384 Osmanlı Ceza Muhakemesi Hukukunda Şüpheli ve Sanığın Susma Hakkı ma hakkına ilişkin düzenlemelerine göre geri kaldığı ifade edilebilir. Bu makelede, kişinin kendini ve yakınlarını suçlayıcı beyanda bulunmaya ya da bu yönde delil göstermeye zorlanamaması ilkesinin bir uzantısı ve önemli unsuru olan şüpheli ve sanığın susma hakkı Osmanlı ceza muhakemesi hukuku açısından değerlendirilmiştir. Anahtar Kelimeler: Susma Hakkı, Nemo Tenetur İlkesi, Usul-İ Muhâkemât-I Cezâiyye Kanun-I Muvakkati, Mecelle, Osmanlı Ceza Muhakemesi Hukuku Abstract: The principle of “nemo tenetur” states that a person cannot be forced to make incriminating statements against himself or his relatives or to show evidence with this effect. The right to remain silent is an important element of this principle and is the basis of the right to a fair trial. In a system where the right to silence is not recognised, a fair trial cannot be mentioned. It is also very difficult to prevent torture and ill-treatment in such a system. Therefore, the right to remain silent is in close connection with both the principle of protection of personal honour and the rule of law. Historically, the right to silence was not recognised for a long time. However, with the Age of Enlightenment, this right started to be recognised first with the adoption of the prohibition of torture and ill-treatment; and then it was tied to legal and constitutional guarantees. The Ottoman criminal procedure law also went through this process. For this reason, the right to silence of the suspect and the accused in the Ottoman criminal procedure law can be analysed in two periods: before the Tanzimat Period and after the Tanzimat Period. Prior to the Tanzimat Period, neither the right to remain silent was recognised for suspect and accused nor the other rights. In some cases, statements have been obtained even through torture and ill-treatment, and the statements obtained this way have become evidence. Inferences could have been drawn against the suspect or accused from silence. On the other hand, after the Tanzimat Period, torture and illtreatment were completely prohibited and the prohibitions on evidence were implemented more effectively. Although the right to remain silent was not explicitly recognised with the UMCKM, significant progress was made. Nevertheless, it can be stated that the provisions of the UMCKM on the right to silence are behind the provisions of the Mecelle on the right to silence. In this article, the right of the suspect and the accused to remain silent, which is an extension and important element of the principle that the person cannot be forced to make incriminating statements or to show evidence in this direction, is evaluated in terms of Ottoman criminal procedure law. Keywords: Right to Silence, Nemo Tenetur Principle, Provisional Code of Criminal Procedure, Mecelle, Ottoman Criminal Procedure Law
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