LEXIST

Decision Violation of the Principle of Equality of Arms Constitutional Court – 2020/34667

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The Constitutional Court’s decision, numbered 2020/34667 and published in the Official Gazette on 3rd October 2023, ruled that the “unequal treatment in favour of the law enforcement report when evaluating evidence, even if the authenticity of the prepared report can be disputed, and the failure of the Court to consider the claims and objections raised by the applicant to prove otherwise, resulted in a violation of the principle of ‘equality of arms’ within the scope of the right to a fair trial.”

I. Judicial Process and Subject of Application

The applicant was fined TL3,804 and had his driver’s license confiscated for two years by the Ankara Traffic Inspection Branch Directorate for refusing to use the device that determines blood alcohol level during Breathalyzer tests.

The applicant appealed the administrative fine at the Ankara 8th Peace Criminal Court (“Court”). In the objection petition, the applicant stated that during the traffic inspection, when his vehicle was stopped, the traffic officers asked him to blow into the alcohol measurement device, and despite blowing into the device three times, it could not measure, indicating a possible malfunction. He also claimed that he was not intoxicated, but despite informing the officials, an administrative fine was imposed on him.

On May 15, 2020, the Court rejected the objection. The Court stated that the applicant’s allegations in the objection petition were not well-founded, that insufficient valid evidence was presented against the determination in the Traffic Administrative Fine Decision Report valid until proven otherwise, the Administrative Fine Decision Report, and the Driver’s License Retrieval Report were lawful, and the documents submitted with the petition did not prove the reversal of the traffic rule violation, and that the Traffic Administrative Fine Decision Report was an official document.

II. Evaluation

The applicant claimed that the Court decided without examining the evidence, except for the law enforcement report as absolutely correct based on the case file, and reversing the burden of proof, which undermines the rule of law. According to the applicant, the Court’s adherence to the law enforcement report and the reversal of the burden of proof in this way violated the principles of the rule of law. The applicant argued that accepting otherwise would violate the principle of equality of arms, complaining that documents and camera recordings that would contradict the police report were not considered by the Court. The application was examined within the scope of the principle of equality of arms in light of the presumption of innocence. It is clear that the principle of equality of arms, which is not unfounded and does not have any other reasons for unacceptability, was violated.

The Constitutional Court addressed the principle of equality related to the practice of giving superiority to the law enforcement report to an extent that cannot be contradicted when evaluating evidence in its decision Gurbet Çoban (B. No: 2019/38857, 17/11/2021, §§ 17-39). Accordingly, the Court is expected to take into account the applicant’s claims and objections, to address them with relevant and sufficient reasoning, and to demonstrate that it has given the applicant sufficient opportunity in these claims. Although it is a known legal principle that the content of documents prepared by administrative authorities, including reports prepared by law enforcement officers, benefit from the presumption of legality and conformity to the truth, in a trial where the legality of the administrative act or the content of the report is disputed, the judge’s application of this presumption would render the trial meaningless. While the legality of administrative acts and, in this context, the reports prepared by public agents benefit from the presumption of conformity to law or truth, in a trial where the legality of the administrative act or the content of the report is disputed, the judge’s application of this presumption would render the trial meaningless. Relying solely on the content of documents prepared by the administration as decisive for the outcome of the trial can violate the principle of equality of arms, putting the individual at a disadvantage against the state. This situation can also undermine the principle of equality of arms and, in cases involving criminal charges, violate the presumption of innocence. The violation of the principle of equality of arms, within the scope of the right to a fair trial guaranteed by Article 36 of the Constitution, should be concluded.

The act of the applicant refusing to use the alcohol measurement device was substantiated based on the report prepared by law enforcement officers. While rejecting the objection, the Court emphasized the lack of sufficient and valid evidence contrary to the valid Traffic Administrative Fine Decision Report until proven otherwise. The applicant, on the other hand, presented various allegations that contradicted the authenticity of this report, raising doubts about its reliability. However, without evaluating these allegations, the Court concluded that the applicant could not present evidence to contradict the report. This assessment by the Court reverses the burden of proof. Certainly, the right to a fair trial does not completely prohibit courts from relying on factual and legal presumptions even in trials related to criminal charges. However, in a trial related to a criminal charge, for the presumption not to violate the right to a fair trial, it is necessary for the presumption not to automatically declare the person guilty, for the presumption to be capable of being contradicted, and for the statements and evidence presented by the applicant with the aim of contradicting the presumption to be carefully considered by the court (Gurbet Çoban, § 47).

The arguments presented by the applicant are not irrelevant to the case. In this regard, it should be emphasized that the Court did not make an evaluation regarding the applicant’s claim that, despite the attempt to measure alcohol with the alcohol measurement device, it did not measure, indicating a possible malfunction. Additionally, considering that the alcohol measurement at the hospital 36 minutes after the incident revealed that the applicant was not intoxicated, it was concluded that the applicant’s claims were of a nature that could cast doubt on the content and credibility of the report. In these circumstances, it is considered that the Court’s failure to take steps to dispel the doubts arising from the conditions of the incident, such as listening to the witnesses of the report and any other witnesses, evaluating camera recordings if available, and researching the integrity and calibration of the alcohol measurement device, would be highly effective. The Court did not take such a step in this direction.

III. Result

Although the presumption of the validity of the law enforcement report can be contradicted, the failure of the Court to even consider the claims and objections raised by the applicant to prove otherwise resulted in a situation where, in terms of the application method in the concrete case, the presumption automatically deemed the applicant guilty. Even if the applicant was given the opportunity to defend himself, the Court’s approach that favoured the law enforcement report made the applicant’s defence meaningless and disadvantaged the applicant against the public authority. In this case, where the objection of the applicant was rejected based on the presumption of the validity of the law enforcement report, without even examining the applicant’s defence, it is concluded that there has been a violation of the principle of equality of arms within the scope of the right to a fair trial guaranteed by Article 36 of the Constitution. In light of the reasons stated, it should be decided that the principle of equality of arms within the scope of the right to a fair trial guaranteed by Article 36 of the Constitution has been violated.

Click the link below for the court’s full judgment:

https://kararlarbilgibankasi.anayasa.gov.tr/BB/2020/34667

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