A significant aspect of the violation of the principle of equality of arms relates to legal amendments made during the criminal trial process. This is because making procedural legal changes that would be applied retroactively in investigations initiated with an accusation of crime and in criminal cases filed may constitute a violation of the principle of equality of arms. The legal amendments made should be such as to produce results in favor of the judicial authorities and against the defendant. For example, enacting a legal regulation that provides immunity shielding individuals such as prosecutors and judges involved in the trial from full legal, administrative, financial, and criminal liability after the trial has commenced, will place the defendant at a disadvantage in that trial. In such a situation, one cannot speak of equality of arms, and consequently, a fair trial. However, in cases where the legal regulation is made before the trial commences, or there is a compelling public interest for the change, or the change is foreseeable for the defendant, a violation of the principle of equality of arms may not be in question.

Some provisions that would violate the principle of equality of arms were included in the State of Emergency Decree Laws (KHKs) numbered 667 and 668, which came into force within the scope of the State of Emergency declared in 2016. In this context, in Article 9 of OHAL KHK No. 667, in the form of “Persons who make decisions and perform duties within the scope of this decree law shall not incur legal, administrative, financial, and criminal liability due to these duties”, and in Article 37 of KHK No. 668, in the form of “…. persons who make decisions and perform duties within the scope of the decree laws shall not incur legal, administrative, financial, and criminal liability due to these decisions, duties, and actions”, impunity has been introduced in terms of legal, criminal, administrative, and financial aspects, encompassing judges conducting trials and prosecutors in the prosecution. In these articles, judges and prosecutors have been granted a shield of immunity in trials for coup attempts and terror offenses. In other words, in trials related to the subject of the State of Emergency, all types of faults, negligence, or intentional actions of judges and prosecutors during their duties have remained unpunished in terms of legal, administrative, financial, and especially criminal aspects. It is clear that the defendants tried in cases subject to the State of Emergency have been placed in a disadvantageous position, due to the legal shield of immunity introduced at a date subsequent to the occurrence of the events related to the alleged crime, which also covers judges and prosecutors. Because, in the face of judicial authorities endowed with absolute immunity, it cannot be said that the defendant’s position is on equal terms with that of the prosecution. Moreover, it is inconceivable that judges and prosecutors with absolute immunity would not create concern in the defendant regarding their objective impartiality, and that this concern and fear would not be objectively considered justified by third parties. Furthermore, expecting a fair trial from a judge who possesses a shield of absolute immunity and for the judge to instill confidence in the defendant regarding their objective impartiality is contrary to the normal course of life. The defendant’s concern regarding the principle of equality of arms and the objective impartiality of judges will be reasonable and justified.

keywords : principle of equality of arms, right to a fair trial, State of Emergency Decrees (KHKs), Decree No. 667 Article 9, Decree No. 668 Article 37, judicial and prosecutorial immunity, equality in criminal proceedings, absolute immunity, principle of objective impartiality, rights of the accused, retrospective legal changes, legal immunity jurisprudence, fair trial violation by KHK, judicial independence during the State of Emergency