Subject 04- Audio/Visual Information System (SEGBIS)

tarafından | Eki 16, 2023 | Cyber Law

Subject 04- Audio/Visual Information System (SEGBIS)

  • Purposes and Goals

The establishment of the Audio and Video Information System (SEGBİS) within the scope of criminal courts, prosecutors’ offices, and correctional facilities is aimed at; thus, taking statements or defenses, interrogation; listening to relevant individuals such as victims, complainants, participants, witnesses, and experts; recording hearings and, if necessary, other investigation and prosecution processes on video; the goal is to use the video conferencing method in conducting these procedures.

The purposes of SEGBİS are as follows:

  • Fair trial,
  • Presentation before the judge in a reasonable time,
  • Trial within a reasonable time,
  • Ensuring the equality of arms and the principles of face-to-face confrontation,
  • Conducting criminal proceedings in compliance with the rules regarding personal freedom and security with minimal expenses,
  • Revealing the material truth.
  1. Needs Analysis

The fundamental purpose of criminal proceedings is to reveal the material truth, thus accurately determining the crime and the perpetrator. 

In criminal trials, it is essential to identify evidence in a complete, accurate, and verifiable manner to uncover the material truth.

From this perspective, it is crucial to fully record statements during the investigation and prosecution stages, as well as incidents that occur during the trial, and the demeanor of individuals being interviewed. These records, including the appeals process, are highly important so that all parties involved in the trial can observe them at every stage of the legal proceedings.

Once again, in criminal proceedings, the rule of the “equality of arms” and “directly-face to face” have been accepted to reach the material truth.

These rules require that all subjects involved in the trial learn the evidence and statements of those heard within the same time frame, together, and directly. Consequently, they necessitate that all parties have equal opportunities to question and examine the evidence under the same conditions and in the best possible manner.

The full application of these rules will ensure the revelation of the material truth and the establishment of a correct judgment.

On the other hand, in criminal proceedings, it is crucial for all rules related to the trial to be conducted directly by the competent investigating or prosecuting authority for the revelation of the material truth. It is of great importance that all types of evidence be personally collected by these authorities.

The “directly-face to face” rule inherently necessitates this. In necessary situations, the method of appointing delegated or surrogate judges may be utilized in criminal proceedings However, the application of delegated or surrogate judges implies overlooking the aforementioned principles. Therefore, in criminal proceedings, the use of delegated or surrogate judges should be minimized as much as possible, especially in cases of serious crimes, and certain crucial procedures such as the interrogation of the defendant and arrest should be conducted directly by the court itself.

Furthermore, another crucial aspect to consider during criminal proceedings, especially in cases involving children and certain crimes like sexual assault, is the protection of the dignity of victims and the psychological impact on children from the negative atmosphere in judicial settings. In this regard, one of the crucial points emphasized in modern criminal proceedings is that children and the mentioned victims should be interviewed only once, and their recorded statements should be used in later stages without the need for re-examination unless it is necessary.

Another point in criminal proceedings is ensuring that witnesses can provide statements without fear and without being unduly influenced, in order to reveal the crime and its perpetrators accurately. For this purpose, methods such as keeping the identities of witnesses confidential and conducting hearings outside the presence of the parties involved are applied. On the other hand, it is also crucial to consider the rules of “equality of arms” and “face-to-face” during these proceedings.

According to the decision of the Constitutional Court with case number 2013/2653 and dated 18.11.2015: “The ECtHR has stated that when the defense is not put at a serious disadvantage compared to other parties during criminal trial hearings conducted via video conferencing, the presence of the defendant in court is considered fulfilled (Marcello Viola/Italy, App. No: 45106/04, 5/1/2007, § 76).

In the first paragraph of Article 147 (h) of Law No. 5271, it is stipulated that “technical means shall be used in the recording of statements and interrogation processes.” Thus, in cases where SEGBIS is used and there is the possibility of conducting an interrogation, the mandatory provision stipulates that the defendant’s interrogation can be carried out in this way. Through this system, those giving statements have the opportunity to see and hear those in the courtroom, and the other party also has the same opportunity to engage in judicial processes such as questioning, taking statements, and making declarations. In other words, the principle of face-to-face hearings is ensured through SEGBIS in the trial process.”

  • SEGBİS’in Uygulamaya Geçirilmesi 

As reported in the media and to the public in September 2011, individuals (detainees or convicts) who were being transported from one place to another to give their statements lost their lives due to a fire that occurred in a penal institution transfer vehicle near Kayseri. After this incident, some prisoners and detainees expressed their unwillingness to attend court hearings.

As a solution to this incident, SEGBIS came into the agenda, and the installation of video conferencing systems in judicial units became a topic monitored by the public through the press and media. The public questioned why such an incident occurred when information and communication technologies were not utilized.

By the correspondence of the Ministry of Development dated 14/05/2012 and numbered 2490, the SEGBIS Project was included in the 2012 Investment Program of the Institution according to Article 6 of the Decision on the Implementation, Coordination, and Monitoring of the 2012 Year Program of the Ministry of Justice.

  • SEGBIS Legislation

 Regulations have been made in the 5271 Code of Criminal Procedure for making voice and video recordings or transmissions using technical tools while observing the fundamental principles and rules explained above in criminal proceedings.

Furthermore, the Regulation on the Use of Audio and Video Information System in Criminal Procedure was prepared to demonstrate the application of the specified provisions of the CCP in 2011 and published in the Official Gazette dated 20/09/2011.

In this Regulation, the procedures and principles for the use of the Audio and Video Information System (SEGBIS) to hear persons who cannot be present due to excuses accepted by the relevant authority in penal institutions, treatment institutions, or during the investigation and prosecution stages and to hear persons who cannot be brought to the court in case of apprehension are regulated.

  • Criminal Procedure Code Regulations 
  • Examination of Witnesses

 In accordance with Article 52 of the 5271 Code of Criminal Procedure; 

(1) Each witness is heard separately, without the presence of other witnesses, and subsequent witnesses.

 (2) Witnesses can only be confronted with each other and with the suspect until the prosecution stage if there is no delay or if there are circumstances related to the identification. 

(3) Images or sounds during the hearing of witnesses may be recorded. However; a) For child victims,

  1. b) Persons for whom it is not possible to bring them to the trial and whose testimony is essential in revealing the material truth,

 Recording is mandatory in their testimony. 

(4) Sound and image recordings obtained by applying the provisions of the third paragraph are only used in criminal proceedings.

  • Bringing Apprehended Persons to Court

In accordance with Article 94 of the 5271 Code of Criminal Procedure;

 (1) A person apprehended during the investigation or prosecution stage based on a detention order issued by the judge or the court is brought before the competent judge or court within twenty-four hours at the latest. 

(2) If the apprehended person cannot be brought before the competent judge or court within twenty-four hours, the competent judge or court conducts the interrogation or takes the statement of this person using the available audio and video communication system within the same period, in the courthouse where the person was apprehended, or if not available there, in the nearest courthouse. 

(3) A person apprehended outside working hours due to the issuance of a detention order for the purpose of taking their statement may be released at the discretion of the Public Prosecutor, provided that the person undertakes to be present in front of the judicial authority on the specified date. This provision can be applied only once for each detention order. If the person fails to fulfill their undertaking, an administrative fine of one thousand Turkish liras is imposed by the Public Prosecutor at the place where the detention order was issued.

  • Hearing of Witnesses and Experts Through a Delegated Member of the Court or the Way of Rogatory.

Correspondence is the process of hearing a witness or expert in a court located in a different place and sending their statements to the requesting court.

In accordance with Article 180 of the Law on Criminal Procedure No. 5271:

(1)In cases where a witness or an expert is not able to appear at the trial for a long time period, the duration of which is unknown beforehand, because of an illness, disability or because of another reason that cannot be overcome, then the court may rule that he shall be heard by a member of the court or by letter of the roga tory. 

(2) This provisions hall also apply in cases, where the witness and the expert are residing in a location outside of the jurisdiction of the competent court, and therefore it would be difficult to summon them.

(3) Within the borders of the metropolitan municipality, the trial court shall not rule on hearing the claimant, the intervening party, the accused, the defense counsel or the representative, witness and experts through an appointed member of the court, unless there is a necessity. 

(4) If the appointed court is within the borders of the metropolitan municipality, then it shall conduct the necessary interactions within the borders of the metropolitan municipality without sending the files back, even if the related persons are not within his jurisdiction.

 (5) If available, the witness or the expert shall be heard through a simultaneous vision and voice transmitting video-conference link. Principles and procedure of establishing the videoconference link and how to use this technology shall be regulated in an internal regulation. 

  • Accused Exempted From the Main Hearing

In accordance with Article 196 of the Law on Criminal Procedure No. 5271:

(1) In cases where the accused, who has already been interrogated by the court, or his defense counsel, who has a power of attorney related to this case requests, the Court may exempt the accused from the obligation to be present during the main hearing. 

(2) Except for the crimes that require imprisonment at a lower level for five years and up, the accused may be interrogated by a judge in another court district. The Day that is set for the interrogation shall be informed to public prosecutor, to the accused and to his defense counsel. There is no obligation for the public prosecutor and the defense counsel to be present during the interrogation. Before his interrogation, the accused shall be asked if he wishes to be interrogated in the competent court or not. 

(3) The record of the interrogation shall be read during the main hearing. 

(4) In cases where the judge or court deems it necessary, the interrogation of a defendant located within the country can be conducted through the simultaneous use of video and audio communication technology, or a decision can be made for them to attend the trial.

(5) If as a result of some obligatory situations, such as illness or disciplinary measure or other necessary grounds, the arrested individual has been transferred to a hospital or to a jail, which is not in the same jurisdiction with the trial court, the court may decide, that the accused shall not be transferred to the main hearing for a hearing that the court deems the presence of the accused is not necessary , if the accused had been interrogated previously. 

(6) If it is difficult to be present at the trial for the accused who is in a foreign country during the determined trial day, the trial may be conducted on an earlier date, or he can be interrogated by letter of rogatory.

  • Recording the Main Hearing 

In accordance with Article 196 of the Law on Criminal Procedure No. 5271:

(1) A record shall be produced of the main hearing. The chief justice or the judge together with the court recorder shall sign the record. In cases where the interactions during the main hearing have been recorded by technical equipments, written court records shall be produced afterwards without losing any time and be signed by the Chief justice or Judge together with the recording clerk. 

(2) If the chief justice is excused, the most experienced member shall sign the record.

  • Regulations in the Witness Protection Law 
  • Listening to Confidential Witnesses

 According to Article 5/1-b of the Witness Protection Law:

 “The witness protection measures that can be applied to those covered by this Law are as follows: 

  1. b) Listening to them or changing their voice or image in a private setting without their presence at the trial.”

 In Article 9:

 (2) If the court decides to apply the third paragraph of Article 58 of the Code of Criminal Procedure, the recognition of the witness can be prevented by altering the image or voice of the witness during the listening. 

Article 58 of Law No. 5271 contains provisions related to: 

“(2) ….Necessary measures are taken to protect the identities of persons to be heard as witnesses.

 (3) …the judge can also listen to the witness without those who have the right to be present. Audio and video transmission is carried out during the witness’s hearing.” 

Furthermore, the Regulation on the Principles and Procedures Regarding Witness Protection Measures to be Taken by Chief Public Prosecutors and Courts, which came into effect on 11/11/2008, includes in Article 7/1-b: 

“The listening of witnesses without those who have the right to be present at the trial or the alteration of their voice or image in a private setting” is envisaged as a protective measure. 

According to Article 12 titled “Listening in a Hidden or Private Environment”:

 “(2) Witnesses can be heard in the absence of those who have the right to be present at the trial if a decision is made. In this case, audio and video transmission is carried out. The right to ask questions is reserved. 

(4) When a witness is heard in a private environment outside the courtroom through teleconferencing, video conferencing, or other audio or visual communication tools, their voice or image may be altered. In this case, the real voice and image of the witness for verification purposes are recorded. All records are kept in accordance with confidentiality principles on the relevant storage medium. 

(5) Special spaces with sufficient technical equipment are created in courthouses and, when necessary, in correctional institutions for the purpose of listening to witnesses in a private environment. Chief public prosecutors and courts that do not have this capability can also benefit from the technical facilities of law enforcement or protection units.” 

According to the provisions of the mentioned Law and Regulation, it is necessary to ensure the listening of confidential witnesses through audiovisual recording and video conferencing systems. When a confidential witness is heard using this system, both their clear and altered voice and image must be recorded during the recording process.

  • Regulations on the Use of Audio and Video Communication System in Criminal Procedure

According to Article 1 of the Regulation on the Use of Audio and Video Communication System in Criminal Procedure, the purpose of this Regulation is to establish the principles and procedures for the use of the Audio and Video Communication System to listen to, record, and store individuals deemed necessary to be heard by the Public Prosecutor, judge, or court during the investigation and prosecution phases, as well as the establishment of the necessary technical infrastructure.

  • Storage and Conversion into Written Records

According to Article 6 of the Regulation on the Use of Audio and Video Communication System in Criminal Procedure, recordings obtained with the Audio and Video Communication System are securely stored after being signed with a qualified electronic signature by the requesting authority (the Public Prosecutor, judge, or court requesting the listening through the Audio and Video Communication System).

According to Article 7; (1) Recordings obtained with the Audio and Video Communication System are transformed into written records in the UYAP Information System in accordance with the procedures specified in the relevant legislation and signed with an electronic signature. Software or hardware tools may be used for the transformation into written records.

(2) The transformation of these records into written records is performed by the Public Prosecutor’s Office or judge responsible for the investigation during the investigation phase and by the main court during the prosecution phase.

  • Providing Records to Parties and Monitoring

According to Article 8 of the Regulation:

(1) Audio and video recordings are not provided to the parties; however, recordings transformed into written records may be provided in accordance with the conditions prescribed by law.

(2) In the case of a request or objection, audio and video recordings may be viewed by the party concerned under the supervision of the investigation and prosecution authorities in accordance with the conditions prescribed by law.

  • Procedure for the Application of SEGBİS
  • Absentees

According to Article 13 of the Regulation:

(1) If accepted by the requesting authority (the Public Prosecutor, judge, or court requesting the listening through the Audio and Video Communication System) due to reasons of excuse during the investigation and prosecution phases, individuals who cannot be present may be heard through the Audio and Video Communication System and may also participate in hearings through the Audio and Video Communication System.

(2) The requesting authority notifies the relevant law enforcement agency of the identity information of the individual to be heard, the listening time, and the preparations to be made for the listening, as specified in the second paragraph. The relevant law enforcement agency ensures the presence of an adequate number of law enforcement officers during the listening process.

(3) In line with the instructions provided in the second paragraph, the relevant law enforcement officer prepares the individual to be heard in the listening room.

(4) Unless otherwise specified by the requesting authority, a record stating that the individual to be heard is the one specified in the listening request is prepared and signed by the law enforcement officer.

  • Inmates in Jail

According to Article 14 of the Regulation:

(1) If the technical infrastructure is available, individuals in jail may be heard through the Audio and Video Communication System, and they may also participate in hearings through the Audio and Video Communication System.

(2) The requesting authority notifies the relevant jail management of the identity information of the individual to be heard, the listening time, and the preparations to be made for the listening, as specified in the second paragraph. The relevant correctional institution staff prepares the individual to be heard in the listening room.

(3) In line with the instructions provided in the second paragraph, the jail officer prepares the individual to be heard in the listening room.

(4) Unless otherwise specified by the requesting authority, a record stating that the individual to be heard is the one specified in the listening request is prepared and signed by the jail officer.

  • Individuals in Treatment Facilities

According to Article 15 of the Regulation:

(1) Individuals in treatment facilities during the investigation and prosecution stages may be heard through the Audio and Visual Communication System (SEGBIS) and can also participate in hearings via SEGBIS.

(2) The requesting authority shall provide the identity information of the person to be heard, the time of the hearing, and the necessary preparations for the hearing to the relevant treatment facility management and law enforcement unit. The relevant law enforcement unit ensures the presence of an adequate number of law enforcement officers during the hearing process.

(3) Following the instructions specified in the second paragraph, the relevant law enforcement officer prepares the person to be heard in the hearing room.

(4) Unless the requesting authority specifies otherwise, an official record is drawn up and signed by the law enforcement officer, confirming that the person to be heard is the same as indicated in the hearing request.

  • Individuals Outside the Jurisdiction

As per Article 16 of the Regulation:

(1) The requesting authority, using SEGBIS, informs the authority requesting the use of the system (public prosecutor, judge, or court requesting SEGBIS hearing) about the individuals to be heard, their addresses and identity information, and, if applicable, the alleged crime or incident, along with the necessary preparations for the hearing.

(2) The requesting authority, in accordance with the request, ensures the presence of the person to be heard in the hearing room and arranges for an official record confirming the person’s identity as specified in the hearing request.

(3) Unless otherwise specified by the requesting authority, the identity of the person to be heard is determined by the clerk or judge’s assistant at the courthouses before the hearing.

  • Hearing in the Case of Arrest

According to Article 17 of the Regulation:

(1) If an arrest warrant is issued by the judge or court during the investigation or prosecution phase following an arrest, the detained person is brought before the competent judge or court without delay. If this is not possible:

  1. a) The place of warrant contacts the public prosecutor’s office or the authority that issued the detention order, depending on the nature of the case.
  2. b) If the contacted authority deems it appropriate, the detained person is prepared for hearing via SEGBIS. If SEGBIS is not available at the place of warant, the person is transported to the nearest public prosecutor’s office or court where the system is available and ready for use.
  3. c) If these procedures cannot be completed within twenty-four hours, the detained person is brought before the nearest peace judge within the same period. If not released, the person is arrested for immediate referral to the competent judge or court.

(2) The person arrested as per the first paragraph may also be heard through SEGBIS if deemed appropriate by the relevant public prosecutor, judge, or court, depending on the nature of the case.

  • Listening During the Presence

According to Article 18 of the Regulation, the presence of the public prosecutor or judge in the location of the person to be listened to during listening is optional depending on the request of the requesting authority.

According to Article 19 of the Regulation, information is provided to the relevant parties about the recording of video and audio.

  • Regulations on the Law of Civil Procedure

The Audio and Video Informatics System (SEGBIS) is defined as “the audio and video informatics system in the UYAP Informatics System, which simultaneously transmits, records, and stores audio and video electronically” in Article 3 of the Regulation.

Article 60 of the Law on Civil Procedure Regulation regulates the execution of the hearing and other procedural actions by transferring audio and video simultaneously through SEGBIS or similar systems as follows:

(1) With the consent of the parties, the court or chamber may allow them or their attorneys to participate in the hearing from where they are located, or to perform procedural actions through SEGBIS or similar systems.

(2) With the consent of the parties, the court or chamber may allow a witness, expert, or specialist, or one of the parties to be in another place during the hearing. The hearing is transferred to the courtroom simultaneously as audio and video through SEGBIS or similar systems.

(3) If the party taking the oath resides in a different place from where the court or chamber is located, the oath can be taken by transferring audio and video simultaneously through SEGBIS or similar systems.

(4) Audio and video data obtained through SEGBIS or similar systems are considered electronic documents according to Article 199 of the Law.

(5) The record kept in UYAP Informatics System for identity verification and the conduct of the hearing, or the minutes kept externally due to an obligation, are signed by all relevant parties present during the hearing with a secure electronic signature or, if necessary, a handwritten signature, depending on the situation. The minutes specify the names and surnames of those who were listened to, the start and end times of the listening, the duration of the listening, the presence of those present, and any evidence presented, if any.

(6) The electronically kept record is sent to the requesting authority via UYAP after being scanned and signed electronically, while the original documents are kept in place.

(7) In cases where there are no provisions in this article, the provisions of the Regulation on the Use of the Audio and Video Informatics System in Criminal Procedure, published in the Official Gazette dated 20/9/2011 and numbered 28060, which are not contrary to this Regulation, shall apply.

  • Legal Nature of SEGBIS Applications According to Supreme Court Decisions
    1. “For the crime regulated in Article 86/1, 86/3-e, 87/1-d-last paragraph of the Turkish Penal Code No. 5237, which requires a minimum sentence of not less than five years according to Article 196/2 of the Turkish Criminal Procedure Code No. 5271, without considering the need for the defendant to be sommoned to the trial and heard through SEGBIS or a similar system, and if the defense obtained in writing is satisfied, this situation violates the law.”

(Supreme Court 3rd Criminal Division, Docket: 2020/7786, Decision: 2020/10780, Decision Date: 15.09.2020)

  1. Pursuant to Article 196/4 of Law No. 5271, which was amended by Law No. 7078, if there is no legal obligation for the defendant to make a defense through SEGBIS, and if there is no requirement of the law, and despite the fact that the defendant insisted on participating in the trial personally, he was forced to make a defense through SEGBIS, and the trial was continued, and a conviction was issued, this violates the right to defense. Pursuant to Article 289/1-h of Law No. 5271, the court’s decision violates the defendant’s right to defense in important matters, and it is also considered a clear violation of the law. Moreover, this situation, which must be taken into account ex officio, is also a violation of the right to a fair trial under Article 36/1 of the Constitution and Article 6/1 of the ECHR.

(Supreme Court 13th Criminal Division, Docket: 2020/7335, Decision: 2020/11485, Decision Date: 11.11.2020)

  1. Although it is stated by the court that the defendant’s defense through SEGBIS method was taken due to the Covid-19 pandemic, in the present case, the defendant, who is at risk of receiving a prison sentence of more than 20 years and ultimately received a total of 16 years and 7 months of imprisonment, insists on attending the trial in person, and the fact that the defendant, the victim, and the defendant’s attorney attended the hearings in person, and their statements and declarations were taken, but instead of postponing the trial in order to ensure the defendant’s defense to be taken in the presence of the court, the trial was continued by forcing the defendant to make a defense through SEGBIS, and a conviction was issued. This violates the right to defense according to Article 289/1-h of the Law No. 5271, and the violation of the right to a fair trial under Article 36/1 of the Constitution and Article 6/1 of the ECHR.

(Supreme Court 6th Criminal Division, Docket: 2021/12028, Decision: 2021/9993, Decision Date: 27.5.2021)

  1. https://www.hurriyet.com.tr/gundem/fedai-varanin-avukati-emine-bulut-olmeden-yarim-saat-once-karakola-sigindi-ama-kolluk-kuvvetleri-onu-koruyamadi-41346976

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