The Precautionary Measure of Detention: Chekhov's Gun, Rote Thinking, and Taking the Easy Way Out

You are familiar with the 'Chekhov's Gun' metaphor: "If there is a gun hanging on the wall, it must inevitably go off by the end."

I think we can put it roughly like that. This actually reflects a style of writing. According to this, whatever is intended to be told should be conveyed to the reader as directly as possible, without unnecessary details.

Literary history is full of articles that pay homage to Chekhov's Gun. There are plenty of supporters and opponents alike. How literary taste should be evaluated is a complete mystery. In real life, especially in a matter that touches human life, taking the easy way out or skipping details to reach the target directly is very dangerous.

A maxim or a shortcut approach in literature can lead to very wrong results here. Following rules by rote may save us time or reduce errors under certain limitations.

But when unpredictable situations, rich details, and delicate balances are involved, acting by rote can lead to very severe consequences.

WHILE SAYING "LET JUSTICE NOT BE DELAYED"...

We all complain about the delay of justice. We often talk about the release of "criminals" or the insufficiency of sentences. However, for justice to be served, there is a need for sufficient reasoning and the proportionate use of public power. The administration of justice and the relief of the public conscience do not always go hand in hand. Even if the justice mechanism is concerned with soothing the public conscience, it may be delayed in order to reason correctly, and this can wound the public conscience.

The modern legal system has devised various measures so that justice is not hindered while saying "let us ensure a fair trial." In some cases, it may be decided that the suspect be tried while in detention.

Generally, these situations can be summarized as the high probability of the suspect destroying evidence or fleeing, and the existence of strong suspicion that the suspect has committed the crime in question. Both in the literature, in international documents, and in our domestic law, these situations have been seriously addressed and regulated.

Detention is, in essence, a measure that must be used proportionately because it deprives a person of their liberty. As the name implies, it is a "measure." That is why trial without detention is accepted as the rule.

A series of conditions are, and must be, sought for the application of the detention measure. Otherwise, the measure itself turns into an execution of a sentence.

Due to the burden on law enforcement and the judiciary, and partly to soothe the public conscience, our legislator has listed these crimes in Article 100 of the Criminal Procedure Code, stating that "in the presence of strong suspicion based on concrete evidence that certain crimes have been committed, a reason for detention may be assumed to exist."

Please pay attention to the expression here: "may be assumed to exist." It does not say "it exists." By saying "may be assumed to exist," the law grants the judge discretionary power.

The judge, in this case, must remember that they are obligated to make decisions on behalf of the Turkish Nation and to comply with the principle of "proportionality" in Criminal Law, with the awareness that their decisions will lead to the use of the public power held by the Turkish State.

In fact, even the law that grants such discretionary power felt the need to underline the conditions of this discretion by saying "concrete evidence" and "strong" suspicion.

Let us not forget that the goal is both to protect the right to a fair trial and to take the public conscience as a basis. Furthermore, it is also intended not to turn the detention measure into an execution.

When all these are considered together, it is clear that facilitating detention by mentioning certain crimes (catalog crimes) is contrary to the spirit of the law.

UNUSED DISCRETIONARY POWER

To summarize, the detention measure is a measure that should be applied when there is strong suspicion against the suspect and when there is a high probability of the suspect fleeing or destroying evidence.

Moreover, with the listing of catalog crimes, judges have been granted discretionary power in certain situations. By not using this power, the judge may feel endangered in the face of public conscience, so not detaining the suspect will create pressure on the judge.

To resist this pressure, the judge will feel the need to know that there is no strong suspicion or that the evidence is not concrete. However, the law grants the judge the right not to decide in favor of detention even in these situations.

But it is very difficult for a judge to make this decision under public pressure. Therefore, the law does not produce the intended result. If we may use the idiom, Chekhov's gun, which is hung on the wall with the "may be assumed to exist" provision in the law, will inevitably go off.

In that case, the practical meaning of "may be assumed to exist" will become "it exists." If we approach detention in such a rote manner, we make it easier to deprive a person of their liberty for nothing.

Another problem with this law is that while theft is among the catalog crimes, fraudsters/forgers who have the qualifications to destroy evidence or flee, unlike an ordinary thief, have been overlooked.

Many types of theft do not require serious skill, experience, or technical knowledge. However, a person who is the perpetrator of a fraud or forgery crime possesses such knowledge, experience, and skills that they can carry out acts of destroying evidence or fleeing much more easily.

I think it is common knowledge that fraud and forgery require much more skill than theft.

Yes, let justice not be delayed.

The way to achieve this is not to make the work of judges, who are overwhelmed by a pile of files, more difficult. It is to increase the number of judges so that our judges have enough time to calmly deliberate on the files before them, and thus reduce the pressure on the judiciary.

Only in this way can a judge make a decision with peace of mind, using their professional knowledge and conscience. And ultimately, justice can be served.