Associated Professor Mustafa Tören YÜCEL (*)
In more of the 3/5 of the world countries (62,5%) from the 100.000 population the imprisoned population rate is 150, for the European countries in England the rate in 100.000 population is 139 and between the European Countries with highest rate, in November 31st 2009 this rate evaluated to 162 in our country. [1] The crime rates can not solely explain the population increase in the prisons. In most countries the stability or decrease of the crime rates including the serious crimes, the prison population has the tendency of continuously increasing. The thought which effects the attitude on this matter feeds with the fear of real/putative fear of crime, loss of confidence in punishment justice system, the disappointment that the prison treatment precautions create and variations like re-strengthening of the getting even philosophy in the punishment. In this context to build more prison to fight with the crime is like to form more cemeteries to fight eighth the disease. Though the liberal approach provided with the new CMK, as a result of the judicial culture and habits the de jure arresting politic could not be realized. As the arresting was taken as an exceptional precaution with the reasonable doubt that the person had committed the attributed crime (*Risk of escape, * risk to intervene to the operation of justice, *commit a serious crime risk) in case of the existence of one or more of these reasons and only than the arrest can be applied concept should rule the application as a general principle, it became an essential principle to be applied for the catalog crimes situated on CMK 100/3 and the understanding which is wanted to be brought with CMK is not reflected to the application. [2] Because the information about how many of the arrested defendants were released/imprisoned it can be suggested to scan the General Directorate for Penitentiaries and Detentions (for example information sabot 2005) from the Judicial Record Data Bank and to transform this system to a systematic application.
Will the raise from 135 (in 2008) to 170 (in 2010) of the prison population in 100.000 general population mean something for the abstract criminal politicians [3] who were deprived from the criminological and sociological realities? Isn’t it cost so much for the country the sacrifice of the optimum spirit and meaning that the Criminal Enforcement of the Law no. 647 (1965) to the populist approach? Isn’t the new penalty politics, caused a crisis (crisis of penal excess) by creating unrealistic expectations about what the prisons can make for the society ? Is the one case information stated below not enough to question the rationality of the new politics.
"He encroach 39 TL but punished with 40 years of prison”
In Diyarbakır a record punishment is given to Ümit Erzin who was standing on trial with the claim that he enforce the 5th grade student DA to give his money for 10 times in 7 months. The defendant who is punished separately for each encroach took 120 years of imprisonment. But for the reason that the quantity of money was small and the money was returned the punishment is decreased to 40 years (Vatan, 10/06/2008, p.14). What will be the value of these news against the regulation of the CTİK article 107? Though a new code has to be brought, couldn’t a rational which rules the Sweden Penal Code and a pragmatic penal politic with the Turkish law culture data be adopted? (to be continued…)
(*) Çankaya University Faculty of Law Head of Law Philosophy and Sociology Department
[1] Reasons for aggravating the penalties,
- Even in the reality there is no real increase in crime rate the impression and fear of the crime,
- Tending towards wrong choices to fight with economical and social problems/letting them die from the hunger instead of social help against unemployment and increase in unnecessarily people, for now lets canalize the last two option from enclosing them in urban fringe or prisons options,
- The postmodern anger and
Populist disciplinary/governing via crime politics.
See. R. G. Shelden “Why are we so punitive? “Son Zamanlardaki Hapsetme Eğilimleri Üzerine Bazı Gözlemler” (Some Observations About The Recent Imprisonment Tendencies) Suç Politikası (Crime Politics) Seçkin, Ank., 2006, p.466-7; www.prisonstudies.org Bk. S. Öztürk. Cezaevlerinde ‘Vardiyeli Uyku’ (Sleep in Shifts in Penitentiaries) Hürriyet 31/08/2009 p.18
[2] Bkz. B.Öztürk, D.Tezcan, R.Erdem ve...Ceza Muhakemesi Hukuku (Law on Criminal Procedures) (Text Book) Seçkin, 2009, p.5,7: “Our people will not regain the system that he deserves until the revolution is realized not on law but in their mentality. The responsibility of the courts is operating according to CMK not to old habits. Here, the inadequacy of the sub structure should not be presented as an excuse. It's thought provoking that in the operations which don't have anything to do with these inadequacies, for example in operations like decision of imprisonment M.T.Yücel. “Tutuklama Siyasetinin Aritmetiği” Güncel Hukuk, (Arithmetic of the Detention Policy – Current Law) (January 2010/1-73), p.16-19
[3] According to Bentham in the below situations condemnation should not be applied:
1. In case that a damage activity which will be prevented have no damage for the entirety (groundless)
2. In case that the condemnation does not have any damage preventing function (inefficacious);
3. In case the damage which rise as a result is higher than the damage which desired to be prevented (unprofitable/too expensive);
4. It is the prevention of the damage by itself or in a cheaper way (needless). See; M.T.Yücel. Hukuk Felsefesi (Philosophy of Law) 2009