The procedure of subjecting public officials to a special trial procedure in the Turkish Criminal Law, which was continued with the regulations that started with the Tanzimat period and later with the Law on the Trial of Civil Servants dated 1913, was continued with the Law On The Trial Of Civil Servants And Other Public Officials No. 4483 dated 1999. Considerations such as the preservation of administrative independence, the proper conduct of State affairs, the necessity of specialization in identifying civil servant crimes, and the need to ensure professional autonomy were influential in the establishment of this judicial procedure.
The criminal investigator assigned in criminal investigations under Article 53/c of Law No. 2547 has the general investigative authority of a prosecutor under Law No. 5271. Therefore, for cases where law enforcement intervention is required and in cases where the order of the criminal court of peace is required, they should be able to do so through the Chief Public Prosecutor’s Office in the location where they are stationed. Failure to do so will impede the collection and preservation of evidence, the primary purpose of a criminal investigation, and this deficiency will have a negative impact on the prosecution process.
The effective enforcement of criminal investigations under Article 53/c of Law No. 2547, a special judicial procedure, is not possible with the current version of the Law. The fundamental solution to this problem is to include the criminal investigation of higher education personnel within the scope of Law No. 4483 or to abolish this special trial procedure. This is because a criminal investigation must be conducted by a public prosecutor.
With the Higher Education Law No. 2547, the criminal cases of higher education personnel were linked to a special trial procedure. The establishment of this trial procedure was influenced by the ideas of protecting administrative independence, conducting state affairs soundly, requiring specialization in understanding civil servant crimes, and ensuring scientific autonomy. The principle of legal certainty requires the existence of protections aimed at eliminating the risk of uncertainty in the application of law. Thus, a system of guarantee is provided for fundamental rights and freedoms. This guarantee must be provided by observing the principle of legal certainty for criminal investigations to be conducted within the scope of Law No. 2547. It is possible to list our findings regarding the issue of criminal investigation of higher education personnel within the scope of Law No. 2547 and the issues that pose problems in terms of legal certainty as follows.
In cases where the prosecutor’s office issues a decision of lack of jurisdiction and the file is sent to the relevant higher education institution, the higher education institution may evaluate the issue and directly open a criminal investigation, or it may initiate an “investigation” to determine whether a criminal investigation is necessary. Therefore, the phrases “to conduct a criminal investigation within the scope of Law No. 2547” in the decisions of lack of jurisdiction sent by the prosecutor’s office do not contain a legal approach. Here, there is no administrative hierarchy between the prosecutor’s office and the higher education institution, and the fact that the prosecutor’s office, which issues a decision of lack of jurisdiction on a matter for which it has no jurisdiction, sends the file to the higher education institution is merely a notification. The higher education institution has the discretion to directly open a criminal investigation. Therefore, the higher education institution may also initiate an investigation if it deems appropriate. If the need for an investigation or the information and documents in the prosecutor’s office’s decision of lack of jurisdiction provide sufficient suspicion to open an investigation, a criminal investigation should be opened. The failure of the authorized superior, who learns of the suspicion of a crime, to open a criminal investigation should be considered a crime of abuse of office. Likewise, s. 2547. A criminal investigator assigned under the law has the general investigation authority of a public prosecutor, and since there is no legally restrictive regulation, he/she has the authority to implement protective measures or request this from a criminal judge of peace when necessary. If the criminal investigator deems it necessary to implement a protective measure, he/she can implement it under the CMK or request it from a criminal judge of peace when necessary. As stated in the decisions of the State Council and in the doctrine, in cases where a request from a criminal judge of peace is required by law enforcement or a criminal judge of peace, the criminal investigator must do this through the Office of the Chief Public Prosecutor. Essentially, this issue arises from the fact that the criminal investigator does not have a law enforcement agency and is not a public prosecutor affiliated with the Office of the Chief Public Prosecutor. Otherwise, the criminal investigator’s requesting this directly from a criminal judge of peace in a transaction that requires direct police enforcement due to the public prosecutor’s general investigation authority or requesting this directly from a criminal judge of peace in cases where a request from a criminal judge of peace is required does not render the transaction unlawful. Because there is no legal regulation stating that the criminal investigator must conduct proceedings through the Office of the Chief Public Prosecutor. In this case, the criminal investigator should be able to perform the work and transactions that do not require the approval of the criminal judge of peace and law enforcement on his own. For example, he should be able to directly request a bank statement for the investigation or a physical examination with the consent of the victim to be performed by a forensic doctor from the authorized hospital chief physician.
Another issue is how soundly the criminal investigator assigned under Law No. 2547 can carry out this investigation. Although the issue of “understanding civil servant crimes requires specialization and scientific autonomy” is effective in the regulation of this special legal remedy, it is also possible that the academician conducting the criminal investigation often does not have a legal education. While a public prosecutor can complete the investigation soundly with lawful, rapid and proportionate procedures while performing his duty, it is beyond explanation how properly a criminal investigation can be conducted by a faculty member who is not a prosecutor, has not received criminal law education, and has not even studied at a law school. In this case, if a criminal investigation is to be conducted, it should always be conducted by a public prosecutor for legal security. Therefore, within the scope of Law No. 2547, the authority to conduct criminal investigations should be given to the prosecutor and at least these criminal investigations should be included in the scope of Law No. 4483 and a permit system should be introduced. Likewise, whatever decision is made as a result of criminal investigations conducted within the scope of Law No. 2547, it is examined by the relevant department of the State Council, and the decision to issue a prosecution is deemed to be an indictment. If a decision to exclude a prosecution is made, the investigation is closed. The first problematic issue here is that the State Council, as a high court, is not specialized in criminal law and the judges serving in the State Council are expert judges in the field of administrative law. If the legislator attaches importance to the issue of “understanding civil servant crimes requiring specialization”, the relevant criminal department of the Court of Cassation should be authorized instead of the State Council with the legal regulation to be made. The second problematic issue is that no appeal is foreseen for the decision to exclude a prosecution made by the State Council. Just as an appeal can be made for decisions by a public prosecutor that do not require investigation or prosecution, an appeal should also be foreseen for decisions to exclude a prosecution. This issue is important in terms of legal security.
Special procedural law, higher education personnel, criminal investigation
