The Objectionable Rule
In the rule subject to appeal, it is stipulated that the prosecutor general’s office of the regional court of justice may appeal against the final decisions of the criminal departments of the regional court of justice to the department that issued the decision within thirty days from the date the decision was given to it by re’sen or on request.
Application Justification
In summary of the application decision; according to the rule, the decision of the criminal department of the regional court of justice on the objection of the chief prosecutor of the regional court of justice is incompatible with the right to a fair trial, the extraordinary legal remedies provided for against decisions definitively made by the courts of first instance do not lead to consequences for the defendant, while the rule is conducive to different consequences in trials tried for the same crimes and concluded with a final provision, it has been stated that this situation contradicts the principle of equality before the law, and that the appeal power of the Chief Public Prosecutor of the Supreme Court, which is similar to the rule, is not limited to decisions of an exact nature, and it has been argued that the rule is contrary to the Constitution.
Evaluation of the Court
Considering whether the conditions that must occur in order to conclude that the rule under appeal is contrary to the principle of not being tried or punished more than once for the same act, there is no dispute that the first trial before the appeal of the prosecutor general of the regional court of justice is a trial related to “punishment”. It is also clear that the first trial before the appeal of the prosecutor general’s office of the regional court of justice covers the trials that resulted in both a conviction and an acquittal. The trial, which will begin again after the district court uses the appeal authority of the prosecutor general’s office, is also related to the “punishment”. There is also no hesitation that the subject of the resumed trial is the same as the subject matter of the previous trial. Therefore, it is understood that all four conditions occur in the concrete event.
Considering the rule under appeal from this point of view, it is clear that the rule is not related to two judicial processes that take place in different branches of the judiciary, with the exception that these processes are connected. It can be considered that if new evidence is obtained, the path prescribed by the rule can be resorted to. Because the rule does not provide for any restrictions in this regard. There is no hesitation when the objectionable rule covers the exception of the presence of a fundamental defect that may affect the outcome of the case in previous treatments.
It is understood that the prosecutor’s office of the regional court of justice may also use the appeal authority for reasons that cannot be considered within the scope of exceptions to the principle of not being tried or punished more than once for the same act, since the rule under appeal does not limit the use of the appeal authority for a certain reason.
However, it is possible to make the objection mentioned in the rule not only against the defendant, but also in favor of the defendant. Although there are no exceptions mentioned above after a final decision against the defendant, conducting a new trial contradicts the principle of not being tried or punished more than once for the same act, but there is no such situation in terms of appeals to be made in favor of the defendant. Therefore, it has been concluded that the rule is contrary to the Constitution only in terms of “objections against the accused”.
The principle of equality of arms at all stages of the proceedings, including the rules of procedure for criminal cases and civil rights and obligations cases, and the protection of the right to a fair trial by ensuring the right to a conflicting trial is a requirement of being a rule of law. The rule is to ensure the participation of the parties in the trial on equal terms, to have information about the evidence they have shown and the opinions they have presented, and to give them the opportunity to express their opinions about them.
The appeal of the prosecutor general’s office of the regional court of justice is a substantive procedural act that starts the process of reconsidering the decision of the criminal chamber. Upon this procedure, the criminal department may change its decision in the direction of the request subject to appeal, or if it does not see the request in place, it sends the file to the board of heads of criminal departments (Board). The decisions of the Board regarding the acceptance of the objection are sent to the office as required.
In this context, it is clear that the final decisions of the district court courts and criminal departments about the accused in accordance with the rule may change, including against the accused. However, the rule does not provide for any mechanism that ensures that the defendant is informed of appeals against the decisions made. The fact that the defendant is not aware of the appeal and cannot report their defense against the appeal will offend the sense of justice and also Deconstruct the fair balance between the parties to the case. It is also understood that there is no superior public interest worthy of protection in depriving the defendant of the opportunity to be informed of the appeal and defend against it. Therefore, the rule is Article 36 of the Constitution. it is also incompatible with the principles of equality of arms and a conflicting trial within the scope of the right to a fair trial guaranteed in the article.
The Constitutional Court has decided that the rule is contrary to the Constitution on the grounds described and has been annulled.
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