Arrest and detention powers in English and Turkish law and practice in the light of the European Convention on Human Rights / M. Bedri Eryilmaz.

Format:

Book

Author/Creator:

Eryilmaz, M. Bedri, author.

Series:

International Studies in Human Rights ; 61.

International Studies in Human Rights ; 61

Language:

English

Subjects (All):

Human rights--Europe.

Human rights.

Detention of persons--Great Britain.

Detention of persons.

Detention of persons--Turkey.

Arrest--Turkey.

Arrest.

Physical Description:

1 online resource.

Place of Publication:

The Hague, The Netherlands ; Boston, Massachusetts : Martinus Nijhoff Publishers, [1999]

Summary:

It is commonly believed that, in the police practices of arrest without judicial warrant and detention without charge, England and Turkey stand at opposite ends of the compliance spectrum among nations signatory to the European Convention on Human Rights. This is the first book to examine the extent to which such belief is warranted. Beginning with a detailed comparison of the arrest and detention standards set by the Convention and the corresponding provisions of Turkish and English law, the author then proceeds to investigate actual police practice in both countries. He reviews and analyzes the existing research in England and Wales on how the status of suspects in practice compares with the status of suspects in law. To determine this in Turkey, where no such research existed before this book, he offers the results of his own field work in 21 Turkish police stations and three gendarmeries in various cities and towns, as well as in two Turkish anti-terrorist departments. This is the first publication of any research into how Turkish police apply law to practice. He goes on to examine the adequacy and effectiveness of remedies in both countries, and to make recommendations, not only for reform in England and Turkey, but to the Convention organs with respect to gaps and weaknesses in their case law. For criminal justice and law enforcement authorities, this is a valuable guide to ensuring compliance with the extensive and developed standards established by the case law of the Convention, and to handling allegations of breaches of the Convention by the police. In addition, Arrest and Detention Powers in Turkish and English Law and Practice in the Light of the European Convention on Human Rights is a penetrating analysis of `law in books' versus `law in action', and as such has relevance to anyone concerned with the enforcement of human rights law.

Contents:

Intro

Title Page

Copyright Page

Table of Contents

List of European Court Cases

List of European Commission Cases

List of English Cases

List of Turkish Cases

Preface

Acknowledgements

List of Abbreviations

Introduction

Chapter One An Overview of Arrest and Detention Provisions and Pertinent Evaluative Standards

A. The European Convention on Human Rights and Fundamental Freedoms (The Convention)

1. Relevant Standards Set by the Convention

2. To Whom do the Convention's Standards Apply?

3. The Doctrine of the Margin of Appreciation and States' Ability to Derogate from these Standards

i. There must be a war or other public emergency threatening the life of the nation

ii. The States are allowed to derogate from their obligations only to the extent strictly warranted by the exigencies of the situation

iii. Measures must not conflict with the States' other obligations under international law

iv. Derogating measures must not affect a non-derogable right

v. There must be a valid notice of derogation

4. Theoretical Bases of these Standards

a) The Crime Control Model

b) The Due Process Model

c) The Chosen Model

the Model which should Dominate the Criminal Process

B. Domestic Laws

1. English Law

a) Police and Criminal Evidence Act 1984 (PACE)

b) The Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA)

2. Turkish Law

a. The Constitution of 1982

b. Codes or Statutes

(1) The Code of Criminal Procedure of 1929 (CCP)

(a) Arrest for Flagrant Offences

(b) Arrest for any offence if all the arrest conditions enumerated in Art. 127(1) are met

(c) Interference with the police officer's investigatory activities

(2) Police Powers and Duties Act of 1934 (PPDA)

(3) Anti-Terror Act of 1991.

Chapter Two Arrest and Detention Powers in English and Turkish Laws as Laid Down in Books

A. Arrest without Warrant

1. The Meaning of Arrest

a) English Law

b) Turkish Law

2. The Purpose of Arrest

3. Grounds for Arrest

(1) Summary Arrest for an Arrestable Offence

(a) Summary arrest by any person (including a police officer)

(b) Summary arrest by the police

(2) Arrest Without Warrant Under General Arrest Power (s.25)

(1) Arrest by Any Person of Suspect Caught in Flagrante Delicto (Art. 127(1) First Sentence)

(2) Arrest by the Police in Respect of Offences where the Suspect is not Caught in Flagrante Delicto

Arrest for Any Offence if all the Arrest Conditions are Met (Art. 127(1) - Second Sentence)

(a) The conditions set out in Art. 104 of the CCP must be present

(b) The delay in applying for a warrant should be detrimental to the purpose of the arrest

(c) There should not be any possibility of an immediate plea to their superiors or to the public prosecutor

(3) Arrest of the Persons who are Interfering with the Conduct of the Investigation and who Cannot Prove their Identity

4. The Requirement of 'Reasonable/Great Suspicion'

(1) The Requirement of 'Reasonable Suspicion' under PACE

(2) The Requirement of Reasonable Suspicion under the PTA

5. Information to be Given on Arrest

6. Disposition After Arrest: The Duty to Take the Suspect to a Police Station

(1) Arrest somewhere other than at a Police Station

(2) Delay in Taking the Suspect to the Police Station

B. Detention Without Charge

1. The Meaning of Detention

2. The Role of the Custody Officer During Detention.

a) English Law

3. The Decision to Detain or Release

4. Limits on Period of Detention Without Charge

(1) Limits on Period of Detention under PACE

(a) Detention for more than 24 hours, up to 36 hours

(b) Detention for more than 36 hours, up to 96 hours

(2) Limits on Period of Detention under the PTA

(1) Detention for 24 and 48 Hours

(2) Detention for more than 24 and 48 Hours, up to Four Days

(3) Detention for more than Four days, up to Seven Days

(4) Detention for more than Seven Days, up to Ten Days

5. Calculating Time of Detention

6. Reviews of Detention

(1) Review of Detention under PACE

(2) Review of Detention under the PTA

C. The Use of Force

D. Treatment of Suspects during Detention

1. The Right to Communicate

2. The Right to Legal Advice

3. The Right to Silence and the Presumption of Innocence

i) Cautioning

ii) The Crime of Staying Silent under s. 18 of the PTA 1989

4. The Right to be Free from the Use of Torture, Inhuman and Degrading Treatment

E. The Influence of the Crown Prosecution Service (CPS)/the Public Prosecutor on the Police Decisions of Arrest and Detention

Chapter Three Arrest and detention Powers in English and Turkish Laws as Implemented in Practice

A. The Methodology Followed During the Conduct of Research

1. England and Wales

2. Turkey

a) Obtaining Permission to Carry Out this Research

b) Restrictions on/Limitations of this Research.

c) The Period of Time Covered by the Research

d) Methods Adopted During the Research

B. The Interpretation of Arrest and Detention Powers in Practice by the Police and its Significance for English and Turkish Legal Systems

1. Arrest Without Warrant

a) The Purpose of Arrest

(1) English Law

(2) Turkish Law

b) The requirement of Reasonable/Great Suspicion

c) Information to be Given on Arrest

d) Disposition After Arrest

2. Detention without Charge

a) The Role of the Custody Officer during Detention

b) Limits on the Period of Detention

c) Reviews of Detention

3. The Use of Force

4. Treatment of Suspects During Detention

a) The Right to Communicate

b) The Right to Legal Advice

c) The Right to Silence and the Presumption of Innocence

d) The Right to be Free from Torture, Inhuman and Degrading Treatment

5. The Influence of the Crown Prosecution Service/the Public Prosecutor on the Police Decisions of Arrest and Detention

Chapter Four Arrest and Detention Standards in the Convention and the Assessment of the Extent to which English and Turkish Laws and Practices Comply with Them

A. Arrest and Detention Must be Conducted "In Accordance with a Procedure Prescribed by Law" and Must be "Lawful" (Art. 5(1) of the Convention)

The Question of Compliance with the Convention

B. The Requirement of Reasonable Suspicion (Art. 5(1)(c) of the Convention).

The Question of Compliance with the Convention

C. The Purpose of Arrest and Detention Must be to Bring the Suspect Before the Competent Legal Authority (Art. 5(1)(c) of the Convention)

D. The Right to be Informed "Promptly" of the Reasons for Arrest and Detention (Art. 5(2) of the Convention)

E. The Right to be Brought "Promptly" Before a Judicial Authority (Art. 5(3) of the Convention)

F. The Right to be Free from the Use of Lethal Force, Except Where Absolutely Necessary, and from Torture, Inhuman and Degrading Treatment in the Course of Arrest and Detention (Arts. 2 &amp

3 of the Convention)

(a) Prohibition of the Use of Lethal Force

(b) Prohibition of Ill-treatment

G. The Right to Have Someone Informed of the Fact of Arrest and Detention (Art. 8 of the Convention)

H. The Right to Silence and the Presumption of Innocence (Art. 6(1), (2) of the Convention)

I. The Right to Legal Assistance at the Police Station (Art. 6(1), (3)(c) of the Convention)

J. The Right to be Free from the Use of Torture, Inhuman and Degrading Treatment During Detention (Art. 3 of the Convention)

Chapter Five Remedies Against the Abuse of Arrest and Detention Powers in English and Turkish Laws and under the Convention

A. Remedies in English and Turkish Law

1. Habeas Corpus: The Right to Have the Legality of Detention Scrutinised

b) Turkish Law.

2. Civil Actions Against the Police.

Notes:

Includes bibliographical references and index.

Description based on print version record.

ISBN:

90-04-47939-2

OCLC:

1272992992

Publisher Number:

10.1163/9789004479395 DOI