Press Release No: Individual Application 40/16
09.11.2016

PRESS RELEASE CONCERNING JUDGMENT OF HÜSEYİN GÜNEŞ ÖZMEN FINDING NO VIOLATION OF THE RIGHT TO A FAIR TRIAL

On 22/09/2016 the Second Section of the Constitutional Court held with regard to the individual application of Hüseyin Güneş ÖZMEN (App. No: 2014/1514) that there was no breach of the applicant’s right to a fair trial guaranteed in Article 36 of the Constitution.

The Facts

In the incident giving rise to the present individual application, the İstanbul Chief Public Prosecutor’s Office issued a bill of indictment against the applicant for the offence of premeditated murder with the allegation that on 7/3/2008, he had murdered his wife living apart from him. In this respect, the 4th Chamber of the İstanbul Assize Court (“the court”) heard several witnesses including the deceased’s parents with a view to clarifying the problems between the applicant and the deceased as well as her family and the time when the murder had taken place. 

The applicant maintained that although the deceased had been officially married with him, she had been in a forbidden relation with another man; that when he had talked with the deceased on this matter on the incident day, the deceased had said it had been her own private life, she would make life miserable for him and would not also allow him to see their joint child. He accordingly asserted that he had murdered her in anger occurring all of a sudden.

By its decision of 23/5/2012, the court sentenced the applicant to life imprisonment for premeditated murder. The court based its decision on the reports included in the case-file and the witnesses’ statements concerning the manner in which the incident took place and the problems taking place between the applicant and the deceased. It is specified in this decision that there were disputes between the applicant and the deceased as well as her family including the joint child’s care, which had been brought before the judicial authorities; that actions were taken in respect of the applicant; and that the applicant waited at the faculty of medicine where the deceased studied on the day of incident and murdered her following her leaving the class by means of shooting her with bullets included in two separate chargers.   

Any deduction was not made in respect of the applicant on the basis of unjust provocation. In its reasoning thereof, the court noted that the applicant aimed at changing the amount of sentence to be imposed on him by maintaining in his defence that the deceased had been in a relation with another man; that there was no convincing and plausible evidence available in respect thereof; and that any of the witnesses who had been heard did not mention of such a relationship. It was also indicated that the words alleged to be uttered by the deceased were not substantiated by any means other than the applicant’s abstract claims; and that given the applicant’s personality and his impressions given during the hearings, the deceased’s uttering such words towards the applicant did not seem convincing.

The 1st Penal Chamber of the Court of Cassation upheld the first instance decision by its judgment of 13/11/2013 following its appellate review made with a hearing in which the applicant’s defence counsel was also present.

The Applicants’ Allegations

The applicant asserted that he had committed the murder under provocation; and that he had made certain requests from the court such as examination of witness, review of phone conversation records and carrying out an autopsy; however, his request had been rejected.  He accordingly alleged that there had been a breach of his right to trial through legitimate means and procedures within the scope of the right to a fair trial.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this application:

For a fair trial, the trial authorities are to duly examine the allegations maintained by and the evidence submitted by the parties of the trial. In this respect, it is, in principle, of the inferior courts’ authority to assess the available evidence with respect to a specific case and to decide whether the evidence produced pertains to this case or not.

It does not fall within the scope of the Constitutional Court’s duty to review whether the methods of producing and assessing evidence throughout a trial are appropriate. The Constitutional Court’s duty is to assess whether the impugned trial is fair or not as a whole. For conducting a fair trial in general terms, it is requisite in the light of the principles of equality of arms and adversarial proceedings that the parties be provided with appropriate facilities for asserting their allegations. The parties must also be enabled to produce and examine their evidence including the witness’ testimony. In this respect, the allegations of inequality or unfairness of the evidence must also be assessed in the light of the whole proceedings.

One of the allegations examined in respect of the applicant within the scope of the practice of unjust provocation is the words alleged to be uttered by the deceased at the time of incident. The applicant did not make a request for research of the words alleged by him to be uttered by his wife. The court assessed that it was an abstract claim and was not plausible given the particular circumstances of the present incident. The other allegation that the deceased had been in a relation with another man in the course of the divorce process was not taken as a basis for unjust provocation as the applicant had failed to submit evidence in respect thereof and the witnesses heard had not mentioned of such an issue. Consequently, it has been observed that the applicant’s requests were rejected on reasonable grounds.    

The Constitutional Court has consequently held that there was no breach of the applicant’s right to a fair trial guaranteed in Article 36 of the Constitution.

 

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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