Individual Application

The Facts

Amidst the ongoing effects of the COVID-19 pandemic, the applicant was indicted for inflicting minor bodily harm. Two hearings were held in the subsequent proceedings before the incumbent court.

Having attended the first hearing, the applicant’s defence counsel was unable to attend the second one for his health problems, which he had specified in a letter of excuse submitted on the same day. The complainant did not attend the second hearing as well, and the excuse letter provided by the applicant’s defence counsel was rejected, while the applicant was imposed a judicial fine with no right of appeal. The COVID-19 test results of the defence counsel later confirmed that he had contracted the virus.

The Applicant’s Allegations

The applicant claimed that his right to have adequate time and facilities for the preparation of defence had been violated due to rejection of his defence counsel’s health-related excuse.

The Court’s Assessment

In the present case, the trial court heard the applicant in the presence of his defence counsel; however, it adjourned the hearing, ordering that the complainant be summoned by force. Prior to the second hearing, the applicant’s defence counsel submitted a letter of excuse, indicating that he would not be able to attend the hearing due to his health issues. During the second hearing, the court held that it would no longer hear the complainant who could not be brought before it. Meanwhile, the court also rejected the letter of excuse submitted by the applicant’s defence counsel on the ground that it was not substantiated.  Consequently, neither the applicant nor his defence counsel was provided with the opportunity to challenge the interim decision of the court not to hear the complainant. At the same hearing, the public prosecutor presented a final opinion on the merits, and the court convicted the applicant with no right of appeal. Presentation of the aforementioned final opinion was undoubtedly a procedure that might affect the outcome of the proceedings. However, the applicant was unable to defend himself either personally or through his defence counsel against the public prosecutor’s opinion provided in their absence. They had actually requested to be excused from the hearing but received no response in this regard. In similar cases, the Court of Cassation has considered the rejection of the letter of excuse submitted by the applicant or her/his defence counsel as a restriction on the right to defence.

At the time of the proceedings where the applicant’s defence counsel submitted a letter of excuse indicating his health issues, a global pandemic was ongoing. Therefore, it should be noted that it was not possible for the applicant’s defence counsel to substantiate his excuse at the time of submission, as the test results required a specific process to be finished. The courts’ refusal to accept unsubstantiated excuses may not necessarily constitute a violation of the right to a fair trial. However, it should be acknowledged that, in the face of sudden or urgent circumstances, the excuses brought forward should not be categorically dismissed, even if they are not substantiated, especially in hearings involving major procedural acts. In this context, and considering the particular circumstances prevailing at the time of the proceedings, it should be noted that the court should have examined health-related excuses with a higher degree of scrutiny. Nevertheless, the court –without employing any counterbalancing measure to reduce the negative impact on the applicant– dismissed the excuse of the applicant’s defence counsel at the hearing where the public prosecutor’s opinion on the merits was submitted, and rendered its decision without allowing the applicant and his defence counsel to exercise their right to defence. Considering the proceedings as a whole, particularly given the short time elapsed between the date of incident and the conclusion of the prosecution phase, it has been concluded under the specific circumstances of the case that the right to have adequate time and facilities for the preparation of defence was violated.

Consequently, the Court has found a violation of the right to have adequate time and facilities for the preparation of defence within the scope of the right to a fair trial.