Confessions and the Right to Counsel: Reflections on Recent Changes in Turkish Criminal Procedure

ideal of fair treatment of the accused is balanced against the specific evidentiary needs of a particular criminal prosecution, the temptation is frequently to say "not in this case." The accumulated effect of many such decisions can be the silent repeal· of the exclusionary remedy. Countries such as yours and mine that have concluded the only successful way to oversee the actions of law enforcement is through a rule of exclusion must have the courage of their convictions. If we are not prepared to exclude unlawfully obtained evidence in cases where its loss will be felt, then we will never experienced the full deterrent potential of such a rule. As yet a further recommendation, I would urge that there be greater respect in Turkey for the defense function in criminal cases. I know that Turkey, like many countries in Europe, has, in recent years, modified the inquisitorial roots of its criminal justice system to provide a more significant role for defense counsel. Despite this (or perhaps because of this) defense attorneys are sometimes viewed with distrust and often with disrespect in Turkey. This discourages lawyers from practice in this area and marginalizes the practice of criminal law. The defense of accused criminals (and particularly accused terrorists) is not itself subversive activity. Instead, in a system such as Turkey's, it is a vigorous sign of a system's commitment to the rule of law. Lastly, I would urge Turkey to reassert prosecutorial control of the interrogation practice. In theory, Turkish law authorizes the public prosecutor to conduct the investigation in the preparatory stage. In reality, particularly in State Security cases, security forces control the process. In the past, I know that judicial police have been proposed as one way of reasserting prosecutorial control in this area. I am also aware that such proposals have failed for a variety of reasons. Whether or not this particular proposal is worth reconsidering, at a minimum greater monetary resources should be accorded to the prosecutor with the explicit purpose of reasserting greater prosecutorial inspection and oversight of detention and interrogation facilities. This is a pivotal time in Turkey. It is a time of profound sorrow as the horrible aftereffects of the recent earthquake are still being measured. It is also a time of much ferment and change. Indeed, if there is one possible plus to be found in the terrible tragedy of this past summer, it seems to be that it has provoked Turks to look at old problems in new ways. Such rethinking in the area of criminal justice began, of course, long before this summer and has, in fact, been going on for the better part 8 Annual Survey of International & Comparative Law, Vol. 6 [2000], Iss. 1, Art. 5 http://digitalcommons.law.ggu.edu/annlsurvey/vol6/iss1/5 2000] TURKISH CONFESSIONS LAW 69 of a decade. Hopefully this conference and, in some modest way, my comments, will be of benefit as you continue this process of reform. 9 Calhoun: Turkish Confessions Law Published by Digital Commons: The Legal Scholarship Repository @ Golden Gate University School of Law, 2000 10 Annual Survey of International & Comparative Law, Vol. 6 [2000], Iss. 1, Art. 5 http://digitalcommons.law.ggu.edu/annlsurvey/vol6/iss1/5