5271 Sayılı Ceza Muhakemesi Kanununda Hâkimin Yasaklılığı Reddi ve Çekinmesi

Abstract

The impartiality of a judge is not only a quality of judges, but is also one of the fundamental rights of the accused accepted in criminal proceedings. Therefore, one of the opportunities given to the accused in exercising his right to an independent and impartial trial, which is the basic element of a fair trial, is to be able to demand the rejection of a judge. The judge cannot be forced to take a case in the presence of certain circumstances. Therefore, the judge's recusal of himself was also accepted. In this study, the assurances of the impartiality of the judge organized in law 5271 were tried to be evaluated. In line with the regulations of the German Criminal Procedure, it was accepted that according to the regulations made in the CMK, the judge would not be impartial in the case in the presence of certain circumstances. In the presence of these cases the judge is forbidden to look at the case. Despite this prohibition, the judge's handling of the case was clearly considered unlawful and it was regulated that the decision should be reversed. It also allows the legislator to refuse the judge if there is any doubt that the judge cannot act impartially during the trial. There is no need to prove with absolute evidence that the judge cannot be impartial. The authority to be examined will evaluate this with conscientious conviction. The judge is obliged to supervise himself in cases where he is prohibited from handling the case. In the presence of such a situation, he must ex officio avoid the case. It is also possible for the judge to request that he / she hesitate if there are situations in which he thinks he cannot be impartial. Judge's withdrawal request is examined and decided by the competent authority. In this study, it is tried to evaluate judges' prohibition conditions one by one. Again, the rules of procedure for the refusal and the refusal of the judge have been assessed by past regulations. An attempt was made to evaluate the judgments of the ECtHR and the comparative law on the subject, and criticisms and suggestions regarding the regulations in the CMK numbered 5271 were presented.