ON THE MATTER OF VIOLATION OF THE RIGHT TO FAIR TRIAL DUE TO “MANIFEST ARBITRARINESS” AND “OBVIOUS ERROR OF JUDICIAL DISCRETION

This article explores the concepts of “manifest arbitrariness” and “obvious error of judicial discretion” at fi rst. In addition, it is inquired whether it is appropriate for the TCC (Turkish Constitutional Court) and the ECtHR (European Court of Human Rights) to ground on this criterion in the admissibility and material review of the right to a fair trial. Moreover, while the court itself does not follow the same procedure, we have discussed the criteria of “manifest arbitrariness and obvious error of judicial discretion” in terms of both the procedural and the material aspect of the right to a fair trial. Finally, taking into account the case-law of the TCC and the ECtHR, the elements that served to diff erentiate the ordinary discretionary power of local and national courts and the judgements carrying “manifest arbitrariness and obvious error of judicial discretion” were examined. It was found that courts used this criterion in a way that both procedurally and materially leads uncertainty and instability. Some suggestions were also provided in the article within the scope of these fi ndings.