The Principle of the Irrevocability of Phases
Regarding the phases/stages in criminal procedure, investigation and the main trial stages come to mind. Although it is not directly mentioned in the current Code of Criminal Procedure (with code no. 5271), there is an intermediate trial phase. This phase, which allows the return of the indictment w...
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Istanbul University Press
2024-12-01
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| Series: | İstanbul Hukuk Mecmuası |
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| Online Access: | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/C1B2A2AE31BB4940BC651AEABAB8B314 |
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| author | Ercan Yaşar |
| author_facet | Ercan Yaşar |
| author_sort | Ercan Yaşar |
| collection | DOAJ |
| description | Regarding the phases/stages in criminal procedure, investigation and the main trial stages come to mind. Although it is not directly mentioned in the current Code of Criminal Procedure (with code no. 5271), there is an intermediate trial phase. This phase, which allows the return of the indictment with a limited period of time, is not important for our study because it is still considered as the investigation phase in terms of our current law. Because when the irrevocability of the stages is mentioned, what is meant exclusively is the irreversibility from the main trial phase to the investigation phase. Since the intermediate trial phase is also counted as the investigation phase, we can indirectly say that it is not possible to return to the intermediate trial phase from the main trial phase. Since the legislator does not qualify a separate phase, although there is no obstacle in terms of the principle of irrevocability from phases, it is not clear whether the prosecutor can withdraw the indictment independently of the court during the intermediate trial phase; to put it more accurately, it does not seem possible since it is not foreseen in the legislation. Indeed, with the start of the main trial phase, the phase in which the prosecutor effectively acts, comes to an end, and the task of executing and managing the process passes to the court. However, in some cases, the lack of judgement conditions or the emergence of obstacles to judgement may require returning to the investigation phase or making a decision to stop and correcting the relevant deficiencies by out-of-court authorities. For this reason, in some country practises, it is possible to return to the investigation phase during and/or after the main hearing period. Because we do not have a regulation that allows this issue, in our opinion, irreparable results emerge in the main trial phase. Likewise, the recent annulment decision of the Constitutional Court regarding the accelerated proceeding also necessitates a return to the investigation phase. We have discussed this study in order to propose changes in our legislation by trying to explain within the framework of comparative law that it should be possible to return to the investigation phase in order to eliminate the injustices (problems in the context of a fair trial) that may arise in these and similar cases. |
| format | Article |
| id | doaj-art-e1a53f7825c14209803c19c32c5de080 |
| institution | OA Journals |
| issn | 2667-6974 |
| language | English |
| publishDate | 2024-12-01 |
| publisher | Istanbul University Press |
| record_format | Article |
| series | İstanbul Hukuk Mecmuası |
| spelling | doaj-art-e1a53f7825c14209803c19c32c5de0802025-08-20T02:15:32ZengIstanbul University Pressİstanbul Hukuk Mecmuası2667-69742024-12-018241271128710.26650/mecmua.2024.82.4.0008123456The Principle of the Irrevocability of PhasesErcan Yaşar0https://orcid.org/0000-0001-9076-6795Erzincan Binali Yıldırım Üniversitesi, Erzincan, TurkiyeRegarding the phases/stages in criminal procedure, investigation and the main trial stages come to mind. Although it is not directly mentioned in the current Code of Criminal Procedure (with code no. 5271), there is an intermediate trial phase. This phase, which allows the return of the indictment with a limited period of time, is not important for our study because it is still considered as the investigation phase in terms of our current law. Because when the irrevocability of the stages is mentioned, what is meant exclusively is the irreversibility from the main trial phase to the investigation phase. Since the intermediate trial phase is also counted as the investigation phase, we can indirectly say that it is not possible to return to the intermediate trial phase from the main trial phase. Since the legislator does not qualify a separate phase, although there is no obstacle in terms of the principle of irrevocability from phases, it is not clear whether the prosecutor can withdraw the indictment independently of the court during the intermediate trial phase; to put it more accurately, it does not seem possible since it is not foreseen in the legislation. Indeed, with the start of the main trial phase, the phase in which the prosecutor effectively acts, comes to an end, and the task of executing and managing the process passes to the court. However, in some cases, the lack of judgement conditions or the emergence of obstacles to judgement may require returning to the investigation phase or making a decision to stop and correcting the relevant deficiencies by out-of-court authorities. For this reason, in some country practises, it is possible to return to the investigation phase during and/or after the main hearing period. Because we do not have a regulation that allows this issue, in our opinion, irreparable results emerge in the main trial phase. Likewise, the recent annulment decision of the Constitutional Court regarding the accelerated proceeding also necessitates a return to the investigation phase. We have discussed this study in order to propose changes in our legislation by trying to explain within the framework of comparative law that it should be possible to return to the investigation phase in order to eliminate the injustices (problems in the context of a fair trial) that may arise in these and similar cases.https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/C1B2A2AE31BB4940BC651AEABAB8B314irrevocability of phasesirreversibility of stagesstages irrevocabilityirrevocability between stagesimmutability principle |
| spellingShingle | Ercan Yaşar The Principle of the Irrevocability of Phases İstanbul Hukuk Mecmuası irrevocability of phases irreversibility of stages stages irrevocability irrevocability between stages immutability principle |
| title | The Principle of the Irrevocability of Phases |
| title_full | The Principle of the Irrevocability of Phases |
| title_fullStr | The Principle of the Irrevocability of Phases |
| title_full_unstemmed | The Principle of the Irrevocability of Phases |
| title_short | The Principle of the Irrevocability of Phases |
| title_sort | principle of the irrevocability of phases |
| topic | irrevocability of phases irreversibility of stages stages irrevocability irrevocability between stages immutability principle |
| url | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/C1B2A2AE31BB4940BC651AEABAB8B314 |
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