Individual Application

The Facts

The applicant, against whom a criminal case was filed for membership of an armed terrorist organization, attended the first hearing where she was able to make a defence in person before the assize court. The applicant was subsequently transferred to a penitentiary institution located in another city, for security reasons. The assize court sent a writ to the penitentiary institution, ordering the applicant’s attendance to the next hearing through the audio-visual information system (“the SEGBIS”). The applicant submitted a petition to the court whereby she expressed that she did not want to attend the hearing through the SEGBIS and that she wanted to defend herself by being present at the hearing. At the last hearing, the court evaluated the applicant’s request for being present at the hearing in person but dismissed it on the ground that it was in accordance with the relevant legislation to hear defence submissions through video conferencing. At the end of the trial, the assize court sentenced the applicant to 8 years and 9 months’ imprisonment for membership of an armed terrorist organization. Upon the applicant’s subsequent appeal, the Court of Cassation upheld the assize court’s decision.

The Applicant’s Allegations

The applicant claimed that her right to be present at the hearing had been violated due to the fact that her request to be present at the hearing had been dismissed and she was made to attend the hearing through the audio-visual information system instead.

The Court’s Assessment

The advantages, in terms of the right to a fair trial, of the National Judiciary Informatics System (“the UYAP”), which has been introduced recently and is one of the most important projects in the practice of law in Turkey, and of the SEGBIS, a part of the former, as well as the importance of using these systems that are continuously improved are undeniable.

The parties' right to be present at the hearing not only ensures the effective exercise of the right to defence, but also renders the principles of equality of arms and adversarial proceedings operational. It is necessary to determine whether the attempt to provide the attendance of the person concerned to the hearing through the SEGBIS, which is an application that limits to a certain extent the right to be present at the hearing in person, complies with the principles of legality, existence of justified grounds and proportionality.

Referring to the importance of being present at the hearing, the legislator stipulates that in cases where Law no. 5271 is applicable, the audio-visual communication technique may be used in order to attend the hearings, if considered necessary by the judge or the court. It has been concluded that the alleged interference with the right to be present at the hearing complied with the principle of legality.

The principle of proportionality consists of three sub-principles, which are suitability, necessity and proportionality in the narrower sense. The suitability test requires that the interference must be suitable to achieve the aim pursued; the proportionality test requires that a reasonable balance must be struck between the interference with the individual’s right and the aim sought to be achieved by the interference; and lastly, the necessity test requires that the less restrictive means must be preferred among the means resulting in an interference with the individual’s right.

Application of the SEGBIS in the disputes which are related to criminal charges as well as civil rights and obligations is not categorically contrary to the Constitution. However, it should be put forth by the inferior courts why it is necessary to have the individual attend the hearing through the SEGBIS which is an application that limits to a certain extent the right to be present at the hearing in person.

The objective in ordering the applicant’s attendance to the hearing through the SEGBIS was to ensure that there would be no difficulty in providing the security of the applicant and the officers during the applicant’s transfer to the hearing room due to the terrorist incidents occurring in and around the province where the court building was located, and thus to ensure that the trial be carried out within a reasonable time. Accordingly, the impugned interference pursued a legitimate aim.

The alleged interference with the right to be present at the hearing was suitable for the protection of the applicant's and public officials' right to life as well as for ensuring the conduct of the trial within a reasonable time.

The applicant, who was on trial for a major crime such as membership of a terrorist organization, was transferred to a penitentiary institution located outside the judicial locality of the trial court for the other reasons such as exceeding the capacity of the penitentiary institution as well as the security concerns. However, such reasons were not stated in the relevant decision.

The first instance court dismissed applicant’s request for being present at the hearing, pointing out, generally, the existence of a security problem and made no effort to provide the applicant’s attendance to the hearing as she requested. While the security matter put forth by the first instance court may be considered reasonable, the trial court failed to examine, for example, whether the hearing would be able to be held on a more suitable day. The particular circumstances hindering the applicant’s being present at the hearing were not indicated. Besides, it was not demonstrated that other alternatives such as planning a new hearing date had been inconclusive. Nor did the applicant waive her right to this end. It has been observed that the assize court dismissed the applicant’s request without trying an alternative method to ensure her being present at the hearing as well as without demonstrating that the use of the SEGBIS method had been mandatory, former alternative being not possible.

Hence, it has been concluded that the inferior courts failed to demonstrate in concrete terms that the dismissal of the applicant’s request to be present at the hearing, where an examination on the merits had been made, had really been necessary. As such, the impugned interference had not been necessary.

Consequently, the Court has found a violation of the right to be present at the hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.