Serving Notice to a Foreign Defendant, Informing Them of the Hearing, and Trial in Absence

1. Introduction: The Problem of "Notification" in Foreign Defendant Cases

In criminal proceedings, the defendant's presence at trial constitutes the core of the right to defense. This core right becomes even more vulnerable, particularly when dealing with foreign defendants, address verification, language barriers, return to their country, deportation .

The situation frequently encountered in practice is as follows:

The foreign suspect is apprehended, questioned, and released.
The defendant leaves Türkiye or changes their address of residence within the country.
The court conducts hearings by serving notices to the previous address used during the investigation phase or to the only address appearing in the file.
A verdict is reached in the absence of the defendant without their knowledge; when the case comes to light during the execution phase or with an arrest warrant, the problem of "irregular notification - trial in absentia - retrial" arises.

Issues concerning notification of foreign defendants, informing them of the hearing, and trial in absentia are directly related not only to formal procedural rules but also to the scope and limits of the right to a fair trial . Therefore, it is imperative for courts and defense lawyers to address this issue both within the framework of the Code of Criminal Procedure and the Law on Notifications, and also in the context of the Constitution and the European Convention on Human Rights

2. Foreign Defendants and the Right to a Fair Trial

2.1. Who is the Foreign Defendant?

In criminal proceedings, a "foreign defendant" is a person who is not a Turkish citizen and against whom a criminal investigation or prosecution is being conducted in Türkiye. Different identity statuses such as dual citizenship, immigrant status, or refugee/international protection status do not completely eliminate the foreign status; on the contrary, they may create new problems in terms of notification and communication.

There are two main factors that differentiate a foreign defendant from a Turkish defendant:

Accessibility issues:
Serving notice becomes more difficult due to factors such as lack of connection to their home country, not having a permanent address in Turkey, frequent changes of country, or being deported as a result of administrative action.
Communication and comprehension problems:
Due to not knowing Turkish or having limited knowledge of Turkish, an interpreter and explanations are needed to understand both the notification and the court proceedings.

These two topics are directly of the right to defense, equality of arms , and adversarial proceedings .

2.2. Right to a Fair Trial, to be Informed and to Participate in Hearings

Some of the most important elements of the right to a fair trial in criminal proceedings are:

To be informed in a timely and detailed manner of the charges against him/her ,
Having sufficient time and resources to prepare his/her defense ,
The right to appear at the hearing or to validly waive this right,
The right to respond to and present evidence against the prosecution's evidence.

For foreign defendants, these rights can only be truly realized under the following conditions:

Notifications must be duly delivered to the addresses where they can actually be received, if possible to the address in their country of residence
The content of the notifications must be explained in a language that the defendant can understand
Wherever possible, the defendant should be allowed to attend the hearing in person ; if this is not possible, remote participation options such as SEGBİS should be considered
If legal counsel has been appointed, that counsel must also be informed of all stages of the process.

3. Normative Framework: Code of Criminal Procedure, Notification Law, and International Standards

3.1. Fundamental Provisions in the Code of Criminal Procedure

The main provisions of the Code of Criminal Procedure that are important in terms of serving notice to foreign defendants and trial in their absence are summarized as follows:

Articles 34-35 of the Code of Criminal Procedure: Procedures for notifying relevant parties of decisions and proceedings, and for delivering and serving notices.
Article 37 of the Code of Criminal Procedure: A framework regulation concerning the consideration of the Notification Law and international agreements in notifications to persons located in foreign countries.
Article 176 and subsequent articles of the Code of Criminal Procedure: Issuance of summons, notification of the hearing date.
CMK Article 193: The defendant's absence from court and trial in absentia; limitations on the circumstances under which a judgment can be rendered in the defendant's absence without questioning, following Law No. 7445.
Article 196 of the Code of Criminal Procedure: Possibility of participating in court hearings via audio and video information systems.
Article 202 of the Code of Criminal Procedure: Appointment of an interpreter if the defendant does not have sufficient knowledge of Turkish to express themselves.
CMK Article 247: Prosecution of a fugitive defendant.

These provisions are not specific to foreign defendants; they apply to all defendants. However, in the case of foreign defendants, the application of the rights and obligations set forth in these articles requires special attention and care

3.2. Notification Law and Notification Regulation

The legal basis for serving notice to a foreign defendant Law No. 7201 on Notifications and the Notification Regulation . In particular:

notification to persons residing in foreign countries .
Regulations regarding notification through consulates or relevant foreign state authorities,
Provisions relating to persons who have not provided their address or whose address cannot be reached,
The possibility and limitations of notification by public announcement

This is important from the perspective of the foreign defendant.

3.3. ECHR and ECHR Standards

The ECHR does not categorically prohibit trials in absentia and judgments rendered in absentia; however, it strongly emphasizes the following two criteria:

The accused must have been informed of the proceedings and the charges in a timely and proper manner .
If a verdict has been reached in the defendant's absence, there should be an opportunity for a retrial in which the defendant can participate in person and confront the evidence

These two criteria should serve as a compass in discussions about serving notice to a foreign defendant and trials in absentia.

4. Notification to Foreign Defendants: Address, Language, and Procedure

4.1. Address Determination and Registration During the Investigation Phase

The first link in a healthy notification chain during the investigation phase . Specifically:

The full address of any foreign suspect detained or questioned must be recorded in the minutes.
The suspect's address abroad, and contact information (email, phone number, and consular details) that can be used to reach them if they leave Turkey, should be recorded as much as possible.
If the foreign defendant has administrative status such as international protection, residence permit, or work permit, this information should be cross-checked with the address information in the relevant files.

Negligence at this stage leads to the prosecution relying solely on the excuse of "last known address," and the case being dragged out for years with flawed notifications.

4.2. Serving Notice to Foreign Defendants Located in Türkiye

If the foreign defendant resides in Turkey, the same procedures as with Turkish defendants apply in principle. However, increased sensitivity should be shown in the following points:

The address must be updated frequently; the defendant's address must be confirmed at each hearing.
If the defendant has a lawyer, it is preferable to serve notice to both the defendant and the lawyer.
Providing a defendant who does not speak Turkish with a translated version of at least basic notifications (such as the notification of the indictment or the notification of the final judgment) would greatly reduce potential future allegations of violations.

4.3. Serving Notice to Foreign Defendants Located Abroad

If the foreign defendant is abroad, not only national legislation but international judicial cooperation mechanisms come into play. The general framework can be summarized as follows:

Multilateral conventions to which Türkiye is a party (for example, the Hague Convention on Service of Process) and bilateral judicial assistance agreements are taken into consideration.
In most cases, notification is made through the judicial authorities or consulates of the recipient country, coordinated by the General Directorate of Foreign Relations and EU Affairs of the Ministry of Justice
The foreign state will serve the notice according to its own domestic law; this process can be time-consuming and sometimes may not yield any results.

At this point, the courts should not simply state "notification requested" in the file; they should make the request letter, the returned documents, and information regarding the outcome of the notification clearly visible in the file. Otherwise, the basis of the judgment rendered in absentia becomes questionable.

4.4. Notification by Publication and Foreign Defendants

If the address is unknown and the defendant cannot be physically reached, the Notification Law and Notification Regulation allow for notification by public announcement. However, for foreign defendants, notification by public announcement a last resort .

Before resorting to notification by public announcement:

All known addresses have been tried,
Having exhausted consular or legal avenues of assistance,
Whether or not electronic communication methods (email, telephone) were used should be recorded in the minutes

This should be expected. Public notification alone does not constitute a strong presumption that "the defendant was aware of the hearing"; this is particularly difficult to defend before the ECHR in the case of foreign defendants.

5. Notification of Hearing: Summons, Translation, and SEGBIS (Electronic Hearing System)

5.1. Invitation Letter and its Contents

The most basic means of notifying someone of a hearing a summons. The minimum elements that must be included in a summons—the name of the court, the case number, the date and time of the hearing, and the consequences of non-attendance—also apply to foreign defendants.

However, the following additions are important specifically for foreign defendants:

A brief explanatory note in a language the defendant can understand should be added to the notification (e.g., a basic summary in English/Arabic).
In particular, the fact that it is explicitly stated that "if he does not appear, a judgment may be rendered in his absence,"
If possible, the option of participating via SEGBİS should also be mentioned.

Such simple but effective measures will significantly weaken future criticisms of trial in absentia.

5.2. Use of Interpreters and Understanding of Notifications

Article 202 of the Code of Criminal Procedure regulates the appointment of interpreters for defendants who do not know Turkish well enough to express themselves. This provision concerns not only the courtroom but also the actual understanding of notifications and decisions

In practice, the following model is preferable:

In the case of detained foreign defendants, critical interim decisions and the final decision are explained verbally, and this is recorded in the minutes.
For foreign defendants who are free, at least a summary translation of the notifications informing them of the verdict and the trial date is prepared and attached to the notification.

While this method may not completely eliminate the "I had no knowledge of this case" defense, it significantly weakens it and strengthens the legitimacy of the trial.

5.3. Participation in the Hearing via SEGBIS

If a foreign defendant is in their home country, unable to travel to Turkey, but wishes to attend the hearing, the SEGBIS system offers a significant opportunity. Here are some important points to consider:

Technical coordination must be established with the correctional institution or judicial authorities in the country where the defendant is located.
An interpreter must be present when establishing the SEGBIS connection.
The suspect's identity must be clearly confirmed before and after the contact.

Expanding the use of SEGBIS (Electronic Court Hearing System) will contribute both to the timely completion of prosecutions and to the effective participation of foreign defendants in the trial.

6. Trial in Absence: Conditions, Limitations, and Foreign Defendants

6.1. General Arguments for Trial in Absence

The basic logic of Article 193 of the Code of Criminal Procedure is that the defendant's presence at the hearing is essential, but under certain circumstances, the trial can proceed in their absence .

Generally, for a trial to be held in the absence of the defendant:

The defendant was duly summoned,
The reason for not attending is not considered justified
Notification that a trial may be held in their absence

It is sought. Following the amendments made by Law No. 7445, the circumstances under which a judgment can be rendered in the absence of the defendant without questioning them have been further restricted, and the obligation to question the defendant has been strengthened in some decisions, particularly in convictions.

6.2. Distinction Between Fugitive Defendant and Defendant in Absence

According to Article 247 of the Code of Criminal Procedure , a fugitive defendant is one who knowingly evades trial despite an arrest warrant being issued against them . In this case, the trial can continue in the defendant's absence, with certain limitations.

Determining the fugitive status of foreign defendants is particularly important:

Has the suspect been notified of the arrest warrant issued against him?
Is the address known, and if so, has the notification been served?
Does the defendant's departure date abroad match the proceedings in the case file?

Granting "fugitive" status and issuing a judgment in absentia based on this status before these questions are clarified could pave the way for future allegations of violations.

6.3. Stricter Criteria for Foreign Defendants

Foreign defendants are, by their nature, one of the most difficult groups to inform of the trial. Therefore, when trials are conducted in absentia, courts stricter oversight than they do for Turkish defendants .

To which address and by what method the notification was made,
Whether or not foreign judicial cooperation processes have been used,
Whether the consular route has been attempted,
Whether translation services are available

Such matters must be clearly indicated in the file.

Simply stating "Notification could not be served, announcement was made, but no one came" is extremely risky in the context of the right to a fair trial.

7. Notification of the Verdict to the Foreign Defendant, Date of Learning, and Retrial

7.1. Notification of the Judgment and Commencement of Time Limits

After a conviction is handed down, proper notification of the judgment to the defendant or their counsel is mandatory to ensure the appeal or review periods run smoothly. Regarding foreign defendants:

The judgment should be sent, if possible, to the defendant's address in their home country via international notification.
If the defendant has a lawyer, it is preferable to inform the defendant in addition to serving the summons to the lawyer.
Including a brief summary of the verdict's conclusion in the notification, at least in language the defendant can understand, will reduce future claims of "I didn't understand the decision.".

In cases where the judgment could not be served and the defendant became aware of the case years later, the date of learning becomes important. Judicial precedent accepts that in most cases, the time limits may begin to run from the date of learning; of course, this is evaluated within the framework of the specific circumstances of each case and the criterion of good faith.

7.2. Opportunities for Retrial and Reparation

If a verdict is reached in absentia in a trial of which the defendant was completely unaware, and this fact comes to light later, various redress mechanisms may be put into effect:

The appeal/cassation application, along with the petition for extension of time ,
A request for a retrial , if the conditions are met .
Allegations of violation of the right to a fair trial before the Constitutional Court and the European Court of Human Rights.

The crucial point here is whether the defense counsel actually communicatedand whether the defendant was informed of their rights. A notification not found in the file is considered not to have been served; however, even incomplete notifications found in the file have sometimes been deemed "ineffective" given the circumstances.

8. Common Mistakes in Practice and Practical Suggestions

8.1. Common Mistakes

The most common errors in foreign defendant cases can be summarized as follows:

Continuous service of process to the old address:
The initial address used during the investigation phase remains unchanged for years, with no consideration given to the fact that the suspect may have returned to their country or changed their address.
Failure to attempt international service of process:
Although it is known that the defendant is abroad, service of process is limited to his former address in Turkey or through public notice.
Notifications not translated:
Especially in the notification of the final judgment, since a summary explanation is not provided in the foreign defendant's native language or a language they know, the defendant is effectively unable to be informed of the decision.
Relying solely on notification to the defense attorney:
In cases where the foreign defendant has weak ties to their country and limited communication with a lawyer, notification to the defense attorney alone may not be sufficient to inform the defendant.
Easier recourse to notification by public announcement:
Resorting to notification by public announcement before exhausting all other methods weakens the claim that the foreign defendant was informed of the hearing.

8.2. Recommendations from the Judge's Perspective

The judge and court panel may use a checklist containing the following steps in cases involving foreign defendants:

the suspect's last known address ? Has a cross-check been performed with the Immigration Administration, Population Registry, consulate, or previous files?
If the address abroad is known, an official request for notification been sent to the relevant state, and is the outcome reflected in the file?
Was the possibility of translating the notifications considered?
Was any attempt made to have the defendant participate via SEGBIS (a video conferencing system for court proceedings)?
If a deportation order was issued, were the grounds for that order clearly stated?

If these questions can be answered affirmatively, then pursuing a trial in absentia becomes more defensible.

8.3. Recommendations from the Perspective of the Defense Counsel and the Defendant

Here are some practical suggestions for defense lawyers and foreign defendants:

The file must include the most up-to-date addresses of the defendant , both in Turkey and in their home country
Clients should be informed about international service of process and translation costs, and necessary applications should be made to prevent potential future rights violations.
If the judgment was rendered in absentia, the date on which the defendant actually learned of the judgment must be recorded in detail, and the time limits must be calculated accordingly.
If necessary, claims of not being genuinely informed of the hearing for applications to the Constitutional Court and the European Court of Human Rights must be supported by concrete evidence.

9. Conclusion: An "Effective, Not Ostentatious" Information Regime for Foreign Defendants

Serving notice to a foreign defendant, informing them of the hearing, and conducting a trial in absentia are issues that may seem technical but fundamentally upon the heart of the right to a fair trial .

For healthy practice in this area:

that doesn't get stuck on specific addresses, but is open to gathering up-to-date information.
genuinely using international judicial cooperation and consular mechanisms,
Not just a formal notification, but a perspective that prioritizes the defendant's understanding and participation ,
A shift in mindset that makes trials in absentia the exception, and trials in which the defendant participates in person or via video conference the rule

is required.

Adopting such an approach will both protect the rights of the foreign defendant and ensure that the decisions made are much more firmly grounded before domestic law and international oversight bodies. Especially for practitioners, focusing on whether the defendant was actually informed and had the opportunity to defend themselves, , is the safest approach both legally and practically.

Criminal law, legal consultancy, Istanbul lawyer, Turkish Penal Code, notification, foreign law, foreign defendant, trial in absentia

Single Blog Title