Cancellation Of The Rule That Does Not Limit The Chief Public Prosecutor’s Office Of The Regional Court Of Appeal To Exercise Its Objection Authority
Rule Subject to Objection
The rule subject to objection stipulates that the chief public prosecutor’s office of the regional court of justice may, ex officio or upon request, appeal against the final decisions of the criminal chambers of the regional court of justice to the chamber that rendered the decision within thirty days from the date of the decision.
Grounds for Application
In summary in the application decision; the rule subject to objection is an extraordinary legal remedy, the change of the final decisions of the criminal department of the regional court of appeal against the defendant upon the objection of the Chief Public Prosecutor’s Office of the regional court of appeal in accordance with the rule is incompatible with the right to a fair trial, the extraordinary legal remedies foreseen against the final decisions of the courts of first instance do not result against the defendant,
It has been argued that the rule is contrary to the Constitution by stating that the rule is favourable to create different results in the trials that are tried for the same offences and result in final judgements, that this situation contradicts the principle of equality before the law, and that the authority of appeal of the Chief Public Prosecutor of the Court of Cassation, which is similar to the rule, is not limited to final judgements.
Evaluation of the Court
When the rule subject to the objection is evaluated in terms of whether the conditions that must be fulfilled in order to conclude a violation of the principle of not being tried or punished more than once for the same act are fulfilled, there is no dispute that the first trial before the objection of the Chief Public Prosecutor of the district court of appeal was a “criminal” trial. It is also clear that the first proceedings before the objection of the chief public prosecutor of the regional court of appeal included both convictions and acquittals.
The proceedings that will start again after the district court of appeal of the Chief Public Prosecutor’s Office is authorised to appeal are also related to “punishment”. There is no doubt that the subject matter of the resumed trial is the same as the act subject to the previous trial. Therefore, it is understood that all four conditions are fulfilled in the concrete case.
When the rule subject to objection is evaluated from this point of view, it is clear that the rule is not related to two proceedings in different jurisdictions and the exception of the connection of these proceedings. In case of obtaining new evidence, it may be considered that the procedure stipulated by the rule may be applied. This is because the rule does not foresee any limitation in this respect. There is no doubt that the rule subject to objection covers the exception of the existence of a fundamental defect in the previous proceedings that may affect the outcome of the case.
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Since the rule subject to objection does not limit the exercise of the power of objection for a certain reason, it is understood that the Chief Public Prosecutor’s Office of the Regional Court of Appeal may also exercise the power of objection for reasons that cannot be seen within the scope of the exceptions to the principle of not being tried or punished more than once for the same act.
However, the rule allows the aforementioned objection to be made not only against the defendant but also in favour of the defendant. Although conducting a new trial after a final judgment against the defendant, in the absence of the above-mentioned exceptions, constitutes a violation of the principle of not being tried or punished more than once for the same act, such a situation does not arise in terms of the objections to be made in favour of the defendant. Therefore, it is concluded that the rule is unconstitutional only in terms of “objections against the defendant”.
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It is a requirement of being a state of law to protect the right to a fair trial by guaranteeing the principle of equality of arms and the right to a contradictory trial at all stages of the proceedings, including the procedural rules of criminal cases and cases related to civil rights and obligations. The rule is to ensure that the parties participate in the proceedings on equal terms, to be informed of the evidence they present and the views they present, and to be given the opportunity to express their views on these.
The objection of the chief public prosecutor’s office of the regional court of appeal is a substantive procedural act that initiates the process of reconsideration of the decision of the criminal chamber. Upon this procedure, the criminal chamber may change its decision in the direction of the request subject to the objection, or if it does not consider the request appropriate, it sends the file to the Board of Presidents of the Criminal Chambers (Board). The decisions of the Board regarding the acceptance of the objection are sent to the criminal department for due process.
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In this context, in accordance with the rule, it is clear that the final decisions of the criminal departments of the regional courts of justice may be changed, even to the detriment of the defendant. However, the rule does not foresee any mechanism to ensure that the defendant is informed of the objections to the decisions. The fact that the defendant is not informed of the objection and cannot present his defence against the objection offends the sense of justice and disrupts the fair balance between the parties to the case.
In addition, it is also understood that there is no superior public interest worth protecting in not informing the defendant of the objection and depriving him of the opportunity to make a defence against it. Therefore, the rule is incompatible with the principles of equality of arms and contradictory trial within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
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