What are “Openness” and “Closeness (Confidentiality)” in the Court?
Article 182
(1) The hearing is open to everyone.
(2) If the general morality or public safety deems it absolutely necessary, the court may decide that part or all of the hearing should be closed.
(3) The reasoned decision to hold the hearing closed and the verdict shall be announced at the open hearing.
The general characters of the trial stage are clarity, verbosity, dialogue and completion of the work at a hearing in all comparative criminal procedure legislation. Openness, frankness, dialogue depend on the nature of the accusation of the sovereign in the procedure. Openness of the trial is both a guarantee of good justice and provides general prevention of crime.
In cases where general morality and public safety make it absolutely necessary, the court may decide that the hearing should be closed by showing its justification. The discretion of the court will explain this at an open hearing. Regarding the closed hearing, CMK 185. regulations have been made in the article.
Hearings on children are held indoors. If the child, his guardian, guardian, court-appointed social worker, the family that takes care of the child and the institution where he is being cared for, the representative of the institution may be present at the hearing.
In addition to the principles of face-to-face response and verbality, dialogue and finishing the job at a hearing, CMK has also adopted the principle of openness. 141/1 of the Constitution, 10 of the Universal Declaration of Human Rights and 6/1 of the European Convention on Human Rights. the article also provides for the openness of the proceedings.
If there is an opportunity to enter the place of the hearing, it means that the clearance has been carried out. Limitations or security measures taken due to the narrowness of the courtroom will not disrupt the openness.
Decisiveness lasts throughout the entire trial, negotiations between judges and voting are conducted in secret. There are two forms of closure in CMK, the optional closure and the mandatory closure.
a) Discretion (Confidentiality)
CMK is regulated in Article 182/2 and it is stated that if the general morality or public safety deems it absolutely necessary, part or all of the hearing may be closed. Discretion belongs to the court and is not mandatory. Only my relationship will be decided and the verdict will be given at an open hearing. The reason for this is the opposite distortion.
For example, a case related to rape or secrets of the state can be considered confidential. In the ECHR, it is also stipulated that the hearing should be held in secret if the privacy of the persons is protected or the openness is harmful.
b) Compulsory Closure (Compulsory Confidential Hearing)
CMK 185
(1) If the defendant has not reached the age of eighteen, the hearing is held in a closed manner; the verdict is also announced in a closed hearing.
The Article provides that the hearing and the provision will be closed in order to protect the children and prevent their exposure. This closure begins at the moment of the start of the trial and includes the verdict. In this sense, it is different from situations where the closure of the hearing is admirable. Although the population records are based on the defendant’s age, the court may decide that the defendant is older than eighteen years of age, in contrast to the population records, in this regard, the coroner’s report may be taken if you get the impression that the defendant is older than eighteen years of age. If it is understood that the defendant has reached the age of eighteen, the decision of closure is lifted and the hearing is decided to be held open and the verdict will be announced at an open hearing.
Since there is no way to correct the procedural error related to making the hearing open instead of closed, there should be no reason to disrupt it and be content with criticism. From the point of view of those mentioned in the article (those who have not completed the age of eighteen), the purpose is not the victim (victim) of the crime, but the defendant. Due to the age of the victim, it is impossible for the hearing to be closed. 4/1 and 22 of the Child Protection law when conducting proceedings against children. its substances must be observed.
The fact that the hearing is held open instead of in secret does not require disruption, since it is irreparable.
C. With the session of 26.9.2006 and its continuation, where the main transactions are made. Although the defendants Yusuf Karedemir and Mehmet Ozcelik turned 18 at the last session in which the prosecutor’s opinion on the merits was expressed and the verdict was reviewed, the defendants were 185 of CMUK No. 5271. contrary to the article, it is against the law to restrict the right of defense of the defendants by holding the session closed instead of open and interpreting it closed instead of open in accordance with the provision.
185 of CMUK No. 5271.contrary to the article; The fact that the session dated 17.06.2005 was held open about the defendant who did not finish the age of 18 was not considered the reason for the violation because no action was taken on the merits of this session.
CMK’s 185th. in its article, it is stipulated that the hearing of those who have not reached the age of 18 must be closed and the provision must be announced at a closed hearing. “However, the sessions after the date of the defendant’s turning eighteen must be open and in this case the sentence must be interpreted clearly. Violation of these rules is an absolute reason for violation in accordance with Article 289/h of the CMK.”
about the defendant, who was born on 05.02.1988, the session dated 16.03.2006, where the evidence of the complainant was found after she turned 18, and the session dated 30.05.2006, where the defendant’s interrogation was conducted, was held in secret instead of open, and the CMUK was 182. it is against the law to restrict the right of defense by violating the article.
If the defendant is older than 18 years of age and general morality requires, his CMUK is 182/1. according to article 2 of the same article, only all or part of the hearing may be held closed with a decision of closure issued in accordance with Article 2. according to the amir provision of the paragraph, it is against the law to interpret the provision in secret without taking into account that the provision must necessarily be disclosed at a public hearing.
The Decision on the Removal of the Opening
CMK 184
(1) in the cases indicated in Article 182, the hearing to be held regarding the request to remove the opening shall be closed upon request or if deemed appropriate by the court.
Although the item is also not specified in C. Upon the request of the prosecutor, the defendant (of course, his defense counsel) and the participant, the court may hold a hearing on this request. The holding of the hearing is left to the discretion of the court and the court may also decide on this hearing. If the decision to close the trial for one part of the trial is required to cover other stages, a decision must be made again and clearly notified. Again, the closing decision should also be clearly read and the reason for it should be stated at the hearing where the proceedings on the merits will be held.
Writing of the Decision on Confidentiality and Its Reasons
CMK 186
(1) The decision to remove the opening shall be entered into the minutes together with the reasons.
182 and 185 of the CMK.in the cases specified in the articles, it may be decided that the hearing will be closed. 184 and 185 of the CMK. if it is decided to remove the opening according to the articles, its justification must be written. With this article, it has been tried to prevent arbitrary practices. Since openness is the main character of the trial in terms of a fair trial, and the removal of openness can only be mandatory and in cases provided for by law, it was agreed that the decision to remove openness should be put on the record for all its reasons.
Ability to Be Present at a Closed Hearing
CMK 187
(1) In a closed hearing, the court may allow some persons to be present. In this case, the named persons are warned not to disclose the issues that require the hearing to be closed, and this issue is written to the minutes.
(2) The content of the closed hearing cannot be published by any means of communication.
(3) If the content of an open hearing is of a nature that will affect national security or general morality or the dignity, honor and rights of people or provoke them to commit crimes, the court prohibits the publication of the content of the hearing in part or in full for the purpose of preventing them and to the extent necessary, and explains its decision at an open hearing.
It has regulated the publication bans that they can be present at closed hearings (secret hearing) and related to this. The court has the discretion in these cases. He will explain his decision at an open hearing. Thus, it is ensured that the ban covers all publications. The publication ban covers all means of communication of a written, audio and visual nature. The closure of the trial brings with it a ban on publication. The court also does not need to impose a publication ban on this issue.
A publication ban may also be imposed for open hearings. National security or public morality or persons spoken in the hearing of the court of honour, a touch of nature to commit a crime or to provoke the dignity and rights, if and to the extent required for this purpose in order to avoid them, prohibits the publication of the whole or part of the hearing, and this decision will need to provide explicitly. The court has the discretion of these cases. In fact, the cases in question are the acts that constitute a crime. 285 of the TCC. a crime occurs in the article.
The parties, their lawyers, witnesses and expert witnesses may be present at the closed hearing. However, the judge or the court may also allow other people to be present at the closed hearing, for example, trainee judges and lawyers to watch the closed hearing. This decision is made by the delegation in the collective courts. In this case, the president of the court must warn them not to leak what is being said inside to the outside. It is passed to the minutes in which they were warned. If the mentioned persons leak the speeches to the outside, they are entitled to the Article 285 of the Turkish Commercial Code. the application of the article shall be in question. It is necessary to state that this prohibition applies to all those who participated in the trial. For example, this prohibition applies to the accused, the defender, the participant, the deputy, even the judge and the prosecutor. The penalty to be imposed in case of violation is a fine according to the old article, while those who violate the new regulation are punished with a prison sentence of one to three years.