Criminal Law Reform

Nazire Dedeman
Founder President

The aim of UMUT, Honourable Leaders Foundation is: ’’to educate the youth, who are the assurance of our future, as individuals who contribute to the growth of our country and who are beneficial to humanity, by helping them acquire the skills and personality features in being a leader following the footsteps of Atatürk. To make individuals internalize the superiority of law and ensure that they contribute to its practice. To encourage them to peacefully solve disagreements in accordance with our leader Atatürks understanding of ’’Peace at Home, Peace in the World’’. Within this framework the purpose is to teach and enable them to acquire negotiation skills (and skills needed to ensure peace and its development).’’ We strive to fulfil our goal and to broaden our accomplishments.

Only in a state of law, where security is ensured, can citizens trust their government and improve themselves freely. The notion of ’state of law’ is a notion which aims to produce individuals who have guaranteed rights and freedoms, who can participate in legal affairs whose outcomes are definite and who can present and protect their judicial presence before the state. In the definition of the State of law, ’’The state of citizens being in judicial security’’ is seen as ’’the main aim to be realized by means of making the notion of both state of law and common denominator prominent’’ and ’’The states’ acts and procedures being in accordance with the rule of law’’ is accepted mainly as a factor playing a role in accomplishing the real goal of the state.

Although much has been said about the concepts of state of law and the rule of law, these concepts are not clear in the minds of the people of our country. This stems from the impression that the subject only concerns the law-makers. However societies that have citizenship rights and responsibilities can and do make law and justice exist. I know that the whole world and especially our country need this. Honourable societies are societies that are respectful to justice and that can protect the right to live decently. Honour is the scale measuring the respectability of peace and the compass of development that doesn’t part from rights and freedoms. And we know that the honour of man is synonymous with fully conceiving the notion of the state of law, and protecting and developing the law.

Whatever the reason, individual or organised terror is a form of violence and both limits and violates the individual’s right to life. Of the fundamental human rights and freedoms, the right to life is the primary right to be protected. Individual and organized activities in a state of law are illegal activities.

Between the 16th and 18th of June 1995 the ’’The Fight against Terror and Organised Crime in the State of Law’’ Symposium was held to discuss terrorist and organized crimes and to contribute to comparative law. UMUT foundation published the notices and debate as a book under the same name. As UMUT foundation, we believe that ’’The Fight against Terror and Organised Crime in the State of Law’’ is a work of art to be consulted at all times in reconfiguring our law system. 

We present our second work, ‘CRIMINAL LAW REFORM’ that we consider to be a lasting work in participating in the formation of a democratic state of law and in helping individuals to understand and adopt the rule of law. We thank all those who participated in the development of the book. 

It is accepted by all that Turkey needs a new penal code and criminal procedure law. The Criminal Procedure Law Draft and the Turkish Criminal Law Draft, which are a work of ten years, have been prepared so as to be seen in the Turkish Parliament. Moreover, a statement has been issued to the public regarding the two main drafts that they be seen in Parliament and become a law. Activities regarding the issue have been accelerated.

As UMUT Foundation, we repeat that it is impossible to establish a democratic social order or a state of law with laws that only define crimes and set the punishment. Law should be carried out with a modern understanding that sheds light on and leads to the right to live decently. The struggle will go on until the notion of state of law and rule of law becomes a part of our daily lives. A law system where human rights are protected and improved will put into practice by the citizens’ activities. Law should break free from its stagnant state. Further positive steps should be taken towards realizing a peaceful law system where the right of life is protected and towards ensuring a decent life in the changing circumstances of our world. 

During the symposium scientific views and practices of other countries were also discussed to protect the human rights and reconfiguration of a humane criminal law. With the aims as stated above we took the duty to make the symposium into a book.
 
The Turkish Criminal Law Draft and the Criminal Procedure Law Draft have been prepared by an organization committee of Prof. Dr. Feridun Yenisey from Marmara University Law Faculty, Prof. Dr. h.c. mult Hans-Joachim Hirsch and Prof. Dr. h.c. Friedrich - Christian Schroeder who have opened the drafts into discussion to internationally known American, German and Turkish scholars. İstanbul Goethe Institute, Heinrich Böll Foundation, University of Kansas School of Law and Yeditepe University Law Faculty also supported the group and participated in the organization. We express our gratitude to them.

As the administrative board, we decided to publish the book ‘Criminal Law Reform’, in which the Criminal Procedure Law Draft is discussed, with the belief that it will be a useful source to jurists, scholars and members of the Parliamentary committee. 

We present you this work, hoping that it will be of benefit and it will to some extent contribute to the development of law and human rights in our country.

First Section

CRIMINAL PROCEDURE LAW REFORM

Opening Speeches
1. Introduction of Turkish Criminal Law Draft 1997 and Criminal Procedure Law Draft 1999 
(Ord. Proj: Dr: Dr: h.c. mult. Sulhi Dönmezer)

2. Motor Vehicle Stops and the Fourth Amendment 
(A. Kimberley Dayton)

2a. Motor Vehicle Stops and the American Law, the Fourth Amendment 
(Translation of A. Kimberley Dayton’s speech)

2b. The Infrastructure of State and Federal Criminal Justice 
in the United States 
(A. Kimberley Dayton)

3. Motor Vehicle Stops and Search and the Constitution 
(Prof Dr. Timur Demirbaş)

4. Der Schutz der Zeugen und die Rechte des Verletzten 
(Prof Dr. Hans Lilie)

4a. The Protection of the Rights and Witnesses of the Victim
(Translation of Prof Dr. Hans Lilie’s Speech )

5. The Protection of the Rights and Witnesses of the Victim
(Prof. Dr. Durmuş Tezcan)

5a. Discussions for the first session

6. Structural Analysis of the Justice of Punishment
(Dr Mustafa Tören Yücel)

7 .Entwurf einer türkischen StrafprozeBordnung von 1999 
Abgekürzte Verfahren 
(Prof Dr. Dr. h.c. F)iedrich -Christian Schroeder)

7a. 1999 Turkish Criminal Procedure Law Draft
Special Proceedings
(Translation of Prof Dr. Dr. h.c. Friedrich -Christian Schroeder’s Speech)

8. Shortened legal procedures
(Prof Dr. Erdener Yurtcan)

9. Confessions and the Right to Counsel: Reflections on Recent Changes in Turkish Criminal Proceure
(Prof. Robert K. Calhoun)

10. Right to Knowledge and Defence
(Associate. Prof. Dr. Cumhur Şahin)

10a.Discussions following the speeches of Schroeder, 
Yurtcan, Calhoun and Şahin

11. A Comparative Look at the Admissibility of Scientific 
Evidence in Court 
(Frank Tom Read)

11a. A Comparative Look at the Admissibility of Scientific 
Evidence in Court
(Translation of Frank Tom Read’s speech)

12. Scientific Evidence
(Prof. Dr: Sevil Atasoy)

13. Vorentwurf einer türkischen StrafprozeBordnung von 1999, Das Beweisrecht, Insbesondere die Beweisverbote 
(Prof Dr. Klaus Rogal)

14. Evidence Prohibitions in the Draft and Criminal Law Procedure
(Prof. Dr. Bahri Öztürk)

15. A Critique of Guideline Sentencing 
(Prof. Dr. David J. Gottlieb)

15a. A Critique of Guideline Sentencing
(Translation of Prof. Dr. David J. Gottlieb’s speech)

16. Determination of Punishment
(Prof. Dr. Nur Centel)

16a. Discussions following the Speeches of Read, Atasoy, Rogall,
  Öztürk, Gottlieb and Centel

17. The Course of Law: Comparison of the Turkish and German System
(Prof. Dr. Dieter Meurer)

18. Evaluation of the 1999 Preliminary Draft of the Turkish Procedural Law  in terms of the Course of Law
(Assist. Prof. Dr. Hamide Zafer)

19. White Collar Investigations & The Rico Statute International Workshop on Criminal Law Reform 
(Prof. Dr. Roscoe C. Howard)

19a. White Collar Investigations & The Rico Statute
(Prof. Dr. Roscoe C. Howard’ın Tebliğinin Tercümesi)

20. The Determining of and Gathering Evidence against Benefit-Oriented Organised Crime
(Prof. Dr. Duygun Yarsuvat)

20a. Discussions following the speeches of Meurer, Howard, Yarsuvat ve Hamide Zafer 
(Chairman: Associate Prof. Dr. Yücel Sayman)

Second Section 
TURKISH CRIMINAL LAW 1997 PRELIMINARY DRAFT
SPEECHES AND DISCUSSIONS

21. The Dogmatic Side of The 1975 German Reform when Observed from Today’s Viewpoint and The 1997 Turkish Draft 
(Prof. Dr. Dr. h.c. mult. Hans-Joachim Hirsch)

22. Main Properties of the chapter on the General Provisions of the Turkish Criminal Law Draft 
(Prof. Dr. Köksal Bayraktar)

23. Entwurf eines türkischen Strargesetzbuchs Teilnahme 
(Prof. Dr. Dr. h.c. Friedrich-Chirsitan Schroeder)

24. Evaluation of 1997 Turkish Criminal Law Draft with respect to Complicity
(Assist. Prof. Dr. Mustafa Ruhan Erdem / Assist. Prof. Dr. Veli Özer Özbek)

24a. Discussions Following the speeches of Hirsch, Bayraktar, Schroeder, Erdem and Özbek

25. Comparative System Analysis of Turkish Prisons and the Latest Developments Concerning Execution Law
(Melda Türker, LLM)

25a. The Legal Basis of the Rights of Detainees and Convicts

25b. Reform in Institutions Where the Punishment  ’Deprivation of Freedom’ is Administered when  the Child is Convicted
(Assist. Prof. Dr. Handan Yokuş Sevük)

25c. The Problems of Institutions that are Responsible from the Execution of Punishments and Activities Carried out by the Ministry of Justice 
(Necati Nursal)

25d. European Committee on Crime Problems (CDPC) Draft Recommendation No. R(99) ...concerning prison overcrowding and prison population inflation

25e. European Committee
(Translation of Draft Recommendation)

26. Strafbarkeit von juristischen Personen und Personenvereinigungen 
(Prof Dr. Gerhard Dannecker)

26a. Kişi Birlikleri ve Tüzel Kişilerin Cezalandırabilirliği 
(Prof. Dr. Gerhard Dannecker ın Tebliğinin Tercümesi)

27 .Tüzel Kişilerin Ceza Sorumluluğu
(Yrd. Doç. Dr. Ayşe Nuhoğlu)

28. Bayraktar, Hirsch ve Erdem’in Konuşmasından Sonra Yapılan Tartışmalar
(Oturum Başkanı Prof Dr. Bülent Tahiroğlu)

29. Din, Vicdan ve Kanaat Özgürlüğü
(Ord. Prof. Dr. Sulhi Dönmezer)

30. Din ve Vicdan Özğürlüğü ve 1997 Tarihli Türk Ceza Kanunu Tasarısı 
(Yrd. Doç. Dr. Ahmet Gökçen)

30a. Zusammenfassung: Religions-und Gewissensfreiheit im Entwurf des tStGB vom 1997

31. Reform der Körperverletzungsregelungen
(Prof: Dr. Dr. h.c. mult Hans Joachim Hirsch)

31a. Müessir Fiil Hükümlerinin Reformu
(Hans-Joachim Hirsch’in Tebliğinin Tercümesi)

31b. Discussion Section

32. Criminal Assault and Battery in the Criminal Law 
(Ord. Prof. Dr. Dr. h.c. mult. Sulhi Dönmezer)

33. Changing Paradigms in American Murder Law 
(Prof. Dr. Tom Stacy)

33a. Murder 
(Translation of Prof Dr. Tom Stacy’s speech)

34. Evaluation of Provisions Regarding Murder in the Turkish Criminal Law Draft 
(Assist. Prof.. Dr. Faruk Turhan)

35. Einige Betrachtungen zu den Staatsschutzdelikten im Entwurf eines Türkischen Strafgesetzbuchs 
(Dr. Silvia TeUenbach)

35a. Crimes Against the State
(Translation of Dr. Silvia Tellenbach’s speech)

36. Devletin Güvenliğini ilgilendiren Suçlar 
(Prof Dr. Uğur Alacakaptan)

36a. Discussion Section

37. The Death Penalty in America 
(Prof Dr. Stephen R. McAUister)

37a. The Death Penalty in America 
(Translation of Prof Dr. Stephen R. McAUister’s speech)

38. Death Penalty
(Prof Dr. Doğan Soyaslan)

39. Crimes and Deportation
(Prof Dr. Stephen H. Legomsky)

40. Crimes and Refugees
(Associate Prof. Dz. Hak. Kd. Alb. M. Tevfik Odman)

40a. Discussion Session

41. American Responses to the Problem of Repeat Sex Ofenders 
(Stephen R. McAUister)

42. The Classification of Intentional Homicides: Description. 
Critique and Reform
(Prof Dr. Tom Stacy)

43. The Meaning of ’’Defect’’ in Products Liability: Lessons From the American Experience 
(Prof Dr. WiUiam E. Westerbeke)

44. Commercial Arbitration and the New York Convention as Applied in the United States
(Christopher R. Drahozal)

45. The Asian Economic Crisis: Implications for Turkey, Europe, and the World
(J.W. Head)

46. Efficiency of the Turkish Criminal Justice System Before 1991
(Prof Dr. Feridun Yenisey)

List of of those who participated in the International Workshop on the Criminal Law Reform (held on 20-23 October 1999)