Associated Professor Mustafa Tören YÜCEL (*) 

The most important parameter which affects the waiting time 1 during the term of judgment is “capacity limits”. Like it is in the land road example, while over capacity of vehicles would block the traffic, extreme over capacity case load would bring the system to the point of blocking. Although at the moment production is continued with hidden extra capacity, in order the demand for criminal justice must be balanced by supply and this balance to be maintained, the system inputs must be seriously selected. Of course, in order to reduce the waiting time effort must be spent for decreasing the delays to a minimum too. If contrary the real case load will show an artificial increase. Thus, in Ankara criminal courts in a research about the delays and their reasons, it is determined that average number of delays per trial is 2.2.

According to 1994 year data, it is seen that the number of 57.980 cases which are decided by the courts under consideration increased to 127.556 when the average number of delays are taken into consideration. For sure when the possible changes are emphasized in the criminal justice system in order to reduce the case transaction time, it should not be ignored that the “local criminal culture” 2 (informal norms which are determined by informal practices, orientation of the applier, expectations of the applier and experience and which are transferred from one generation to another) is very important. For the criminal justice system which is in trouble in fulfilling (providing the supply) the current case load (the demand) this awareness should be seen as “appropriate” and sometimes useful. Thus even the current position of the case load makes diversion (out of the system) at each stage (different stage/stages as for every country) of the system a necessity. 

Among the elements that affect the term of judgment and the legality of the decisions there are decisions of annulment taken by the Supreme Court on appeal or annulment by written order. In 2008 the ratio of annulment reached 61% (!) And in the distribution of the decisions that are given over demand for annulment by written order, in 2002 3599 written orders coming to the Ministry of Justice, among 7380, the demand was not seen as appropriate and returned back to its locality; 3888 files were transferred to Supreme Court Republican Chief Prosecution and in 3432 of them decision of acceptance (93.5%) and in 236 (6.5%) decision of refusal is taken. Among 9668 demands coming in 2008, 3949 are transferred, 1785 is accepted and 103 are refused and 2061 are in suspension.

Now it will be useful to look at the de facto function of the criminal justice with regard to its influence on the case load. It would be useful to look at two news coverage in this issue: “Twice attacked to house and released… At last killed. Said, ‘I will commit this murder’ but no one cared. The ex-prisoner from theft and deceit defendant who was regularly abusing a married woman in his last act of abuse killed her husband and committed suicide after deciding not to kill the woman”. (Vatan, 12/06/2008, p.1,15).

M. Karataþ, killer of the Italian artist known as Picca Bacca who is murdered in Gebze district of Kocaeli province, was a psychopath, he was a criminal, father of two children, living separate from his wife, who had a big file of crimes, about whom there are many complaints to the police and who was known as a psychopath in his environment (who is known as an aggressive person frequently creating conflicts).  

Such kind of people is in the habit of their opinions and actions conflicting with the society. They do not know to take lessons from their experiences; they are never concerned thus there are problems in their fibers of emotions. 

Would not the criminal justice have a proactive function beyond formality as it is shown in these two examples? And would not the measure of arrest reach a meaning beyond formality? Social research report (SAR) which includes a psycho-social-biological survey is in England an indispensable part of the institution of controlled freedom with 100 years of experience how long it will take the awareness that rationalization of arrestment politics and due to TCL article 61 in terms of individualization of punishment is an important instrument will settle down? For creating this consciousness can’t a mobilization be started by the Academy of Justice?

Another important issue in criminal justice is the height in the non guilty decision ratios in our country in front of the kinds of the courts and comparison of the other countries. Although that I stated this issue many times there is no reduction in the last forty years in the “rate of acclaiming”  3 and we did not witness a target is determined in the Strategy Document in this issue.

     Year     Accusation         Non Guilty Decision

     1986       47.6          15.0 

     1987       47.3          21.2

     1988       48.3          11.7

     1996       50.5          27.8

     1997       41.9          26.1

     2002       50.3          27.9

     2006       34.0          30.0 

     2008       42.0          21.2

      Max.      50.5          30.0

      Min.       34.0          30.0

      Average 45.2          22.8

According to this data series the average of accusations appears as 45.24 and that of non guilty decisions as 22.6. Only no meaningful correlation is seen in between accusation and non guilty decision (coefficient: -0.349).  

According to the kinds of courts when the ratio of conviction/non guilty decisions (2008) are looked at, beyond the fact that the ratios of non guilty decisions are so high compared with the other countries’ data, important differences are witnessed among the courts fulfilling their tasks in the judicial centre. And this fact is an indicator how the opinion of conscience4 became subjective as a result of non formation of a standard practice in the evaluations in the parameters of “Event (occurrence) X Norm = Decision” process.

Below the percents of conviction are given in terms of various countries in order to document the carelessness in public trials. Except for China where there is no possibility of being founded non guilty when accused, the country where the conviction ratio is the lowest is Turkey.

Country      %

Germany 96,5

China 99.6

France     98.9

England 90.3

Sweden   94.7

Japan   99.9

Korea        99.6

Turkey     70.0

It is important that the foreseen sanctions and especially security measures are reached a function beyond formality in the context of the functionality of the criminal justice. When the distribution of the defendants which are subjected to measures of security in terms of mentally ill, alcohol and drug addicts, though instead of treatment in the prison environment accepting a social approach is a rational approach, it seems susceptive how serious a treatment is applied to people who are subjected to these measures. A research project must be developed for determining this issue.  

                         (2008)

     Male                 Female                  Total

     141.411     12.733                        154.144

It will be non evident to see these people as the regular consumers of the system with the logic of a rolling door when there is no functionality of the measure.

(to be continued...)

(*) Çankaya University, Faculty of Law, Philosophy and Sociology of Law Sub-Department Head

1 “Tecavüz 2008’de oldu ama ruh saðlýðýna Adli Týp’ta 2011’de bakýlacak” Hürriyet (10/11/2009).

2 Bk.S.Dönmezer ve F.Yenisey. Türk Ceza Adalet Sisteminde Etkinlik 1998,TESEVÝst., 2000, ss.16-17,19-20.

3 M.T.Yücel. Hukuk Sosyolojisi 4. basý, Ank., 2008, s.309.

4  M.Feyzioðlu. Ceza Muhakemesinde Vicdani Kanaat, Yetkin Yayýnlarý, Ank., 2002.