Presumption of Innocence and Independence of the Judiciary
8 November 2021 in Ankara
Distinguished Participants,
First of all, I would like to extend you all my most sincere and respectful greetings.
As is known, the presumption of innocence, one of the essential elements of the rule of law, is today a principle enshrined in both international covenants on human rights and constitutions. The presumption of innocence, which is elaborated in Article 38 of the Constitution as “No one shall be considered guilty until proven so by a court decision”, is also an absolute fundamental right that cannot be limited even in times of war, mobilization or a state of emergency.
However, it was not an easy process until the presumption of innocence was universally acknowledged. In many parts of the world, the presumption of guilt, not innocence, had prevailed for years. As expressed by Michel Foucault, one of the most prominent philosophers of the last century, once upon a time a trial model had been adopted in Europe, whereby the innocence of a person was to be proven by himself or his relatives.
For a period of time, individuals were proven innocent through the testimony of a certain number of their relatives. More interestingly, physical tests were also applied to prove one’s guilt. For instance, in some parts of France, someone accused of murder was forced to walk on burning coal, and if he still had burn marks on his feet two days later, he would be considered guilty. Furthermore, a method called “water torture” was applied during a period. Accordingly, the right hand of the accused was tied to his left foot while he was thrown into the water. He would be proven guilty if he did not get drowned, but innocent if he was drowned. He was deemed guilty if he could float because even the water refused to embrace him. In order for him to be proven innocence, the water had to embrace him, that is, he had to get drown.
Hence, the transition from presumption of guilt to presumption of innocence had been a long and painful process. For the very reason, we have to be fully conscious of and appreciate the presumption of innocence and, of course, all fundamental rights and freedoms.
Esteemed Participants,
The Court points out two aspects of the presumption of innocence in its judgments. 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 after the proceedings are concluded. Accordingly, in cases where a conviction decision is not issued at the end of the criminal proceedings, then the person concerned should not be considered guilty, and in particular, his acquittal should not be questioned.
Presumption of innocence has also brought about a radical change in terms of burden of proof. The accused cannot be expected to prove his innocence in virtue of this presumption. As a matter of fact, the principle which provides “the burden of proof lies on the prosecution” is a manifestation, in the criminal law, of the clauses embodied in the Ottoman Civil Code (the Mecelle) as “Everyone is innocent unless proven otherwise” (Art. 8) and “Evidence is for proving what is contrary to appearance” (Art. 77). In accordance with these clauses, what truly matters is the presumption of inculpability (innocence), but if it is claimed otherwise, then the burden of proof is on the claimant.
It should be noted that, the grounds relied on by the judicial organs as well as the language they use are often the decisive factors that lead to the violations of the presumption of innocence. In fact, not only the courts, but also everyone exercising public power may infringe the presumption of innocence through their words that might incriminate someone under a criminal charge, whose guilt has not been proven yet by a finalised court decision. In other words, judicial bodies and public authorities have to avoid discourses and practices that may give the impression that the person concerned is guilty in pending cases or cases of acquittal.
Distinguished Participants,
As stressed by the Court in one of its judgments of this year, there is a close relationship between judicial independence and presumption of innocence. That is because, as a requirement of the presumption of innocence, a person may be proven guilty as charged only by a decision to be issued by an independent court at the end of the proceedings carried out in accordance with the principle of fair trial whereby the material truth has been revealed beyond any doubt.
Thus, the Court has found the provision entailing courts, in the accelerated procedure of trial, to adjudicate the case in accordance with the sanction determined by the public prosecutor’s office in breach of the presumption of innocence as well as the principle of independence of courts. Annulling the relevant provision, the Court has noted that the impugned provision limiting the judge’s power to make an assessment on the establishment of guilt might cause a situation where “a person is proven guilty without a court decision being issued”6, which would fall foul of the presumption of innocence.
Besides, any conduct and behaviour that will declare a person guilty in the absence of a finalised court decision also undermines the principle of independence of courts. In the same vein, exerting influence or pressure on judges or courts during pending proceedings may also undermine the presumption of innocence. For this reason, ensuring full and effective independence of the judiciary is of vital importance for the protection of the presumption of innocence as well as other fundamental rights.
Three basic conditions underlying the independence of the judiciary, which are complementary to one another, are laid down in Article 138 of the Constitution. The first is that the personal conviction of judges should not be interfered with in the discharge of their duties. This condition is enshrined in an explicit and exhaustive manner, that is to say, the acts and actions that should be done or refrained are enumerated therein. What is expected is that judges, who are performing their duties independently, give their decisions according to their personal conviction and in compliance with the Constitution, statute and the law.
On the other hand, any organ, authority, office or individual shall abstain from giving orders or instructions to courts or judges relating to the exercise of judicial power, or making recommendations or suggestions. No exception in this regard is specified in Article 138 whereby all such actions are prohibited categorically.
The said prohibition applies to any domestic or foreign organ, authority, office or individual. Regardless of their position, title or duty, no one may give recommendations or suggestions to courts or judges for any reason, let alone giving orders or instructions.
The second condition to ensure the independence of the judiciary, as stipulated in Article 138 of the Constitution, is that no questions may be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial. The legislative intent of this constitutional provision is to prevent any interference on the part of the legislature and its members in the ongoing proceedings, thereby ensuring the protection of the right to a fair trial with all its inherent elements, especially the presumption of innocence.
The third and final condition underlying the independence of the judiciary is the effective execution of court decisions. As a matter of fact, pursuant to the last paragraph of Article 138, the legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect, nor delay their execution. In other words, the independence of the judiciary necessitates avoiding any interference in the judicial proceedings and ensuring proper execution of court decisions without delay.
Distinguished Participants,
The effective protection of the independence of the judiciary and the presumption of innocence is dependent on the regulation of the relations between state bodies in accordance with the principle of separation of powers. It should be borne in mind that it is requisite in a democratic state of law that everyone should be granted his own rights with certain limits in precise terms. It is therefore of paramount importance for protecting and maintaining the legal order that the legislative, executive and judicial bodies fulfil their duties without exceeding the limits set by the Constitution.
In this regard, judges and public prosecutors should refrain from uttering words and acting in a way that may go beyond their constitutional and judicial powers and make the judiciary to be a matter of political polemics. At this point, what is expected of us is to act in pursuit of dignity and prestige of judicial profession while making decisions.
Likewise, members of the legislature and the executive should avoid words, conducts and behaviours aimed at influencing or discrediting the judiciary. A judge wearing a robe shall not engage in politics, and those who do not wear a robe shall not intervene in the process of judicial decision making. It is also requisite for preservation of the independence of the judiciary and the presumption of innocence that the ongoing proceedings be conducted responsibly.
In concluding, it should be noted that in modern legal systems, the only place where a person charged with a criminal offence shall be tried, acquitted or convicted is the courts. Our judicial system incorporates also legal remedies such as objection, appeal on points of fact and law and appeal on points of law, which afford the opportunity of judicial review and redress.
Thus, extrajudicial execution or exoneration through different means, especially on social media, undermines a sound and fair trial process. Literally, it is our collective responsibility to avoid such acts.
With this feelings and considerations, I would like to once again extend you all my sincere regards, and thank you for your attention.
Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey
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* Speech delivered at the Symposium on “Presumption of Innocence and Right to Good Reputation” held by the Ministry of Justice on 8 November 2021 in Ankara.
1 M. Foucault, Büyük Kapatılma, trans. I. Ergüden and F. Keskin, İstanbul, 2000, p. 204.
2 Kürşat Eyol, no. 2012/665, 13 June 2013, § 26.
3 Ali Haydar Efendi, Dürerü’l Hükkâm: Şerhu Mecelleti’l-Ahkâm, Vol. I, İstanbul, 2016, p. 56.
4 Galip Şahin, no. 2015/6075, 11 June 2018, § 40; S.M. [Plenary], no. 2016/6038, 20 June 2019, § 41.
5 Constitutional Court, E.2020/35, K.2021/26, 31 March 2021, § 45.
6 Constitutional Court, E.2020/35, K.2021/26, 31 March 2021, § 54.