The 7th Summer School of the AACC on the “Presumption of Innocence”
9 September 2019, Ankara
I would like to extend you all my most sincere and respectful greetings.
Today, we have gathered to inaugurate the 7th International Summer School. First of all, it should be noted that the summer school program has been organized by the Turkish Constitutional Court (“the Court”) every year since 2013 as an activity of the Association of Asian Constitutional Courts and Equivalent Institutions (“the AACC”).
In the 3rd Congress of the AACC held in Indonesia in 2016, it was decided that a Permanent Secretariat of the AACC be established and that a Centre for Training and Human Resources Development, one of the three primary sections of the Secretariat, be established in Turkey. In this framework, the 7th Summer School is being organized by this Centre, established within our Court, within the scope of the activities of the Permanent Secretariat of the AACC.
The summer school programme is also attended by the courts/ institutions of guest countries alongside those of the member countries aims at ensuring enhanced exchange of information and experience on constitutional justice as well as developing inter-institutional relations. More generally, this event serves for the Association’s objective to improve democracy, rule of law and human rights.
In this sense, more countries have been invited to this year’s summer school event. I would like to mention the courts/institutions whose representatives are among us today: Constitutional Court of the Republic of Azerbaijan, Constitutional Court of Bulgaria, Constitutional Court of the Republic of Indonesia, Supreme Court of the Republic of the Philippines, Constitutional Court of Palestine, Constitutional Court of Georgia, Constitutional Court of Croatia, Constitutional Council of Cameroon, Constitutional Court of Montenegro, Constitutional Council of the Republic of Kazakhstan, Constitutional Chamber of the Supreme Court of the Kyrgyz Republic, Constitutional Court of the Republic of Korea, Constitutional Court of the Republic of Kosovo, Supreme Court of the Turkish Republic of Northern Cyprus, Federal Court of Malaysia, Constitutional Court of Mongolia, Constitutional Tribunal of the Republic of the Union of Myanmar, Constitutional Court of Uzbekistan, Supreme Court of Pakistan, Constitutional Court of Thailand and Constitutional Court of Ukraine.
Lastly, representatives from a total of 22 countries, including the Constitutional Court of the Republic of Turkey hosting the event, have participated in this year’s summer school programme. I would like to note that this is the widest-reaching event which has been held so far.
Theme: Presumption of Innocence
The themes of summer schools generally concern the fundamental rights and freedoms. As a matter of fact, the subjects of principle of equality and prohibition of discrimination, right to a fair trial, freedom of expression, right to respect for private life, migration and refugee law as well as right to liberty and security have been discussed in the summer schools organized so far. The subject of this year’s summer school is the presumption of innocence. During the programme, along with the discussions as to how this principle is interpreted and implemented in the Turkish legal system, the participants will also deliver presentations to provide an insight into the presumption of innocence from their countries’ perspective. In addition, a jurist from the European Court of Human Rights (“the ECHR”) will give a lecture on the legal framework and practices on international level.
Thus, presumption of innocence will be scrutinized during the conference, and the participants will have the opportunity to share their knowledge and experiences in this respect. All presentations delivered throughout the programme will be compiled in a book and made available to those concerned as in the previous summer schools.
Although the theme will be elaborated with the presentations that will be delivered during the sessions which will start afternoon, I would like to briefly mention some issues.
As with every topic discussed, it is necessary to start with a question of definition. What is presumption of innocence? Presumption of innocence is defined, in the broadest sense, as the presumption of an individual’s innocence until he is proven guilty by a court decision. This principle is among the procedural safeguards of the right to a fair trial.
In fact, the principle of presumption of innocence has undergone a long and arduous historical journey, as the other fundamental rights have. Presumption of guilt once prevailed in many geographies. Arthur Schopenhauer stated that in Europe, up to the fifteenth century, the innocence of the accused had to be proven by sworn witnesses. If the accused could find no witnesses or refused the witnesses not in favour, recourse was a trial by the judgment of God, which generally meant to call for a duel (A. Schopenhauer, Yaşam Bilgeliği Üzerine Aforizmalar, 2006, İş Bankası Yayınları, p.75).
In the post-Second World War period, 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 (1948) and Article 6 § 2 of the European Convention on Human Rights (1950), presumption of innocent has been recognized as an element inherent in the right to a fair trial.
In Turkey, presumption of innocence dates back to the Ottoman Code of Civil Law (Mecelle) that was formulated at the last era of the Ottoman Empire. In Article 8 thereof, it is enshrined that ‘Everyone is free of debt unless proven otherwise’. If anyone claims to be owed, he is obliged to substantiate it. In short, the plaintiff has to prove the claim. This principle laid down in the Mecelle -a civil law text- is incorporated into the criminal law as presumption of innocence.
Article 38 of the Turkish Constitution, titled “Principles relating to offences and penalties”, provides that “No one shall be considered guilty until proven so by a court decision”. Presumption of innocence is explained in the legislative reasoning of the said article as the following: “Presumption of an accused’s innocence until he is proven guilty with a final judgment means that he is not obliged to prove his innocence and that “the burden of proof” is on the claimant. This presumption will be ‘rebutted” after the claimant proves his allegation without any reasonable doubt and the court will then render a decision on conviction; otherwise the accused will be acquitted”.
In addition, the Constitution-maker acknowledges the presumption of innocence as an absolute principle that cannot be limited even in a state of emergency. Accordingly, “no one can be considered guilty until proven so by a court decision” even in times of war, mobilization and a state of emergency (Article 15 § 2 of the Constitution).
Presumption of Innocence in the Court’s Decisions
The Constitutional Court has rendered important decisions on the interpretation and implementation of the principle of presumption of innocence within the scope of both constitutionality review and individual application. Undoubtedly, in the sessions to take place afternoon, the academics and our rapporteurs, who are expert in this area, will elaborate this issue.
I would like to briefly mention, in very general terms, some outstanding issues concerning the presumption of innocence that have been discussed in the judgments of the Constitutional Court.
First of all, it should be noted that although the presumption of innocence was not explicitly worded in the Constitution of 1961, the Court interpreted the presumption of innocence as an element inherent in the rule of law and used it as a reference norm in some of its judgments at the material time. For example, in one of its judgments of 1975, it found Article 70 § 2 of the former Law no. 1750 on Universities contrary to the presumption of innocence as well as to the university autonomy within the scope of an action for annulment brought by the Ankara University. The impugned provision stipulated that the faculty members be suspended from office by the Council of Ministers, which had been vested with the authority to take over the universities in cases where the freedom of education was at peril, and they could be reinstated, after the take-over decision was lifted, on the condition that there was a final decision proving their innocence.
In this respect, the Court considered that “Those seeking to be reinstated in their previous position are to rebut the charges against them, thereby endeavouring for years before judicial authorities. Therefore, “the principle of innocence”, one of the basic tenets of the criminal law, would be turned down by “the principle of guilt”, and the person concerned would be to prove that he did not commit the offences imputed to him. Accordingly, the Court found Article 70 §2 contrary to Article 120 of the Constitution as well as of the principle of state of law and must be therefore annulled (see E.1973/37, K. 1975/22, 11, 12, 13, 14, 25 February 1975).
In its decision as to the constitutionality review, which was rendered by the beginning of this year, the Court recognized the principle of presumption of innocence as a “fundamental right”. In the Court’s view, the presumption of innocence is a fundamental right which secures that everyone charged with a criminal offence shall be presumed innocent until a final conviction rendered at the end of a fair trial. Pursuant to the presumption of innocence, a person may be declared guilty and subject to criminal sanctions only after he is convicted with a final court ruling (see E. 2018/101 K. 2019/3, 13 February 2019).
As a requisite of the presumption of innocence, no one can be declared guilty and treated as a criminal neither by judicial authorities nor by public authorities unless his guilt is established with a court ruling (see Kürşat Eyol, no. 2012/665, 13 June 2013; and Nihat Özdemir, no. 2013/1997, 8 April 2015).
The presumption of innocence is applicable also to the civil cases and disciplinary proceedings in conjunction with criminal law. However, disciplinary investigations are conducted independently of criminal investigations. Therefore, imposing a disciplinary penalty on, or awarding compensation against, an individual in spite of the fact that he has not been convicted of the same acts during the criminal proceedings will not automatically infringe the presumption of innocence (see Mustafa Kıvrak, no. 2013/3175, 20 February 2014, 36).
At this point, the language used by the courts and public authorities is of significant importance. Use of a language incriminating a person -who has not been convicted with a final judgment or has been acquitted for lack of evidence or for any other reason or in respect of whom the proceedings have been discontinued, suspended or the pronouncement of the judgment has been suspended- will be in breach of his presumption of innocence.
In its recent judgment, the Court found a violation of the presumption of innocence due to the statement “the party inflicting violence” which was stated in an interim decision issued by the family court. In the impugned case, an interim measure was indicated by the family court against the applicant, who had allegedly inflicted violence against his ex-girlfriend. In the interim decision, the phrase “party inflicting violence” was used in the absence of any finding as to the applicant’s guilt. In the meantime, the criminal investigation conducted against him was terminated with a decision of non-prosecution. In that case, the Court found a violation by considering “the imputed statement is a troublesome expression capable of creating the impression that the person concerned has committed the acts likely to constitute an offence, which goes beyond its purposive use. It should be noted that, in practice, other appropriate expressions such as ‘party allegedly inflicting violence, party allegedly posing a risk to inflict violence or party against whom an interim measure is sought’ are used rather than the impugned statement”.
As does the European Court of Human Rights, the Constitutional Court also states that shifting of the burden of proof will not be, under certain circumstances, in breach of the presumption of innocence. Accordingly, “as long as it rests, in general, on the claimant to prove the guilt, shifting of the burden of proof will not be in breach of the presumption of innocence in cases where there are provisions shifting the burden of proof to the accused in the context of defence or presumptions of fact or law” (see E.2013/38, K.2014/58, 27 March 2014; and Adem Hüseyinoğlu, no. 2014/3954, 15 February 2017). Undoubtedly, factors such as the severity of the restrictions imposed on the rights, preservation of the right to defence as well as refutability of the presumption must also be taken into consideration.
Lastly, I would like to note that the principle of the presumption of innocence requires the public authorities to avoid incriminating the persons in the absence of a final conviction establishing guilt while making public statements within the scope of criminal justice.
Before ending my speech, I would like to once again welcome the participants of the 7th Summer School event and extent my gratitude for their participation as well as contributions to the event. I would like to once again express my thanks to all distinguished academicians and jurists who will contribute to this program with their presentations.
I finally thank all my colleagues and the staff taking role in the organization of the event. I wish that the 7th Summer School be fruitful and successful.
I once again greet you all with my sincere respects.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|