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The Right of the Accused to be Present at the Trial, Excluding the Judgment of Accused's Conviction

Evaluation of the Constitutional Court's Decision dated 08.09.2022


In the Official Gazette dated 04 October 2022 and numbered 31973, the annulment decision of the Constitutional Court dated 8.9.2022 and numbered 2021/118E., 2022/98K. was published.


With this decision, it has been ruled that "paragraph 2 added to Article 193 of the Criminal Procedure Law No. 5271 with Article 28 of the Law No. 5353 dated 25/05/2005" is in violation of the Constitution, and the relevant paragraph has been annulled. This annulment decision of the Constitutional Court will enter into force six months after the date of publication of the decision in the Official Gazette (April 4, 2023).


Application Subject of Objection with The Constitutional Norm Compliance Control System


The application subject of objection with the constitutional norm compliance control system; The second paragraph of Art. 193 of the Code of Criminal Procedure No. 5271 titled "The absence of the defendant at the hearing", which is the second paragraph of the provision "If it is concluded that a decision other than a sentence of conviction should be made about the defendant according to the evidence collected, the case may be completed in his absence, even if his interrogation has not been made" is contrary to Art. 36 and Art. 38 of the Constitution.


The Constitutional Court's Reasoning for the Annulment of the Relevant Clause


The Constitutional Court ruled that the right to be present at the hearing should be to the extent of the right to a fair trial, which is regulated in the Art. 36 of the Constitution. Within the verdict, it was stated that the right to be present at the hearing ensures the effective exercise of the right to defense and it also provides the principle of equality of arms and the principle of adversarial proceedings to become operable.


The Constitutional Court stated that the second paragraph which is specified by Art. 193 of the Code of Criminal Procedure will also be applied to decisions other than conviction. Considering the decisions other than a conviction, it must be established that the act attributed to the defendant was committed by the defendant in order to issue a decision of non-prosecution and/or security measures due to their legal nature and that the ability to issue a decision on the issue without interrogating the defendant eliminates the presumption of innocence stipulated in Article 38 of the Constitution.


However, the Constitutional Court ruled that the norm allowing the case to be concluded without an interrogation of the defendant, considering the possibility that the defendant may continue to be legally responsible for the act attributed to the defendant, although the decisions other than the conviction verdict do not have the same result as the conviction verdict, imposes an unreasonable restriction on the right to a fair trial and annulled the second paragraph of Art. 193 of the Code of Criminal Procedure.


Conclusion


The Constitutional Court has rightly stated that the right of the accused to be present at the hearing must also be observed in decisions other than the conviction of the defendant (in decisions of acquittal, non-prosecution, imposition of security measures, dismissal of the case, dismissal of the case); that the right to a fair trial includes the right of the parties to be present at the hearing and that the decision other than the conviction of the defendant without an interrogation of the defendant is a violation of the presumption of innocence.


The Court also took into account the possibility that in cases where a verdict other than a sentence of conviction may be rendered against the defendant, the legal responsibility of the person concerned may also arise; the Court ruled that the right to a fair trial was disproportionately restricted and annulled the provision that, if a verdict other than a sentence of conviction is to be rendered against the defendant, the trial may be concluded in the absence of the defendant without interrogating the defendant.


Although the annulment decision will enter into force six months after its publication in the Official Gazette (on 4 April 2023), the purpose of the Constitutional Court's annulment decision should be taken into consideration by the local courts even in the current proceedings. If the defendant requests to be present at the hearing until the annulment decision enters into force and the defendant's request is subsequently rejected, the right to a fair trial and the presumption of innocence will be violated. In this case, the person concerned may file an individual application to the Constitutional Court and the Constitutional Court may conclude that the right to a fair trial (Art. 36 of the Constitution) and the presumption of innocence (Art. 38 of the Constitution) have been violated.


Muhammed Dogan

Alp Satibese


Translated by Doga Demirel & Deniz Karaduman

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