10th International Crime and Punishment Film Festival Academic Program
20 November 2020, Istanbul (video-conference)
“Presumption of Innocence as an Absolute Fundamental Right”
First of all, I would like to extend you all my most sincere and respectful greetings.
At the beginning of my speech, I wish that the festival held for the 10th time this year be successful, and I would like to congratulate everyone who have contributed to this organization.
I would also like to congratulate you on the topic you have chosen for this year. Especially the widespread use of the internet and social media has further enhanced the significance of the protection of the presumption of innocence today.
The presumption of innocence has undergone a long and arduous historical journey, as the other fundamental rights have. Presumption of guilt once prevailed in many lands of the world. Arthur Schopenhauer stated that in Europe, up to the fifteenth century, the innocence of the accused had to be proven by sworn witnesses, and if the accused could find no witnesses, recourse was a trial by the judgment of God, which generally meant to call for a duel.1
In the post-Second World War period, after a long struggle, the presumption of innocence was first worded in the universal and regional human rights instruments. In Article 11 § 2 of the Universal Declaration on Human Rights of 1948 and Article 6 § 2 of the European Convention on Human Rights of 1950, the presumption of innocence is recognized as an element inherent in the right to a fair trial.
In Turkey, the presumption of innocence dates back to the Ottoman Code of Civil Law (“Mecelle”), which was codified at the last era of the Ottoman Empire. In Article 8 thereof, it is enshrined that “Everyone is free of debt unless proven otherwise”. Anyone claiming to be owed is obliged to substantiate it. In short, the plaintiff carries the burden of proof. This principle laid down in the Mecelle -a civil law text- is incorporated into the criminal law as the presumption of innocence.
Currently, Article 38 of the Turkish Constitution provides for the following: “No one shall be considered guilty until proven so by a court decision”. In addition, the constitution-maker acknowledges the presumption of innocence as an absolute principle that cannot be subject to limitation even in a state of emergency. According to Article 15 of the Constitution, “no one can be considered guilty until proven so by a court decision” even in times of war, mobilization and a state of emergency.
The Constitutional Court has delivered significant judgments on the interpretation and implementation of the principle of the presumption of innocence within the scope of both constitutionality review and individual application. The Court defines the presumption of innocence as “a fundamental right which secures that an individual charged with a criminal offence shall be presumed innocent until a final conviction rendered at the end of a fair trial”.2
The Court points out two aspects of the guarantee provided by this fundamental right in individual applications. First, an individual charged with a criminal offence must be presumed innocent until proven guilty by a court decision.
The second aspect of the presumption of innocence comes into play following a court decision. In cases where the criminal proceedings are concluded with a decision other than conviction, the person concerned should not be considered guilty, and in particular, the decision of acquittal should not be questioned.
I would like to briefly explain these two aspects of the principle of the presumption of innocence with reference to two judgments of the Plenary of the Constitutional Court. First of all, it should be noted that the reasoning of, and the language used by, the courts are critical in violations of the presumption of innocence in both aspects.
As is known, criminal proceedings concerning an act, pending or concluded, do not preclude the conduct of civil or administrative proceedings into the same act. However, while the criminal proceedings are still pending or after the acquittal, in cases carried out simultaneously or initiated afterwards, referring to someone as guilty, questioning the acquittal decision rendered in respect of the concerned person or raising suspicion against him/her will be in breach of the principle of the presumption of innocence.
As regards the first aspect of this principle, the Court, in its judgment in the case of S.M., examined a complaint raised by the applicant against whom a criminal investigation had been launched and an interim decision had been issued in accordance with the Law no. 6284 on the Protection of the Family and the Prevention of Violence against Women.
The Court concluded therein that the use of the phrase “the party perpetrating violence” in the interim decision and the decision rendered on appeal had been in breach of the applicant’s right to the presumption of innocence as it created the impression that the applicant had committed the act subject to the criminal investigation.3
In its recent judgment of Barış Baş, the Court has dealt with the second aspect of the principle of the presumption of innocence. The case concerned a teacher against whom both criminal and disciplinary investigations were launched for allegedly having slapped his student in the face.
At the end of the criminal proceedings, the applicant was acquitted since he was not found guilty as charged. However, the Regional Administrative Court failed to confine itself to examining the acts other than slapping, such as the applicant’s having shouted at the student and having forcibly turned his head by grabbing him by the tie harshly, but on the contrary, further made an assessment regarding the alleged act of slapping, ultimately finding it established. The Constitutional Court has concluded that such an approach, which called into question an already rendered acquittal decision, violated the principle of the presumption of innocence.4
Here, it can be said that the criminal court’s decision had been improper and that in fact, the redness on the child's face and the application of ice pack had proven the alleged act of slapping. Considering also this point, the Court has emphasized the importance of the principle of the presumption of innocence as follows:
“The improperness of the criminal court’s decision does not make an exception to the principle of the presumption of innocence. The public interest in respecting the principle of the presumption of innocence is so important that in some cases, it may even justify the lack of a disciplinary sanction against the perpetrator of the tortious act.”5
In addition, the public authorities' statements implicating persons during the ongoing criminal proceedings or after acquittal may lead to the violation of the principle of the presumption of innocence. Therefore, the responsible authorities are required to use a prudent language, especially during the trial process.
The effective protection of the principle of the presumption of innocence and other fundamental rights does not depend solely on rules, institutions and individuals. Culture is another factor. The protection of fundamental rights depends on development and establishment of a culture that accepts the ontological existence of the "other". As a matter of fact, the protection of fundamental rights, including the presumption of innocence, depends to a large extent on those outside of us. The main point here is to admit that the "other" is also the subject of fundamental rights.
A striking title has been chosen for the academic program of the festival, which is “I am innocent”. However, we need to have an understanding to say "You are innocent" as well as "I am innocent". In fact, the origins of this understanding are abundantly available in the wisdom of the East and in the spiritual roots of this land. When the discourses of Rumi, Yunus Emre and Haji Bektash Veli are analysed, it is seen that the respect for the "other" occupies a pivotal place. For example, Saadi Shirazi says "If you've no sympathy for human pain, the name of human you cannot retain!”
In short, effective protection of the presumption of innocence requires a social and political climate where law and justice prevail and the respect for the "other" has developed as a culture. Indeed, abandoning law and justice not only corrupts the social and political order, but also causes human to lose his humanity.
In this context, I want to leave the last word to Aristotle, who voiced this truth about 2,500 years ago. According to Aristotle, who is known as the first teacher, "Man is the most excellent of all living beings, so without law and justice he would be the worst of all.”6
I would like to express my gratitude for your attention. I extend my wishes of health and prosperity to all of you.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|
1 A. Schopenhauer, Yaşam Bilgeliği Üzerine Aforizmalar, (İstanbul: İş Bankası Yayınları, 2006), p.75.
2 Constitutional Court, E. 2018/101, K. 2019/3, 13 February 2019, §16.
3 S.M. [Plenary], no. 2016/6038, 20 June 2019.
4 Barış Baş [Plenary], no. 2016/14253, 2 July 2020.
5 Barış Baş, § 66.
6 The Politics of Aristotle or A Treatise on Government, Everyman’s Library, trans. W. Ellis, (London: J.M. Dent & Sons Ltd., 1912), Chapter II, 1253a, p. 5.