Delayed justice

The concept that "delayed justice is not justice," while accepted by everyone, is rarely acted upon and has been swept under the rug until today. "Delayed justice indicates that the foundations of the justice system have deteriorated. This deterioration stems from its operations and structure. To say justice is delayed is to say there is no justice. This trend leads to judicial decay and corruption. This problem constantly leads to the violation of the right to a fair trial.

The delay of justice also shows that other organs of the state are not functioning. Because the state is a whole. All elements that make up the institution of justice are unable to perform their functions. This situation also destroys trust in justice. As trust in justice decreases, crime rates increase. 

A citizen who cannot obtain their rights through the judiciary turns to the mafia. Or they obtain their rights through bullying actions that are considered crimes. Delayed justice is not just a hollow phrase. It means the justice system is not working. This has a serious impact on social decay and social corruption. Social corruption delays justice. And delayed justice increases social corruption and social pollution. Before producing rhetoric on this subject, it is necessary to determine the scope, dimensions, and causes of the problem in all its details. Unfortunately, there is no proper study in this context.

A reinstatement lawsuit could not be concluded in four years. If this dismissal lawsuit is also filed due to an act considered a crime, the worker cannot find a job either. In fact, delayed justice also ruins an individual's life. The employer fires the worker under the old Article 25 of the Labor Law. The court cannot make a decision in 4 years. The laborer waits for the end of the case for years while carrying the stigma of guilt. This means persecution by the hand of justice. In my opinion, indifference and carelessness on this issue is the greatest act of treason against the homeland. Because the foundation of the state is right and justice.

When the number of disputes filed and concluded in the mandatory mediation practice across Turkey in 2021 is examined, disputes arising from the employee-employer relationship rank first in the filed files with a rate of 91.1%, and disputes involving reinstatement requests rank second with a rate of 6.8%. In the concluded files, disputes arising from the employee-employer relationship rank first with a rate of 91.0%, and disputes involving reinstatement requests rank second with a rate of 6.8%. You can imagine the damage caused by the delay. The scale of persecution by the judiciary is immense. 

The number of suspects in investigations opened in Chief Public Prosecutor's Offices between 2014 and 2021 is gradually increasing. The number of suspects per 100,000 people across Turkey reached 8,917 in 2021, an increase of 16.2% compared to 2014 and 13.1% compared to 2020. (Ministry of Justice statistics)

The number of children dragged into crime is increasing year by year.

When the number of children dragged into crime in the total files received in criminal courts in 2021 is examined on a provincial basis, it is seen that the number of children dragged into crime is highest in Istanbul with a rate of 16.5%, followed by Izmir with 6.8% and Ankara with 5.7%. (Ministry of Justice statistics)

It is observed that 47.2% of children driven to crime in cases opened and remanded during 2014 were tried in juvenile and juvenile heavy penal courts, that this figure followed a fluctuating course in subsequent years, and reached 49.9% by 2021. The rate of children driven to crime tried in criminal courts of first instance was 41.1% in 2014, while this rate was 40.8% in 2021. (Ministry of Justice statistics)

When examining the status of files regarding applications and complaints made by convicts and detainees to execution judges between 2014 and 2021, it is seen that 156,622 files were received in 2014, and this number reached 834,369 in 2021. It was observed that the number of incoming files in 2021 increased by 150.6% compared to 2020. It is assessed that the reason for this increase is the Law on Amendments to the Law on the Execution of Penal and Security Measures and Certain Other Laws Looking at the number of files carried over from the previous year, it is seen that it reached its highest value in 2021 with 8,066 files. (Ministry of Justice statistics)

As justice is delayed, criminality increases. As criminality increases, social degeneration also increases.

A- THE RIGHT TO A TRIAL WITHIN A REASONABLE TIME 

While some of the rights and principles regarding the concept of a fair trial are explicitly stated in Article 6 of the European Convention on Human Rights (ECHR), titled 'Right to a fair trial,' others have been developed through the interpretations of the ECHR (2)The right to be tried within a reasonable time is one of the fundamental rights explicitly mentioned in the first paragraph of the article, which constitutes the right to a fair trial. According to the regulation, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which will decide on the merits of their case regarding disputes over civil rights and obligations or any criminal charges brought against them. - İsmail ŞAHİN -

CONCLUSION

The fundamental rule regarding the right to a fair trial in our legal system is enshrined in Article 36 of our Constitution: “Everyone has the right to a fair trial, including the right to claim and defend themselves as a plaintiff or defendant before judicial authorities by utilizing legitimate means and methods.”

The right to be tried within a reasonable time, which is an element of the right to a fair trial, is explicitly regulated in the fourth paragraph of Article 141 of our Constitution as follows: “It is the duty of the judiciary to conclude cases with the least expense and as quickly as possible.” it is clearly regulated in this manner. 

Appellate and cassation reviews must also be concluded within a reasonable time. Provisions allowing regional courts of justice to correct legal errors in first-instance court decisions and reject appeals on their merits, as well as provisions allowing the Court of Cassation to resolve legal errors without issuing a reversal decision, are intended to prevent trials from being unnecessarily prolonged. Similar provisions are also included in Articles 352 and 370 of the Code of Civil Procedure for civil and administrative cases, and in Article 49 of the Administrative Procedure Law No. 2577. 

Beyond the aforementioned regulations, it is understood that the Court of Cassation(3) and the Council of State(4)also aimed to protect the right to a trial within a reasonable time through their jurisprudence. 

These provisions regarding the guarantee of the right to be tried within a reasonable time aim to ensure that individuals can access their rights as soon as possible and to prevent the material and moral losses that long trials would cause. In this respect, in reasonable time assessments, it is not considered whether the applicant is right in the main case; in other words, the outcome of the case is not given importance. Just as there is no difference between the acquittal or conviction of a defendant in a criminal case, the dismissal of a case due to the statute of limitations will not eliminate the violation of the right to be tried within a reasonable time.

As can be seen, the fact that a case cannot be concluded in eight years means that the phenomenon of delayed justice has occurred. However, this process is a very long period. In our country, the Constitutional Court accepts this duration. Although, if the file has been neglected or if it stems from the faulty delay of the judicial authority, and if this is clear beyond any doubt, the phenomenon of delayed justice is considered to have occurred even if it is two years.

There is no need to twist the facts. Whether in Turkey or anywhere else in the world, it makes no difference. Cases are concluded late. The measure of reasonable time is interpreted broadly.

First and foremost, judges and courts must specialize. Court specialization alone is certainly not enough. The judges who will bring vitality to the court and produce judicial decisions must also be specialized. In matters requiring serious expertise, files often come before judges that cause them to lose significant time in grasping, understanding, and examining them. Sadly, it is also observed that some members of the judiciary do not take the sense of justice into account. Issuing non-prosecution decisions without reading the files, and the fact that these reach significant numbers, is a very great danger.

Once trust in justice is shaken, it spreads very rapidly. It breeds distrust in the state and those who govern the state. The deterioration of the trust relationship between citizens and the state has caused major problems to arise in that country.

You can write the most beautiful principles. However, if there are no institutions to implement these principles, the principles themselves have no meaning. 

The judiciary must be freed from the pressures of politics. If the judiciary is not independent, justice cannot be realized. Favoritism, bribery, and all kinds of ugly gossip make courthouses unlivable. Unfortunately, until today, politicians have established the necessary principles in laws; however, they have not taken any measures regarding issues such as the rapid functioning of the judiciary or the independence of the judiciary.

The judiciary must be governed by legal science. It must be governed by a sense of rights and justice. Most importantly, the judiciary must become institutionalized. Otherwise, we cannot prevent the social decay that begins with the corruption of the judiciary. It would be a pity for all of us. There is not enough sensitivity on this issue. The value of lawyers and law school professors who have this sensitivity is also not sufficiently recognized. Because when someone sits in a seat, a patient with a sense of grandeur imagines themselves to be a doctor, a judge, and an engineer all at once. It is evident from all historical examples that the megalomania is the most dangerous form of madness and leads individuals and societies to disaster.

Sources:

İnceoğlu, p. 280. 

 Turan, Hüseyin (2012) “The Right to a Fair Trial within a Reasonable Time in the Case Law of the European Court of Human Rights” Journal of the Justice Academy of Turkey, Year: 3, Issue: 11, p. 61. 

İnceoğlu, The Right to a Fair Trial and Judicial Ethics, p. 118. 

Abdullah Seyrek Application, Constitutional Court (AYM), Application No: 2014/7206, Date of Decision: 26.10.2017. “...Regarding the application 

İnceoğlu, Sibel (2007) The Right to a Fair Trial and Judicial Ethics, 1st Edition, Ankara, Şen Matbaa, p. 113. 

Güher Ergün and Others Application, Constitutional Court (AYM), Application No: 2012/13, Date of Decision: 02.07.2013. <https://kararlarbilgibankasi.anayasa.gov.tr/> accessed 05.03.2018. 

İnceoğlu, Sibel (2007) The Right to a Fair Trial and Judicial Ethics, 1st Edition, Ankara, Şen Matbaa, p. 113. 

Güher Ergün and Others Application, Constitutional Court (AYM), Application No: 2012/13, Date of Decision: 02.07.2013. <https://kararlarbilgibankasi.anayasa.gov.tr/> p. 5. 05.03.2018. 

İnceoğlu, Sibel (Editor) (2013) European Convention on Human Rights and the Constitution (Constitutional Court- 

An Examination within the Scope of Individual Application), 1st Edition, Ankara, Şen Matbaa, p. 209. 

İnceoğlu, Sibel (Editor) (2013) European Convention on Human Rights and the Constitution (An Examination within the Scope of Individual Application to the Constitutional Court), 1st Edition, Ankara, Şen Matbaa, p. 209. 

İnceoğlu, Sibel (Editor) (2013) European Convention on Human Rights and the Constitution (Constitutional Court- 

İsmail ŞAHİN YBHD 2019/1 

İsmail ŞAHİN YBHD 2019/1