İtham-Tahkik (Adversarial-Inquisitorial) Dikotomosinin İspat Hususunda Analitik Değeri: Türkiye ve İngiltere Örnekleri

Abstract

Common law systems differ substantially from civil law jurisdictions as to how and by whom the investigation and trial are to be conducted, and how rules of evidence are to be constructed. Whilst common law systems are considered to follow an adversarial trial process model, civil law traditions have generally been associated with an inquisitorial procedure. Yet, convergence between the criminal justice systems of the common law and those of the civil law in relation to proof and evidence suggest that the labels “adversarial” and “inquisitorial” cannot be used today to show the general character and structure of criminal trial models. Rather, they can only be used to help us begin to understand the different features that traditionally exist in different systems, or at best they can be used today to grasp the effects of the tradition on the mentality of parties during the trial. The aim of this article is first to set a basis for understanding the adversarial/inquisitorial dichotomy by looking at distinctive elements of each legal system, and then, so as to evaluate whether this conceptual dichotomy is useful, it aims to elaborate further the purposes of English and Turkish criminal trials and examine the evidentiary rules of the two jurisdictions.