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Criminal law in TRNC

Criminal law in TRNC

Criminal law in TRNC

The laws determining the penalties for criminal offences and the principles and procedures of these penalties are Article 154 Criminal Law and Article 155 Criminal Procedure Law. The law that protects a person's fundamental rights and freedoms is the Constitution. Criminal law is developed and implemented in North Cyprus as well as all over the world in order to protect the interests of the society and to ensure that the criminals are rehabilitated and restored to the society.

One proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual but also to a community, society or the state ("a public wrong"). Such acts are forbidden and punishable by law. Crime is also defined as an act, attempt and negligence committed by a person in an illegal way. In other words, crime is not necessarily committed by an act which is not legal.

In some cases, the legislator also considers the negligence of doing something and the attempt to do so even if a crime has not been committed, the existence of an intention to make that action or negligence, but the fact that this intention cannot be successful. It is to be noted that every crime has its own elements and every act, undertaking or omission should be evaluated according to the specific facts of that crime. In other words, except for the general elements of the crime, in order to be considered as a crime, every crime will have to be composed of criminal elements which are stated in the law and which vary according to each crime. The prescribed penalties and the elements necessary for the formation of the offense are specified by the law regulating each crime. The court will decide whether these elements are present.

What is the distinction between heavy crime and minor crime?

Article 154 Criminal Law has generally divided the offenses into severe offenses (offenses) and minor offenses (misdemeanors). To understand whether a crime is a serious crime or a mild crime, it is necessary to look at the law that regulates the crime. In many articles it is stated whether the subject matter offense is a serious offense or a minor offense. However, there are cases where some laws do not specify this. Then, the matter to be considered is the punishment stipulated by the law. If 3 years or more prison penalty is foreseen in the relevant article of a crime without the need for proving it, this is a serious crime, if prison penalty is foreseen for less than 3 years, this is a minor crime.

What are the Penalties that TRNC courts may apply?

In terms of criminal law, the first thing that comes to mind for the penalties that the court can give is imprisonment and a fine. However, the court has many options and wide discretionary powers for the penalties it may impose. While the court is in criminal jurisdiction, the penalties must comply with the principle of proportionality. In other words, different defendants who are tried on the same offenses must have as much similar penalties as possible. Of course, in accordance with the principle of personality of the penalties, it is necessary to evaluate each crime according to its own facts and elements, and to take into account the factors that aggravate and are extenuating for the accused. Therefore, although it is inevitable that there will be a difference in the judgment, the injustice should be prevented by applying the principle of proportionality between punishments. Article 154 Criminal Law explains the types of punishment that the court may appreciate;

i. Imprisonment; as mentioned above, the court can serve the defendants for 3 years and more for serious crimes and less than 3 years of imprisonment for minor offenses. It is able to give life imprisonment for crimes such as manslaughter and homicide.

ii. Fines; the court has the power to give a fine rather than a prison sentence according to the nature of the offense. Fines can be imposed with imprisonment, as well as instead of imprisonment. The fine shall mean any amount settled in a penal procedure for the seizure of a fine, a bail or guarantee given in accordance with the legislation in force at the relevant time, and for the payment of any person as compensation, loss, damage expense or anything else; the execution costs for the execution of his / her indictment.[2]

iii. Compensation payment; the court may order a compensation by a person to who the judge finds guilty. Compensation is a fine as described above. While compensation is generally directed to remedy the victim, the criminal courts do not prefer to award compensation. This is due to the fact that the victim must prove his / her loss before the criminal court in order to appreciate the compensation and it therefore increases the workload of the criminal courts. So in practice, compensation is claimed by a separate civil case.

iv. Giving a guarantee or non-guarantee surety or depositing a cash collateral in order to protect the peace and quiet and to maintain good morals

The Court may order a person to sign a guarantee or guarantee bond or to deposit a guarantee in order to protect the peace and silence and to have a good moral status. This bail may be applied instead of the penalty to be imposed or to be given in addition to that penalty or cash deposit. A person who does not fulfill the requirements may be sent to prison until he or she fulfills the requirements, but this imprisonment shall not exceed one year and shall not exceed the total period of imprisonment, if any, with the term of imprisonment.

v. Bringing under supervision: According to this, the person who is given the order to be detained shall be released, but unless the court gives any other orders, he shall go to the relevant police officer at least once a month. The supervisor has the power to determine the days of this meeting. According to Article 34 of the Law, the order for detention is only possible for a person convicted of an offense requiring only 2 years of imprisonment and for persons convicted for a second time for such an offense.

Processes after arrest

According to our constitution, a person arrested must be brought to court within the first 24 hours.[3] Again, according to the constitution, the relatives of the suspect should be informed about the scope of the investigation and the scope of the investigation, other than the issues affecting the security of the investigation.[4] The person should be taken to the police station as soon as possible after his arrest.[5] However, the obligation to be brought to court within the first 24 hours is for the suspects who are not considered to be released. Likewise, the accused may be released without being brought to court within the first 24 hours on completion of the investigation or an understanding of his innocence. For suspects who are not considered to be released, the arrest or negotiation, whether negotiated or not, is taken to the court for a request for additional detention within the first 24 hours of his arrest. According to Article 16 (7) of the Constitution and the Supreme Court decisions, the Court may give additional detention to the suspect who has been brought before the court with the request of additional detention, not more than 8 days and the total of these periods shall not exceed 3 months from the date of the first arrest. A person who has been brought before a court with a request for additional detention, if any, may object to the request for his or her lawyer or, upon request, given his right to speak. The prosecution must, in order to be successful in requesting additional detention, prove that there is a reasonable suspicion that a crime has been committed, that the accused has committed such an offense, that the investigation into the offense has not yet been completed and that if the suspect is released he may harm the investigation. At this stage, the prosecutor's office can hear his witnesses in court, and the suspect himself or, if he has one, the lawyer may cross-examine witnesses. In practice, it is often very difficult for the accused to be released in the first 24 hours, especially for offenses that are not accepted by the accused in the first statement or that are not considered as minor offenses, as the investigation may not be complete within the first 24 hours. However, each issue has its own specific facts, and therefore the time of release varies.

Security Phase

The suspects are usually detained for the safety of the investigation. Thus, it is considered that the accused has no influence on the evidence and the witnesses. The suspect, whose investigation has been completed, cannot be compelled to remain in detention on remand of the investigation. However, the suspect may be sent to prison as a not-sentenced detainee for a period of no more than 3 months in order to prevent his escape from prosecution and to ensure that he is present in court.

The suspect may be released with security or cash or under both conditions in order to be present in the hearings. The court has extensive discretion over the tying the accused to security. In exercising this discretion, the Court shall assess the personal situation of the accused, the existence of a legal status in the country, the type and severity of the alleged offense and whether there is any reasonable suspicion that the accused has committed the offense, and the persons who are the guarantors of the accused. In case the suspect has escaped after being released, the guarantors are obliged to pay the amount in the bail they have signed. Therefore, the guarantors must be citizens of the TRNC, and they must meet the amount in the bail bonds and show their properties as collateral provided that they are in the TRNC. If the Court agrees that the accused is bound by security, it may place orders under the following conditions;

  1. Keep the suspect or the accused under arrest for a period of no more than three months, until the case is heard;
  2. Prohibiting the transfer of the suspect's or the accused's passport to the police and the prohibition of his departure from the Turkish Republic of Northern Cyprus for a period to be determined;
  3. The release of the accused or the accused in person or in court of one or more persons in the Turkish Republic of Northern Cyprus, which may be deemed appropriate by the Court or the Registry, in connection with the cash collateral or bail, or both;
  4. The suspect or the accused to stay in a certain region and not to go out of that region without permission;

In conditions which the Court deems it appropriate, to be required to go to a police station determined by the Court in person.[6]

In these circumstances, or in one of these conditions, the suspect is ordered to be released by guarantee, if given orders, cash collateral or guarantor or guarantor to sign bail, or both to fulfill the condition, is released pending trial. However, the suspect who does not fulfill the security requirements, until the security requirements are met, is sent to prison until the case is heard. Negotiations are made between the prosecutor's office and the suspect's lawyers for the security conditions. If the parties agree on the terms of the security, the court usually implements these conditions but does not have such an obligation. If the parties do not agree, i.e. the prosecution wants the defendant to be remanded in custody, and the suspect's attorney wants to be tried without arrest, a hearing must be held before the court. As a result of the hearing, it will be decided by the court whether the accused will be released by security.

[1] Hasan Sözmener, Criminal General and Criminal Procedure Law Act (2014) Volume-1, page 22

[2] Chapter 154 Criminal Procedure Law, Article 2

[3] Constitution of the TRNC, Article 16 (6)

[4] Article 16 of the Constitution of the TRNC (4)

[5]Chapter 155, Article 13

[6] Chapter 155, Criminal Procedure Law, Article 23 A

  • Gürkan&Gürkan
  • April 2019