The right to a fair trial is the cornerstone of the rule of law. 1982 Constitution Article 36 and ECHR Article 6 regulate this right. Article 36/1 of the Constitution: "Everyone has the right to claim and defend before the judicial authorities, as plaintiff or defendant, and to a fair trial, by using legitimate means and means." Article 6/1 of the ECHR: "Everyone has the right to have his case heard publicly and within a reasonable time by an independent and impartial tribunal established by law, which will decide on his civil rights and obligations or on the merits of criminal charges against him."
Elements of the Right to Fair Trial
1) Right of Access to Court
Everyone should be able to bring their dispute to court. Rules that prevent or make access extremely difficult (high fees, tight deadlines, unnecessary formalities) may harm the right.
2) Right to Trial Within a Reasonable Time
It is mandatory for cases to be concluded within a reasonable time. The ECHR uses four criteria in evaluating "reasonable time":
- Complexity of the case
- Applicant's behavior
- Authorities' conduct (court disruptions)
- The importance of the case for the applicant (e.g. urgent severance pay in an employment case)
Türkiye is among the countries most convicted in "reasonable time violation" applications at the ECHR.
3) Right to an Independent and Impartial Tribunal
The court must be independent from the legislature and the executive, and the judges must be objective and subjectively impartial. The fact that the judge has previously undertaken a task related to the case or has a personal relationship with the parties may undermine impartiality.
4) Natural Judge Principle (AY Art. 37)
No one can be brought before any authority other than the court to which he is legally subject. Extraordinary courts cannot be established.
5) Equality Before the Law and Equality of Arms
Legal opportunities of the parties must be equal. Opportunities to present evidence and express opinions given to one party should also be given to the other party. This includes the right to object to expert reports, the right to hear witnesses, and the right to file review.
6) Right to Public Trial
Trials are held in public; Exceptions (public safety, morality, child protection) are limited.
7) Legal Right to Be Heard (HMK article 27)
The parties have the right to participate effectively in the trial, to make statements, to present evidence and to object to the evidence presented by the other party.
8) Right to Reasoned Decision (AY Art. 141)
All court decisions are written with reasons. Insufficient justification or unjustified decision violates the right to a fair trial.
Additional Safeguards in the Criminal Field (ECHR art.6/2-3)
Presumption of Innocence (ECHR Art. 38/4, ECHR Art. 6/2)
"No one can be considered guilty until his guilt is proven." The criminal-first approach of the court, press and public officials violates this principle.
Rights of the Accused (ECHR art.6/3)
- Being informed of the accusation (in detail, in the language he understands)
- Adequate time and facility to prepare his defense
- Utilizing the assistance of a lawyer (free of charge if necessary)
- Right to examine witnesses (equality of arms — having one's own witness heard and cross-examining the other party's witness)
- Right to interpreter
Typical Cases of Violation
- Long-lasting trials (processes lasting 5-10 years, especially in business, commercial and administrative cases)
- Not granting the right to object to expert reports
- Unjustified rejection of witness request
- First instance court's failure to respond to important defense arguments
- Insufficiency of justification for decision
- Deposition taking without appointment of a defense attorney
- The superior court's rejection on merits without examining the material facts
- Preventing access to documents before the court
Important ECHR Decisions Against Türkiye
The "reasonable time" violation decisions given by the ECHR against Türkiye are expressed in thousands. In addition, there are many convictions on the issues of equality of arms, the right to a reasoned decision, the right to an interpreter, and the right to a lawyer. These decisions led to changes in the CMK and HMK in Turkish law.
Approach of the Constitutional Court
The right to a fair trial is the area where the most frequent violation is detected in the individual application decisions of the Constitutional Court. Constitutional Court:
- The trial is not completed within a reasonable time,
- Unjustified rejection of the witness request,
- The court's failure to respond to critical defense arguments,
- Not allowing the opportunity to object to expert reports
Consistently considers it a violation of the right to a fair trial.
Individual Application Alleging Violation
For individual application alleging violation of the right to a fair trial: