Assessment of the Constitutional Court's Decision on the Provisions Governing the Simplified Trial Procedure

Prof. Dr. Murat Volkan Dülger & Attorney Gülçin Gümüş

The annulment decision of the Constitutional Court (“AYM”) of 22.06.2023, No. 2020/79 E. and 2023/113 K. (“Decision”), concerning Article 251, entitled “Simplified trial procedure”, and Article 252, entitled “Objection in the simplified trial procedure” , of the Code of Criminal Procedure No. 5271 (“CMK”), was published in Official Gazette No. 32336 of 11.10.2023.

By this Decision, Article 251 of the CMK was left intact, whereas the first sentence of paragraph 2 of Article 252 of the CMK was annulled, and it was held that the second, third and fourth sentences of paragraph 2 of the same article and its paragraphs 3, 4, 5 and 6, which could therefore no longer be applied, also had to be annulled.

Since it was foreseen that the legal vacuum arising from the annulment would be of such a nature as to harm the public interest, the annulment decision will enter into force nine (9) months after its publication in the Official Gazette. The annulment provisions will therefore become applicable as from 12.07.2024.

It must be stated first of all that, although the simplified trial procedure was seen, at the time it was first introduced, as a solution for reducing the workload of a slow-moving criminal justice system, it has given rise to problems in practice, particularly because some time after it came into operation it also brought various difficulties with it. Of course, this does not alter the fact that the simplified trial procedure is in many respects genuinely an alternative solution within the criminal justice system. But it cannot be denied that it has not had positive effects on the scale originally envisaged, or that alongside those positive effects it has also brought a number of drawbacks. For precisely this reason, it should be noted, before the decision is assessed, that it is gratifying that the provisions on this institution have been made the subject of a Constitutional Court decision and have thus had the opportunity to be debated. For it should not be forgotten that only in this way can the most appropriate regulation be arrived at.

In this article, after the simplified trial procedure has been explained in summary, an attempt will be made to assess the Decision together with the problems experienced in practice.

I. The Simplified Trial Procedure in Brief

A. What is the simplified trial procedure?

Articles 251 and 252 of the CMK on the simplified trial procedure were introduced by Articles 24 and 25 of Law No. 7188 Amending the Code of Criminal Procedure and Certain Other Laws (“Law No. 7188”), which was adopted on 17.10.2019. Law No. 7188 was drafted so as to enter into force on the date of its publication and was published in Official Gazette No. 30928 of 24.10.2019. It must therefore be said that the institution of the simplified trial procedure became part of the law of criminal procedure and of the criminal justice system as from 24.10.2019.

Approximately four years after their incorporation into the system of criminal procedure, the provisions on the simplified trial procedure were made the subject of an AYM decision and underwent amendment.

In its simplest definition, the simplified trial procedure is an institution of criminal procedure which makes it possible for the prosecution stage conducted in respect of offences carrying a sanction up to a certain severity to be completed on the basis of the file, without a hearing being held. If the court decides to apply the simplified trial procedure, it serves the indictment on the accused, the victim and the complainant, asks them to submit their defence statements in writing within fifteen days, indicates its other interim decisions, if any, and, once all the interim decisions have been complied with, gives its decision on the basis of the file without holding a hearing. In addition, the relevant statutory provisions expressly set out the other rules on the simplified trial procedure and the cases in which the simplified trial procedure cannot be applied.

B. Why was the simplified trial procedure needed?

The need for this regulation is explained in detail in the explanatory memorandum to Law No. 7188:

• The single trial procedure provided for in the system of criminal procedure, under which a hearing is held and all the procedures are applied in trials concerning offences of every degree of seriousness, without any distinction being made between minor offences and serious offences, results in less time and effort being devoted to the trial of serious offences.

• In comparative law there are regulations providing for different trial procedures on the basis of various criteria; in addition, there are decisions of the AYM and of the European Court of Human Rights to the effect that different trial procedures may be adopted.

• Because of the increasing workload of the courts, the adoption of certain alternative procedures has become a necessity; in this way trials will be speeded up, the workload will be lightened and resources can be used more efficiently.

All the reasons given for the introduction of the simplified trial procedure are well founded. Indeed, under the Turkish Criminal Code (“TCK”), trials concerning an offence carrying aggravated life imprisonment (TCK Art. 82(1)(f): intentional killing of a woman) and an offence whose lower limit is set at three months (TCK Art. 125: insult) are conducted subject to exactly the same procedural rules, and this can lead to dangerous consequences in that serious offences cannot be given the importance they require or the necessary time cannot be devoted to them. Of course, this should not be understood to mean that some offences are unimportant and others important. Any act falling within any article laid down in the TCK must without fail be subjected to the sanction provided for in the article concerned. However, subjecting offences to different trial procedures in line with the amounts of penalty prescribed will bring many benefits. Moreover, this distinction is also directly linked to the wrongfulness content of the conduct constituting the offence. In this context, devoting more time, effort and resources to the investigation and prosecution of offences whose wrongfulness content is greater and whose sanction is therefore heavier is a logical and proportionate perspective for the realisation of a rational criminal justice system.

C. Has the simplified trial procedure met expectations?

Where the simplified trial procedure is applied, care need only be taken to ensure that the different procedures provided for are not of such a nature as to violate the principles of criminal procedure and do not prolong the proceedings. For, regardless of the severity of the penalty prescribed, the principles of the law of criminal procedure must not be impaired. Moreover, a different procedure introduced with the aim of completing trials in a shorter time on account of the existing workload must, needless to say, not have the opposite effect of prolonging trials.

Accordingly, provided that these points are observed, the simplified trial procedure is an important regulation capable of remedying many of the problems experienced in practice. Indeed, with the incorporation of the simplified trial procedure into the system of criminal procedure, expectations arose that there would be very great changes in trial processes. For, on a reading of the texts of the relevant articles, it appears to be an extremely apt arrangement that will shorten the length of proceedings and also raise the quality of adjudication while respecting the principles of criminal procedure and fundamental rights and freedoms.

But were its effects on practice really such? Frankly, it must be said that very shortly after its entry into force it became apparent that it would not fully meet expectations. At this point we were confronted once again with the facts that, however good a regulation may be, every regulation is connected with the legal system as a whole, that a regulation cannot get ahead of the system, and that the human factor is of great importance.

Since the subject of this article is essentially the assessment of the AYM Decision in question, the problems that the simplified trial procedure has created in practice will, so as not to depart from the context, be addressed below together with the AYM decision.

II. The Constitutional Court’s Annulment Decision of 22.06.2023, No. 2020/79 E. and 2023/113 K., concerning the Simplified Trial Procedure

A. In General

Where courts consider a statutory provision to be applied in a case pending before them to be contrary to the Constitution, they may submit that provision to the Constitutional Court’s review of norms. The Constitutional Court decision that is the subject of this article was likewise given as a result of a total of thirteen courts, namely one assize court, two regional courts of appeal and ten criminal courts of first instance, having reached the conclusion that the provisions on the simplified trial procedure to be applied in cases brought for the offences of intentional injury, insult, threat, endangering traffic safety and escape of a convicted person or detainee were contrary to the Constitution, and having applied to the AYM for their annulment.

The Constitutional Court first of all assessed the application made by each court separately and determined whether the articles objected to were relevant to the case being heard by the court that had recourse to the objection procedure. For only in that event is it competent to conduct an examination. Thereafter, since the applications made by the individual courts were connected, it was decided to join them (§ 1-56). In this framework, the statutory provisions whose conformity with the Constitution was reviewed in the Decision are as follows:

• CMK Art. 251, paragraphs 1, 2, 3, 4, 5 and 6, and the phrase “minority of age” in paragraph 7,

• CMK Art. 252, paragraphs 1, 2, 3, 4, 5 and 6.

B. As regards CMK Art. 251

Article 251 of the CMK, which the courts considered to be contrary to the Constitution, regulates the conditions for applying the simplified trial procedure, which was introduced in the law of criminal procedure as an alternative to the trial procedure specifically for the prosecution stage. As a result of its examination, the AYM concluded that CMK Art. 251 is not contrary to the Constitution and dismissed the objections raised in respect of this article. The article in question has therefore remained in force unchanged.

The grounds of objection put forward in respect of CMK Art. 251 draw attention to the points that the wide discretion given to the judge with regard to the application of the simplified trial procedure may lead to legal uncertainty and that this in turn may run counter to the principle of legality of offences and penalties, and that conducting the trial in public and with a hearing is a requirement of the right to a fair trial.

In the light of the general information given above, we set out below, one by one, the examination carried out by the AYM with regard to the provisions of CMK Art. 251 together with our own assessments.

1. As regards CMK Art. 251(1) and Art. 251(6)

The rule objected to concerns the conditions for applying the simplified trial procedure and the judge’s power to continue, at any stage, by holding a hearing.

Ground of objection: Under the provision concerned, in files in which the simplified trial procedure may be applied the judge is not obliged to apply this procedure; the judge has discretion and may decide to conduct the trial under the ordinary trial procedure. Since this may result in different trial procedures being applied in respect of the same offences, it gives rise to uncertainty in practice. Although in practice the courts decide to conduct the trial under the simplified trial procedure in most of the files in which CMK Art. 251 may be applied, the fact that the opposite is also possible means that a person cannot know in advance how he or she will be tried for an offence he or she has committed.

The AYM’s decision and reasoning: In its examination of the provisions concerned, the AYM, while accepting that the judge is given discretion as to whether or not the simplified trial procedure is to be applied, takes the view that this power relates to the question “whether, on the evidence available, the file is suitable for a judgment to be given without a hearing being held”. It was also pointed out that the explanatory memorandum to the article indicates which matters are to be taken into account when a decision on the simplified trial procedure is made. Consequently, according to the AYM, the rules laying down the conditions as to whether or not the simplified trial procedure is to be applied are clear, precise and foreseeable in a way that leaves no room for doubt. Moreover, when the points that, in accordance with the principle of the rule of law, laws must be made in the public interest and that it is essential for cases to be concluded at the least cost and as swiftly as possible are considered together, the provision concerned serves the public interest and ensures that files are concluded swiftly.

Our assessment: First of all, we fully agree with all the statements made by the AYM about the positive aspects of the simplified trial procedure. Thanks to this arrangement, the prosecution stage can be completed in respect of minor offences without it being necessary to hold a hearing and carry out all the procedural steps. In this case, the judicial authorities are relieved of an unnecessary workload, more time can be devoted to files involving a heavier penalty, and, by a decision being given swiftly in respect of the accused, the presumption of innocence and the right not to be stigmatised are protected.

Nevertheless, the problems that this provision has created in practice must not be ignored. Under the provision concerned, the judge has discretion as regards the application of the simplified trial procedure and may also decide to conduct the trial under the ordinary trial procedure. Since this may result in different trial procedures being applied in respect of the same offences, it genuinely gives rise to uncertainty in practice. The basic problem with the provisions on the simplified trial procedure is therefore the judge’s discretion as to whether or not to apply this procedure.

Although the AYM is of the view that the objective conditions in this regard have been laid down and that the cases in which the simplified trial procedure must be applied and those in which it must not be applied can therefore be clearly determined according to the content of the file, unfortunately this is not the situation in practice; in fact, as the AYM said, there is uniformity in the files in which the simplified trial procedure is applied, but this uniformity is based not on judges examining the content of the file and reaching the conviction that, on the evidence available, the file is suitable for a judgment to be given without a hearing, but on all the files in which the simplified trial procedure may be applied in terms of the amount of the penalty being put wholesale into the simplified trial procedure.

In practice the courts do not pay attention to matters such as those indicated by the AYM, namely “whether or not the events that are the subject of the trial are complex, whether or not any legal or factual problem is encountered in resolving them, and whether or not it is mandatory to hear witnesses, conduct an on-site inspection or obtain an expert report”, and do not even make an assessment in this regard. They look at whether the amount of the penalty for the offence stated in the indictment falls within CMK Art. 251(1) and, if it does, they directly decide to apply the simplified trial procedure. Yet the assessment of whether or not the simplified trial procedure is to be applied is of vital importance and must be made with great seriousness. However, no objective rules of the kind referred to by the AYM have been laid down as to how this assessment is to be made and which criteria are to be used. Although an attempt was made in the explanatory memorandum to the article to give some explanations concerning these conditions, this is insufficient, and it is seen in practice that the condition contained in the text of the article, which relates solely to the amount of the penalty, is assessed from that angle alone, owing, of course, also to the fact that this is convenient for the courts.

Indeed, in the dissenting opinion written by AYM member Hasan Tahsin Gökcan it is likewise stated that the fact that sufficient objective conditions concerning the discretion are not specified in the law is of importance for constitutional review. Hasan Tahsin Gökcan pointed out that the only matter that is determinate in the rule examined is that relating to the amount of the penalty and that it is not determinate according to which criteria the discretion is to be exercised. For these reasons, according to Hasan Tahsin Gökcan, the rule objected to is capable of giving rise to arbitrary practices and, in this context, of shaking confidence in justice. AYM member Engin Yıldırım also stated that he fully shared these views. Another AYM member, Yusuf Şevki Hakyemez, after expressing similar views in his dissenting opinion, additionally pointed out that the indeterminacy of the objective criteria would create a danger particularly where the court decides not to apply the simplified trial procedure. For in that case there is no express provision to the effect that this is subject to review, and it is not possible for an accused in respect of whom the simplified trial procedure has not been applied to have that decision reviewed. According to Yusuf Şevki Hakyemez, the fact that the judge’s discretion cannot be reviewed gives rise to unconstitutionality. The President of the AYM, Zühtü Arslan, also stated that he fully joined this dissenting opinion. AYM member Basri Bağcı likewise wrote a dissenting opinion on similar grounds and, in addition to the conferral of this discretion, regarded as absolutism the fact that paragraph 6 of the same article moreover grants the possibility, this time, of going back on the choice made.

The provision in question is therefore problematic in terms of the discretion given to the judge, and these problems constantly manifest themselves in practice as well. Had objective conditions been laid down, the judge would give the decision as to whether or not the simplified trial procedure is to be applied objectively, so that the likelihood of differing practices in respect of accused persons who have committed the same offence and of the proceedings being prolonged following an objection would be very low. However, the fact that the discretion is so wide and that no objective criterion other than the amount of the penalty has been laid down in the text of the article causes these problems to arise in practice. This danger can be averted only if the decision whether or not to conduct the trial under the simplified trial procedure is taken with great seriousness, having regard to the objective conditions, in other words by ensuring legal certainty.

Our wish is that in practice the objective conditions indicated by the AYM will genuinely be assessed, that the decision on the procedure to be applied will be taken accordingly, and that a uniform practice will thus be established and the principle of legal certainty secured. For if this is done, many of the drawbacks that the simplified trial procedure has brought with it will be left behind and the arrangement will fully serve its purpose.

In conclusion, although it is appropriate that the AYM did not give a decision that would exclude the institution of the simplified trial procedure from the criminal justice system, we think that, in order for the relevant provisions to serve the purpose in the manner indicated by the AYM, they must without fail be applied and framed according to the criteria set out above.

2. As regards CMK Art. 251(3) and Art. 251(4)

The rule objected to concerns the reduction of the penalty provided for in a decision given under the simplified trial procedure and the possibility of giving a decision on deferment of the pronouncement of the judgment (“HAGB”).

Ground of objection: The points criticised are that the reduction of the penalty imposed on the accused in the simplified trial procedure is in the nature of a kind of amnesty, that the accused will act in a manner consistent with the aim of benefiting from the reduction, and that a HAGB decision may be given if the accused does not object.

Decision of the Constitutional Court (AYM) and its reasoning: The provisions objected to contain rules on the decision to be given under the simplified trial procedure, on the types of sanction to be applied and on the amount of the reduction. The AYM did not find these provisions contrary to the Constitution either and dismissed the objections raised in this respect. According to the AYM, the legislature has a margin of discretion in determining which acts constitute an offence and which sanctions attach to them. The reduction of sentence provided for therefore falls within that discretion. On the other hand, as regards the possibility of giving a decision on the deferment of the pronouncement of the judgment (HAGB) where the accused does not oppose it in writing, attention was drawn to the fact that the accused’s objection to the decision given under the simplified trial procedure in essence also amounts to an objection to the HAGB decision, and that, once a hearing has been opened as a result of the objection, the express acceptance of the accused is required for an HAGB decision to be given. The conclusion reached was that the provisions concerned are not contrary to the Constitution.

Our assessment: If the accused is convicted at the end of a trial conducted under the simplified trial procedure, the sentence imposed is reduced by one quarter. The judge has no discretion here; according to the wording of the article, it is sufficient for this reduction to apply that the trial was conducted under the simplified trial procedure. In the first place, this may lead the accused to think that it is more sensible to accept a lesser sentence than to strive for the establishment of the material truth. For the accused, believing that this reduction will not be available if the trial is conducted under the ordinary trial procedure, may choose not to take the risk and may decide to waive the right to present a defence before the court. In essence, the accused is in this situation forced to make a choice; the accused is encouraged to accept the simplified trial procedure by the thought that a trial under it will result in a lesser sentence. Although it may be said at this point that the simplified trial procedure does not in any event depend on the acceptance of the accused, what we really wish to draw attention to is that the accused is virtually forced to choose to give up the freedom to seek his or her rights.

A further point that calls for attention here is that different sentences may be imposed on accused persons who have committed the same offence. For while a court that decides to apply the simplified trial procedure will be able to apply this reduction to the accused, a court conducting the trial under the ordinary trial procedure may not apply it, and sentences differing from one another may thus result. Because the AYM proceeded from the assumption that no such risk exists, on the ground that whether a trial is subject to the simplified trial procedure is in any event determined according to objective conditions, it did not consider it necessary to make a separate assessment in this respect. However, as we have stated above, although the AYM is of the opinion that objective criteria have been laid down, the problems experienced in practice clearly show that these criteria have not been laid down, so that the reduction of sentence provided for is also capable of giving rise to divergent practices. Indeed, the dissenting opinions referred to above also pointed out that one of the most important consequences of the failure to ensure legal certainty would manifest itself in the reduction of sentence provided for.

On the other hand, the fact that the giving of an HAGB decision is made conditional on the accused not opposing it in writing must also be assessed. In trials conducted with a hearing, the accused is asked whether he or she accepts the HAGB decision, the express will of the accused is obtained, and an HAGB decision may be given only if the accused makes an express statement of acceptance. In the simplified trial procedure, by contrast, the rule laid down is that an HAGB decision may be given in every case in which the accused has not made a statement to the contrary. It is obvious that this rule may have very serious consequences to the detriment of the accused. For at a time when the HAGB itself is the subject of debate and has been annulled by the AYM, a rule under which an HAGB decision may at the same time be given in every case in which the accused has not objected is extremely dangerous. The reason why this dangerous rule was introduced so readily is undoubtedly that, if an objection is lodged against the decision, the trial will in any case be conducted with a hearing and the accused will in any case be asked this question expressly during the hearing. Indeed, this is essentially also the reason why the AYM did not find the provision concerned contrary to the Constitution. Since the objection of the accused is indeed sufficient for a hearing to be opened and since the accused will be asked expressly if a hearing is opened, reasoning to this effect is justified. On the other hand, however, there are examples in practice in which the accused does not even know that proceedings are being conducted against him or her. In these examples the accused, as a rule not being aware of the decision either, does not object to it, and the HAGB decision given against him or her becomes final. Although it may be said at this point that citizens are under an obligation to follow the proceedings conducted against them, it is not possible to disregard the realities of Türkiye and its social and economic level. When it is borne in mind that, in practice, what exactly the institution of HAGB is is not understood even though it is expressly explained to the accused and the accused is asked about it at the hearing, and that this produces consequences to the detriment of the accused, then to go even further and expect the accused to object in advance in a trial procedure in which there is no hearing is contrary to equity and to the realities of our country.

Moreover, where the accused does not know how to lodge an objection and misses the time-limit, the HAGB decision given against him or her will have become final. Accordingly, although the accused’s objection to the simplified trial procedure will also amount to an objection to the HAGB decision, the first of the greatest problems in practice is in any event that the accused mostly does not have the level of education and awareness needed to object to the decision; the second is that, at a time when even lawyers barely manage to get their work done because of the complexity and density of the legal system, an accused who has had no legal training whatsoever is unable to set the objection mechanism in motion. Consequently, to conclude that the paragraph concerned is not contrary to the Constitution on the ground that the HAGB decision will in any case be deemed to have been objected to if an objection is lodged, without offering the accused an easy objection mechanism, is capable of producing erroneous results.

For the reasons explained above with regard to the paragraphs concerned, we are of the opinion that the rules providing for a reduction in the simplified trial procedure and allowing an HAGB decision to be given against the accused where he or she has not made a written statement to the contrary are not appropriate, and that these rules call for a more detailed examination by the AYM or for a legislative amendment on this matter.

3. With regard to Art. 251(2), (3) and (5) of the Code of Criminal Procedure (CMK)

The contested rule concerns the manner in which the simplified trial procedure is applied and the fact that it is carried out without a hearing.

Grounds of the objection: It was argued that, under the provisions concerned, a decision may be given without a hearing; that the time-limit granted to the accused may restrict the rights of the defence; and that, because a decision may be given as soon as replies are received from institutions and organisations, the parties may be unable to express their views on the replies received.

Decision of the Constitutional Court and its reasoning: The objections concerning these provisions were examined in detail by the AYM, for what is at stake is the right to a fair trial and the principle that trials are to be public and conducted with a hearing, which is one of the fundamental elements of that right. The AYM addressed the importance of trials being conducted publicly and with a hearing and accepted that this is one of the most effective means of enabling the parties to take part in the judicial process and to scrutinise the conduct of the trial; nevertheless, as a result of its assessment under Art. 13 of the Constitution, it came to the conclusion that the restriction provided for is proportionate.

The time-limit granted to the accused and the fact that no opportunity is given to comment on the replies received from institutions and organisations were assessed in a similar way. The AYM is of the opinion that, since the simplified trial procedure serves the aim of making the criminal justice system operate swiftly and effectively, no disproportionate restriction has been placed on the right to a fair trial, and that, when the proceedings are assessed as a whole, the parties have not been deprived of the possibility of obtaining information and of expressing their views on it. It further pointed out that, where any shortcoming can be remedied by a court of the same level or by a higher court, the incompatibility with the right to a fair trial can be eliminated. In the light of these reasons, the conclusion reached was that the articles in question are not contrary to the Constitution.

Our assessment: The examination carried out by the AYM in this respect gives the impression that it places the positive results of the simplified trial procedure above everything else. For almost every point at which it is accepted that the wording of the articles whose annulment was sought may harbour certain dangers ends with an approach along the lines of “but the simplified trial procedure also has the function of concluding trials swiftly and effectively”. The simplified trial procedure is, of course, an institution which has truly very important functions for the criminal justice system and which has the capacity to remedy many of the problems experienced in practice. However, it must not bring with it other problems, or problems more dangerous than the existing ones, nor must it be regulated in a way that brings them about. It is therefore unacceptable for fundamental rights and freedoms to be impaired merely so that the simplified trial procedure can be applied and trials can thus be completed quickly. And the question whether fundamental rights and freedoms have been restricted disproportionately must not be answered by means of an abstract assessment detached from practice in Türkiye.

Although the AYM maintains that a decision may also be given without a hearing under the simplified trial procedure and that the parties have not been deprived of their rights to obtain information and to express their views, this is not always the case in practice. For a rule of procedure such as the possibility of completing the trial without a hearing not to violate the right to a fair trial, the situation must be one in which the judge does not take into account the amount of the sentence alone and, after the indictment has been accepted, is genuinely convinced that a decision can be given on the evidence available in the file.

In practice, however, an assessment of this kind is almost never encountered. It is, moreover, an undeniable fact that the other contested principles harbour the danger that the accused may have no real possibility of taking part in the case, and that precisely these dangers do materialise in practice. In an environment in which service of documents may be effected incorrectly by court registries and in which the accused has limited possibilities of reaching the court and a lawyer, a trial conducted under the simplified trial procedure makes it more difficult for the accused to take an active part in the proceedings conducted against him or her. In practice we encounter examples in which the HAGB decision given against the accused as a result of the simplified trial procedure was served on the accused, the document was returned undelivered, service was then effected under Art. 35, the decision was consequently deemed to have been served on the accused, and the HAGB decision given against the accused became final because the accused had not objected within the time-limit to a decision of which he or she had no knowledge. In this example the accused does not even know that an HAGB decision has been given against him or her. Yet the accused was neither able to prevent the HAGB decision, since he or she had not declared acceptance in writing, nor able to object to the decision, since he or she was unaware of it. It must therefore also be accepted that the simplified trial procedure, particularly because of the problems experienced in practice, results in the accused not taking part in the case. The question of how situations of this kind can be prevented brings us back once again to the manner in which the rule is applied.

In conclusion, while we accept that the contested provisions, if applied as they ought to be, do not constitute a disproportionate interference with the right to a fair trial, it must be stated that, particularly because of Türkiye’s difficult and complex legal system and its social and cultural level, the examples in which fundamental rights and freedoms are violated are also too numerous to be ignored.

4. With regard to Art. 251(7) CMK

The contested rule is the phrase “minority of age” in paragraph 7, which sets out the cases in which the simplified trial procedure cannot be applied.

Grounds of the objection: Since under the article concerned the simplified trial procedure cannot be applied on account of minority of age, a child driven to crime will be unable to benefit from the reduction of one quarter that is made in the judgment of conviction given against an accused to whom the simplified trial procedure is applied, and a situation contrary to the principle of equality will thus arise.

Decision of the AYM and its reasoning: The AYM is of the opinion that the principle of equality cannot apply because the positions of the parties are different and that, moreover, the provision in question is aimed at the protection of minors.

Our assessment: With regard to the article contested here, we fully agree with the AYM’s assessment and in fact criticise the grounds of the objection. For the grounds of the objection are essentially aimed at protecting the person who has committed an offence. To criticise the reduction provision laid down for the simplified trial procedure on the one hand and, on the other, to construct an argument to the effect that other offenders should benefit from this reduction as well is inconsistent. The amount of the sentence imposed on a person who has committed an offence should of course be the same; however, not only is it impossible for the rules of criminal procedure to be framed on the assumption that the accused committed the offence, but these rules are, on the contrary, based on the principle that the accused is innocent until it is proved that he or she committed the offence (presumption of innocence). The consideration that, should the child driven to crime be found guilty, the sentence cannot be reduced on account of a trial under the simplified trial procedure therefore cannot be given precedence over the best interests of the minor. For the reasons explained, it must be stated that we agree with the AYM’s assessment on the matter and consider the contested rule appropriate from the standpoint of the best interests of the minor.

C. With Regard to Art. 252 CMK

Art. 252 CMK, which is the subject of the claim of unconstitutionality, governs the procedure and principles of the objection to be lodged against the decision given as a result of the application of the simplified trial procedure.

Accordingly, where an objection is lodged against the decision given, the court which gave the judgment will this time open a hearing and conduct the trial in accordance with the general provisions. It is noticeable that the grounds of objection to the article concentrate on this point in particular and that it is stated that this situation will lead to the prolongation of cases. This is indeed one of the greatest problems experienced in practice. The decision given by the court will very probably not fully satisfy one party or another; a conviction may be handed down against an accused who seeks acquittal, or the accused may be acquitted in spite of an intervening party who seeks the accused’s punishment. Both the accused and persons other than the accused may lodge an objection. That being so, the decision given is mostly made the subject of an objection by one of the parties. Since the court is obliged, upon the objection, to open a hearing and conduct the trial in accordance with the general provisions, the time spent during the simplified trial procedure has in fact been spent in vain and the trial has been prolonged by just that much.

In the light of the general information given above, we present below, one by one, the examination carried out by the AYM with regard to the provisions of Art. 251 CMK and our own assessments.

1. With regard to Art. 252(1) CMK

The contested rule provides for the remedy of objection in relation to the simplified trial procedure.

Grounds of the objection: No grounds of objection relating directly to the article concerned were put forward; it is considered that the general grounds of objection apply in this respect as well.

Decision of the AYM and its reasoning: The AYM is of the opinion that the fact that a remedy of objection has been provided against the decision given as a result of the application of the simplified trial procedure is a necessary consequence of the principle of the rule of law and a requirement of Art. 40 of the Constitution. Accordingly, there is no incompatibility with the Constitution in the provisions concerned.

Our assessment: That the decision to be given under the simplified trial procedure can be made the subject of the remedy of objection is important for the reviewability of the decision and, as the AYM has also stated, is a requirement of the principle of the rule of law. It may therefore be said that, apart from there being nothing contrary to the Constitution here, a requirement has in fact been fulfilled. Nevertheless, the fact that judgments not objected to within the time-limit become final causes a number of problems in practice.

That is to say, in a normal legal system, in other words in a legal environment in which errors are at a minimum, the workload of members of the judiciary is normal, trials are completed within a reasonable time and individuals have the awareness and the ease needed to gain access to their rights, this is how things ought to be: the decision must be served on those concerned, and a judgment that is not objected to must become final. However, as we have also stated above, Türkiye is a country in which the legal system operates in an extremely complicated manner, in which errors are made very frequently in the service of documents, and in which a great many people, for various reasons, do not live at the place they have given as their residential address. That being so, the examples of persons who, although they are the accused in a case in which the simplified trial procedure is applied, are not even aware of it are too numerous to be underestimated. In situations of this kind the accused not only does not know that judicial proceedings are being conducted against him or her, but for the most part also fails to learn of the decision given at the end of those proceedings and is unable to make use of the remedy of objection against that decision, or does not know how to make use of it.

The normative rule undoubtedly has nothing to do with these examples. What we wish to draw attention to here, however, is that the legal system is so important and so sensitive a matter that, however good and correct the normative rule may be, if that rule does not speak to the social and economic structure of society, to its level of education and to its way of life, it is impossible for the rule to attain the aim pursued. The rules concerned must therefore be addressed from this perspective as well, rather than by means of an abstract assessment of lawfulness. This is indeed what the sociology of law tells us. Norms, and the decisions given on the basis of those norms, must find a response in society. In this respect it is possible to say that the norm under which decisions not objected to within the time-limit become final harbours a number of risks.

2. With regard to Art. 252(2) CMK

The contested rule concerns the opening of a hearing and the conduct of the trial in accordance with the general provisions where an objection is lodged against the decision given under the simplified trial procedure.

Grounds of the objection: With regard to the provisions concerned, it was claimed that the possibility of this time opening a hearing and conducting the trial in accordance with the general provisions, irrespective of the nature of the objection, in fact prolongs the duration of the trial rather than shortening it, and that the fact that the trial following the objection will again be conducted by the court which gave the first decision is a matter that will affect the impartiality of the judge, since the judge has already expressed his or her conviction in the first decision.

Decision of the Constitutional Court (AYM) and its reasoning: The AYM assessed the provisions concerned first of all within the framework of the right to be tried by an independent and impartial tribunal. For, as we have stated above, a court which has expressed its conviction under the simplified trial procedure finds itself having to conduct a trial again a very short time later upon the objection, and it must be assessed whether it can be independent and impartial in that situation. It should be noted that this situation gains importance particularly where an accused who has been convicted is tried again. The accused may think that the judge may already have made up his or her mind and that this is in fact a trial in which the accused appears guilty from the outset. Indeed, the AYM has explained the concept of impartiality as “the absence of any prejudice, bias or interest capable of influencing the resolution of the case, and of any opinion or interest in respect of the parties to the case, whether in their favour or to their detriment”. The AYM states that the legal system must be designed in such a way as to dispel “the concern that the judge may act with prejudice in relation to the case”, and is of the opinion that such a system will, together with impartiality, also ensure the judge’s independence vis-à-vis himself or herself. For the judge, having previously expressed a view on the same matter, may be unable to establish reasonable confidence in the eyes of those concerned; this may move the trial away from the dimension of fairness and may cause the judge to act under the influence of the pressure arising in his or her inner world on account of the view previously expressed.

The AYM is of the opinion that, if the trial held after an objection to a decision given under Art. 251 is continued with a judge who has already expressed his or her view, the second stage of the simplified trial procedure will in essence be superfluous. For the judge has already given a decision on the file, and the subsequent trial cannot go beyond being a procedural step that will not change the outcome. In conclusion, the AYM found that this procedure is incompatible with the right to be tried by an impartial tribunal.

As regards the argument that the provision concerned will cause the trial to be prolonged, attention was first of all drawn to the fact that, under Articles 36 and 141 of the Constitution, the State has a positive obligation to conclude cases within a reasonable time. In this context it was held that the provisions concerned are incompatible with the principle of the rule of law, since the introduction of an obligation to open a hearing irrespective of the nature of the objection affords no possibility of remedying errors that could be remedied without opening a hearing, will prolong the trial unnecessarily, and may also lead to results to the detriment of the accused as regards his or her punishment at a hearing opened on account of shortcomings that could have been remedied without a hearing.

Our assessment: We must state first of all that we agree with the decision that the provision concerned had to be annulled. Indeed, the AYM’s grounds for annulment have also been addressed in various parts of this paper. At this point it will be useful to make only a few additions.

A second trial conducted, upon the objection, by a judge who has already expressed his or her view is indeed capable of impairing the principle of impartiality. That is to say, for the simplified trial procedure to be applicable, the judge must have come to the view that he or she will reach an inner conviction on the evidence available in the file. In this context, if the case in question is heard in accordance with the general provisions, either no new evidence will enter the file, or the new evidence will not be of such a magnitude as to change the judge’s conviction. There will therefore be no significant change in the decision which the judge gave under the simplified trial procedure, and during the trial conducted in accordance with the general provisions the judge’s view on the merits of the case will in fact be known to the parties. While the party in whose favour the judge decided when first expressing his or her view will feel close to the judge, the party against whom the judge decided will feel that the judge is already against him or her and that, whatever he or she does, this cannot be changed, and hence that whatever he or she does during this trial will be of no avail. A type of trial that causes the parties to feel this way will undoubtedly violate the right to be tried before an impartial judge and the right to a fair trial with which that right is connected. At this point it is of no importance that the judge will in reality begin the second trial impartially; it is sufficient that an environment has been created which causes the parties to feel this way. For this is precisely what the appearance of a fair trial means. The parties must know and feel that the proceedings conducted against them are fair, impartial and independent in every respect and, even if a decision to their detriment is given at the end of the proceedings, they must be certain that there is not so much as a speck of dust on that decision. Only in this way is the right to a fair trial secured and confidence in the law established.

At this point the question may come to mind whether, where a further trial proves necessary in the remedies of appeal on facts and law and appeal on points of law pursued against the decision of the court of first instance, that trial is again conducted by the court which gave the first decision, and whether this too impairs impartiality. It should be noted that the remedy of objection against the simplified trial procedure and the remedies of appeal on facts and law and appeal on points of law pursued against decisions of courts of first instance are very different from one another. As a result of applications for appeal on facts and law and for appeal on points of law, a higher court carries out a review, the incomplete or erroneous points are indicated, and the court of first instance deals with the file from a different perspective. Indeed, it is seen that, after the decision of the appellate or cassation court, the court of first instance mostly alters the decision it had given. Recourse to the remedy of objection against a decision given under the simplified trial procedure is entirely different. This objection is lodged by the parties with the same court, and the court, without examining the objection, is obliged this time to open a hearing and conduct a trial for the sole reason that an objection has been lodged. For this is what the contested provisions require. Consequently, there is neither a review by a higher court nor will there be any evidence requiring the first view to be changed. If it is thought that something capable of changing the view reached on the file will arise during a trial with a hearing, the simplified trial procedure ought not to be resorted to in the first place. In conclusion, it must be accepted that, in the trial held after an objection to the simplified trial procedure, the judge will be bound by his or her first view and the right to be tried before an impartial judge will be impaired.

Besides violating the principle of the impartiality of the judge, the obligation to conduct a trial with a hearing after the objection also harbours the danger of prolonging the trial. For it has been noted above that, as a result of the trial held after the objection, there will in all probability be nothing that changes as regards the merits, and that, if there were to be such a change, the simplified trial procedure ought not to have been applied in any case. There are, of course, examples in which, although it was thought that nothing would change, the opposite occurred during the trial with a hearing; but this is the general situation. The trial held after an objection to the simplified trial is therefore, since it will not affect the merits, for the most part an unnecessary procedural step, and it causes the proceedings concerning the parties to be completed late. Yet the basic reason for including the simplified trial procedure in the system is to enable trials to be completed swiftly. In this situation, by contrast, there is a risk of its turning, contrary to the purpose for which it was introduced, into an institution that prolongs the trial.

It can indeed be said very clearly that this is one of the greatest problems experienced in practice with regard to the simplified trial procedure. As we have also stated above, the decision given by the court mostly fails to satisfy one of the parties, and the dissatisfied party makes use of the next avenue for seeking its rights. The granting of remedies to the parties is, of course, a requirement of the rule of law, and the parties are free to have recourse to the avenues provided for seeking their rights. In the contested provision, however, there is a guarantee that a result will be obtained from the avenue pursued, for after the objection the court is obliged this time to open a hearing. What is more, the subject of the objection may even be a matter that does not require a hearing to be opened. For example, in practice the stage of a trial with a hearing is entered even as a result of an objection lodged against clerical errors made in relation to counsel’s fees. The courts are, of course, not at fault in this; the courts are merely applying the provision of the law. The contested provision is therefore capable of bringing many problems with it in practice. To continue with the same example, on account of an error made in the lawyer’s fee, the proceedings continue against an accused who may perhaps have been acquitted. This situation too creates a problem from the standpoint of the principles of the presumption of innocence and the right not to be stigmatised. Consequently, at the stage now reached it has become imperative that the obligation to open a hearing after every objection be abolished or that certain exceptions to it be introduced.

3. With regard to the remaining paragraphs of Art. 252 of the Code of Criminal Procedure (CMK)

The contested rules concern the principles and procedures relating to the remedy of objection.

Since the remaining provisions of the article in question can no longer be applied on account of the annulment of the first sentence of paragraph 2 of Art. 252 CMK, those paragraphs were also annulled by the AYM without any review of their conformity with the Constitution.

CONCLUSION

It must be said that it is a highly positive development that the simplified trial procedure, which was incorporated into the system of criminal procedure quite recently, has begun to be debated, partly under the influence of the problems experienced in practice, and has been made the subject of an AYM decision. This is also gratifying in terms of the speed of the reaction to incomplete or defective statutory rules. When we look at the grounds of objection of the courts which applied to the AYM for annulment, we see that all of these problems are indeed experienced in practice. These problems are vexing both for the parties to the proceedings and for the lawyers acting as representatives or as defence counsel.

When the following facts are borne in mind, it is clear that the simplified trial procedure also brings a number of problems with it: that legal certainty disappears on account of the wide discretion given to the judge as to whether or not the simplified trial procedure is to be applied; that the accused or the victim, although wishing to explain his or her concerns face to face, has no opportunity to do so because of the simplified trial procedure; that, because no hearing is held, the parties are deprived of the possibility of taking an active part in the proceedings; that, having regard to Türkiye’s legal system and to the socio-cultural and educational level of society, attendance at the hearing is virtually a necessity, particularly so that the rights of the accused are not violated; that the obligation, upon an objection and irrespective of its nature, to open a hearing and conduct the trial in accordance with the general provisions prevents trials from being completed; and that beginning to hear the case with a hearing even on account of clerical errors that could be remedied without any need for a hearing prolongs trials unnecessarily. What is more, when the nature of these problems is considered, not only is it impossible to say that they are minor problems alongside the positive effects brought by the simplified trial procedure, but, on the contrary, it is plainly evident that they are of a magnitude capable of leading to the violation of many fundamental principles, rights and freedoms, such as the rule of law, the right to a fair trial, legal certainty, the right to be tried before an independent and impartial judge, adversarial proceedings and equality of arms, the openness and publicity of hearings, the right to have proceedings completed within the most reasonable time, the presumption of innocence and the right not to be stigmatised. That being so, it is an undeniable fact that the provisions of Art. 251 and Art. 252 CMK, by which the simplified trial procedure was introduced, stand in need of regulation.

As to the question whether the decision given by the AYM is capable of meeting this need, it is unfortunately not possible to give an affirmative answer. It must be accepted that the decision given by the AYM has made important changes concerning the remedy of objection against the decision to be given as a result of the simplified trial procedure, and that the annulment of the obligation to open a hearing upon an objection and of the other provisions to that effect is appropriate.

Nevertheless, when the decision is considered as a whole, it is noticeable that the AYM places the capacity of the simplified trial procedure to speed up the completion of cases above everything else, and that the provision it actually annulled, the one laying down the obligation to open a hearing upon an objection, also serves the accelerating function of the simplified trial procedure. The AYM did not carry out an examination that would bring the supremacy of law to the fore with regard to the fundamental principles, rights and freedoms that may be violated by the application of the simplified trial procedure, and the examination it did carry out was unable to go beyond seeking to have cases completed more quickly by removing the obligation to open a hearing upon an objection. Yet the simplified trial procedure, which is connected with a great many fundamental principles, rights and freedoms, ought also to have been examined from these angles, and the problems it has brought in practice ought not to have been disregarded.

On the other hand, preserving the simplified trial procedure exactly as it is and making changes only with regard to the obligation to hold a hearing upon an objection is capable of bringing, particularly for the accused, certain additional violations of rights on top of the existing problems. While we agree with the annulment decision given by the AYM, it should be noted that the law is a whole and that a change made only in the part concerned not only cannot remedy the problems but may also bring new problems with it. It might therefore have been more beneficial to look at the provisions on the simplified trial procedure as a whole, to address these provisions in the context of fundamental principles, rights and freedoms, to read the provisions together with the problems experienced in practice, and to make arrangements accordingly.

How the decision given by the AYM is reflected in practice will be seen in the short and medium term, and we hope that it will remedy the problems in practice at least to some extent.