days, which can be extended to eight days with a judge's order. Amended by "Law of March 1997 amending CMUK." Unamended CMUK 128: Three or more persons can be held up to fifteen days with the order of a prosecutor. Article 12 (CMUK 135): The suspect is told that he has a right to a lawyer who can be present during interrogation and testimony, to call relatives to inform them of the arrest, and to remain silent. Unamended CMUK 135: Detainee is informed of crime. Article 14 (CMUK 136): Allows the suspect to have one lawyer present during police interrogation and strengthens lawyer's right to represent his client free from police interference. Unamended CMUK 136: One can have a lawyer, but not well defined as to when. Article 15 (CMUK 138): Provides free lawyers from the Bar Association for suspects who cannot afford one. Article 18 (CMUK 142): Suspects can use a common lawyer. Article 19 (CMUK 143): Strengthens lawyer's right to examine information about and documents connected with the case. Unamended CMUK 143: Lawyer could only see files after the indictment was given or if viewing them did not harm the case. Article 20 (CMUK 144): Allows unrestricted and protected access between the detained and /or arrested suspect and his lawyer. Applicable in part to security detainees under the "Law of March 1997 amending CMUK." Unamended CMUK 144: Only an arrested suspect can meet with his lawyer at any time. Article 22 (CMUK 146): Regulates fees to be paid to court-appointed Bar Association lawyers. Unfortunately, even for those to whom the above rights exist de jure, they are often not implemented de jure. Article 13 of Law No. 3842, which became Article 135/a of the Code of Criminal Procedure (CMUK) and is still in force today, banned torture and other so-called "prohibited interrogation methods." Article 24, which was added to Article 254 of CMUK, reiterates Article 13's prohibition on using evidence gathered illegally: "Evidence gathered illegally by the investigation and prosecution authorities cannot constitute a basis for a verdict."123 Article 13/CMUK 135/a states,

The constitutional protections, as well as the Bail Reform Act (a federal statute), give a defendant the right to request lower bail when the amount initially set by the court is too high to pay. A defendant can request a hearing to seek a bail reduction.

At the hearing, the defendant can argue that the initial bail set by the court is so high that it is effectively a denial of bail and amounts to pretrial detention in jail, even though the defendant is not a flight risk or a threat to the public. (18 USC § 3142 (c)(2).) Although the court must take this argument into consideration, it is not required to set bail at a level that the defendant can easily pay. Courts can set bail high enough “to induce a defendant to go to great lengths to raise the funds without violating” the constitution or the Bail Reform Act. (U.S. v. Szot, 768 F.2d 159 (7thCir., 1985).) As long as the court’s actual motive is not to just force the defendant to rot in jail awaiting trial, the court can set bail at any level it can justify.

Once a defendant informs the court, through a bail reduction request or otherwise, that she cannot afford the bail set, the court must specify the reason(s) that the amount set is “an indispensable” condition of release from jail. (U.S. v. Montececon-Zayas, 949 F.2d 548 (1st Cir. 1991).) The court must set out its rationale in writing. (Fed. Rule of App. Proced. 9.)

Just as the defendant has the right to seek a lower bail, the prosecution can request that the court set a higher level of bail based on the risk that the defendant will flee from the jurisdiction or inflict harm upon a victim or other members of the public. (18 USC § 3142 (f).) And, the court may hold a hearing to inquire into the source of bail funds that it suspects may be illegal (proceeds from drug sales, for example). Bail is only one of the conditions that a court may impose in order to grant release of a defendant from jail pending trial. Other conditions include travel restrictions, relinquishing a passport, drug testing, electronic monitoring devices (ankle bracelets), house arrest, supervision and reporting during release, and others.