One of the leading principles of the "Right to a fair trial" is reasonable time. In trials that are not concluded within a reasonable period of time and continue for years, even if the case is concluded, even a favorable decision obtained as a result of the protracted trial is of no importance. Even if the persons have obtained the result of the request, they are neither satisfied nor satisfied with the decision taken due to the long duration of the proceedings. For these reasons, it is of great importance whether a trial is completed within a reasonable time, as well as the outcome of the proceedings. This is because when the idea of "Justice delayed is not justice" is formed in individuals, the sense of trust in the litigation process and, as a result, in both the legal order and the state is shaken. One of the most important issues in the litigation process is reasonable time. In this context, the concepts of "Right to a fair trial," "Reasonable time," and "Procedural economy" are important.
The "Reasonable time" approach, which is regulated in "Article 6" of the "ECHR" and developed with the case law established by the decisions of the "ECHR", refers to the conclusion of the proceedings within a reasonable period of time. This principle is in question both in civil, administrative, and criminal cases. For this reason, in this review, the concept of reasonable time has been clarified by taking into account the legal regulations in our country within the scope of "The European Convention on Human Rights.".
- THE PLACE AND IMPACT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TURKISHDOMESTIC LAW
"Article 90 of the 1982 Constitution" on the place of international conventions in Turkish law states that;
"The ratification of treaties that are to be concluded on behalf of the Republic of Turkey with foreign states and international organizations shall be subject to the approval of the Grand National Assembly of Turkey by law. Treaties regulating economic, commercial, or technical relations and having a duration not exceeding one year may be put into force by publication, provided that they do not impose any burden in terms of state finance and do not affect the personal status and property rights of Turkish people in foreign countries. In this case, these treaties shall be submitted to the Grand National Assembly of Turkey within two months of their publication. Implementation agreements based on an international treaty and economic, commercial, technical, or administrative agreements concluded on the basis of the authorization granted by law shall not be subject to ratification by the Grand National Assembly of Turkey; however, economic, commercial, or treaties concerning the rights of private persons concluded pursuant to this paragraph shall not be put into force without publication. The provision of the first paragraph shall apply to the conclusion of all kinds of treaties amending Turkish laws. International treaties duly put into force shall have the force of law. They may not be appealed to the Constitutional Court on the grounds of unconstitutionality. (Additional sentence: Art. 7/5/2004-5170/7) In case of any conflict arising out of the fact that international treaties and laws duly put into force concerning fundamental rights and freedoms containing different provisions on the same subject, the provisions of the international treaty shall prevail."
1 . This approach envisages three important criteria
- "International conventions have the force of law".
- "International conventions cannot be claimed to be contrary to the Constitution".
- "In disputes that may arise because international conventions duly entered into force containing provisions on fundamental rights and freedoms containing conflicting provisions on the same subject, the provisions of international conventions shall prevail".
These issues are also regulated in the 1982 Constitution and are of a mandatory nature. Moreover, the regulation clearly and unequivocally emphasizes that international and supranational treaties that have been duly implemented will be valid and mandatory in the domestic legal structure. On the other hand, since it is stated that no application can be made to the "Constitutional Court" with the claim of contradiction to the Constitution in relation to international conventions, it is indisputable that international conventions have a status above other laws in terms of the hierarchy of norms and systematics.2
To summarize, the "European Convention on Human Rights" has become an indispensable and integral element ofTurkish domestic law upon its signature by Turkey, and has a binding and mandatory nature for domestic courts and public authorities.3
- RIGHT TO A FAIR TRIAL
There is no consensus in the doctrine on the meaning of the concept of "Right to a fair trial", which is one of the human rights, and also on the naming of the concept. "Article 6 of the ECHR" defines the right to a fair trial and the concept of "Fair trial"4 5 is used in most English publications when evaluating the full scope of the article. There are many perspectives and evaluations on the Turkish equivalent of the concept of "Fair trial"6.
The "Right to a fair trial" is defined both in the ECHR and in the Turkish translation of the ECHR as "Fair trial"7. In the doctrine, different expressions regarding this issue also attract attention.
According to Zabunoğlu, "The correct term for the right in question is 'The right to a fair trial'". This approach is not appropriate since "Fair trial" has a passive structure in terms of its subject, i.e., it is ambiguous. Moreover, the right to a fair trial is also deemed as a "Fundamental right" for the individual. In addition, it also imposes a duty on the judicial authority to conduct a fair trial. On the other hand, a "Fair trial" always includes a "Correct trial".8
With regard to Dönmezer's assessments, "The fairness of the outcome of the trial cannot be something that Article 6 and other articles of the ECHR aim at". "But what the ECHR states is this: In reaching a fair result, you have to do it in an honest way. You beat the man, you curse him, and you make him say it, and in the end, the verdict is fair. But this is not a fair trial". In this respect, the term "Fair trial" is a more accurate choice to express this right and this concept should be accepted".9 According to Inceoglu, "The literal translation of the term "Fair trial" in our language means "A righteoustrial" or "A just trial". It is preferable to use the term "Fair trial" when referring to the entirety of "Article 6 of the ECHR" and to use the term "Right to a fair trial" when referring to a right that encompasses the entirety of the principles and rights in "Article 6"."10
To summarize, the conceptual equivalent of the term "fair trial" is a fair trial for a judicial activity carried out in a correct and fair manner in accordance with the regulations containing the guarantees stipulated in "Article 6 of the ECHR".
- THE RIGHT OF JURISDICTION WITHIN A REASONABLE TIME
"Article 6 of the ECHR" is designed to prevent the protraction of the rights of individuals seeking their rights during the proceedings and to save persons under suspicion of a crime, especially in criminal proceedings, from prolonged uncertainty and protracted uncertainty. The importance of the duration of the proceedings is crucial for effective judicial protection and to ensure that confidence in the judiciary is not undermined and justice is done. In some cases, court decisions rendered after a long period of time may not be of value, even if the case results in favor. Again, in terms of criminal proceedings, it is important that the person is not accused of a crime for a long time and that the proceedings are concluded without losing time.
In addition to being regulated as an obligation, the reasonable time referred to in "Article 6, Paragraph 1 of the ECHR" has established a wide jurisprudence with the decisions rendered in this regard. As a matter of fact, "Concluding the cases as soon as possible" is among the duties of the judicial body in Article 141, Paragraph 4 of Turkish Constitution.
The obligation of reasonable time set out in "Article 6(1) of the ECHR" applies both to disputes concerning civil rights and obligations and to disputes concerning persons under suspicion of a crime. Since the reasonable time in the article concerns the entire trial process, it is different from the reasonable time in detention regulated in "Article 5, Paragraph 3".
"The ECHR sets out the need for a trial within a reasonable time as follows: "The purpose of this provision, which applies to all rights-seekers, is to protect them against the protracted nature of the proceedings and, in criminal cases in particular, to prevent the accused from living for a long time with the worry of how his or her case will be concluded". "The "ECHR" emphasizes in its case law that it is of great importance for judicial bodies to expedite the proceedings as much as possible in order to ensure that the applicant benefits from the guarantees under Article 6. In this context, the criteria related to reasonable time are examined below in light of the ECHR judgments.
3.1.VICTIM STATUS
In order to be able to claim a reasonable time before the Convention bodies, the applicant must have completed the domestic remedies in the country where the violation occurred. However, this condition does not mean waiting for the case to be concluded, even if the reasonable time has been exceeded. If there has been an unreasonable delay in the proceedings, even though the case has not yet been concluded, it is possible to make an application regarding the time limit while the proceedings are ongoing.
"In its Eckle/Germany decision,11 the ECHR ruled as follows with regard to the status of victimhood:
"The word 'victim' in the context of Article 25 refers to a person directly affected by an omission or act. A violation may be recognized even if no harm has occurred. A reduced sentence and a dismissal due to a lengthy trial do not, in principle, remove the person concerned from the status of victim under Article 25."
To summarize, in order to file an application with a reasonable time complaint, the case does not have to be concluded, but if there is an existing domestic remedy in relation to this complaint, this remedy must be exhausted. Moreover, as explained below, the outcome of the case is not important in the assessment of reasonable time.
3.2.CRITERIA USED WHEN EVALUATING THE CONCEPT OF REASONABLE TIME IN TRIAL
As explained above, a fair trial refers to a group of rights that have emerged with the protection of many rights and includes many principles. In short, the right to a fair trial consists of many elements, some of which are explicitly listed in the text of the article, while others have been developed through case law.
Again, as explained above, the right to a fair trial regulated in "Article 6" has been regulated both in civil and criminal cases. However, the treaty bodies interpret the terms and concepts related to the right to a fair trial as an "autonomous concept" independent of the provisions of domestic law. As a result of this, in all disputes that the ECHR and the Commission evaluate within these concepts, it can be evaluated whether the trial is within a reasonable time.
Cases in which legal proceedings drag on for a long time are the subject of application for every country party to the convention. The provision of justice and legal security in a state of law is a necessary consequence of being a state of law. It should not be forgotten that justice delayed is not justice.
The right to a fair trial, which is a non-objective public right for individuals, obliges the state to establish the judicial organization in such a way that it has the qualifications to realize the requirements of this right. In this context, it is stated that the purpose of the provision ordering the completion of the proceedings within a reasonable period of time is to protect the right seekers against the protracted proceedings.12
It is important to emphasize that, since it is not possible to determine a concrete duration applicable to each concrete case, the ECHR examines the reasonableness of the duration of the proceedings according to the characteristics of each concrete case. In order to assess the reasonableness of the duration, the duration must first be determined. The complexity of the case, the attitude of the complainant, and the attitude of the public authorities are important in determining the reasonable duration.
3.2.1.Complexity of the Case
One of the most important issues when determining the duration is the complexity of the case. In making a determination in this context, not only legal difficulties but also practical difficulties should be taken into account. It is important to take into account all the characteristics of the case that will affect the judicial process, such as the high number of defendants and witnesses involved in the case, the need for expert examination in order to clarify the event subject to the case, the many places where the incident occurred, the distance of these places from each other, the foreign element of the dispute, etc., in determining the degree of difficulty of the dispute.
In addition to all these, evaluations regarding the special situation of the parties to the proceedings, such as illness and imprisonment, should also be taken into account when calculating the duration.
3.2.2.Complainant's Attitude
A second parameter used in the determination of the duration and the assessment of reasonable time is the attitude and behavior of the applicant during the proceedings. It is investigated whether the attitude of the applicant during the proceedings has an impact on the length of the proceedings and whether they fulfill their duties in terms of the speedy completion of the proceedings. Especially in civil cases, the speedy progress of the proceedings depends to a significant extent on the attitude of the parties. However, this does not relieve the court of its obligation to expedite the proceedings.
In criminal proceedings, the defendant under suspicion of a crime is under no obligation to cooperate with the judicial authorities, nor should the fact that he or she has exhausted all legal remedies be used against him or her. In these cases, however, it should be taken into account whether the accused has acted in bad faith to prolong the proceedings.
3.2.3.Attitude of Public Authorities
Another preferred parameter in the assessment of reasonable time is the attitude and behavior of the authorities in charge. This refers not only to the judicial body hearing the case, but also to the consideration of the attitudes of all official authorities in the hierarchy that contribute to the conduct of the proceedings. For example, it examines whether the conduct, negligence, or defects of all public authorities that have an impact on the duration of the proceedings, such as the postal administration that served the notification, all public administrations from which the court has requested documents, or the forensic medical institution whose examination is required, have delayed the proceedings. The Court only holds the state responsible for the delay caused by the negligence or fault of all public authorities.
Although all official institutions have implemented what is expected of them, the responsibility of the state party does not disappear, and these obligations continue in cases where the reasonable time is exceeded due to reasons other than their duties, such as the small number of judges, the physical inadequacy of the hearing venues, the unfavorable political environment, gaps in domestic law, and the weight of the workload. Obviously, the right to a fair trial is a subjective public right for individuals, and the state has an impartial and objective responsibility in this regard. For these reasons, the state is obliged to take and implement all measures to ensure the fulfillment of the requirements of Article 6.
3.2.4.Significance of the Case
One of the parameters taken into account when determining whether the reasonable time has been exceeded is the importance of the case in question. In the recent judgments established by the ECHR in this regard, it is seen that an assessment is made by taking into account the nature of the case in question. For example, the fact that the illness of an individual with AIDS was not considered as a reason for priority was considered to exceed the reasonable period. Another example is that the failure to prioritize the cases of detainees is considered as a violation of reasonable time.
Another issue that should be mentioned in relation to the importance of the case is the requirement that the domestic remedies must be completed and exhausted in the applications made with the claim that the reasonable time has been exceeded. It should also be noted that the outcome of the case is not important in this assessment. In other words, the state party will not be able to avoid responsibility by making a defense that the result would not have changed even if the trial had ended within a reasonable time.13
In terms of criminal cases, the fact that the case has been dropped due to the statute of limitations or the prosecution has resulted in a decision of non-prosecution is not important in the assessment of reasonable time. The main purpose of the reasonable time regulation is to fulfill the right as soon as possible, as well as to protect those concerned from material and moral damages arising from the prolongation of the proceedings.14
- CONCLUSION
Since the right to a fair trial is a duty for the state and a right for the individual, it directly affects both parties to the dispute, the individual, and the state.
The ECHR regulates the most basic minimum elements and standards of the right to a fair trial, and the scope and interpretation of the right have been expanded by case law.
Although "Turkey is a party to the European Convention on Human Rights" and its additional protocols, the majority of the cases against Turkey before the "ECHR" are related to the "right to a fair trial" and the "reasonable time" within the scope of this right, and in the majority of the cases, it is ruled that "the right to a fair trial has been violated...".
When the violation decisions of the "ECHR" against Turkey are analyzed, it is seen that most of these decisions are not due to the legal regulations in domestic law, but to the failure to comply with these regulations and the prevention of the effective exercise of rights by individuals. In other words, when the grounds for violation are analyzed, it is found that legal deficiencies and differences constitute a small part of the grounds, and most of the violations are due to errors in the judicial process.
In a significant number of the judgments evaluated in our review, one point is of particular importance. In these judgments finding a violation of the Convention, it is emphasized that "Turkish domestic law is at a level to compensate for the injustice done, but the mechanism to operate this law is not in place". The most important task in this regard falls to the administrative and judicial authorities. The judicial bodies must complete their examinations and investigations diligently, thoroughly, and seriously.
For both Turkey and other state parties, it is obvious that the "right to a fair trial within a reasonable time" is an integral part of the "right to a fair trial" and that justice delayed is not justice. For this reason, it is of great importance not to violate the right to a fair trial, which is the most natural right of individuals, by conducting trials within a reasonable time. Countries will not be able to prevent the violation of reasonable time only by making legal arrangements. The important issue is to improve the functioning of judicial systems and to consider whether the number of judges and files is proportional. Without fundamental changes in the system, citizens' rights to a fair trial will be violated.
In this respect, Turkey is a party to many international declarations, notably the "Bangalore Principles of Judicial Ethics" (UN, 2001) and the "Recommendations on Judicial Ethics" (Council of Europe, 2010). Accordingly, the Turkish Declaration on Judicial Ethics, consisting of 8 chapters and 61 articles, was published on March 11, 2019. "This declaration is a binding document that sets out ethical principles in the judicial process." The Declaration insists on the complete construction of the "prosecution-defense-judgment" triad and the right to a fair trial, including reasonable time, in line with the achievements in the field of international human rights law and the Constitution developed in accordance with the mandatory provisions of the Constitution and the European Convention. Therefore, Turkey acting in line with international and supranational conventions is noteworthy, as it means that it will apply the standards of the modern world.
Footnotes
1. See Article 90 of the 1982 Constitution.
2. "Kapani, Münci, Kamu Özgürlükleri, 6th Bası, Ankara University Faculty of Law Publications, Ankara 1981, p. 133."
3. "Türmen, Rıza, The Effects of the European Convention on Human Rights on Our Domestic Law, Panel Organized for the 38th Anniversary of the Establishment of the Constitutional Court."
4. "As equivalents in some languages: fair trial [EN]; adél margan [VEEN]; faires Gerichtsverfahren [DE]; procès équitable [FR]; giusto processo [IT]; juicio justo [ES]; julgamento justo [POR].".
5. "As the ECHR is a binding instrument for the signatory states, the UK has requested a clear and unambiguous codification of the rights protected by the Convention. The request of the United Kingdom, which is the homeland of the principle of "fair trial", is quite interesting". [Toklu, Erdinç, Avrupa İnsan Hakları Sözleşmesi Çerçevinde Adil Yargılanma Hakkı (Master's Thesis), Kocaeli 2001, p. 26, with indirect reference to notes 79- 80 at p. 26. 79- 80]"
6. "The concept of "fair trial" is based on the Anglo-American concept of "due process of law". This concept originates from the term "proces de lei" in French law and was introduced into French law in 1354 from the Manga Carta of 1215. Later on, the concept was taken up and developed by Judge Edward Coke in the 17th century." Karakehya (2007) op. cit. note 49 at p. 16. 49 with indirect reference. In the United States, the concept of "due process" is generally used as the equivalent of "fair trial". For the meaning of this concept in American law and its sub-rights, see Kunter, Nurullah / Yenisey, Feridun / Nuhoğlu, Ayşe, Criminal Procedure Law as a Branch of Procedural Law, 14th edition, Istanbul 2006, p. 27 et seq."
7." Çelik, Adem, 1982 Anayasası nda Adil Yargılanma Hakkı (Master's Thesis), Ankara 2006, p. 21 with indirect reference to supra note 67. 67 with indirect reference."
9. "Dönmezer, Sulhi, İzmir Bar Association Judicial Reform 2000 Symposium, October 2000, p. 339. "In our opinion, Dönmezer refers to the issue of "prohibitions of evidence" here, based on the idea of trial in accordance with the law. See Kaşıkara, M. Serhat, Prohibitions on Obtaining Evidence in Criminal Procedure Law, Konya 2008."
10. "İnceoğlu, Sibel, "The Right to a Fair Trial in the Decisions of the European Court of Human Rights, Istanbul 2002, pp. 2-3. İnceoğlu argues that the term "fair trial" should be used as the exact equivalent of the concept; however, he states that he uses the term "fair trial" due to practical concerns."
11. "Eckle v. Germany, July 15, 1982, §§ 64-70, Series A No. 51."
12. "GÖLCÜKLÜ, Feyyaz-GÖZÜBÜYÜK, Şeref, a.g.e., p.222"
13. "GÖLCÜKLÜ, Feyyaz, ibid., p.216."
14. "GÖLCÜKLÜ, Feyyaz, ibid., p.126."
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