Türk Ceza Muhakemesi Hukukunda Seri Muhakeme Usulü

This article critically examines the accelerated trial procedure (seri muhakeme usulü, "SMU"), introduced into the Turkish criminal procedure system by Law No. 7188, in the light of the right to a fair trial and the fundamental principles of criminal law. The author argues that this new institution — which empowers the public prosecutor, at the investigation stage and for specified offences, to determine the sanction subject to the suspect's acceptance — harbours serious constitutional and legal problems alongside its practical benefits.

Purpose and Legal Nature of the Procedure

The procedure's basic purpose is to accelerate proceedings and reduce the courts' workload, thereby allowing judicial resources to concentrate on graver files. The author notes that the institution is of "mixed legal nature", having aspects of both procedural law (its regulation in the Code of Criminal Procedure) and substantive law (the determination of the sanction). Although this raises the question of retroactive application under the lex mitior principle, the legislature closed that avenue — a limitation the author considers unlawful.

Conditions of Application and Principal Criticisms

The study examines the conditions of application in detail, advancing criticism on each:

• The problem of sufficient suspicion: the existence of "sufficient suspicion" is deemed enough for the procedure to apply. The author regards it as the most fundamental problem that, although the procedure ends in a conviction, the trial standard of "conclusive evidence beyond all doubt" is not required. This creates the risk that even innocent persons may accept the procedure simply to avoid a protracted trial.
• Scope and exceptions — the catalogue of offences: the procedure applies only to offences enumerated in a statutory catalogue. The author criticises the obscurity of the logic behind the list and argues that a system based on the quantum of punishment would be fairer.
• Exceptions: the statute's express exclusion of children, the mentally ill and the deaf and mute is criticised in strong terms. In the author's view it is a great contradiction that these vulnerable groups, who ought to be protected as a matter of positive discrimination, are deprived of a procedure that secures a reduction of penalty and lessens the trauma of trial.
• The prosecutor's role and the court's power of approval: application of the procedure is not within the prosecutor's discretion — once the conditions are met, it is mandatory. The request prepared by the prosecutor at the end of the procedure is examined by the criminal court of first instance; but the court's role is largely confined to a formal review — it cannot examine the file on the merits and is reduced, in effect, to an "organ of approval". This, the author argues, impairs the principle of judicial independence.
• Relationship with other institutions: the article voices the concern that prosecutors, under the pressure of workload, will tend to prefer the SMU — which closes the file with a conviction entered in the record — over the institution of postponement of the public prosecution, which is more favourable to the suspect.

Conclusion

While appreciating the aim of accelerating justice, the author maintains that in its present form the procedure does not adequately protect the suspect's rights, excludes vulnerable groups and weakens the role of the court. The conclusion is that the institution needs root-and-branch amendment to bring it into harmony with the principles of the right to a fair trial.