What is judicial control measure?

Entrance

Judicial control measures , regulated in Article 109 of the Turkish Code of Criminal Procedure (CMK) , are protective measures applied in criminal proceedings instead of arresting a suspect or defendant when grounds for arrest exist. These measures restrict personal liberty but do not completely deprive the individual of their freedom. This institution entered our criminal law based on the principles that arrest should be an exception, that personal liberty is paramount, and that the presumption of innocence must be protected. Its purpose is to mitigate the disproportionate and severe consequences of arrest, while ensuring the smooth conduct of the trial and preventing the suspect/defendant from escaping or destroying evidence.

The Legal Nature and Purpose of Judicial Supervision

Judicial supervision is a protective measure that does not imply a prejudice regarding a person's guilt. While safeguarding the suspect or defendant's situation during the trial, it aims to restrict their freedom as little as possible. It offers a milder and more flexible alternative to detention.

The main purposes of judicial supervision are as follows:

• Being an Alternative to Arrest: Offering a more humane approach, especially in short-term or less serious crimes, by avoiding the severe consequences of arrest (loss of employment, weakened social ties, psychological trauma, etc.).
• Protecting the Presumption of Innocence: Minimizing the deprivation of liberty by considering the possibility that a person may be found innocent at the end of a trial.
• Ensuring the Integrity of the Trial: To prevent the suspect or defendant from escaping, destroying evidence, and exerting pressure on witnesses.
• Managing Societal Risks: Ensuring public safety by taking measures to prevent suspects or defendants from re-offending.

Judicial supervision is an important tool of modern criminal procedure, aiming to strike a balance between individual liberty and public order and the effectiveness of the trial.

Conditions for Issuing a Judicial Supervision Order (CMK m.109/1-2)

Certain basic conditions must be met in order for a judicial control order to be issued:

1. Existence of Grounds for Arrest: First, the grounds for arrest specified in Article 100 of the Code of Criminal Procedure (suspicion of escape, suspicion of tampering with evidence, suspicion of continuing to commit crimes) must exist in the specific case. If the grounds for arrest do not exist, a judicial control order cannot be issued either; because judicial control is an alternative measure to arrest.
2. Avoiding the Catalog of Offenses or Reaching a Certain Limit: As a rule, arrest warrants are issued for the catalog of offenses (serious and dangerous offenses) specified in Article 100/3 of the Code of Criminal Procedure. However, even in these cases, judicial control orders may be issued. Furthermore, if there are grounds for arrest for suspended sentences or deferred sentences, judicial control becomes mandatory.
3. Judicial or Court Decision: Judicial control orders a magistrate judgeand the court . This decision can be made ex officio (on its own initiative) or upon the request of the public prosecutor.
4. Principle of Proportionality: The judicial control measure to be applied must be proportionate to the nature and severity of the crime. The measure should be appropriate to the suspect's/defendant's situation and the characteristics of the case, and should not be excessively restrictive.

Applicable Judicial Control Measures (CMK Article 109/3)

Article 109/3 of the Code of Criminal Procedure lists a limited number (numerus clausus) of applicable judicial control measures. These measures cover a wide range, and one or more of them may be applied together depending on the specifics of the case

a) Travel Ban: This involves confiscating the passport of a suspect or defendant or imposing a travel ban to prevent them from fleeing the country.

b) Not Leaving the Designated Residential Area: This means the suspect or defendant must not leave the boundaries of a specific province, district, or neighborhood.

c) Prohibition from Visiting Specific Places or Engaging in Certain Activities: For example, being prohibited from visiting certain bars, cafes, or engaging in activities such as gambling or alcohol consumption.

d) Traveling to and from Designated Areas: Specifically, avoiding approaching designated addresses or using specific routes, in order to prevent the suspect or defendant from contacting victims or witnesses.

e) Measures Against Minors: Measures that ensure the suspect or defendant stays away from or does not have contact with the victim, especially if the victim is a minor.

f) Electronic Ankle Monitoring (Monitoring via Electronic Device): This involves monitoring whether a suspect or defendant is in a specific location or entering certain areas using electronic devices. This measure can also be applied, particularly as a form of house arrest.

g) Deposit of a Specific Security Amount: The suspect or defendant may be required to deposit a specific amount of money into the court's treasury to ensure their attendance at the hearing or compliance with the measures.

h) Seizure of Travel Documents: Confiscation of passports and similar travel documents.

i) Prohibition on Possession of Weapons: Depending on the nature of the crime, the permit to possess or carry weapons may be revoked or prohibited.

j) Prohibition from Contacting Specific Individuals: Specifically, preventing the individual from contacting the victim, witnesses, or accomplices.

k) Not Engaging in a Specific Occupation: If the crime is related to professional activity, a temporary ban from practicing a specific profession.

The judicial control measures to be applied should affect the suspect's or defendant's life to a reasonable extent, but should not be excessively restrictive.

Duration of Judicial Supervision (CMK m.109/4-7)

A time limit has been set for judicial control measures:

• During the Investigation Phase: for a maximum of six months . However, in exceptional circumstances, it may be extended by an additional four months, only once.
• During the Prosecution Phase: This for a maximum of one year . However, in cases falling under the jurisdiction of high criminal courts, this period can be extended to three years, and in terrorism cases, to four years.
• Extensions: Decisions regarding extensions are made by the judge or court upon the request of the public prosecutor.

Every extension of detention, like any decision to detain, must be based on concrete grounds.

Appeal against Judicial Control Order (CMK Article 111)

An appeal against a judicial control order may be filed within seven days of the date of its pronouncement or notification . The appeal must be submitted in writing to the judge or court that issued the order, and the competent authority to review the appeal is a higher authority than the one that issued the order. The decision rendered upon appeal is final.

Consequences of Violation of Judicial Control Obligations (Article 112 of the Code of Criminal Procedure)

the suspect or defendant intentionally fails to comply, the judge or court may issue an arrest warrantitself. This is an important provision ensuring the deterrent effect of judicial control. Failure to comply with the obligations creates a new reason for arrest, and the defendant may be arrested this time because they previously avoided arrest.

Removal or Modification of Judicial Supervision (CMK Article 110)

After judicial control measures are implemented, the situation of the suspect or defendant may change. In this case, the judge or court may, ex officio or upon request, consider continuing, lifting, or modifying the judicial control measures. For example, if the suspect or defendant's health deteriorates or the risk of escape disappears, the measures may be eased or completely lifted.

Differences Between Judicial Supervision and Arrest

• Restriction of Liberty: Arrest is the complete deprivation of a person's liberty. Judicial supervision, on the other hand, restricts a person's freedom to a certain extent, but it does not involve complete deprivation of liberty.
• Cage Environment: While arrest takes place in prison, judicial supervision is implemented within the community.
• Severity: Arrest is the most severe protective measure in criminal proceedings; judicial supervision is a less severe alternative.
• Presumption of Innocence: Judicial supervision protects the presumption of innocence more than arrest, as it does not completely deprive the individual of their liberty.

Conclusion

Judicial control measures are an important reflection of the contemporary understanding of criminal justice in Turkish Criminal Procedure Law. Based on the principle that detention should be an exception, they allow suspects or defendants to maintain their social ties by restricting their freedom less during the trial process. In cases where there is suspicion of escape, tampering with evidence, or re-offending, judicial control measures, applied within the framework of the principle of proportionality, ensure the integrity of the trial while also guaranteeing the rights and freedoms of the individual. This institution, along with the effective operation of probation directorates, both reduces the workload of the judicial system and contributes to a more just and humane criminal procedure.