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1) INTRODUCTION A) The Right to Fair Trial The right to fair trial is one of the essential rights for individuals

designed to protect them from unlawful and arbitrary arrangements (Lawyers Committee for Human Rights 2000). It is the most important element of the rule of law and related with the protection of the fundamental rights of individuals. B) Article 6 of the European Convention of Human Rights The right to fair trial is guaranteed under Article 6 of the European Convention of Human Rights. This article aims to perform judgement with justice. The right to fair trial plays a key role to be protected other rights stated in the European Convention of Human Rights. According to Article 6; 1- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3- Everyone charged with a criminal offence has the following minimum rights: (a) To be informed promptly, in a language which he understands and in details, of the nature and cause of the accusation against him; (b) To have adequate time and facilities for the preparation of his defense; (c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court ( European Court of Human Rights 2010) The first paragraph of the Article 6 can be applied in both civil procedure and criminal procedure. However, it is stated that the other paragraphs can only be applied in criminal procedure. On the other hand these paragraphs can be applied in civil procedure with certain conditions (Harby, Mole 2000; 9). 2) Responsibilities of Judges Judges have some responsibilities in order to ensure the right to fair trial. Especially, in criminal cases, they are responsible to provide the representation of defendants adequately by agents. Besides, the principle of arms equality is also provided by the judges. In preliminary hearing to provide arms equality means that to inform the suspect about all the rights (nver 2004; 48). Briefly this principle aims to make represent their claims for the parties by giving reasonable opportunities. Also, it aims to prevent falling in disadvantage by one of the parties upon the other one. Article 6 (2) is about presumption of innocence and for this principal, judges can give an order to the media for the prevention of false news. However, judges should not prohibit completely the media rather explain to do or not to do for the media (Harby, Mole 2000; 101). The concept of the right to fair trial includes the right to access to court, the presence of the suspect in the trial, the freedom of the suspect not to witness against yourself, the equity of arms and justified decision (Harby, Mole 2000; 71). Everyone who has accused with a crime has the right to be informed about the qualification and the reason of the crime as soon as possible. Judges are also responsible to provide sufficient conditions for interpretation (Harby, Mole 2000; 104).

3) Application Steps of Article 6 Article 6 is not only applied in the judgement process but also in the preliminary hearing and execution process (Harby, Mole 2000; 16). 4) Civil Rights and Obligations Article 6 is applied in civil rights and obligations and criminal charges. Civil rights and obligations include permission of public authorities on legality of a contract, expropriation procedures, licenses by public authorities required for a certain profession, social security cases, the right to family life, the right to privacy and the freedom of expression. It excludes the legal position of civil servants in relation to the public authorities, procedures concerning admission and expulsion of aliens and refugees (Harby, Mole 2000, 19). 5) The Right to Fair Trial in the Constitution of the Republic of Turkey The concept of the right to fair trial is included in Article 36 of the Constitution of The Republic of Turkey; everyone has the right of litigation either as a plaintiff or defendant and the right to a fair trial before the courts through lawful means and procedures (Constitution Court of the Republic of Turkey). Emphasizing of the right to fair trial in the domestic law has made stronger it. Actually, according to Article 1 of the European Convention on Human Rights, the rights and the freedoms stated in the convention must be followed by the members of the European Council. Even if those countries dont transfer the rights and the freedoms stated in the convention, they are going to be controlled about that liability. In the 1st chapter of the convention, the rights and the freedoms are arranged so the member states of the European Council have to recognize those rights and freedoms (Aktan 2003; 1). 6) Requirements of The Court For Its Fairness and Independency According to Article 6, one of the most important factors is an objective and independent court established by law. Individuals have right to be on trial like that. European Court of the Human Rights accepted many other committees as a court except the judicial courts. If it is necessary to be counted;

.Military or Prison Disciplinary Commissions, .Professional Disciplinary Committees, .Approval of Land Sales Commissions, .Land Reform Commissions, .Arbitration Courts are called as a court established by law. There are some subjects of the determination of the court as an independent or dependent; appointment of the members of the court (how they are appointed), mission time, protection against pressures (is it enough) and presence of an authority which gives order to the members of the court. The member of the court which is appointed by the ministers is not accepted as a violation to the European Court of the Human Rights because appointment by the ministers does not mean that the ministers have authority to give order (ahin 2003; 6). In Turkey, judges are appointed by the High Council for Judges and Prosecutors. Besides, the decisions of this Council cannot be judged. There was an application to the European Court of Human Rights. It was claiming that courts are not independent because of the reasons stated above. However, this application was rejected by the ECRH (ahin 2003; 7). According to ECRH, the concept of fairness is divided into two groups as a subjective fairness and objective fairness. Objective fairness requires giving trust to the parties about the form and situation of the court. On the other hand, subjective fairness means that the reliance on the members of the courts (judges) in terms of their personal fairness. A) Violation of The Article 6 in terms of the Independency and Fairness State Security Courts which locate in Turkey has been found biased and dependent by the ECHR because one of the three members of the State Security Courts in Turkey is military judge. ECHR has found the application right and sentenced that State Security Courts in Turkey are not fair and independent so it

violated the Article 6/1. After that decision, State Security Courts are removed from the Constitution with the amendment (ahin 2003; 8). 7) The Meaning of The Reasonable Time One of the most important guarantees of the Article 6 is a reasonable time for trial. It means that in civil law and criminal law trials, judges decisions must made in reasonable time (nver 2004; 74). This is not only necessary for the benefit of related person but also for the certainty of legitimate. In civil law trials this time starts with the beginning of the judgement. In criminal trials, it starts with the accusation of someone. After final decision by the highest court, the time comes to an end. European Court of Human Rights considers the reasonable time evaluating these factors; the complexity of the case, the behaviors of the applicant, the attitudes of the judicial and administrative authorities of the States and the losses of the applicant. European Court of Human Rights has not determined an absolute time because it evaluates each trial in their own conditions (Harby, Mole 2000; 46). A) Some Violations of The Article 6 in terms of the Reasonable Time Yac Sargn/ Turkey, ECHR stated that trial in Turkey lasted 4 years and 8 months. When ECHR considered the all factors that are needed to determine trial in reasonable time or not, the ECHR has sentenced that it is against the Article 6/1 of the convention (ahin 2003; 10). Mithat and Mftolu/ Turkey, suspects are accused with the crime of participating to the armed terrorist attacks and they are primarily judged by the martial law court. After that, they are judged by the judicial court. For this reason, judgement lasted 15 years. Although ECHR accepted the complexity of the case, it sentenced that the trial is against the Article 6/1 of the convention in terms of the time of the case (ahin 2003; 11). 8) Conclusion In conclusion, the right to fair trial is a fundamental right for individuals. It is guaranteed in the European Convention on Human Rights. Turkey is a member

state of the European Council. For this reason, In Turkey judges have to perform their responsibilities that are stated in the Article 6. Judges are not only liable but also legislative body is responsible to perform the provisions of the European Convention on Human Rights. It is clear that many violations to the Article 6 occur in Turkey so Turkey would be defendant in the European Court of the Human Rights. In order to prevent that situation, Turkey should amend its codes to adjust with the European Convention on Human Rights. It should be done for the right and freedoms of individuals.