Cases Where The Judge Cannot Hear The Case In Criminal Procedure Code
The cases in which the judge is prohibited from hearing the case, which are envisaged to ensure the impartiality of the judge, are regulated in Articles 22 and 23 of the Code of Criminal Procedure and are determined in a limited number. Since the general rule is that the judge shall hear the case before him/her, it is not possible to extend these exceptional regulations by analogy.
Judge
If he/she has been harmed by the offence,
The suspect, the accused or the victim is in a marital, guardianship or trusteeship relationship with the suspect, the accused or the victim, even if it is subsequently dissolved,
If the suspect, the accused or the victim is a member of the blood or in-law kinship of the suspect, the accused or the victim,
If there is an adoption relationship between the suspect, the accused or the victim,
If the suspect, the accused or the victim is related by blood, including the third degree,
Even if the marriage has been dissolved, if the suspect, the accused or the victim is related to the suspect, the accused or the victim by consanguinity, including second degree,
In the same case, he/she acted as public prosecutor, judicial police officer, defence counsel for the suspect or defendant, or victim’s advocate,
If he/she was heard as a witness or expert witness in the same case,
Cannot act as a judge (Article 22 of the Criminal Procedure Code)
2. CASES WHERE THE JUDGE CANNOT PARTICIPATE IN THE TRIAL
A judge who has participated in a judgement or verdict shall not participate in the judgement or verdict to be rendered by the higher court in relation to that judgement or verdict. A judge who served in the same matter in the investigation phase cannot serve in the prosecution phase.
In case of renewal of the trial, the judge who served in the previous trial cannot take part in the same matter (Article 23 of the Criminal Procedure Code).
The legislator has accepted that in the cases stipulated in these articles, the judge cannot act impartially and even if he/she does, the belief of the public that a fair trial has been held cannot be ensured. Therefore, in these cases, only the existence of such a situation is determined. If there is a situation in which the judge is banned, it is not investigated whether this situation will affect the impartiality of the judge. In these cases, the judge cannot act. Failure to comply with the duty prohibitions is a definite violation of the law (Article 289/1/b of the Code of Criminal Procedure).
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