Equality of Arms and the Principle of Adversarial Proceedings: Rights Violations and Routes of Application

Equality of arms (silahların eşitliği) guarantees that a person can present their claims and defense without being placed at a substantial disadvantage vis-à-vis the other party. The principle of adversarial proceedings (çelişmeli yargılama) guarantees that the person can learn of the information, documents and opinions that may influence the court's decision and make submissions on them. Being able to file a petition in a case is not, on its own, sufficient. A person who cannot examine a decisive report in the file, cannot cross-examine an important witness, or whose request for a record they cannot obtain themselves is rejected without reasons, may not have been able to take effective part in the proceedings. [1, Art. 36; 2, Art. 6; 8, §§ 26–28]

These guarantees matter in civil and administrative proceedings as well as in criminal cases. However, every rejection of a request for evidence, every deficiency in service or every lost case is not a violation of rights. In the assessment, the nature of the dispute, the importance of the document, the means available to the party, the reasoning of the court and whether the deficiency was remedied at later stages are considered together. This article explains these distinctions by reference to current procedural provisions and real decisions of the Constitutional Court (AYM) and the ECtHR. [9, §§ 68–72; 11, §§ 18–25; 12, §§ 35–39]

The difference between equality of arms and adversarial proceedings

What does procedural balance mean?

Equality of arms is not a mathematical equality, such as both parties filing the same number of petitions or hearing the same number of witnesses. What matters is that each party can present its claims on reasonable terms in the dispute. The powers of the public prosecutor in an investigation and those of the defense need not be identical; nevertheless, the defense must be enabled to respond effectively to the accusation. Cumhur Şahin, in academic writing, also stresses the balance between claims and defense across the whole of the proceedings rather than the number of procedural steps. [23, pp. 3051–3053]

In the ECtHR's decision in Dombo Beheer B.V. v. the Netherlands, the court allowed the representative of one of the two persons who attended the meeting in dispute, acting for the bank, to be heard as a witness, while the representative of the applicant company was not heard. The Court found a violation, determining that the company had been seriously placed at a disadvantage in the concrete dispute. The decision does not require that every representative must be heard as a witness in every case; it requires an assessment of whether the means of proof were balanced in the concrete case. [15, §§ 30–35]

Why is adversarial proceedings a separate guarantee?

Adversarial proceedings are not limited to what the other party has submitted. If a document, expert report or opinion of another authority collected by the court on its own initiative may affect the judgment, it may need to be brought to the party's attention and be open to discussion. The presence of a document in the file and the person's timely and usable access to that document are not the same thing. [16, §§ 24–32]

In the decision in Nideröst-Huber v. Switzerland, the opinion sent by the lower court to the higher court was not communicated to any party. For this reason, the absence of relative inequality between the parties did not remove the problem of adversarial proceedings. The ECtHR based its approach on whether the parties could decide that the opinion required comment. The defense that "the other side did not see it either" is not sufficient in every case. [16, §§ 23–32]

Legal basis and scope of protection

Article 36 of the Constitution guarantees the right of access to a court and the right to a fair trial. Article 6 of the ECHR covers disputes over civil rights and obligations and the determination of criminal charges. The fact that a dispute is heard in an administrative court does not, by itself, mean that it is outside the scope of protection; the connection of the dispute with the protected right is determined separately. In a criminal investigation, the position of a complainant who only seeks the punishment of another person is not the same as the defense right of the accused. Other fundamental rights and the procedural obligations relating to them may also arise. [1, Art. 36; 2, Art. 6; 7, Arts. 45–46]

In civil proceedings, Article 27 of the Code of Civil Procedure No. 6100 (HMK) regulates the right to be heard through the rights to be informed, to explain and to prove, the consideration of the explanations and the concrete reasoning of decisions. In criminal procedure, access to the file, the right to ask questions, the discussion of evidence and the provisions on additional defense give these guarantees concrete form. The existence of a power of ex officio investigation in administrative litigation does not make the parties' right to explain unnecessary. [3, Arts. 67, 153, 201, 215–217, 226; 4, Art. 27; 5, Arts. 16, 20]

In an individual application to the AYM, it is not sufficient merely to identify a provision of the Constitution. The alleged violation must fall within the common sphere of protection of the Constitution, the ECHR and the additional protocols to which Türkiye is a party. The applicant must show that a current and personal right has been directly affected. Private law legal persons may apply only in respect of rights belonging to legal persons; public legal persons have no right of individual application. [7, Arts. 45–46]

In what circumstances does access to the file and to evidence raise a problem?

The relationship between seeing the file and being able to prepare a defense

The right of access must ensure that the information on which a decision is based can be understood and discussed. In a file containing a large number of technical records, showing only the summary of results may not answer a substantive objection concerning the underlying data. The applicant should explain which record is sought, what claim it would confirm or weaken, and why the documents already available are not sufficient. In this way, the request is distinguished from a demand for an abstract re-examination of the whole file. [8, §§ 26–28; 9, §§ 60–72]

It is important that a document in the file can be accessed through UYAP; however, it must be investigated when the document became accessible, whether the person learned of it, whether there was sufficient time to examine it, and whether their views were later assessed. Technical access and an effective opportunity to object are considered together. Where a judgment is given immediately after a document is submitted, and a time limit was requested for a comprehensive technical objection, this must be examined separately. [11, §§ 18–25; 4, Arts. 27, 281]

Records the person cannot obtain with their own means

In the decision in Halil Akkaya, the applicant asked for bank and communication records connected with a fraud allegation made against them to be examined. The AYM assessed the means provided by the court in respect of evidence the person could not reach alone, and found violations of the principles of equality of arms and adversarial proceedings, on the ground that important requests had been rejected and that records decisive for the defense had not been dealt with as required. [8, §§ 26–28]

The practical importance of this decision is that a piece of evidence should not be identified merely by name. The institution holding the record, the relevant time period, the event to be clarified and the reason why the applicant could not obtain the record themselves should be stated. A document collected by the court that is not discussed in the judgment, and the rejection of a request for a document never obtained, should each be explained separately. [8, §§ 26–28]

In civil cases, Article 221 of the HMK is a concrete procedural tool for obtaining a document held by a third party or an institution. The court may order production of a document it considers necessary for proof of the matter raised. However, not every request for a record is accepted automatically; the relevance of the document to the dispute and the grounds for legal exemption are assessed. [4, Art. 221]

Can a confidentiality order remove the defense altogether?

The restriction on inspecting the file under Article 153 of the CMK is not a general power that may be applied in every investigation. The offenses listed in the law, the condition that the purpose of the investigation would be jeopardized, the request of the prosecutor and the decision of a judge must be assessed. Records containing the statements of an arrested person or suspect, expert reports and records of judicial acts for which the person was entitled to be present are statutory exceptions. After an indictment is accepted, the defense counsel's right of inspection is further extended. [3, Art. 153]

In the decision in Bülent Karataş, the safeguards concerning requests to examine confidential documents in a case about a personnel act were found to be insufficient. The AYM made clear that a confidentiality justification requires concrete assessment and compensating procedures. The decision concerns proceedings before the former AYİM, which no longer exist; it cannot be read as meaning that the same court can be applied to today. [13, §§ 67–83]

On the other hand, in Regner v. the Czech Republic, the Grand Chamber of the ECtHR found, in a civil dispute concerning the withdrawal of a security clearance, that the restriction on access to classified documents, assessed together with the supervisory powers of the courts and the safeguards applied, did not give rise to a violation, by 10 votes to 7. This result does not mean that confidentiality may be given precedence in every case. The context of the decision and the existence of dissenting opinions should not be disregarded. [17, §§ 146–162 and judgment]

Access to the documents needed to discuss the lawfulness of detention is assessed separately under liberty and security of the person. It may be mistaken to tie a complaint about detention and a complaint about the fairness of the whole of the main trial to the same application timetable. [1, Art. 19; 2, Art. 5/4]

Objection to an expert report and to a specialist opinion

Service of the report, time limits and a concrete objection

In civil proceedings, under Article 281 of the HMK, the parties may ask, within two weeks of service of the expert report, for missing matters to be completed, for unclear points to be explained or for a new expert to be appointed. Where preparing the objection is very difficult or impossible, or requires special or technical work, a one-time additional period of at most two weeks may be granted, starting from the end of the period, provided that the application is made within the first two-week period. This additional period does not arise automatically. [4, Art. 281]

In criminal proceedings, by contrast, the two-week period of the HMK does not apply automatically. Under Article 67 of the CMK, a period is set by the competent judicial authority for a new examination or an objection. If the request is rejected, a reasoned judgment must be given. The objection should not merely state that the conclusion of the report is disliked; it should show a deficiency in the data used, a problem of method, an internal contradiction or a technical question that has not been answered. [3, Art. 67/5]

A specialist opinion obtained by a party is also assessed separately. Article 293 of the HMK and Article 67(6) of the CMK do not provide a basis for an additional period on the ground only that a specialist opinion will be obtained. The special provision on opinions prepared by an expert who attends without a valid excuse at a hearing to which they were summoned in civil proceedings must also be taken into account. [3, Art. 67/6; 4, Art. 293]

Can the court exclude a technical objection without reasons?

In the decision in Sencer Başat and Others, the way in which expert assessments and technical objections about digital evidence were dealt with was examined. The AYM found the exclusion of the defense's technical opinions without adequate assessment, and the approach to requests for a new examination, problematic from the standpoint of the fair-trial safeguards. However, the decision does not require that every expert opinion submitted by a party be accepted as correct, or that every request for a new expert be granted. The court must explain why it did not adopt a decisive technical objection. [9, §§ 60–72]

In the decision in Mazlum Dağtekin, the question was whether a letter that was the subject of a disciplinary sanction in a penal institution belonged to the applicant. The AYM found a violation where a dispute requiring technical examination had been resolved by visual assessment without indicating an adequate method. This is not a criminal conviction decision; it concerns a disciplinary sanction reviewed by the execution judge, and is dated March 11, 2026. [10, §§ 17–23]

Cross-examination of witnesses and the right to have defense witnesses heard

Failure to cross-examine a witness against the accused

In criminal proceedings, the opportunity to put questions to a person who makes statements against the accused allows the reliability of the statement to be tested. Article 201 of the CMK regulates the direct questioning of the witness by the lawyer, and questioning by the accused through the judge. Article 210 of the same Law provides that where the evidence of an event consists only of the statements of one witness, the witness must be heard at the hearing, and reading out an earlier record cannot take its place. [3, Arts. 201, 210]

In the ECtHR's decision in Schatschaschwili v. Germany, the examination rests on three connected questions: whether there was a good reason for the witness's absence at the hearing; whether the statement was the sole or decisive basis for the conviction; and whether sufficient counterbalancing safeguards were provided to compensate for the handicap faced by the defense. The Court examines the proceedings as a whole. The fact that the statement is not the only evidence does not make this assessment unnecessary. [19, §§ 100–131]

Where confrontation with the witness is not possible, the efforts made by the court to secure the witness's attendance, the earlier opportunity to question, the independent evidence supporting the statement and the ability of the defense to challenge its reliability are important. The need to protect security or a witness cannot be used as an abstract justification for entirely removing the right of defense. [19, §§ 119–131]

Is it mandatory to hear every defense witness?

The defense must explain what event the witness it wishes to be heard will give information about and how it is connected with the accusation. In the Grand Chamber's decision in Murtazaliyeva v. Russia, the court examined whether the request was sufficiently reasoned and relevant, whether the domestic courts assessed the request with adequate reasons, and the effect of the refusal on the proceedings as a whole. As regards the witnesses concerned, the court found no violation, by 15 votes to 2. The dissenting opinions contain different assessments of the effect of the test on the right of defense. [18, §§ 158–177 and judgment]

For this reason, rather than the statement "none of my witnesses were heard", the witness, the event to be proved, the date of the request, the reason for rejection and the concrete loss to the defense should be shown together. There is a difference between an adequately examined matter on which the defense had only one important witness who was never heard at all. [18, §§ 158–177]

Opinion of the prosecutor, new legal characterization and the final word

Being able to respond to the prosecutor's opinion on the merits

Learning of the prosecutor's opinion on the merits may not be sufficient on its own where there is no opportunity to make a response that can be used against it. Article 216 of the CMK regulates the order of argument, the right of reply and the final word given to the accused present before judgment. Where the opinion contains a new assessment or extensive documents, a request for time must be made with the need for preparation specified. There is no fixed period for responding to an opinion that applies to every file. [3, Art. 216]

The final word and the lawyer's legal submissions do not serve the same function. Giving the accused who is present the final word allows them to speak personally at the end of the proceedings. The record must clearly show whether this right was used. Özge Ceren Yavuz Kılıç's work also considers the presence of the defense counsel together with the effective conduct of the defense in practice. [3, Art. 216/3; 25, pp. 2500–2502]

If the legal characterization changes, additional defense

The court's power to change the legal characterization of an offense does not justify surprising the accused. Under the conditions in Article 226 of the CMK, the accused must be informed of the change and must be in a position to make a defense. A time limit may be requested for an additional defense. [3, Art. 226]

Regarding the fourth paragraph of the article, as amended by Law No. 7532 of November 14, 2024, it is inadvisable to reuse earlier explanations unchanged. The current provision regulates notifications to the accused and, where there is one, to their defense counsel. It states the special conditions under which notification to the defense counsel is considered sufficient, where notice cannot be given to the accused at the last address in the file or where the accused does not attend the hearing despite notice. This exception does not mean that the accused may be entirely excluded from all files. [3, Art. 226/4]

Important transitional note as of October 12, 2026: By its decision of March 26, 2026, E.2025/18, K.2026/66, the AYM annulled this third sentence. The annulment takes effect nine months after publication of the decision, which was published on July 16, 2026, that is, on April 16, 2027. The annulment was unanimous; Kenan Yaşar dissented on the postponement of its entry into force. For this reason, the current text and its future effective date should be monitored separately, and whether a new regulation has been enacted should be checked again at the time of action. [27, §§ 110–111 and judgment; 3, Art. 226 footnote]

Specific problems in civil and administrative proceedings

Time limits for evidence and the right to prove

The right to be heard does not render procedural time limits wholly ineffective. The parties must submit their claims and evidence at the relevant stage. However, Article 145 of the HMK provides exceptions where the late presentation of evidence does not aim to delay the proceedings, or where the failure to submit it on time was not the fault of the party. The ground of the request must be explained, and the court must assess it on concrete reasons. [4, Arts. 27, 145]

Evidence agreements are also not unlimited. Under Article 193(2) of the HMK, agreements that make the right of proof impossible or extremely difficult are void. When assessing a provision that renders one party's own records incontestable, the scope of the agreement and the real means of proof left to the other party must be examined. It is equally incorrect to regard every evidence agreement as void in advance. [4, Art. 193]

The administration's documents and the court's ex officio investigation

In administrative disputes, the records on which an act is based are often held by the administration itself. The power of ex officio investigation under Article 20 of the İYUK is therefore important. Under the third paragraph of the same article, where documents are not provided on the grounds of state security and overriding public interest, a decision may not be based on a defense relying on documents that were not provided. Refusal to provide information and the basing of a judgment on secret information without scrutiny must be kept distinct. [5, Art. 20]

In administrative litigation, the reference in Article 31 of the İYUK to the HMK is taken into account for matters concerning experts. In cases heard by the Council of State as the court of first instance, a special provision applies to the opinion of the prosecutor: under Article 16(6) of the İYUK, the opinion is served on the parties, and the parties may give written views within ten days of service. [5, Arts. 16/6, 31]

Substitution of grounds and the reporting judge's report

If the court finds an administrative act lawful for a reason different from that relied on by the administration, the party may be unable to discuss the new reasoning. The work of Serkan Asker addresses substitution of grounds from this perspective, and considers whether the opportunity to explain and review by a higher judicial authority is in fact effective. This academic assessment should not be understood as meaning that every substitution of grounds is automatically a violation. [24, pp. 281–282]

Not every internal judicial working document must also be served. In the decision in Yasemin Ekşi, the AYM found the complaint about the non-service of the Court of Cassation reporting judge's report manifestly unfounded, assessing the function of the report and the concrete circumstances. The reporting judge's contribution to preparing a decision and the prosecutor's opinion, which requires the parties to comment, or evidence obtained from outside, are not in the same category. [14, §§ 62–65]

In what circumstances is there no violation or the application is inadmissible?

Disagreeing with the assessment of evidence is not sufficient

As a rule, the AYM is not an appellate court that re-tries the facts and weighs all the evidence afresh. The applicant's complaint must show a concrete deficiency in the constitutional guarantee. A claim that the figure reached by an expert or the testimony of a witness is wrong is different from a claim of being deprived of the opportunity to discuss that data. [7, Art. 49/6; 12, §§ 20–39]

In the decision in Tüm Ekip İlaç A.Ş., when assessing the complaints concerning expert examination, the AYM considered how the applicant had shown that the data were incorrect and that effective objection had been prevented. A complaint in which no concrete procedural disadvantage could be shown was manifestly unfounded. This decision does not mean that figures submitted by the administration or the other party are always to be regarded as correct. [12, §§ 35–39]

Different complaints in the same decision may have different outcomes

The decision in Kemal Karanfil (4) illustrates this distinction. On the complaint about non-service of the expert report, the AYM examined the applicant's opportunity to learn of the report and to discuss it in the proceedings, and reached a conclusion of inadmissibility. On the other hand, it found a violation of the right to a reasoned judgment, because the difference between assessments concerning the same event had not been sufficiently explained. [11, §§ 9–25]

Accordingly, merely labeling a decision as a "violation decision" or a "rejection decision" may be misleading. The precedent used must be shown with respect to which complaint it concerned, which facts it involved and which reasoning it gave. In examining whether a formal deficiency in notification was later remedied by effective review, it must also be questioned whether the opportunity the person lost was genuinely restored. [11, §§ 18–25]

How should an allegation of a rights violation be prepared?

The connection between event, violation, document and request

When preparing an application, the first task is to identify the core of the complaint, rather than retelling the whole of the proceedings. Which document could not be accessed, which question could not be asked or why a particular request was important should be stated clearly. The application then shows when this issue was raised before the court and how it was answered. The step the court was required to take to remedy the violation is also made specific. [7, Art. 47; 8, §§ 26–28]

This table is not a petition template. Each request must be founded on the file. Recording a request made at a hearing in the minutes, specifying the grounds for its rejection, and expressly raising the same problem in the legal remedy, are important for later constitutional review. The stage at which the deficiency was remedied should also be stated honestly. [7, Arts. 45/2, 47; 18, §§ 169–177]

Mistakes that lawyers should avoid in their applications

• Writing only that "the right of defense was restricted" without identifying the inaccessible document or the importance of the rejected evidence.

• Copying an appeal or cassation petition into the AYM form as it stands, without separating the constitutional complaint from the objection to the assessment of evidence.

• Raising a point for the first time before the AYM without having raised it in the ordinary remedy.

• Relying only on the operative part of a precedent, and overlooking the different complaints, facts and dissenting opinions.

• Leaving the dates of service, learning through UYAP and registration of the application undocumented.

• Assuming that preparing the application form amounts to completing the application, without checking signature, annexes, fees or legal aid and the registration receipt.

• Combining a request for retrial with an expectation of automatic acquittal or automatic compensation. [7, Arts. 45–50; 8, §§ 29–32; 11, §§ 18–25; 20]

Where and within what period is the application made?

First, remedy within the proceedings and ordinary legal remedies

For a problem that can be remedied in a pending case, the first step is to request action from the relevant court. Whether an independent objection to an interim decision is available is determined by law; not every interim decision is open to a separate legal remedy. In an appeal against the merits decision, the procedural defect must be explained together with its effect on the outcome. To apply to the AYM, it is essential that accessible and effective ordinary remedies have been properly exhausted. [3, Arts. 267–268; 7, Art. 45/2]

The table shows general rules; the same period and the same authority do not apply to every decision. For the 2024 changes to time limits in criminal procedure, reference should be made to Provisional Article 6 of the CMK. In administrative litigation, the amendments to Articles 45 and 46 of the İYUK made by Law No. 7589 of July 16, 2026 are important. In particular, where the regional administrative court has quashed the first-instance decision and given a new decision, the possibility of appeal should be assessed together with the scope and exceptions in Article 46(2). [3, Arts. 268, 273, 291, Prov. Art. 6; 4, Arts. 345, 361; 5, Arts. 45–46; 7, Art. 47; 2, Art. 35]

Application to the AYM and the UYAP Lawyers' Portal

From October 1, 2025, lawyers may make individual applications through the UYAP Lawyers' Portal. The AYM's official announcement also states the channels of direct application and of application through the courts, the enforcement institutions of penal establishments or representations abroad. The use of the Lawyers' Portal does not mean that every citizen may make a valid application from any UYAP screen or by ordinary email. [20]

The application should be prepared with the current form and its annexes; documents evidencing representation, the decisions complained of, and documents showing the routes of challenge and the date of learning should be attached. Where there are costs or conditions, a request for legal aid supported by documents should be considered. The creation of a draft or the mere uploading of the file to the system is not sufficient; a record showing that the application has been completed must be kept. A petition sent to the Presidential Communication Center (CİMER) or to an unrelated institution does not replace an AYM application. [7, Art. 47; 20]

The general period for an AYM application is thirty days. If the application cannot be made within time due to a valid excuse, it may be made within fifteen days of the excuse ceasing, supported by documents proving the excuse. Acceptance of the excuse is not automatic. [7, Art. 47/5]

Electronic service through UETS is deemed to have taken place at the end of the fifth day after the date on which the notice reached the electronic address. However, in an individual application, the finding that the reasoned final decision was learned of earlier may affect the period. The date of UETS service and the date of learning through UYAP are not the same concept. Uploading the decision to the system, viewing it and learning its reasoning are distinct facts; the records should be examined together. [6, Art. 7/a; 22, §§ 20–28; 26, §§ 10–14]

In the decision in Mustafa Gürkan (3), the record of reading on UYAP was treated as learning before the later service, and a finding of late application was made. A dissenting opinion exists against this approach. In the decision in Burhan Abiç and Müjde Çoku, the learning date declared in the earlier application was preferred over the later declaration of a later date in the subsequent application. These decisions show the importance of a consistent and documented account of the date of learning. [22, §§ 26–28 and dissent; 26, §§ 10–14]

Conditions of admissibility

Even where an application is made in time, it may not proceed to examination on the merits because ordinary remedies have not been exhausted, the applicant lacks victim status, the complaint falls outside the common sphere of protection, or the claim is manifestly unfounded. The abuse of the right of application and other statutory admissibility criteria are also assessed separately. The fact that the violation and its consequences were remedied before the application was made may affect the assessment of current victim status. [7, Arts. 45–48]

In complaints of unfairness concerning the proceedings as a whole, the rule is to await the outcome of the ordinary process. By contrast, complaints concerning independent safeguards such as detention have their own effective remedies and time limits. The two general propositions "the case is still pending, so no application can be made" and "one must apply to the AYM immediately after every rejection decision" are both inaccurate. [1, Arts. 19, 36; 7, Arts. 45–47]

Application to the ECtHR

An application to the ECtHR is subject to the condition that relevant and effective domestic remedies have been exhausted in respect of Türkiye; the individual application to the AYM is important in this assessment. The general period for application is four months. The period may not be started automatically in every file from the first-instance decision or from any service. [2, Art. 35]

The ECtHR's official application instructions require that the application form, signed and containing the required documents in accordance with Rule 47 of the Rules of Court, be sent by post. Sending by fax does not interrupt the four-month period. The eComms system does not mean that the initial application may be made by everyone through that channel. The electronic application facility of the AYM and the application procedure of the ECtHR should not be confused with each other. [21]

What is the outcome of a violation decision?

Where the AYM finds a violation, it determines what must be done to remedy the violation and its consequences. Where the violation arises from a court decision, retrial may come into question. Retrial specific to individual applications is not identical to the grounds for reopening ordinary proceedings. The task of the relevant court is to carry out a fresh assessment by removing the deficiency that caused the violation. [7, Art. 50; 10, §§ 24–27]

This result does not mean automatic acquittal, that the case must be accepted, or that compensation will be awarded in every case. In the decision in Halil Akkaya, it was also explained that retrial does not predetermine its result. Where retrial provides adequate redress, compensation may not be separately awarded. For a claim for pecuniary or non-pecuniary damages, the loss, the link with the violation and the grounds of the claim must be shown separately. [8, §§ 29–32]

The making of an individual application does not automatically suspend the enforcement or execution of a final decision. Interim measure mechanisms are assessed under their own special conditions. For this reason, a main claim of violation and an urgent request for protection cannot be prepared on the same legal ground. [7, Arts. 49–50]

Conclusion

The principles of equality of arms and adversarial proceedings ensure that a person is not merely present before the court, but can take part effectively in the dispute. Access to the file, discussion of decisive evidence, cross-examination of relevant witnesses, responses to technical reports and the assessment of important objections are the concrete forms of this protection.

An effective allegation of a rights violation shows, by documents, which procedural opportunity was lost and how this affected the defense. The request is first directed to the relevant judicial authority, and the ordinary remedies are used properly. In an individual application, a clear connection is then established between the narrative of events, the constitutional guarantee, the annexes and the request for redress. Examining both the violation and the inadmissibility reasoning of real decisions makes it possible to prepare an application suited to the file. Expectations of outcome should be assessed by the similarity of the facts and the safeguards applied, not by the name of the precedent.

Frequently Asked Questions

Does equality of arms apply only in criminal cases?

No. It also applies in civil cases and in administrative disputes falling within the scope of protection. The procedural provisions to be used vary according to the branch of jurisdiction. [2, Art. 6; 4, Art. 27]

Does adversarial proceedings mean that the parties must necessarily argue face to face?

No. The essential point is the ability to learn of information and opinions that affect the decision and to respond to them. The procedure by which this is achieved is determined by the nature of the dispute. [16, §§ 24–32]

Must all documents in the file necessarily be served separately?

The nature of the document, the relevant procedural provision, actual learning and the opportunity for effective explanation are assessed together. Acts for which service is mandatory cannot be disregarded; in constitutional review, the whole of the proceedings is also important. [11, §§ 18–25; 14, §§ 62–65]

How many days are there to object to an expert report?

In civil proceedings the general period is two weeks from service. In criminal proceedings the period set under Article 67/5 of the CMK applies. These are not the same period regime. [3, Art. 67; 4, Art. 281]

Can an additional period be obtained to object to an expert report?

Under the conditions of Article 281 of the HMK, and if requested within the first two weeks, an additional period of at most two weeks may be granted once. A statement that only a specialist opinion will be obtained does not by itself provide an additional period. [4, Arts. 281, 293]

Is the court obliged to hear all defense witnesses?

No. The relevance and reasoning of the request, the court's reasons for refusal and the effect on the proceedings as a whole are examined. The concrete matter the witness would clarify must be stated. [18, §§ 158–177]

If there is a confidentiality order, can the file never be accessed?

No. The restriction in the investigation has legal conditions and exceptions. The reasoning for confidentiality, its scope and the safeguards provided to the defense must be examined separately. [3, Art. 153]

Is there always two weeks to respond to the prosecutor's opinion?

Article 216 of the CMK does not provide for such a fixed period. The need for time for the defense's preparation must be made specific and assessed in the light of the circumstances of the file. [3, Art. 216]

Why is it important to give the accused the final word?

Article 216(3) of the CMK provides that the accused who is present before judgment must be given the final word. A lawyer having spoken is not the same as the accused's own opportunity to speak. [3, Art. 216/3]

Is it sufficient for an application to the AYM that the court gave a different weight to the evidence?

No, not on its own. A concrete procedural deficiency or another violation of rights requiring constitutional examination must be shown. The AYM does not function as an ordinary appellate court. [7, Art. 49/6; 12, §§ 35–39]

Can an application be made to the AYM while the case is still pending?

As a rule, for complaints of unfairness concerning the proceedings as a whole, effective ordinary remedies must be exhausted. Complaints concerning separate rights, such as detention, are examined under their own remedies and time limits. [1, Art. 19; 7, Arts. 45–47]

Can an application to the AYM be made through UYAP?

Yes. Lawyers have been able to apply through the UYAP Lawyers' Portal since October 1, 2025. A record showing that the application has been completed must be kept; creating a draft is not sufficient. [20]

Does the five-day rule for UETS determine the AYM period in every case?

No. The electronic service rule and the earlier learning of the reasoned final decision are different matters. Learning records are assessed separately for the purposes of the AYM period. [6, Art. 7/a; 22, §§ 20–28; 26, §§ 10–14]

If the AYM finds a violation, is acquittal certain?

No. In the retrial, the deficiency causing the violation is remedied and a new decision is given. The result is not predetermined. [8, §§ 29–32]

Is compensation paid in every violation decision?

No. The nature of the violation, the loss and whether retrial provides adequate redress are important. A claim for compensation must be separately justified. [7, Art. 50]

Does sending an email or fax to the ECtHR preserve the period?

Sending by fax does not interrupt the four-month period. In the general application procedure, the form and the required documents are sent by post in accordance with Rule 47. The AYM's electronic application system does not replace this procedure. [21]

Sources and legal bases

[1] Constitution of the Republic of Türkiye, in particular Articles 19, 36, 40 and 148. Current official text.

[2] European Convention on Human Rights, Articles 5, 6, 34 and 35. ECtHR Turkish text.

[3] Code of Criminal Procedure No. 5271 (Ceza Muhakemesi Kanunu), relevant provisions and Provisional Article 6. Current official text.

[4] Code of Civil Procedure No. 6100 (Hukuk Muhakemeleri Kanunu), in particular Articles 27, 145, 193, 221, 281, 293, 345 and 361. Current official text.

[5] Administrative Procedure Law No. 2577 (İdari Yargılama Usulü Kanunu), in particular Articles 16, 20, 31, 45 and 46. Current official text.

[6] Notification Law No. 7201 (Tebligat Kanunu), Article 7/a. Current official text.

[7] Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court (Anayasa Mahkemesinin Kuruluşu ve Yargılama Usulleri Hakkında Kanun), Articles 45–50. Current official text.

[8] AYM, First Section, Halil Akkaya, Application No. 2021/2754, June 7, 2023, in particular §§ 26–32. Decision.

[9] AYM, General Assembly, Sencer Başat and Others, Application No. 2013/7800, June 18, 2014, in particular §§ 60–72. Decision.

[10] AYM, First Section, Mazlum Dağtekin, Application No. 2022/41459, March 11, 2026, §§ 17–27. Decision.

[11] AYM, Second Section, Kemal Karanfil (4), Application No. 2021/54151, June 5, 2024, §§ 9–25. Decision.

[12] AYM, First Section, Tüm Ekip İlaç A.Ş., Application No. 2014/10738, January 11, 2017, §§ 20–39. Decision.

[13] AYM, Second Section, Bülent Karataş, Application No. 2013/6428, June 26, 2014, §§ 67–83. Decision.

[14] AYM, First Section, Yasemin Ekşi, Application No. 2013/5486, December 4, 2013, §§ 62–65. Decision.

[15] ECtHR, Chamber, Dombo Beheer B.V. v. the Netherlands, Application No. 14448/88, October 27, 1993, §§ 30–35. HUDOC.

[16] ECtHR, Chamber, Nideröst-Huber v. Switzerland, Application No. 18990/91, February 18, 1997, §§ 23–32. HUDOC.

[17] ECtHR, Grand Chamber, Regner v. the Czech Republic, Application No. 35289/11, September 19, 2017, §§ 146–162, judgment and separate opinions. HUDOC.

[18] ECtHR, Grand Chamber, Murtazaliyeva v. Russia, Application No. 36658/05, December 18, 2018, §§ 158–177, judgment and separate opinions. HUDOC.

[19] ECtHR, Grand Chamber, Schatschaschwili v. Germany, Application No. 9154/10, December 15, 2015, §§ 100–131. HUDOC.

[20] Constitutional Court (AYM), "Individual Applications Begin to Be Received Through the UYAP Lawyers' Portal", October 1, 2025. Official announcement.

[21] European Court of Human Rights, "Apply to the Court", explanations of the application form and Rule 47. Official application page.

[22] AYM, First Section, Mustafa Gürkan (3), Application No. 2017/32889, October 20, 2021, §§ 20–28 and the dissenting opinion of Selahaddin Menteş. Decision.

[23] Cumhur Şahin, "Equality of Arms and Adversarial Principles in Criminal Procedure in Light of Constitutional Court Decisions" (Anayasa Mahkemesi Kararları Çerçevesinde Ceza Muhakemesinde Silahların Eşitliği ve Çelişmeli Yargılama İlkeleri), DEÜ Faculty of Law Journal, Vol. 21, Special Issue, Festschrift for Prof. Dr. Durmuş Tezcan, 2019, pp. 3051–3065; pages used 3051–3053. Article.

[24] Serkan Asker, "Substitution of Grounds in Administrative Litigation Procedure in the Context of Equality of Arms and Adversarial Principles" (Silahların Eşitliği ve Çelişmeli Yargılama İlkeleri Bağlamında İdari Yargılama Usulünde Sebep İkamesi), Yıldırım Beyazıt Law Journal, 2022/2, pp. 249–287, DOI: 10.33432/ybuhukuk.1103237; pages used 281–282. Article.

[25] Özge Ceren Yavuz Kılıç, "The Importance of the Defense Counsel in Terms of the Principles of Adversarial Proceedings and Equality of Arms in Fair Criminal Proceedings" (Adil Ceza Yargılamasında Çelişmeli Yargılama ve Silahların Eşitliği İlkeleri Bakımından Müdafiin Önemi), ASBÜ Faculty of Law Journal, Vol. 6, No. 2, 2024, pp. 2456–2507, DOI: 10.47136/asbuhfd.1563259; pages used 2500–2502. Article.

[26] AYM, First Section, Burhan Abiç and Müjde Çoku, Application No. 2021/48751, September 16, 2025, §§ 10–14. Decision.

[27] AYM, General Assembly, E.2025/18, K.2026/66, March 26, 2026; Official Gazette July 16, 2026, No. 33311; reasoning on Article 226/4 of the CMK, §§ 110–111, judgment and dissenting opinion of Kenan Yaşar. Decision.