IV.ULUSLARARASI NECMETTİN ERBAKAN ÜNİVERSİTESİ HUKUK KONGRESİ
Yayıncı:
Necmettin Erbakan Üniversitesi Yayınları
As an essential constituent of right to fair trial, the publicity principle is important and goes for all jurisdictions. As a matter of fact, the publicity principle provides individuals to put faith in judiciary system by supplying transparency on official judiciary proceedings. With this aspect, it can be stated as a tool of public audition on jurisdications. Relying on the importance of publicity principle’s aim and function, it has been directly regulated as a constituent of right to fair trial in European Convention on Human Rights Art. 6 and Turkish Constitution Art. 141. Undoubtedly, the principle of publicity, which is also valid in civil proceedings, is clearly regulated in Art. 28 of Turkish Civil Procedure Law. However, within the context of exceptions of publicity principle, this regulation was envisaged with some specific situations, but it enacted with just “public morality” and “public safety” considering Turkish Constitution Art. 141. Neverthelater in the context of publicity principle, when it comes to needing to get confidentiality order to protect some specific fundamental rights, violations of those rights has came up sight due to can’t get confidentiality order. İn order to avert this situation, which is also reflect on individual application decisions of Constitutional Court, “… Situations where it is absolutely necessary for a superior interest of the persons involved in the trial that is worth protecting…” statement is added with the Law no. 7251 to the aforesaid article. But after that supplementation, the added statement, is taken to Constitutional Court as an object of action of unconstitutionality and be cancelled within the decision E. 2020/73, K. 2023/181 dated 26.10.2023. Apart the criticism in doctrine upon the legalization process and after legislation of the Art. 28, as it stated by in and on itself Constitutional Court’s individual application decisions, it is axiomatic that the exception situations of publicity principle is regulated cramped against the level of individual rights of freedom which took place in modern law systems. Furthermore, even the Constitutional Court has decided the correct decision by means of substantive jurisdiction, disregarding of unity of constitution principle which is stated per se Constitutional Court’s decisions and made by itself,caused the neediness to evaluate the publicity principle and existing state within the frame of aforementioned decision. In this context, in this study, the principle of publicity will be discussed both in general and in the context of civil justice, and then the aforementioned Constitutional Court Decision will be evaluated.