Confidentiality of investigation, detention, and public proceedings

Article 157 of the Criminal Procedure Code No. 5271 explicitly stipulates that procedural actions during the investigation phase are confidential. This confidentiality is not merely a technical procedural rule. It is necessary for the proper conduct of the investigation, the protection of evidence, and, most importantly, the protection of the rights of individuals against whom no final judgment has yet been rendered.

So, what do we see in practice?

An investigation is launched against an individual. Footage of the arrest and search is leaked to the public within hours, at the very first stage of the investigation. Before it is clear exactly what the person is accused of, what evidence has been found, or what the suspect's defense is, the arrest and search footage is circulated. Meanwhile, the suspect is referred to court. Then, a detention order follows.

Thus, an opinion about the person is formed in society before the trial has even begun.

Most people do not read the indictment or listen to the defense. Even when a verdict is rendered, the details do not interest many people. The opinion is formed after the initial footage.

In cases where the shared footage is recorded by law enforcement, one inevitably wonders whether the prosecution has given its express or implied approval for the publication of the footage. It is clear that the footage is being served to ensure public support for the ongoing investigation, to gain legitimacy, or to act as a deterrent.

This situation creates a serious problem not only in terms of the presumption of innocence but also regarding the individual's right not to be stigmatized. The Constitutional Court particularly emphasizes that public authorities must refrain from actions and practices that would lead to the impression that a person is guilty in the eyes of society.

Another issue is detention orders.

Detention is the deprivation of liberty of a person accused of a crime before they have been convicted. For this reason, it is one of the most severe protective measures in the legal system and should be an exception.

Article 100 of the Criminal Procedure Code No. 5271 has conditioned detention on specific requirements. First, there must be strong suspicion of a crime based on evidence, and in addition, at least one of the grounds for detention must exist.

Even for crimes referred to as "catalog crimes" listed in the article, no obligation is imposed, as the law states, "In the presence of strong suspicion based on concrete evidence that the following crimes have been committed, a ground for detention may be assumed to exist." It is also mandatory for the detention order to be proportionate.

Trying a person whose guilt has not been finalized while they are in detention, without meeting the conditions set forth in the law, undermines trust in justice and the judiciary. A detention order should not be the result of public pressure, nor should it turn into a preemptive punishment with the approach of "let them stay inside for a while."

Publicity of hearings

In accordance with Article 141 of the Constitution and Article 182 of the Criminal Procedure Code, hearings in courts are open to everyone as a rule. Holding hearings in closed session is an exception and is only possible in cases where public morality or public security absolutely requires it.

However, pursuant to Article 183 of the Criminal Procedure Code, no audio or video recording or transmission devices can be used within the courthouse building or inside the courtroom once the hearing has begun. The publicity rule in our laws is regulated in a way that does not cover video recording and sharing.

There are demands for the broadcasting of hearings in some trials closely followed by the public. Defendants, claiming that a fair trial is not being conducted, want the public to see what happens in the hearings.

While the clear provision of Article 183 of the CMK stands, it is not possible to record or broadcast hearings. However, with an article to be added to any omnibus bill, it could be made possible to record and broadcast hearings.

I believe that if there is confidence that the trial is fair, there is no harm in recording it. We remember that even during the coup periods in the past, footage from trials was shared. I know that fair trials are being conducted today in our country, which is a state of law, and I believe that recording and broadcasting them would strengthen trust in the judiciary.

Is it more in the public interest to show the moment of arrest of a person whose guilt has not yet been finalized and the search conducted in their home, or to show how the evidence, allegations, and defenses are debated in the presence of the court in the case filed against them?

I think the second option is much healthier.