Constitutionality Review

Contested Provision

The contested provisions stipulate that accelerated and simplified trial procedures shall not be applied in cases where the suspect is deaf and mute.

Ground for the Request for Annulment

It was maintained in brief that the exclusion of deaf and mute individuals, who are in a disadvantaged position due to their physical disabilities, from the application of accelerated and simplified trial procedures under the contested provisions deprives them of the opportunity to benefiting from a criminal procedure mechanism that has an impact on substantive criminal law. It was argued that this situation is in breach of the principles of equality before the law and proportionality, deprives these individuals of fully exercising their right to seek legal remedies, and is inconsistent with the state’s obligation to take measures to ensure the protection of persons with disabilities and facilitate their integration into society. Accordingly, it was contended that the contested provisions are unconstitutional.

The Court’s Assessment

The cognitive and volitional abilities of deaf and mute individuals may develop more slowly than those of other individuals due to physical and psychological reasons. In this regard, where these individuals are not considered fully competent to assume responsibility for their actions and choices, protective measures are also required in the public interest.

Accordingly, in criminal proceedings, given the personal circumstances of a perpetrator who is deaf and mute, it may be deemed necessary for the judge to hear the parties in person and examine the evidence during the hearing. Therefore, it is evident that the legislator enjoys discretion to ensure that judicial proceedings are conducted in full compliance with procedural safeguards regarding deaf and mute suspects/accused. Thus, the contested provisions contribute to the effective conduct of criminal proceedings regarding deaf and mute individuals under the age of twenty-one, who do not have full criminal liability, thereby ensuring their protection and serving the public interest. However, it must also be assessed whether the distinction introduced by the provisions has reasonable and objective grounds for deaf and mute individuals who have reached the age of twenty-one.

Pursuant to the contested provisions, if the accelerated trial procedure is not applied to deaf and mute individuals for their disability, they will be deprived of an opportunity for reduction in punishment by fifty percent, while the absence of the simplified trial procedure will result in the deprivation of an opportunity for reduction by twenty-five percent. In other words, a deaf and mute perpetrator over the age of twenty-one, who has full criminal liability, may be imposed more severe punishment than other perpetrators of the same act.

Furthermore, accelerated and simplified trial procedures are applied to cases where there are no issues of credibility, are not complex, or do not require oral presentation of evidence, and which have not attained a certain threshold of severity. In such cases, a deaf and mute suspect/accused may be at a disadvantage compared to other suspects/accused in terms of their ability to personally defend themselves in criminal investigations or prosecutions.

In accordance with Article 250 (3) of Code no. 5271, the public prosecutor shall offer the suspect the application of the accelerated trial procedure, and if the suspect accepts this offer in the presence of his defence counsel, the said procedure shall be applied. Additionally, it is specified in Article 250 (9) thereof that the court shall hear the suspect in the presence of his defence counsel before rendering a decision under this procedure. Therefore, it is evident that the said procedure, which priorities the suspect’s consent, cannot be applied in the absence of a defence counsel.

In the context of the simplified trial procedure, pursuant to Article 251 of the Code, if deemed necessary by the court, proceedings may continue under general provisions by holding a hearing at any stage until a final judgment is rendered. Additionally, should an objection be raised against a judgment rendered under the simplified trial procedure, the trial will proceed in accordance with general provisions pursuant to Article 252. It is obvious that other procedural safeguards related to legal representation, as prescribed by law, shall also apply to deaf and mute individuals within the scope of this procedure.

Moreover, Article 150 stipulates that if a suspect/accused, who does not have a defence counsel, is deaf and mute, a defence counsel shall be appointed ex officio without a request of the former. Similarly, according to Article 202, deaf and mute individuals are afforded the right to present their defence through an interpreter appointed by the judge or public prosecutor during both the investigation and prosecution stages. These provisions, aligned with the state’s positive obligation to protect individuals with disabilities, serve to ensure that deaf and mute individuals can defend themselves effectively during the accelerated and simplified trial procedures. Accordingly, the relevant safeguards are intended to eliminate any disadvantages, arising from being deaf and mute, in the application of accelerated and simplified trial procedures.

Unlike the ordinary trial procedure, some of the safeguards inherent in the right to a fair trial are not applied in accelerated and simplified trial procedures. Undoubtedly, certain procedural safeguards may be waived during the proceedings, provided that the minimum safeguards of the right to a fair trial are ensured. However, for such a waiver to be constitutional, it must be made explicitly, and its consequences must be reasonable and foreseeable for the individuals concerned.

A person with full criminal liability —who is presumed to comprehend the legal character and consequences of his actions and to be capable of behaving accordingly— can understand the potential disadvantages of accelerated and simplified trial procedures, when compared to an ordinary trial procedure, especially considering the procedural safeguards afforded to deaf and mute individuals. Therefore, it cannot be argued that such an individual would be unable to make a constitutionally valid waiver of procedural guarantees.

All in all, it has been concluded that there is no objective and reasonable ground for the distinction in the application of accelerated and simplified trial procedures between deaf and mute suspects/accused over the age of twenty-one and other suspects/accused over the age of eighteen.

Consequently, the contested provisions have been found unconstitutional and therefore annulled.