The Constitutional Court has decided to annul paragraph 3 of Article 247 of the Turkish Criminal Code numbered 5271 ("TCC") with its decision announced in the Official Gazette dated May 10, 2023, and numbered 32186.
What Does the Annulled Rule Regulate?
The mentioned article primarily defines the term "fugitive." According to the definition, a fugitive is "a person who hides in the country or is in a foreign country to avoid being investigated or prosecuted, making it impossible for the public prosecutor or the court to reach them."
The article that has been annulled allowed the court to proceed with the prosecution and sentencing of fugitive defendants. The exception to this rule was that a fugitive defendant could not be convicted if they had not been interrogated. In other words, the fugitive defendant could be prosecuted, and provisions other than a conviction, such as an acquittal, no ground for sentence, imposition of security measures, dismissal of the case, and discontinuance, could be established without considering whether they had been interrogated.
What is the Scope of the Annulment Decision?
The application claimed that prosecuting the defendant in their absence limited the right to be present at the hearing and, therefore, the right to a fair trial. It was also argued that in the case of a decision of no ground for a sentence or the imposition of security measures against the fugitive defendant, it must be proven that the defendant committed the act, and rendering such decisions is incompatible with the presumption of innocence. Accordingly, the request was made to annul this rule.
The Constitutional Court stated that while judgments rendered in the absence of the fugitive defendant do not, in principle, violate the right to a fair trial, in cases where the defendant is not adequately informed about the accusation of a crime, they should have the opportunity to request a new evaluation of the judgment rendered in their absence at the first instance or on appeal. However, the relevant article does not provide this opportunity.
Accordingly, the Constitutional Court held that concluding the trial without any possibility of re-evaluation and without interrogating the fugitive defendant regarding verdicts other than a conviction, which may have adverse consequences for the fugitive defendant, unreasonably restricts the right to a fair trial. In this regard, the court ruled to annul the mentioned rule for violating Articles 13 and 36 of the Constitution. Therefore, the annulment decision will come into effect nine months after its publication in the Official Gazette (10/2/2024).
You can read the decision of the Constitutional Court here (Available in Turkish only).
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