What is Surveillance?

Article 74 of the Code of Criminal Procedure (Law No. 5271) defines observation. According to this provision, it is the act of keeping a suspect or defendant, about whom there are strong suspicions of having committed the act, under observation with restricted liberty in an official health institution for the purpose of evaluating their mental health. Observation is applied to determine whether the suspect is mentally ill, how long the illness has been present, and the effects of this illness on the person's behavior.

Placement under surveillance is considered a legal protective measure.

The Purpose of the Decision to Place Under Observation

As with all protective measures, the measure of placing someone under observation serves a specific purpose. The objectives of this decision are as follows:

– To determine whether the suspect or defendant is mentally ill,
– To ascertain when the mental illness began,
– To evaluate the effects of the mental illness on the person's behavior.

In accordance with Article 32 of the Turkish Penal Code, as of the date of the crime, the defendant must be kept under observation under Article 74 of the Code of Criminal Procedure to determine whether they were able to comprehend the legal meaning and consequences of their actions due to mental illness, or whether their ability to control their behavior in relation to these actions was significantly diminished. A proper medical board report must be obtained. A judgment based on a Forensic Medicine Report prepared without prior observation may constitute grounds for reversal (Y18CD-K.2019/10009).

Conditions for Observation

The decision to place someone under surveillance is subject to certain conditions, as it restricts their freedom. These conditions are as follows:

1. Strong Suspicion: A decision to place someone under observation can only be made if there is strong suspicion that the suspect or defendant committed the crime. Without strong suspicion, a decision to place someone under observation cannot be made.

2. Expert Physician Opinion: Before a decision is made to place someone under observation, an expert physician must personally examine the suspect or defendant and recommend that they be placed under observation. The expert physician must make the assessment through direct examination, not through written documents. A decision to place someone under observation cannot be made without the appropriate opinion of an expert physician (Y4CD-K.2018/11051).

3. Authorized Authorities: The decision to place someone under observation is made by a magistrate during the investigation phase and by the relevant court during the prosecution phase.

4. Presence of Legal Counsel: Before a decision is made to place someone under observation, the suspect or defendant must have legal counsel. If there is no legal counsel, one will be appointed by the bar association (CMK m.74/2). Furthermore, the public prosecutor and the suspect's or defendant's legal counsel must be heard.

5. Duration: The observation period cannot exceed three weeks. In cases where this period is insufficient, additional periods of up to three weeks each may be granted upon the request of the official health institution, but the total period cannot exceed three months (CMK m.74/3).

Appeal against the Decision to Place Under Observation

The decision to place someone under observation can be appealed, and the appeal suspends the execution of the decision (Article 74/4 of the Code of Criminal Procedure). The appeal period is two weeks from the date the parties concerned learn of the decision or it is served (Article 268/1 of the Code of Criminal Procedure).

If the judge or court that objects to the decision finds the objection justified, it will correct its decision; otherwise, it will send the objection to the competent authority within three days at the latest (CMK art. 268/2). A decision is usually made without a hearing upon objection, but the public prosecutor and the defense counsel or representative may be heard if deemed necessary. The decision should be given as soon as possible (CMK art. 271).