What are “Openness” and “Closed (Confidential)” in Court Proceedings?
Article 182
(1) Court proceedings are open to the public.
(2) In cases where it is deemed absolutely necessary for public morality or public safety, the court may decide to hold part or all of the proceedings in closed session.
(3) The reasoned decision on holding the hearing in closed session and the ruling shall be announced in open court.
The general characteristics of the trial stage in all comparative criminal procedure legislation are openness, oral proceedings, dialogue, and concluding the case in one hearing. Openness, oral proceedings, and dialogue are dominant features of the accusatory nature of the procedure. The openness of the hearing is both a guarantee of good justice and ensures general prevention in terms of crime.
In cases where it is absolutely necessary for public morality and public safety, the court may decide to hold the hearing in closed session, stating its reasons. This discretion lies with the court, which will announce it in open session. Provisions regarding closed hearings are set forth in Article 185 of the Criminal Procedure Code.
Hearings concerning children are held in closed session. The child, his/her guardian, legal representative, social worker appointed by the court, the family caring for the child, and, if the child is in institutional care, the representative of the institution may be present at the hearing.
In addition to the principles of face-to-face and oral proceedings, dialogue, and concluding the case in one hearing, the CCP also accepts the principle of openness. The openness of proceedings is also stipulated in Article 141/1 of the Constitution, Article 10 of the Universal Declaration of Human Rights, and Article 6/1 of the European Convention on Human Rights.
If it is possible to enter the place where the hearing is held, then openness has been achieved. Restrictions imposed due to the narrowness of the courtroom or security measures taken do not violate openness.
Openness continues throughout the hearing; deliberations and voting among judges are conducted in private. There are two forms of closed proceedings under the Criminal Procedure Code: discretionary closed proceedings and mandatory closed proceedings.
a) Discretionary Closed Proceedings (Confidentiality)
Regulated by Article 182/2 of the CCP, it states that in cases where it is deemed absolutely necessary for public morality or public safety, part or all of the hearing may be held in closed session. This is at the discretion of the court and is not mandatory. However, the decision and ruling related to this must be given in open court. Failure to do so is grounds for reversal.
For example, cases involving rape or state secrets may be heard in private. The European Convention on Human Rights also provides for private hearings in cases where the protection of individuals’ private lives or the harmful effects of disclosure are involved.
b) Mandatory Closure (Mandatory Private Hearing)
CMK 185
(1) If the defendant is under the age of eighteen, the hearing shall be closed; the judgment shall also be announced in a closed hearing.
The article stipulates that the hearing and the verdict shall be closed in order to protect children and prevent their exposure. This closure begins at the start of the hearing and covers the verdict. In this sense, it differs from situations where the closure of the hearing is left to discretion. Although population records are used as the basis for the defendant’s age, the court may consider the defendant’s population records.
Since there is no possibility of remedying the procedural error of holding the hearing in public instead of in private, it should not be grounds for reversal and should be limited to criticism. The reference in the article to “those under the age of eighteen” refers to the defendant, not the victim of the crime. It is impossible to hold the hearing in private due to the victim’s age. When trying children, Articles 4/1 and 22 of the Child Protection Law must be observed.
Holding the hearing in public instead of in private does not require reversal, as it cannot be remedied.
At the hearing on September 26, 2006, and subsequent hearings, where the substantive proceedings took place, and at the final hearing, where the public prosecutor presented his opinion on the merits and the judgment was pronounced, the defendants Yusuf Karedemir and Mehmet Özçelik had reached the age of 18. by holding the hearing in closed session instead of open session and pronouncing the judgment in closed session instead of open session, thereby restricting the defendants’ right to defense, is contrary to the law.
Contrary to Article 185 of the Code of Criminal Procedure No. 5271, the fact that the hearing on June 17, 2005, was held in public for the defendant who had not reached the age of 18 was not considered a reason for reversal, as no substantive proceedings were conducted at this hearing.
Article 185 of the Criminal Procedure Code stipulates that hearings involving persons under the age of 18 must be held in closed session and that the judgment must also be pronounced in closed session. “However, hearings held after the defendant reaches the age of 18 must be held in open session, and in such cases, the judgment must be pronounced in open session. Any violation of these rules constitutes an absolute ground for reversal under Article 289/h of the Criminal Procedure Code.”
The restriction of the right to defense by holding the hearing of the defendant, born on 05.02.1988, in secret instead of open, contrary to Article 182 of the Code of Criminal Procedure, at the hearing on 16.03.2006, where the evidence of the victim was determined, and at the hearing on 30.05.2006, where the defendant was questioned, after he had reached the age of 18, is unlawful. This constitutes a violation of the law.
Considering that the defendant is over 18 years of age and that, in cases required by public morality, pursuant to Article 182/1 of the Code of Criminal Procedure, a decision of secrecy may only be made for the entire hearing or part thereof, and that, according to the mandatory provision of paragraph 2 of the same article, the judgment must be announced in an open hearing, rendering the verdict in private is contrary to law.
Decision on Removal of Publicity
CMK 184
(1) In the cases specified in Article 182, the hearing on the request for removal of publicity shall be held in private upon request or if deemed appropriate by the court.
Although not specified in the article, the court may hold a hearing upon the request of the prosecutor, the defendant (and, naturally, their defense counsel), and the participant. The decision to hold a hearing is left to the discretion of the court, which may also decide to hold a hearing on its own initiative. If it is desired that the decision on confidentiality issued for a part of the trial also cover the other stages, a new decision must be issued and clearly communicated. Again, the decision on confidentiality must be clearly read out and its reasons stated at the hearing where the substantive proceedings will take place.
Writing the Decision on Confidentiality (Privacy) and its Reasons
CMK 186
(1) The decision to remove the public nature of the hearing shall be recorded in the minutes, together with the reasons.
In the circumstances specified in Articles 182 and 185 of the CMK, it may be decided to hold the hearing in camera. If it is decided to remove the public nature of the hearing in accordance with Articles 184 and 185 of the CMK, the reasons must be recorded. This article aims to prevent arbitrary applications. Since openness constitutes the fundamental character of the hearing in terms of fair trial and since the removal of openness can only be considered in mandatory and legally prescribed cases, it has been accepted that the decision to remove openness shall be recorded in the minutes, together with all its reasons.
Attendance at Closed Hearings
CMK 187
(1) In closed hearings, the court may allow certain persons to be present. In this case, the aforementioned persons shall be warned not to disclose matters that necessitate the hearing being closed, and this shall be recorded in the minutes.
(2) The content of closed hearings may not be published by any means of communication.
(3) If the content of an open hearing is of a nature that would affect national security or public morality or the dignity, honor, and rights of individuals, or incite crime, the court shall, for the purpose of preventing this and to the extent necessary, prohibit the publication of the content of the hearing in whole or in part and announce its decision in an open hearing.
It regulates who may be present at closed hearings (secret hearings) and the related publication prohibitions. The discretion in these cases rests with the court. It announces its decision in open court. Thus, the prohibition applies to all publications.
It has regulated that they may be present at closed hearings (secret hearings) and the related publication bans. The discretion in these cases rests with the court. It announces its decision in open court. This ensures that the ban covers all media outlets. The publication ban covers all written, visual, and audio means of communication. The closed nature of the hearing also entails a publication ban. The court does not need to impose a separate publication ban in this regard.
A publication ban may also be imposed for open hearings. If the court finds that what is said during the hearing could harm national security or public morality or the honor, dignity, and rights of individuals, or could incite crime, it must prohibit the publication of part or all of the hearing to prevent this, to the extent necessary to achieve this purpose, and must announce this decision publicly. The court has discretion in these cases. In fact, the situations in question constitute criminal acts. They constitute a crime under Article 285 of the Turkish Criminal Code.
This decision is made by the panel in collective courts. In this case, the presiding judge must warn them not to disclose what is discussed inside. The warning is recorded in the minutes. If the aforementioned persons disclose what is discussed outside,
In closed hearings, the parties, their lawyers, witnesses, and experts may be present. However, the judge or court may allow other persons to be present at the closed hearing, for example, trainee judges and lawyers to observe the closed hearing. This decision is made by the panel in collective courts. In this case, the presiding judge must warn them not to disclose what is discussed inside. The warning is recorded in the minutes. If those mentioned disclose the discussions, Article 285 of the Turkish Criminal Code will be applied to them. It should be noted that this prohibition applies to everyone participating in the hearing. For example, this prohibition applies to the defendant, the defense counsel, the participants, their representatives, and even the judge and prosecutor. While the penalty for violation under the old provision was a fine, under the new regulation, violators are subject to imprisonment for a term of one to three years.