Table of Content

• Comments
  • Purpose
    1. Article 353 intends to balance the right of the defendant (not) to participate in the trial due to other justice interests, such as the organization of a fair legal process, the principle of contradiction or the progress (read: the non-hampering) of the trial.
  • Scope
    2. Article 353 authorizes the court to order the forced accompaniment of the defendant, who failed to appear or has renounced from participation to facilitate the collection of evidence, except for his questioning.
  • Comments
    3. The court may order the forced accompaniment of the defendant. The forced accompaniment of the defendant, who failed to appear or renounced from participation, may be ordered when the court deems that his presence is indispensable for taking the evidence. This may occur when the court deems that the realization, for example, of the recognition procedures, according to articles 171-172/a of the Criminal Procedure Code, the realization of an experiment according to the provisions of articles 176, 177 of the Criminal Procedure Code, etc., are indispensable.

     

    4. The questioning of a defendant does not constitute a reason for his forced accompaniment. According to the amendments of the Criminal Procedure Code on the adjudication in absentia,[1] the defendant, who fails to appear, has either waived from the participation on a trial or is evading justice or cannot be found. In case he waives, the failure to accompany him to be questioned respects exactly his free will not to participate in the trial.  In the case when the defendant evades justice, he loses his right to be heard according to article 33, paragraph 2 of the Constitution. Meanwhile the person who cannot be found, will go through the procedures of articles 350-352 of the Criminal Procedure Code.[2] If his location is known, accordingly, the adjudication shall be delayed or suspended (article 350 of the Criminal Procedure Code), he will be accompanied forcefully to the courtroom or he will withdraw from the trial (article 351 of the Criminal Procedure Code) or he will state that he is absconding justice, so he is in absentia (article 352 of the Criminal Procedure Code).   In case there is information on the location and his situation is regulated through article 351 of the Criminal Procedure Code or 352 of the Criminal Procedure Code, then article 353 is implemented, too.

     

    [1] See commentary on article 350 Criminal Procedure Code, 351 Criminal Procedure Code and 353 Criminal Procedure Code [hyperlink].

    [2] Seethe relevant comments.

  • Historic context
    5. Article 200 of Law No. 35/2017, initially, provided for some amendments in article 353 of the Criminal Procedure Code. According to these amendments, article 353 of the Criminal Procedure Code provided for that “The court may order the forced accompaniment of the defendant or of the person subject to the request for trial from the accusing victim, when he has failed to appear or has renounced from participation, according to article 352 of this Code, in case his presence is indispensable for taking the evidence but not for his questioning”. Through the correction of the material errors, published in the official gazette, [1] article 353 of the Criminal Procedure Code goes back to the condition it used to be prior to the amendments in the Criminal Procedure Code with Law No. 35/2017.[2] This correction is fair because the failure to appear and waiving from the participation in the trial are provided for mainly in article 351 of the Criminal Procedure Code (amended). Additionally, the amended text of article 353 would narrow the scope of this article artificially.

     

    [1] Year:  2017 - Number:  151.

    [2] It should be highlighted here that article 284 of Law No. 35/2017 stipulates that the words “injured person” and the “accusing injured person”, used in the Criminal Procedure Code are replaced with the words “victim” and “accusing victim”, respectively. 

  • International acts
    No Comment
• International standards/International references/Best examples
  6. ECHR has kept a consistent position regarding the acceptance and the evaluation of the evidence. According to this position, article 6 ECtHR does not provide for any rules regarding the acceptance of the evidence. This is a case that has to be regulated by the domestic legislation and practice (Schenk).[1] Consequently, the ECHR cannot decide if specific evidence can be accepted. The question the ECHR will answer is if the process in its entirety was correct, including the way how the evidence was taken, too (Khan).[2] In this viewpoint, the question is if the forced accompaniment of the defendant, who has failed to appear or has renounced from participation, violates the principles of a regular legal process. Based on article 353 of the Criminal Procedure Code and the other articles related with it, the evidence that has been taken, as well as its admissibility, are not subject to the review of the ECHR.

   

  7. ECHR has not made a direct statement regarding article 6 of the ECtHR on the forced accompaniment of the defendant who has failed to appear or has renounced from participation for taking the evidence. However, according to the case law of the ECHR, on general topics, such as the principle of contradiction and the doctrine on waiving from a right, we may conclude that article 353 of the Criminal Procedure Code does not create problems regarding the guarantees of the regular legal process. According to the ECHR, the principle of contradiction in the criminal matters means that both the defendant and the prosecutor shall have the possibility to be introduced to and to comment on the evidence of the other party. Also, both parties shall have the possibility to provide that evidence they deem as useful for the support of their arguments and comments (this is also considered as a part of the equality of arms) (Brandstetter).[3] Furthermore, waiving from a right, including even the right to be present in a trial, cannot go against an important public interest (Hermi).[4] The progress of the trial, in the sense of not hampering or delaying it, constitutes undoubtedly one of the most important public interests.  Moreover, the prosecutor, as well as the defendant, has the right to present his evidence in the trial.  In this viewpoint, the forced accompaniment of the defendant, who has failed to appear or has renounced from participation, does not violate the principles of a regular legal process. This conclusion is strengthened through the fact that according to article 353 of the Criminal Procedure Code, the accompanied defendant cannot be questioned, thus, respecting the essence of waiving from the right to be present in the trial. 

   

  [1] Schenk against Austria, 12.07.1988, Application number 10862/84,paragr. 46.

  [2] Khan against United Kingdom, 12.05.2000, Application number 35394/97, paragr. 34.

  [3] Brandstetter against Austria, 28.08.1991, Application number 11170/84, parag. 66-67.

  [4] Hermi agaisnt Austria, 18.10.2006, Application number 18114/02,paragr. 73.

• Legislative material
  No Comment
• Related articles

  Constitution: Article 33 

  Criminal Procedure Code: Articles 171, 172, 172/a, 176, 177, 350, 351, 352.

• Sublegal acts
  No Comment
• Decisions

  Decisions of the European Court of Human Rights 

  Brandstetter against Austria, 28.08.1991, Application number 11170/84;

  Hermi against Austria, 18.10.2006, Application number 18114/02;

  Khan against United Kingdom, 12.05.2000, Application number 35394/97;

  Schenk against Switzerland, 12.07.1988, Application number 10862/84

• Literature
  No Comment
• Archive
  No Comment