Presence of the accused
It is sufficient for the act and the clear identity of the perpetrator to be known in order for the indictment to be drawn up and accepted and a public case to be opened (Articles 170, 175 of the Code of Criminal Procedure). The absence of the perpetrator, who will now have the title of defendant with the opening of the public case, does not prevent the opening of the case. However, the conduct of the trial depends on the presence of the accused. Therefore, when the accused is not present, as a rule, he/she cannot be tried (Article 193/1 of the Code of Criminal Procedure).
The reasons for requiring the defendant to be present at the hearing to be held about him/her can be expressed as follows:
The defendant can make an effective defense at the hearing and refute the allegations made against him/her. Thus, the defendant’s right to direct the proceedings is also ensured.
Considering that the TCK gives the judge wide powers in determining the penalties, it is important for the judge to see the defendant in order to use his discretionary power and to make a healthy decision about the defendant.
Finally, since the subject of the trial is the act of the perpetrator, the presence of the perpetrator also contributes to the discovery of the material truth.
Although the rule is that the accused must be present at the hearing, there are exceptions where the hearing can be held even if the accused is not present. These exceptions can be categorized into two groups:
Absence of the Accused (Article 194,195,196,200,204 of the Criminal Procedure Code)
Fugitive (Article 247,248 of the Criminal Procedure Code)
It should be noted that absenteeism is no longer among the cases where a trial is held even if the accused is not present. The Criminal Procedure Code defines absenteeism. Accordingly, “The accused, whose whereabouts are unknown or who is abroad and cannot be brought before the competent court or is deemed unfit to be brought, shall be deemed absent.” (Article 244/1 of the Criminal Procedure Code)
Therefore, in order for a defendant to be considered absent, at least one of the following conditions must be met. If any of these three conditions are met, the defendant is considered absent. Accordingly
The location of the accused is unknown,
The accused is abroad and therefore cannot be brought before the competent court,
The accused is abroad and therefore the court does not find it appropriate to bring him/her before the competent court,
In the case of absenteeism, there is, as a rule, an accused person who cannot be reached and does not even know that he or she is being prosecuted. It is unacceptable for the court to try and convict the accused, whom it has not even seen his face, in his absence, without any defense. Indeed, the Code of Criminal Procedure expresses this by stating that “A trial shall not be held against the absent person, and the court shall take the necessary actions for the seizure or preservation of evidence.” (Art. 244/2) These actions may also be taken through the regent judge or the court of appeal. (Art. 244/3) During these actions, the defendant’s defense counsel or legal representative or spouse may be present. If necessary, the court shall request the appointment of a defense counsel from the bar association. (Article 244/4)
Indeed, the presence of the accused in the proceedings against him is a condition of trial. Therefore, it is incompatible with the principle of the rule of law to continue the proceedings against him/her for reasons beyond his/her control and even without his/her knowledge, and especially despite the fact that he/she cannot exercise his/her right to defense. The fact that the new regulation prevents the hearing of an absent defendant shows the great importance that the law attaches to the defense as an objective.
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