Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

Simple trial procedure violates right to a fair trial, lawyers say

Simple trial procedure violates right to a fair trial, lawyers say

The procedure that took effect within the framework of the First Judicial Reform Package was implemented for the first time in a case against a journalist, JinNews reporter Hikmet Tunç

 

HİKMET ADAL

 

JinNews reporter Hikmet Tunç’s trial on the charge of “insulting a public official” got underway on 21 October at a criminal court of first instance in Muradiye in the Van province. The court decided to proceed in accordance with the “simple trial procedure.”

 

The simple trial procedure, which was introduced with the First Judicial Reform Package that came into effect last year, will be thus applied for the first time in a case filed against a journalist.

 

Tunç is on trial for “insulting” Erkan Savar, the trustee appointed by the government to replace the mayor of Muradiye, over her reporting about a corruption allegation in Van.

 

The court granted a period of 15 days to the parties to submit their statements and evidence in writing to the court. The court will then review the case and all submitted documents, and will render its judgment in a month, without holding a hearing, and will notify the parties of its judgment, again, in writing.

 

Tunç faces between 1 year and 2 months to 2 years and 4 months in prison in the indictment.

 

Seeking his comments about this new trial procedure that will be applied for the first time in a journalist’s trial, Expression Interrupted contacted Hikmet Tunç’s lawyer, Cüneyt Ergün. However, Mr. Ergün stated that he was recently diagnosed with Covid-19 and was unable to talk.

 

At the discretion of the court 

 

Sevgi Epçeli Arslan, another lawyer familiar with free-speech trials, told Expression Interrupted that this procedure, introduced with the First Judicial Reform Package published in the Official Gazette on 24 October 2019, can be applied for crimes with a maximum sentence of 2 years or less.

 

Explaining that the decision to apply the simple trial procedure was at the courts’ discretion, Epçeli Arslan said: “The use of discretion power may lead to various unequal, unfair practices of the procedure for persons who are on trial on the same charge.”

 

Epçeli Arslan warned that although the procedure was aimed at reducing the workload of courts, it could lead to rights violations for the accused.

 

“Damages the right to a fair trial”

 

Noting that the 15-day period granted to the defendant and their legal representative to prepare and submit their defense and evidence was too short, Epçeli Arslan explained: “It is within the scope of the right to a fair trial for the accused to have sufficient time and facilities to make an effective defense before the court. Fifteen days, within this scope, is neither sufficient nor effective.”

 

On the other hand, if a conviction is given in a trial where the simple trial procedure is applied, the sentence will be reduced by a quarter, which is a favorable situation for the defendant, the lawyer added.

 

“In the Justice Commission report, the simple trial procedure is defined as an ‘alternative trial procedure.’ In the report, the reason why there is a need for such a procedure is explained as ‘without making a distinction between simple crimes and serious crimes, the implementation of every stage of the same trial procedure by holding a hearing leads to less time and effort for trials of serious crimes’,” Epçeli Arslan explained, adding: “Although a distinction appears to be made here between simple crimes and serious crimes, it should not be forgotten that in terms of the right to a fair trial, devoting sufficient time and effort to a case file is important for the accused, who is put under a criminal charge. The right to a fair trial applies to everyone charged with a criminal offense -- simple or serious.”

 

Epçeli Arslan continued: “The law stipulates that judgments rendered in the simple trial procedure can be objected to in the prescribed period. If not, the judgment will become final, and in cases where the objection is made by a person other than the defendant, the reduction in the sentence will continue to be applied. From this aspect, there is no possibility to apply to a higher court, such as regional courts of appeal or the Supreme Court of Appeals, when a conviction is given by a court. This is not appropriate in terms of the right to apply for an effective legal remedy against court decisions, which is also part of the right to a fair trial.”

 

Kavili: This procedure is against the European Convention 

 

Ömer Kavili, another prominent lawyer familiar with free-speech trials, told Expression Interrupted that the simple trial procedure was against the European Convention on Human Rights (ECHR).

 

Noting that criminal law trials and civil law trials are subject to different procedures, Kavili explained that while there is an equal relation between the parties in civil law cases, in criminal law cases parties are unequal. “The principle of equality before the law should be applied to ensure equality in criminal proceedings,” Kavili said. 

 

Stressing that the government-appointed trustee is utilizing the power he receives from being a public official in this trial, Kavili said: “[One of the parties] in this case is the public authority and the other is just a journalist. The journalist’s ability to defend or protect herself will depend on the strength or weakness of the media outlet she works for, the resources that can or cannot be provided to her [by her employer]. If she cannot defend herself, she will be found wrong even when she is right.

 

“In this case filed against Hikmet Tunç on the charge of ‘insult,’ the trustee Savar uses the unlimited power he has because of being a public official to claim his ‘rights’ against a journalist. Right from the outset, this is against the principle of ‘equality of arms,’ which contradicts provisions of Article 6 of the European Convention on Human Rights, which stipulates that everyone is entitled to defend themselves freely and in the most effective way.

 

“Here, the court not only defies common sense, logic and morality, it also violates its obligations arising from international conventions. For this reason, the implementation of the simple trial procedure in the case against Hikmet Tunç will destroy the principles of fairness and impartiality even if the journalist is acquitted at the end of the trial.”

 

“A dishonest procedure”

 

Kavili continued: “Such a trial procedure is dishonest; it is not a fair claim process. This practice not only violates the right to a fair trial, it totally destroys and eliminates it. Judges in courts make a decision especially through the opinion they form during the hearings. The authority they are granted by the law is not just about reading case files. This is the difference between criminal proceedings and civil proceedings.

 

“Civil court judges render their judgments through documents in the case file but criminal court judges cannot rely on documents while making a judgment. They evaluate the parties during the hearings. The court should definitely call the parties to a hearing for this trial. It should give the parties the opportunity to defend themselves. Failure to do so would destroy the legal system.”

 

About the simple trial procedure

 

The Law on the Amendment of the Code of Criminal Procedure and Other Laws, publicly known as the First Judicial Reform Package, was approved by the General Assembly of the Parliament on 17 October 2019 and published in the Official Gazette on 24 October 2019, thereby becoming law.

 

Article 251 of the Criminal Procedure Code (CMK) No. 5271 that defines the “simple trial procedure” was amended by Article 24 of this law as follows:  

 

Article 251:

(1) After the admission of indictments, criminal courts of first instance may decide to apply the simple trial procedure for offenses that require a judicial fine and/or a maximum imprisonment of two years or less. 

(2) If a court decides to apply the simple trial procedure, the court shall send the indictment to the defendant, victim, and complainant and ask them to submit their statements and defense in writing within fifteen days. They will also be notified that a verdict can be given without a hearing. In addition, the required documents are requested from relevant institutions and organizations.

(3) After the deadline for statements and defense has expired, the courts, taking into consideration Article 61 of the Turkish Penal Code, may rule one of the decisions listed in Article 223, without a hearing and without the opinion of the public prosecutor. If a conviction is rendered, the sentence will be reduced by quarter. 

(4) If the conditions are met, courts may convert short-term imprisonment into alternative sanctions, suspend the prison sentence, or, if the defendant does not object in writing to its implementation, suspend the pronouncement of the judgement. 

(5) The judgment will specify the procedure for objection and the results of the objection.

(6) If deemed necessary by the court, the trial may continue in accordance with the general provisions by holding a hearing at every stage until a judgment is given.

(7) The simple trial procedure will not be applied to minors, persons with mental illness and persons who are deaf and mute and in crimes that require permission or demand to be investigated and prosecuted. 

(8) The simple trial procedure will not be applied if an offense within this scope is committed together with another offense not included in this scope. 

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