Büşra Altay - 23 March 2022 - Comments

RIGHT T0 A FAIR TRIAL

Human rights are the basic rights and freedoms that all human beings have, in short terms. The right to a fair trial, with its nature, the way it is organized in national and international texts and its wide application area, is one of the human rights that can be enjoyed by all people regardless of race, nationality, ethnic origin, religion, language and gender. Since the historical development of human rights goes back many years, it took a long time to make a common definition. Adopting human rights as a value and becoming a universal reference point at the end of a long struggle that spanned centuries, with the suffering spent for it. It was realized as a result of full efforts. Human rights can be defined as rights that can be enjoyed by all people regardless of race, nationality, ethnic origin, religion, language or gender. One of these rights, the right to a fair trial, which is the 6th article of the European Convention on Human Rights, is a basic, established and universal human right. The right to a fair trial emerges as the most comprehensive right in terms of its content. There are some authors who think that Article 6 of the ECHR should be interpreted broadly in this context. (Karakuş, 2001) Broad interpretation of the right to a fair trial is a necessary issue for the democratic legal order. According to Karakuş (2001), the sixth article in determining civil rights and obligations guarantees everyone\\\'s right to a fair trial (2001). Letsas also stated that since 1978, the ECtHR has broadly interpreted the right to a fair trial with the autonomous method of interpretation (Letsas, 2004), At the same time, the right to a fair trial is a right that is protective of other rights. This right, which is included in both national and international texts, is a guarantee in the context of the protection of other fundamental rights and freedoms. For this reason, it has been stated that the right to a fair trial emerges as a right that forms the backbone of other rights and freedoms, that is, it provides them with content. (Erol,1998.) In order to protect human rights from unlawful interference, the right to a fair trial must be effectively implemented. Kaboğlu (1998) emphasized that the right to a fair trial is an indispensable right for the protection of other rights due to this feature. Another important characteristic of the right to a fair trial is its close relationship with the concepts of rule of law and democracy. The rule of law is in a sense a necessity of being a modern rule of law. Therefore right to a fair trial is, in essence, a result of the rule of law. When we look at court decisions at local and international levels, it is possible to see that the relationship between the rule of law and the right to a fair trial is directly emphasized. The fact that a person is entitled to a fair and open trial within a reasonable time by a neutral court is a concrete reflection of the rule of law. The independence and impartiality of the court are also very important in both protecting the relevant right and ensuring the rule of law. “Human rights are defined as the innate rights of people” (Torun, 2010). The fact that these rights are not recognized by positive law does not mean that they can be violated. On the other hand, the inclusion of these rights in national and international legal texts is very important for their protection. The right to a fair trial emerges as a type of right that is frequently included in both constitutions and international conventions. Here, it is necessary to look at two basic dimensions of the relevant right: These are the Constitutional and the ECHR dimensions. When we focus on the issue with the ECHR dimension, it is possible to see that the relevant right is dealt with more comprehensively. As is known, the \\\"right to a fair trial\\\" is included in Article 6 of the ECHR. The important thing; in the entirety of the matter, the fairness of the trial, by granting the minimum rights specified in the article, it is the making of a trial. (Tamer & Erol, 2000). The right to a fair trial should be exercised in accordance with fundamental rights at every stage of the trial. (Gölcüklü & Gözübüyük, 2007) Consequently, it is possible to see that the right to a fair trial is interpreted comprehensively when much f the ECtHR\\\'s case law is examined. The ECHR makes the individual an active subject in terms of its structure. In this way, the individual can directly have a say in protecting his or her rights. The ECHR is a living text, meaning that the text can be regulated with various additional protocols. Due to the lively structure of the text, the right to a fair trial will also have a wide protection depending on the developments and changes. Before examining the constitutional dimension, it would be beneficial to mention the 90th article of the Constitution. It should be stated that international conventions are equivalent to laws by including the phrase \\\"International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional.\\\" in the last paragraph of the constitutional article. Therefore, it is possible to see the binding nature of the ECHR. With the addition of the right to a fair trial to Article 36 of the Constitution after the 2001 Constitutional amendment, it is possible to say that the relevant right is protected in the constitutional context. Expressing a right clearly in the constitution means that it is valued by the state. While the constitutions not only protect fundamental rights and freedoms, they also protect the individual against the unlimited sovereignty of the state. From this point of view, the inclusion of the right to a fair trial in the constitutional text is very important in terms of reiterating its importance. Considering its constitutional aspect, this right is an absolute right, it is not possible to limit this right under any circumstances. The right to a fair trial is a kind of protector of other human rights. It is possible to say that the relevant right will lead in the protection of other rights once it is secured in the Constitution. Application Axis of the Right to a Fair Trial Application of the right to a fair trial is as important as the protection of the existence of human rights. The expectation of a democratic and just society should at least be this way. After the exhaustion of domestic remedies, the decisions of the European Court of Human Rights are decisive at this point. The element of \\\"reasonable time\\\" is very important in the effective implementation of the right to a fair trial. As Karakuş pointed out, the Court requires the trial to be completed within a reasonable time (2001). It would be misleading for the judged to say that justice is delayed. The right to a fair trial is examined after the trial is over. The right to trial within a reasonable time, as expressed in the Magna Carta, means that the execution of justice should not be delayed (Erol,1979). With the right to a trial within a reasonable time, the person entitled has a say in concluding the trial in a reasonable time. As stated by Özkan Duvan (2019), the Turkish Constitutional Court and the European Court of human rights regarding the element of reasonable time of the right to trial in a reasonable time there are no fixed periods determined (Özkan, 2019). Therefore, the result arises that a reasonable time must be determined for each concrete event. A trial that lasts longer than necessary results in a failure to achieve justice and a loss of motivation for the beneficiary. Therefore, a reasonable trial is extremely important in protecting the right to a fair trial and increasing confidence in justice. One of the essential elements for the trial to be fair is that the trial takes place publicly. It is not possible to qualify a trial conducted differently than it should have been public. Public Hearing is a trial which anyone who, other than the parties to the case, has the opportunity to enter the place where the trial is held, where the hearings are held, and to watch the trial in person. (Pekcanıtez, 1999). A public hearing can prevent the court from making an arbitrary decision. The fact that the trial is conducted publicly creates confidence both from the point of view of the parties to the case and from the point of view of the public. In a sense, the judiciary is becoming supervised by the public. The fact that the judiciary can be supervised by the public does not constitute an obstacle to the independence and impartiality of the judge. On the contrary, this leads to the judge being more responsible for making a decision in accordance with the law. In this regard, it is necessary to express that public hearing is an important phenomenon in the context of the application of the right to a fair trial. Another key point in the application of the right to a fair trial is the impartiality and independency of the judge. Not to be confused here is the difference between the impartiality and independence of the judge. The meaning of the concepts are extremely different in this respect. Judges are also, as a result, a person and are extremely open to influence from the outside world. The inner worlds of judges can be influenced by various religious, political, philosophical views. The impartiality of the judiciary is mentioned if the judge decides in accordance with the law by protecting himself from such factors. On the other hand, the case where the judge makes a decision independent of external factors, such as the government, the Legislature, means that the judge is dependent. In other words, from the point of view of the judiciary, human rights are protected. The exercise of fundamental rights to apply to judicial authorities on a dispute, justice in other words, it will bring the obligation to make an equitable decision (Yıldız,1998). An impartial and independent judiciary is a sine qua non of the right to a fair trial. Disputes concerning civil rights and obligations and criminal charges must be decided by a court established by law in accordance with the convention (Yüksel, 2004). Conclusion In conclusion, the purpose of this text was to give information about the nature of the right to a fair trial that we encounter in the context of the protector of human rights, its arrangement in national and international texts and its implementation in law. The right to a fair trial, which is among human rights, is a pioneering right in terms of its general nature, its arrangement in national and universal texts and its field of application. In the context of the protection of human rights, it is important for the individual to be tried in an independent and impartial court within a reasonable time and in a fair manner. The result of the text shows us that the right to a fair trial is a protective right in terms of other rights, both in terms of nature and content. It should be said that human rights are effectively protected as a result of the right to a fair trial found in constitutions and international conventions and effective implementation by independent and impartial courts.