The Legal Status of Juveniles
The Turkish criminal justice system treats juvenile offenders, as well as those who are victims or witnesses of crime, differently from adults. This is in accordance with international standards based on the fact that children possess unique characteristics and thus should be treated distinctively in any process of the criminal justice system such as investigation, prosecution, and execution.
In 2005, the Child Protection Law (CPL) was drafted and adopted in response to recommendations made by the Committee on the Rights of the Child to align Turkish laws with the Convention on the Rights of the Child. The Child Protection Law aims “to regulate the procedures and principles with regard to protecting juveniles who are in need of protection (any juvenile whose physical, mental, moral, social or emotional development and personal safety is in danger, who are neglected or abused, or who are victims of crime) or who are juvenile offenders (any juvenile about whom an investigation or prosecution is carried out on the allegation that he/she has committed an act which is defined as a crime in the laws, or any juvenile about whom a security measure has been decided due to an act he/she has committed), and ensuring their rights and well-being.”
The CPL reflects an important first step taken by the Turkish government at integrating international standards into the procedures and principles of the Turkish Juvenile Justice System. Empowering the Turkish juvenile justice system is listed as a priority area on the Ministry of Justice Judicial Reform Strategy 2009 and 2010-2014 Strategic Plan.
Child protection law no. 5395 Purpose
Article 1—(1) The purpose of this law is to regulate the procedures and principles with regard to protecting juveniles who are in need of protection or who are pushed to crime and ensuring their rights and wellbeing.
Article 2—(1) This law covers the provisions related to the principles and procedures of the measures that will be taken with regard to juveniles who are in need of protection and the safety of measures to be applied with regard to juveniles push to crime, along with the establishment, duties and capacities of juvenile courts.
Juvenile Justice in Turkey is aimed at integrating juvenile offenders into the community, instead of punishing them. Such an approach is adopted to prevent recidivism among juveniles.
In accordance with Child Protection Law:
Article 22—(1) The juvenile, his/her parent, guardian, court assigned social worker, the family that has assumed the care of juvenile, or if the juvenile cared for by the Agency, the representative of the Agency may be present at the hearing,
(2) The court or the judge may allow a social worker to accompany the juvenile during the juvenile’s interrogation or during other procedures regarding the juvenile (CPL 2005).
According to the Turkish Code of Criminal Procedure (TCCP) article 236 (3), it is mandatory to provide an attorney during trials involving juvenile victims. There also has to be a defense attorney present during trials of juvenile offenders (TCCP 188 (1)). Further, Article 22 (3) of the Child Protection Law and Article 196 (3) of the Turkish Code of Criminal Procedure allows for any juvenile present at the hearing to be taken outside the courtroom if his/her interests require so. Additionally, a juvenile whose interrogation procedures are completed is not required to be present at the hearing (CPL 2005). Regarding Article 21 of the Turkish Press Code, during a criminal proceeding, the principal statement of a juvenile cannot be presented to the public.
The investigation procedure of a juvenile may begin with an announcement, complaint, or ex officio, similar to an adult criminal justice procedure. Juveniles have the right to petition in cases where they are victims of a crime without needing the permission from their custodians; they may also use this right with their legal representatives (Artuk et al. 2007). Following Supreme Court decisions, custodians are unable to withdraw a complaint by themselves.
Juvenile victims, like juvenile offenders, also have the right to legal aid. This is needed when the victim’s statement is taken during the investigation and prosecution stages of a case, when juveniles are often required to tell of his/her victimization more than once. Such experiences are detrimental to the juveniles and cause revictimization. For that reason victims often hesitate to report the crime or to ask for help. Thus, juvenile justice professionals need to be aware that recording a statement from a juvenile victim is a sensitive issue and arrangements need to be made so as to avoid revictimization. When interviewing juvenile victims it is necessary to consider their age, cognitive development, and the effects of the trauma that they may be suffering from (Ziyalar 2006).
According to Article 32 of Child Protection Law, the interviewer who takes the statement of a juvenile victim has to be educated on this subject and must have the skills to prevent secondary victimization. During the interrogation of the juvenile, he/she may be accompanied by a psychology, psychiatry, medical, or pedagogy specialist in order to protect him/her. The Turkish Code of Criminal Procedure Law also mandates that audio and video recording of statements are taken (TCCP Article 52(3), 236 (3)).
During the interrogation the specialists must explain the procedures clearly, in an age-appropriate language that the juvenile is able to understand. This procedure applies both to juvenile offenders and juveniles in need of protection. The main role of the specialist is to prevent secondary victimization of juveniles (l§eri 2006). Therefore, it is essential to provide opportunities for the specialist to communicate with juveniles in a convenient place before the interview.
In accordance to established procedures, the statement of the juvenile should be audio and video recorded. If the need for another interview arises due to insufficient data or defects with the recording, the juvenile is required to appear in court (Centel & Zafer 2008). In principle, trials are open to the public. However, this causes issues for juvenile victims, who must talk about their victimization experience in front of the perpetrator and other people. Whenever deemed necessary for public morality or public security, the court may rule that the main hearing be conducted partly or totally closed to the public (TCCP Article 182).
It is essential to ensure confidentiality of juvenile offenders and juvenile victims at both the investigation and prosecution phases. Based on Article 21 of the Press Law, publishing the identities of perpetrators and victims under the age of 18 years is prohibited. In sexual abuse cases where the victim is a juvenile and the accused is an adult, conducting closed hearings is found to be appropriate.
A witness is defined as a person who has information about a crime based on one or more of his/her five senses. Juveniles can be called as witnesses and asked to testify. In such cases, even though they are witnesses of a crime and not direct victims of crime, they are considered to be juveniles in need of protection (Ulugtekin 2004).
If a juvenile is a relative of the defendant, he/she can refuse to be a witness as this can be traumatic for him/her (TCPP art. 45). In such cases, juveniles need to be informed of their right to refuse to testify. If a juvenile is unable to understand the importance of refraining from testifying, his/her legal representative can do so. The judge can also decide if a juvenile should refuse to give a testimony or not.
In accordance with the Turkish Code of Criminal Procedure Article 52, juveniles under 15 can testify without oath, and their testimony must be audio and video recorded. If testifying in front of the defendant and other people pose a threat to the juvenile witness, the court is required to arrange a safe environment for the hearing to be conducted without others present (Unver & Hakeri 2012). In those cases the recording is presented to others who have the right to be in court and ask questions. If there is a risk that the juvenile victim will not be able to tell the truth in the presence of the defendant, the court is allowed to exclude the defendant from the courtroom during the interrogation and hearing (TCCP art. 200).