Fezleke: FEZLEKE tr[1]summary of proceedings(law)[2]
fromAR faḏlaka ͭ فذلكة gerekçe yazısı FA ḏālika ف ذالك "şunun için"
"gerekçe yazısı" [ Ahmet Vefik Paşa, Lugat-ı Osmani (1876) ]
[1] Fezleke terimi hukukumuzda anlam değiştirmiştir. Evvelce CMK 156 uyarınca kolluğun
kendiliğinden başlattığı hazırlık soruşturmasının sonuçlarını C. savcısına bildirdiği yazıya “fezleke” deniliyordu, bugün ise C. savcısının verdiği emirleri nasıl yerine getirdiğine ilişkin bir rapor anlamında kullanılmaktadır. Bunun dışında savcılık yapısının değişmesi nedeniyle, 5235 sayılı Mahkemeler Teşkilatı Kanunu’nun 17. maddesinde Cumhuriyet Başsavcılığı bir makam olarak düzenlenmiş ve soruşturma yapan C. savcılarının soruşturma sonunda iddianame düzenleyecek kadar yeterli şüpheye ulaştıklarında Cumhuriyet Başsavcılığı’na fezleke adı altında bir taslak iddianame düzenlemeleri kabul edilmiştir.
Kolluğun kendiliğinden soruşturma yapmak yetkisi bulunmamaktadır (CMK 160). Suç ihbarını alan kolluk, olay yerine gitmek ve delillerin kaybolmaması için tedbir almakla yükümlüdür (PVSK Ek 6). Fakat, suça ilişkin araştırma veya soruşturma işlemi yapabilmesi için C. savcısının kolluğa yazılı emir vermesi gerekir (CMK 161/3).
Adli kolluk görevlileri, maddi gerçeğin araştırılması ve adil bir yargılamanın yapılabilmesi için, C. savcısının emirleri doğrultusunda kanundaki usullere uygun olarak delilleri toplamak, muhafaza altına almak ve bunları bir rapor ile C. savcısına sunmakla yükümlüdür (CMK 160-161; Adli Kolluk Yönetmeliği 6/6) C. savcısının emri üzerine gerekli araştırmaları yapan adli kolluk, yaptığı işlemleri
açıklayan bir rapor düzenlemeli ve bunu C. savcısına vermelidir (Adli Kolluk Yönetmeliği 6/6).
Polis sadece yaptığı işleri anlatan bir rapor hazırlayabilir. Ancak, suça ilişkin yorum veya değerlendirmeleri içeren bir yazı yazamaz.
Hukuka aykırı delil toplanmasını önleme amacıyla adli kolluk görevlilerine ek bir görev daha verilmiştir: Hukuka aykırı delil elde edildiğinin tespiti halinde fezlekede bu hususa da yer verilmesi mecburiyeti vardır (Adli Kolluk Yönetmeliği 6/6). Müdafiin kolluğa yardımcı olması ve soruşturma evresinde varlığını saptadığı hukuka aykırı delilleri kolluğa bildirerek fezlekesinde buna yer vermesini sağlamada kolaylık göstermesi tavsiye edilir.
[2] A summary proceeding is a court action in which the formal procedures normally applicable to matters such as conducting discovery are dispensed with. A summary proceeding is often used in landlord-tenant law. The two most common types of summary proceedings are 1) holdover proceedings - brought when a person remains in possession of real property after the term of a tenancy expires, for example when a lease ends or after service of a termination notice and 2) non- payment proceedings - brought only after there is a default in the payment of rent and the landlord demands that the tenant pay the rent or move from the property.
Summary proceedings are also often used in domestic relations and probate matters. Although some of the legal processes are dispensed with, certain fundamental rights must be observed, such as the right to a jury, notice, and opportunity to be heard.
The Law of Countries
OTTOMANThe Ottoman Empire was governed by different sets of laws during its existence. The Kanun a secular legal system, co-existed with religious law or Hanafi school of Islamic jurisprudence. Legal administration in the Ottoman Empire was part of a larger scheme of balancing central and local authority. Ottoman power revolved crucially around the administration of the rights to land, which gave a space for the local authority develop the needs of the local millet.[3] The jurisdictional complexity of the Ottoman Empire was aimed to permit the integration of culturally and religiously different groups.
The Ottoman system had three court systems: one for Muslims, one for non-Muslims, involving appointed Jews and Christians ruling over their respective religious communities, and the "trade court". The codified administrative law was known as kanun and the ulema were permitted to invalidate secular provisions that contradicted the religious laws. In practice, however, the ulema rarely contradicted the Kanuns of the Sultan.
These court categories were not, however, wholly exclusive: for instance, the Islamic courts—which were the Empire's primary courts—could also be used to settle a trade conflict or disputes between litigants of differing religions, and Jews and Christians often went to them to obtain a more forceful ruling on an issue. The Ottoman state tended not to interfere with non-Muslim religious law systems, despite legally having a voice to do so through local governors.
The Islamic Sharia law system had been developed from a combination of the Qur'an; the Hadīth, or words of the prophet Muhammad; ijmā', or consensus of the members of the Muslim community; qiyas, a system of analogical reasoning from earlier precedents; and local customs. Both systems were taught at the Empire's law schools, which were in Istanbul and Bursa.
The Ottoman Islamic legal system was set up differently from traditional European courts. Presiding over Islamic courts would be a Qadi, or judge. However, the Ottoman court system lacked an appellate structure, leading to jurisdictional case strategies where plaintiffs could take their disputes from one court system to another until they achieved a ruling that was in their favor.
Throughout the 19th century, the Ottoman Empire adhered to the use of three different codes of criminal law. The first was introduced in 1840, directly following the Edict of Gülhane, an event which started the period of the Tanzimat reforms. In 1851, a second code was introduced. In this one, the laws were nearly the same as the ones in the first code of laws, but included the rulings of the previous eleven years. In 1859, the Ottoman Empire promulgated a last code of law inspired by the 1810 Napoleonic criminal code. Each of these variations of code and legislations represented a new phase in Ottoman legal ideology.
The Ottoman judicial system institutionalized a number of biases against non-Muslims, such as barring non-Muslims from testifying as witnesses against Muslims. At the same time, non-Muslims "did relatively well in adjudicated interfaith disputes", because anticipation of judicial biases prompted them to settle most conflicts out of court.
"English law" is a term of art. It refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English law is renowned as being the mother of the common law and is based on those principles. English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189.
There has been no major codification of the law, rather the law is developed by judges in court, applying statute, precedent and case-by-case reasoning to give explanatory judgments of the relevant legal principles. These judgments are binding in future similar cases (stare decisis), and for this reason are often reported.
In the early centuries, the justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law, e.g., the Law Merchant began in the Pie-Powder Courts, see Court of Piepowder (a corruption of the Law French "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength, subject to the doctrine of separation of powers, legislation gradually overtook judicial law-making, so that today judges are only able to innovate in certain very narrowly defined areas. The year 1189 was defined in 1276 as being the boundary of time immemorial.
FRANCE
(PICTURED : Death of the Princess de Lamballe by Léon-Maxime Faivre)
During the September Massacres, the prisons were attacked by mobs, and the prisoners were placed before hastily assembled people's tribunals, who judged and executed them summarily. Each prisoner was asked a handful of questions, after which the prisoner was either freed with the words 'Vive la nation', and permitted to leave, or sentenced to death with the words 'Conduct him to the Abbaye' or 'Let him go', after which the condemned was taken to a yard where they were immediately killed by a mob consisting of men, women and children.
1804 | Napoleonic Code in France:
After four years of debate and planning, French Emperor Napoleon Bonaparte enacts a new legal framework for France, known as the “Napoleonic Code.” The civil code gave post-revolutionary France its first coherent set of laws concerning property, colonial affairs, the family, and individual rights.
In 1800, General Napoleon Bonaparte, as the new dictator of France, began the arduous task of revising France’s outdated and muddled legal system. He established a special commission, led by J.J. Cambaceres, which met more than 80 times to discuss the revolutionary legal revisions, and Napoleon presided over nearly half of these sessions. In March 1804, the Napoleonic Code was finally approved.
It codified several branches of law, including commercial and criminal law, and divided civil law into categories of property and family. The Napoleonic Code made the authority of men over their families stronger, deprived women of any individual rights, and reduced the rights of illegitimate children. All male citizens were also granted equal rights under the law and the right to religious dissent, but colonial slavery was reintroduced. The laws were applied to all territories under Napoleon’s control and were influential in several other European countries and in South America.
GERMANYThe Law of Germany (German: Recht Deutschlands), that being the modern German legal system (German: Deutsches Rechtssystem), is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code (Bürgerliches Gesetzbuch, or BGB) were developed prior to the 1949 constitution. It is composed of public law (öffentliches Recht), which regulates the relations between a citizen/person and the state (including criminal law) or two bodies of the state and the private law (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.
German law has been subject to many influences over the centuries. Until Medieval times the Early Germanic Law, derived from the Salic Law of the Salian Franks and other tribes, was common. With the arrival of the Renaissance, Roman law again began to play a strong role, and later on legal scholars known as the Pandectists revived the formalities of Roman law as set by Justinian in the Corpus iuris civilis. It became common law (Gemeines Recht) in large parts of the German-speaking world and prevailed far into the 19th century. As the Holy Roman Empire was composed of countless minor territorial entities, the laws varied very much, according to local traditions and religions. These laws were codified in about local 3000 Weistümer (also called Holtinge or Dingrodel), collections of rural laws. Only in relation to the Imperial superior Court of Justice, the Reichskammergericht, there existed codes of procedure. In addition to these the Corpus Iuris Canonici, the source of the better organized ecclesiastical judicature and the old Corpus Iuris Civilis. Both bodies of law were central part of the education of jurists and therefore generally known among them.
Prussia made an effort to bring in an all-new set of laws with the Allgemeines Landrecht für die preußischen Staaten (General National Law for the Prussian States) a system of codification, containing laws in relation to the whole spectrum of legal divisions, in the 18th century which, had a great influence on later works.
After the French July Revolution of 1830, revolutionary ideas of the French Revolution and Napoleon's laws as the Code civil the Code pénal and the Code d'instruction criminelle strongly influenced the German legal tradition, especially in the Grand Duchy of Baden, which sometimes only translated codifications of France for its own use.