17 July 2018 Tuesday

Salih Öz (no. 2015/13327, 17 July 2018)

The Facts

The Chief Public Prosecutor’s Office charged the applicant for incitement to qualified robbery under Article 149 § 1 (c), (f) and (g) of the Turkish Criminal Code (“the TCC”) with reference to Article 38 § 1 specified therein.

The Assize Court sentenced the applicant to imprisonment for committing qualified robbery to prison term above the minimum term set in the law, in accordance with Article 149 § 1 (c), (d), (f) and (g) of the TCC.

The applicant appealed against the decision, claiming that he was also convicted under Article 149 § 1 (d) of the TCC for committing robbery in the workplace, even though he was not charged with this offense and he had not been provided with an additional right to defence against this accusation. However, the appeal was rejected and the sentence was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that although a criminal case had been initiated against him for incitement to qualified robbery, at the end of the proceedings he was punished for committing qualified robbery, and that although there had been a change in the legal qualification and cause of the accusation against him, he was not provided with an opportunity to make his defence in this respect. He, therefore, claimed that his right to defence within the scope of his right to a fair trial was violated.

The Court’s Assessment

According to Article 36 of the Constitution, everyone has right to defence and fair trial.

Accused must be provided with the right to defence not only in theory, but also in practice. Therefore, he must be informed of the accusation against him in order to prepare his defence and submit it before the court, and thus to influence the outcome of the proceedings.

It is not possible for a person who has not been informed of the accusation against him to make a proper defence. A trial where the accused has not been informed of the accusation against him cannot be considered as fair.

In the present case, a criminal case was initiated against the applicant for incitement to qualified robbery. The incumbent court convicted the applicant for committing qualified robbery.

Although there was a change in the legal qualification and cause of the accusation against the applicant during the proceedings, he was not informed of this change and was not granted time to prepare his additional defence, and he was convicted under a provision not stated in the bill of indictment.

Consequently, the Constitutional Court found a violation of the applicant’s right to be informed of the accusation against him within the scope of his right to a fair trial safeguarded by Article 36 of the Constitution.