What is the right to a fair trial? – Freedom of the press


The right to a fair trial is not whether the decision given to the person at the end of the trial is justified, but it is a right related to whether the procedure in the trial of the person is fair or not.

The right to a fair trial is defined in Article 36 of the Constitution: “Everyone has the right to a fair trial by claiming and defending before the judicial authorities by using legitimate ways and means”. arranged like

Article 6, paragraph (1) of the European Convention on Human Rights, with the heading “right to a fair trial”, states that “everyone shall be tried by an independent and impartial tribunal established by law, who decides on disputes concerning his civil rights and obligations or the charges brought against him in criminal matters, has the right to demand that his case be heard in a fair and open manner within a reasonable time. provision is included.

If the person being tried thinks that he did not receive a fair trial before the court that held his trial, that is to say that he could not have had information on the evidence in the record and he has not been able to present his views and objections, he cannot present his own evidence to the court or the evidence he has presented has not been taken into account by the court , the trial lasted a long time, etc. claims that the right to a fair trial has been violated by seizing the Constitutional Court in the context of an individual petition.

Principles of fair trial

According to the decisions of the Constitutional Court and the European Court of Human Rights, the criteria of the principles of a fair trial are determined as follows;

– The possibility of concluding the procedure within a reasonable time and the right to be tried before an independent and impartial tribunal established by law,

– The trial is public, with some exceptions,

– Make a fair trial,

– Respect for the presumption of innocence,

– Guarantee the right to learn isnad,

– the right to have the time and facilities necessary for the preparation of the defence,

– The right to self-defense or legal assistance from a lawyer,

– It must give the opportunity to ask questions to witnesses during the trial and to discuss the evidence with the prosecutor under equal conditions.

If these criteria are not met in court proceedings, it is accepted that the individual’s right to a fair trial is violated.

In cases where it is acceptable that the right to a fair trial has been violated, the court will award appropriate compensation to the plaintiff.

Although the amount of compensation is determined taking into account the circumstances of each case, it is stated that according to the sample of decisions, the claimant received 19,600 TL in a civil lawsuit of a duration of 12 years and 6 months, 14,000 TL in a criminal case trial lasting 9 years and 6 months, and 24,000 TL in an administrative trial lasting 10 years and 6 months.

What is the reasonable time in a procedure?

As stated above, failure to conclude proceedings within a reasonable time is a violation of the right to a fair trial. However, no specific deadline has been determined for the reasonable period of time.

Because each case is evaluated within a reasonable time according to its own characteristics. For example, concluding a case in the Labor Court in 10 years and concluding a case in the High Criminal Court in 10 years are not the same thing. The fact that the case heard before two separate jurisdictions is concluded at the same time cannot be interpreted in the same way as a violation of the right to a fair trial.

Although it is necessary to determine an average period of reasonable time, it is accepted that proceedings with a total duration of 5 years or more under the process of local courts and remedies do not take place in a reasonable period of time, in accordance with the decisions taken.

Well, is “judging on the basis of illegal evidence”, which has been the subject of much debate recently, a violation of the right to a fair trial?

While it is stipulated in article 38/6 of the Constitution that “the findings obtained illegally cannot be admitted in evidence”, in article 217/2 of the KMC, “the alleged offense can be proven by any evidence obtained in accordance with the law. “the provision is included.

In article 206/2-a of the MCK, “The presentation of illegally obtained evidence is rejected.” and the court that proceeded with the trial in this way was instructed to assess whether the evidence is in accordance with the law at the very beginning of the trial and to reject the discussion of the illegally obtained evidence in court.

For this reason, evidence alleged to have been obtained illegally should not be presented in court, read or discussed, and should be separated from the case file and kept in a separate location.

Due to these clear and mandatory rules of Articles 217/2 and 206 of KMC No. 38/6, 5271 of the Constitution, evidence which has not been obtained according to law cannot be used as evidence in criminal proceedings and cannot be taken as the basis of a judgment.

As can be seen, these rules of the Constitution and the Code of Criminal Procedure are rules of procedure, and attention should be paid to the procedure before discussing the merits of the case.

The right to a fair trial gives individuals the opportunity to verify whether the trial process and the procedure are fair, not the decision made at the end of the case.

Although the decision of the court regarding the control of “making a verdict on the basis of illegal evidence” is believed to be on the merits, it is a rule of procedure that illegal evidence cannot be taken as a basis for judgment.

For this reason, in addition to the reasons we have listed above, “judgment based on illegal evidence” is a violation of the right to a fair trial.

Indeed, in a decision of the Constitutional Court relating to this question; “The petitioner, stating that unlawful evidence had been withheld as the basis of judgment in his case, alleged that his rights to a ‘fair trial’ and to privacy had been violated, and requested a new trial. .

(…) Although the power to assess evidence relating to a particular case rests as a rule with the court conducting the trial, in the concrete case the use of illegally obtained evidence as sole evidence and decisive impairs the fairness of the trial as a whole and the “illegality” in the execution of the search constitutes the whole of the trial. It was found that it violates the right to a fair trial in terms of For these reasons, it is clear that the petitioner’s right to a fair trial, guaranteed by Article 36 of the Constitution, has been violated.

In this regard, it was decided to send a copy of the decision to the competent court for retrial in order to eliminate the violation and its consequences.

As can be seen with this decision of the Constitutional Court, rendering a verdict on the basis of illegal evidence, that is to say on the basis of illegal evidence, constitutes a clear violation of the right to a fair trial set out in l 36 of the Constitution.

The fruit of the poisonous tree is also poisonous, so it cannot be eaten!

Chase. Ciler Nazife Kosar / [email protected]

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