The presence of the accused
In order for an indictment to be issued and accepted and a public trial to be opened, it is sufficient to know the clear identity of the act and the perpetrator. (CMK m.170, 175). The absence of the perpetrator, who will no longer have the capacity of an accused with the opening of a public trial, does not constitute an obstacle to the opening of a trial. However, the possibility of holding a trial depends on the presence of the accused. Then when the accused is not ready, as a rule, he cannot be tried. (CMK m.193/1)
The reasons for requiring the defendant to be present at the hearing to be held about him as a condition can be stated as follows:
It is the ability of the accused to make an effective defense at the trial, to refute the accusations made about him. Thus, the defendant’s right to direct the reasoning is also ensured.
Considering that the Turkish Penal Code gives the judge broad powers in determining sentences, it is important for the judge to use his discretion and to see that the decision he will make about the defendant is healthy.
Finally, since the subject of the trial is the actual fact of the perpetrator, the presence of the perpetrator also contributes to the discovery of the material truth.
The rule is that the defendant is present at the hearing, but there are also cases where a hearing can be held even if the defendant is not present. These exceptions can be grouped into two groups:
The Absence of the Accused (CMK m.194, 195, 196, 200, 204)
Evasion (CMK art.It should be stated that although the defendant is no longer a Decedent, he is not included among the cases on trial. CMK defines non-existence. According to this, “An accused whose whereabouts are unknown or who is abroad and who cannot be brought before an authorized court or who is not suitable to be brought is considered to be absent.(CMK Art. 244/1)
In that case, at least one of the following conditions must be fulfilled in order for a defendant to be considered as a non-believer. In the case of any of these three situations, the accused is considered to be absent-minded. According to this:
The location of the accused is unknown,
The fact that the accused is located abroad and therefore cannot be brought before the competent court,
The fact that the accused is located abroad and therefore it is not appropriate for the court to bring him before the competent court again,
As a rule, in the case of an accident, there is a defendant who cannot be reached or even does not know that a judgment is being made against him. It is unacceptable for the court to try and convict a defenseless defendant in his absence, whom he has not even seen his face yet. In fact, the CMK does this by saying, “No trial is opened against the Gai, the court takes the necessary actions for the purpose of seizing or protecting evidence.” he expressed it by saying. (m.244/2) These proceedings may also be conducted through a proxy judge or the court to which jurisdiction has been delegated. (m.244/3) The defense or legal representative of the accused or his wife may be present during these proceedings. If necessary, the court is requested to appoint a defense attorney from the bar association. (m.244/4)
Indeed, the presence of the accused in the trial conducted against him is a condition of the trial. Therefore, it is incompatible with the principle of the rule of law to continue the trial for reasons that are not in his own hands and even in relation to the subject of a lawsuit that is not within his knowledge, and especially despite the fact that he cannot exercise his right to defense in the trial against him. The new regulation’s prevention of a hearing being held for an absent defendant demonstrates the great importance that the law ascribes to the defense as its purpose.its purpose.