Can Acting as Defense Counsel Be a Crime? Identification of the Attorney with the Client, Professional Independence and the Limits of Criminal Liability

The Philosophical Foundation of Defense: An Independent Mind Facing the Accusation, a Mandatory Safeguard Before the Judgment

Defense is not a formal procedure created to dispose of the accusation; it is an indispensable function that checks the state’s power to punish and makes the legal legitimacy of a judgment possible. The purpose of criminal procedure is not only to find the perpetrator of an event. It is also to make it possible to review how the state investigates a criminal accusation, what evidence it relies on in reaching a conclusion and which rights it protects when it punishes a person.

Prosecution, Defense and Judgment: Three Functions That Cannot Replace One Another

The prosecuting authority sets out the factual and legal basis of the accusation; the defense tests the accusation, points to counter-evidence, discusses the lawfulness of the investigative acts and asks that alternative explanations be considered; the judge, for their part, reaches an independent judgment by examining the points raised by the parties, the lawfully obtained evidence and the reasons. The existence of an accusation does not mean that proof has been established, and the existence of a strong suspicion does not mean that guilt has been settled. The function of the defense is to prevent these two stages from being confused.

The role of the defense is not limited to offering a different narrative of the dispute. The defense makes contradictions visible, opens unlawfully obtained evidence to discussion, points to a deficient investigation, requests that the presumption of innocence be applied in the concrete case and contributes to making the reasoned judgment reviewable. In this way, the search for material truth in criminal procedure and the protection of fundamental rights become parts of the same legal process.

The Touchstone of Defense: The Right to Test the Truth of the Accusation

The purpose of defense is not to justify a crime or to conceal guilt; it is to guarantee that a person can be punished only on the basis of evidence that has been obtained by lawful procedure, debated in adversarial proceedings and is sufficient for conviction. This principle explains why the right of defense does not belong only to those who claim to be innocent. A person against whom there is heavy and strong evidence must also benefit from legal assistance, because the necessity of the right of defense concerns not the outcome reached at the end of the proceedings but the manner in which the power to punish is exercised.

For this reason, the guarantees of Article 36 of the Constitution and Article 6 of the ECHR require not merely that the accused be allowed to speak, but that the assistance of defense counsel be effective, that there be adequate opportunity to prepare, that the evidence can be debated and that fairness be preserved throughout the proceedings. Equality of arms does not mean that the prosecution and the defense take on the same task; it means that both have fair opportunities to put forward and discuss the matters that affect the outcome of the proceedings.

When the Defense Is in the Defendant’s Chair: From Symbol to Legal Question

The person in an attorney’s robe seated in the defendant’s chair on the cover image of this article does not represent a particular real case or a person’s guilt; it represents the possibility that the duty of defense itself becomes the subject of a criminal accusation. It is no coincidence that the defense lectern is left empty in the image: if an attorney’s lawful activity as defense counsel is identified with the client’s offence, the proceedings conducted against the attorney personally may also affect the client’s defense safeguards.

However, symbolic expression and legal consequence must not be confused. If there is concrete and lawful evidence that an attorney has actually committed an independent offence, an investigation may be conducted. What must be protected is not the attorney’s impunity, but that the defense is not treated as a crime and that a genuine criminal accusation is separated from professional activity and examined by lawful procedure.

Protecting the Defense Means Protecting the Credibility of the Proceedings, Not Only the Attorney

When an attorney is put under pressure because of the identity of the client, the gravity of the accusation or public reaction, this may affect which evidence the defense puts forward, which objections it raises and which legal avenues it uses. This chilling effect concerns not only the freedom of a member of the profession to work but the guarantees of everyone who seeks legal assistance.

The measure of the rule of law is not the rights it grants to those who are easy to defend, but the extent to which it can secure independent defense and fair-trial guarantees even for the person facing the gravest accusation. For this reason, the special procedure in Articles 58–61 of the Attorneyship Law, the professional confidentiality and defense counsel rights in the CMK and the case law of the ECtHR should be assessed not as mere technical privileges but as a whole that protects the legal function of the institution of defense.

The Touchstone of Defense: The Right to Object That Secures the Legitimacy of the Judgment

Defense is not merely a formal opportunity granted to the accused to give an account of themselves. The real function of the defense is to compel the state that exercises the power to punish to present lawful evidence, to open its allegation to discussion and to give reasons for its judgment. Prosecution, defense and judgment are functions that cannot replace one another: the prosecution asserts; the defense tests the factual and legal basis of the accusation; the independent court reaches a judgment on the basis of the reciprocal statements and the evidence. In proceedings in which this distinction is not preserved, even reaching the right result does not in itself cure the absence of procedural guarantees.

The strength of the defense lies not in presuming in advance that the accused is innocent, but in ensuring that even the gravest accusation can be verified, contested and reviewed. For this reason, the attorney is the representative not of the client’s act but of the client’s right to be defended in law. Treating the attorney as a suspect because of the identity of the client or the gravity of the accusation can be considered only when an independent act of the attorney, with its statutory elements, is shown; mere professional representation cannot take its place.

The Legal Meaning of the Cover Image: The Empty Defense Lectern and the Attorney in the Defendant’s Chair

The depiction on the cover of an empty defense lectern and an attorney in a robe in the defendant’s chair is not a portrayal of a real trial scene; it symbolizes the danger of the subject of the defense being turned into the object of the accusation. The scene expresses not a claim that an attorney cannot commit an offence, but the need to draw the line between professional duty and an independent criminal accusation with care. For the rule of law, the real question is not whether an attorney can be investigated, but whether conducting a purely lawful defense is treated as an indicator of crime against that attorney.

Why Is the Duty of Defense a Fundamental Safeguard of the Rule of Law?

Article 1 of the Attorneyship Law No. 1136 defines the practice of law as a public service and a liberal profession. Article 2 sets out the function of resolving legal matters, applying legal rules and protecting rights. This duty is a body of legal assistance that is not limited to speaking in the courtroom. Because the defense performs the function of independent legal scrutiny against the prosecution, it lies not outside the proceedings but within the very foundation of justice.

Defending Does Not Mean Adopting the Alleged Act

The task of defense counsel is to test the legal and factual bases of the accusation, to ask for the collection of evidence in the client’s favor, to review unlawful acts and to ensure that the suspect or defendant can benefit from their rights. The gravity of the act being defended or the social position of the client does not lead to the conclusion that the attorney is the perpetrator of the same act.

The Interest That Independence Actually Protects

Professional independence is not a personal privilege of the attorney; it is an institutional safeguard for the client’s access to legal assistance, equality of arms and the right to a fair trial. If an attorney is under the threat of sanctions because of which case they have taken on, the effectiveness of the defense and people’s freedom to choose an attorney may be impaired.

The Prohibition on Identifying the Attorney with the Client

An attorney’s power of attorney relationship, prison meeting, attendance at a hearing or legal correspondence, as a rule, proves a professional connection. Each of these must be assessed separately from the material and mental elements of an offence.

Separating Professional Contact from Organizational Affiliation

Being the defense counsel of a person accused of membership of an organization is not proof of membership of the same organization. Representing a person who faces several organization-related charges likewise does not, in itself, show participation or a hierarchical relationship. For an independent criminal accusation, a concrete act and intent must be established.

United Nations Basic Principles, Principle 18

Principle 18 of the 1990 UN Basic Principles on the Role of Lawyers provides that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions. This text is not a binding treaty; it is an international standard on professional independence.

The Attorney’s Freedom to Accept or Decline a Case: Attorneyship Law Articles 37–38

Professional independence covers, before the question of how the attorney conducts a case already undertaken, the attorney’s professional discretion whether to accept the case offered. Article 37 of the Attorneyship Law provides that an attorney may, as a rule, decline a case offered to them without giving reasons; Article 38 provides that the attorney is obliged to decline the case in situations of conflict of interest and in other prohibited cases. This freedom must be assessed together with the relevant statutory rules in special regimes such as appointments made by the bar association and mandatory defense counsel.

Accepting a case is not evidence that the attorney approves of the client’s acts or views. Likewise, declining a particular case does not prove an opinion that the client is guilty. The independence of the defense requires that the professional relationship not be burdened with a presumption of complicity.

Conflict of Interest and the Protection of Secrets

The prohibition on representing opposing interests in the same or related disputes, confidential information obtained from a former client and the duty to keep secrets are interrelated. An attorney’s checking for a conflict of interest when accepting a case matters both for the performance of their professional obligations and for preventing later misinterpretation of their professional activity.

The Material and Mental Limits of Treating Professional Activity as Evidence of a Crime

What matters in criminal procedure is not the person’s status as an attorney but whether the alleged act corresponds to a statutory definition of an offence. Under Article 38 of the Constitution and Article 2 of the TCK, the elements of an offence cannot be expanded by interpretation.

Ordinary Acts of Legal Assistance

Drawing up a power of attorney, giving a legal opinion, examining the case file, building a defense strategy, objecting to witness or expert statements and using legal remedies are acts recognized by law. These records cannot be regarded as a direct substitute for criminal intent.

A Criminal Act Independent of Professional Activity

It may be alleged that an attorney forged evidence, knowingly took part in concealing the proceeds of crime, accepted a bribe or committed other independent acts constituting an offence. These allegations, too, must be assessed not by reference to the status of attorney but in terms of concrete conduct, lawful evidence, causation and intent.

Making the Accusation Concrete

General expressions such as “assistance under the name of defense” are not sufficient. In the indictment or in the investigative act, the time, place, addressee and content of the act, the statutory type of offence, the relevant evidence and the connection to intent must be specified. The right of defense requires knowing against which concrete act it is being exercised.

Attorneyship Law Article 58: Permission to Investigate Offences Arising from the Duty

Article 58 of the Attorneyship Law provides a special investigation regime for offences that arise from the duties of an attorney or of the organs of the bar association or the Union of Turkish Bar Associations (TBB), or that are alleged to have been committed in the course of those duties. The material scope of this regime must be separated from an attorney’s personal offences.

Preliminary Examination Before Permission and the Ministry Decision

The competent public prosecutor’s office assesses the nature of the report and its connection to the duty; the file and permission procedures prescribed by law are carried out. The Ministry of Justice’s permission is not a court finding that the attorney has committed an offence. Where permission is not granted, it is taken into account that this is not the same as a judgment of acquittal.

Taking the Statement and the Special Procedure

In an investigation conducted with permission, inviting the attorney to give a defense and collecting the relevant documents are carried out under the procedure in the Attorneyship Law and in the Ministry’s implementation guidance. Compulsory attendance, taking statements and other protective measures cannot be assumed to be the same as in an ordinary investigation of a person; the limits of the special procedure must be examined in the concrete file.

The Scope of the Accusation and the Scope of the Permission

It must be determined for which act and legal characterization the Ministry’s permission was given, and whether different acts that emerge during the investigation fall within that permission must be assessed separately. The fact that permission has been obtained does not remove the statutory requirements for evidence and protective measures.

Attorneyship Law Article 59: Permission to Prosecute and the Opening of the Final Investigation

The stages of permission to investigate, permission to prosecute and the opening of the final investigation (son soruşturma) must not be confused. Article 59 provides for the Ministry’s examination of the prepared file and, where it is considered necessary, for a special judicial process.

The Public Prosecutor’s Office at the Nearest High Criminal Court

If the statutory conditions are met, the file is sent to the public prosecutor’s office at the High Criminal Court (Ağır Ceza Mahkemesi) nearest to the High Criminal Court of the place where the offence was committed. The prosecutor concerned prepares the indictment within the period specified by law and submits it to the High Criminal Court that will decide on the opening of the final investigation.

Place of Trial, Notification to the Bar and Appeal

The hearing of an attorney in respect of whom the opening of the final investigation has been decided is held before the court having jurisdiction under the law. Article 59/4 was amended by Law No. 7571 to regulate this situation and the notification of the final decisions of the proceedings to the bar association. The effect on the available remedy of the exception to CMK Article 286/2 in Article 59 must be assessed together with the type of judgment and its statutory conditions.

Attorneyship Law Articles 60–61: Objection and the Flagrante Delicto Exception

Article 60 of the Attorneyship Law regulates the special authority for objections against certain judicial decisions, and Article 61 regulates the case of flagrante delicto (suçüstü) in offences within the jurisdiction of the High Criminal Court.

The Subject of the Special Objection and the Competent Authority

For decisions of the courts referred to in Article 59 on detention, release or that there is no ground to open the final investigation, Article 60 and the general provisions on objection apply together. The authority competent for objections is specifically determined by law; it must not be assumed that the ordinary authority has jurisdiction in every file.

Flagrante Delicto in an Offence Within the Jurisdiction of the High Criminal Court

Article 61 provides that, in the case of flagrante delicto for an offence within the jurisdiction of the High Criminal Court, the investigation is conducted by the public prosecutor in person under the general provisions. The gravity of the offence alone does not satisfy the requirement of flagrante delicto. The CMK definition of flagrante delicto, the nature of the accusation and the temporal connection must be reviewed.

Wrongly Determining the Scope of the Special Permission Procedure

Merely describing an act by the name of a serious offence does not end the discussion of whether the permission regime applies. Conversely, the status of attorney does not automatically bring an allegation of a genuinely independent personal offence within the special permission regime. What is decisive is not the legal characterization but the relationship of the concrete act to the duty.

Distinguishing an Offence Arising from the Duty, an Offence Committed in the Course of the Duty and a Personal Offence

In applying the special procedure, the name of the offence, the fact that the attorney was in the course of their duty, the functional relationship of the act with professional activity and the relevant case law are assessed together.

Not Every Event That Occurs in the Course of the Duty Is the Same

A legal statement at a hearing, a meeting with a client in the office, an independent act committed in private life and the abuse of professional authority involve different concrete relationships. Time, place and professional connection must be kept apart.

Article 62 of the Attorneyship Law and TCK Article 257

Article 62 of the Attorneyship Law refers to TCK Article 257 for the abuse of an authority granted by virtue of the status of attorney or of a duty in the organs of the bar association or the TBB. This provision shows that professional safeguards do not mean impunity; but the lawful performance of a statutory duty must not be confused with the material elements of the abuse of authority.

TCK Article 128: The Conditions of Defense Immunity

TCK Article 128 provides that, under statutory conditions, no penalty is imposed for concrete accusations or negative assessments made about persons in written or oral applications, claims and defenses before judicial authorities and administrative authorities.

A Concrete Factual Basis and a Connection with the Dispute

Accusations and assessments must be based on real and concrete facts and must be connected with the dispute. The protection does not mean that all statements go unpunished without condition, nor does it permit personal attacks unrelated to the dispute.

The Legal Function of Harsh Criticism

Strong criticism directed at the correctness of judicial acts, the weight of evidence and procedural violations may fall within the scope of the defense. Words must be assessed not in isolation but together with the context, the reasons, the addressee, the method and the purpose of the defense.

Distinguishing the Defense from a Public Statement

A defense petition submitted to the court and a social media post or press statement do not have the same procedural position. Although Article 10 of the ECHR matters in both areas, the conditions for applying TCK Article 128 and its balance with other rights are examined separately.

Related articles: An Attorney's Freedom of Defense and Legal Liability for Statements in Petitions.

Professional Secrecy, Attorney–Client Confidentiality and the Relationship of Trust

Article 36 of the Attorneyship Law imposes a special obligation concerning the disclosure of information learned by reason of the duty. Professional secrecy serves to protect not only the attorney but also the rights of the person seeking legal assistance.

Keeping Secrets and Permission to Disclose

A client’s ability to describe their legal problems fully depends on trust in the confidentiality of communication. Permission to disclose and the scope of the right to refuse to testify are subject to separate provisions; the existence of one does not mean the automatic loss of the other.

Confidential Files Belonging to Other Clients

Examination of the entire contents of an office computer may expose not only the target of the investigation but also the case strategies and private correspondence of unrelated persons. For this reason, data minimization, segregation, integrity and court supervision are required.

The Limits of Professional Secrecy and of the Obligations on Prevention of Laundering Proceeds of Crime

Law No. 5549 and the related regulations may bring compliance obligations into play for certain types of work and transactions, such as obliged-entity status, identification, retention and production of records, or suspicious transaction reporting. However, not every activity of an attorney or every legal advisory service can automatically be brought within the scope of these obligations. The concrete nature of the work, the definition of obliged entity at the relevant date, the special exceptions and the connection with defense activity must be determined.

An attorney’s conducting a defense in criminal proceedings and acting as an obliged entity under the law in a particular economic transaction are not the same legal position. In explaining these obligations, it must not be concluded that there is a general duty of notification that removes professional secrecy.

ECtHR Michaud v. France: Review of a Limited Reporting Obligation

In Michaud v. France (06.12.2012, Application No. 12323/11), the ECtHR examined the obligation imposed on attorneys to report suspicious transactions for certain operations, in the framework of attorney–client confidentiality, the nature of professional assistance, national procedural safeguards and exceptions relating to defense activity, and held that Article 8 of the ECHR was not violated in the specific French regime. This judgment cannot be interpreted to mean that all attorneys in Türkiye must report every piece of client information. Full ECtHR judgment.

CMK Article 46: An Attorney’s Right to Refuse to Testify and the Client’s Consent

CMK Article 46/1-a grants attorneys, trainee attorneys and their assistants the right to refuse to testify on matters they learned in that capacity or by reason of the judicial duty they undertook. This protection must be read together with Article 36 of the Attorneyship Law.

The Right to Refuse to Testify Even Where There Is Consent

CMK Article 46/2 expressly separates the professional groups who cannot refuse to testify where the person concerned consents from the attorneys, trainee attorneys and assistants covered by Article 46/1-a. The client’s consent therefore does not by itself remove the attorney’s right to refuse.

Separating Testimony from Seizure of Documents

The right to refuse to testify does not mean that no document can be used as evidence in any circumstances. The protection of professional documents and communications must be examined separately in respect of CMK Articles 126 and 130 and other relevant provisions. The obtaining of indirect information in breach of the law must also be questioned.

Search, Seizure and Digital Evidence at an Attorney’s Office

Article 58 of the Attorneyship Law and CMK Article 130 provide special procedural safeguards for searches and seizures carried out at an attorney’s office. The relevant special provision concerning an attorney’s residence and person must be applied separately.

Court Order, Public Prosecutor and Bar Representative

Under CMK Article 130, a search of an office is carried out by court order, in relation to the event specified in the order and under the supervision of the public prosecutor; the president of the bar association or a representative is present. This special rule, which differs from the general conditions of an ordinary search order, is essential.

Objection to Seizure of Professional Documents and Sealing

If the attorney whose office is searched or the bar representative asserts that the item to be seized relates to the professional relationship with a client, the item is placed in a separate sealed envelope or package. The judicial decision specified by law is given within twenty-four hours; if it is established that the item belongs to the professional relationship, its return and the removal of the relevant records come into play.

Digital Copy, Scope of Search and Audit Trail

In a digital search, a copy of the device, the file list, which data was examined by whom and when, and hash values must be recorded. These technical measures do not replace the judicial decision required by law; they are auxiliary for the auditability of the data and for the protection of unrelated clients’ secrets.

Searches of the Residence and of the Person

CMK Article 130 on office searches must not be confused with the special provision of Article 58 of the Attorneyship Law on searches of the residence and of the person. The type of accusation, the flagrante delicto exception and the provisions in force at the date of the event must be determined separately.

Bulk Copying of Defense Records and the Rights of Unrelated Clients

An office or a digital repository may contain other clients’ case preparations, trade secrets, health or personal data and meeting notes that are outside the file under investigation. Where an entire computer or cloud account is copied, the limits within which information unrelated to the investigation may be opened to access, searched, retained and filtered out is a separate legal question.

For this reason, the scope of the search/seizure order in terms of subject, period and data categories; the objections of the attorney and the bar representative; the procedure for sealing and judicial assessment; and the integrity of the digital copy and access logs must be examined together. The rights of unrelated third parties may constitute a protected area separate from the confidentiality duty of the attorney under investigation.

ECtHR Sallinen and Others v. Finland

In Petri Sallinen and Others v. Finland (27.09.2005, Application No. 50882/99), the ECtHR assessed, under Article 8 of the ECHR, the absence of sufficiently clear and foreseeable statutory safeguards when computers and documents connected with legal practice were brought within the scope of a search and seizure. The judgment is particularly important for the protection of the correspondence of unrelated clients and for effective review of the interference. Council of Europe record of the execution of the judgment.

CMK Article 154: Meeting with Defense Counsel, Confidentiality and the 24-Hour Exception

CMK Article 154/1 guarantees that a suspect or defendant may meet with their defense counsel without a power of attorney being required and that this meeting takes place in an environment where it cannot be overheard by others; it is the rule that correspondence with defense counsel cannot be monitored.

Restriction Limited by a Judge’s Decision

CMK Article 154/2 provides that, for certain offences listed in the law, the right of a suspect in custody to meet with defense counsel may be restricted for twenty-four hours by a judge’s decision upon the request of the public prosecutor. A general and indefinite ban on meetings cannot be issued.

No Statement May Be Taken During the Restriction

The express safeguard of the same provision is that the suspect’s statement cannot be taken during the period of restriction. The restriction order, its notification, the timeline, the actual opportunity to meet and the statement record must be reviewed together.

Special Legislation on Meetings with Detainees

The custody regime in CMK Article 154 is not the same as the special provisions in enforcement law on certain meetings with detainees or convicts. Where a restriction on confidentiality is alleged, it must be clearly determined which law, which decision and which periods are being applied.

Listening to and Recording Attorney–Client Telephone Calls

Listening to conversations between an attorney and a client may constitute a serious interference with professional secrecy and the confidentiality of legal assistance. The legal basis of the interference, its target, its scope, the opportunity of the person concerned to object and to have it reviewed, the purpose for which the recordings are used and their effect on the defense must be assessed separately. The fact that an attorney’s conversation was incidentally included on another person’s monitored line does not mean that the recording may be used as evidence in every case.

ECtHR Pruteanu v. Romania: The Requirement of Effective Judicial Review

In Pruteanu v. Romania (03.02.2015, Application No. 30181/05), the ECtHR found a violation of Article 8 of the ECHR because an attorney’s telephone calls with a client were listened to and the attorney could not effectively object to this. The judgment shows that communication cannot be regarded as immune from review merely because it was recorded within an investigation. ECtHR judgment record.

ECtHR Versini-Campinchi and Crasnianski v. France: The Limit of Confidentiality

In Versini-Campinchi and Crasnianski v. France (16.06.2016, Application No. 49176/11), the ECtHR examined the recording of a conversation suggesting that the attorney personally had engaged in conduct that might constitute an offence, and its use in disciplinary proceedings, in terms of concrete safeguards and the protection of the client’s right of defense, and held that Article 8 of the ECHR was not violated. This result does not mean that attorney meetings in Türkiye may be listened to in a general and unlimited manner. Full ECtHR judgment.

Related articles: The Right to Meet an Attorney in Prison and the Protection of Confidentiality.

CMK Article 151: Ban from Acting as Defense Counsel or Legal Representative

CMK Article 151 regulates the judicial measure of banning a defense counsel or representative from undertaking the duty under the conditions stated in the law. A ban is not a judgment that the attorney’s guilt has been established.

Statutory Scope of Offences and Conditions of the Measure

It is examined whether there is a prosecution connected with the offences listed in the law for the ban and whether the other conditions are met. The mere fact that an attorney is defending a particular person is not a sufficient legal ground for the measure.

Duration, Extension and Remedy

A ban decision is limited in time and may be extended under the conditions in the law. The calculation of the period, the lifting of the ban and the right to object to the decision must be assessed in the concrete file. It is therefore important to compare the period schemes in earlier texts directly with the current law.

The Effect on the Client’s Right to Choose Defense Counsel

Banning an attorney affects not only the attorney’s professional activity but also the right of the suspect or defendant to benefit from the legal assistance of the defense counsel they have chosen. The necessity, statutory conditions and proportionality of the measure must be discussed taking this two-way effect into account.

The Right to the Assistance of Chosen Defense Counsel: CMK Article 149 and Dvorski v. Croatia

CMK Article 149 regulates the right of the suspect and defendant to the assistance of defense counsel at every stage of the investigation and prosecution. The choice of defense counsel matters not only for establishing a power of attorney relationship but also for the client’s ability to receive genuine and effective legal assistance. However, this right may be limited by statutory conditions and concrete safeguards; it must be read together with the provisions on mandatory defense counsel and on bans from acting as defense counsel.

In Dvorski v. Croatia (20.10.2015, Application No. 25703/11), the ECtHR Grand Chamber concluded that the suspect not being informed that the attorney chosen by his family had come to the police station, and a statement being taken with another attorney, affected the fairness of the proceedings as a whole, and found a violation of Article 6/1 and 6/3-c of the ECHR. ECtHR Grand Chamber press summary.

The Effect on the Client’s File of an Attorney’s Absence from the Duty

Whether an arrest, judicial control or ban from acting as defense counsel imposed on an attorney has actually interrupted the client’s defense must be investigated in terms of the new defense counsel’s access to the file, the reasonable time needed to prepare the defense, participation in the discussion of evidence at the hearing and the time limits for remedies. Whether an adjournment or additional time is needed for the client’s effective defense is an independent legal examination in the concrete case.

The Defense Counsel’s Right to Examine the File and Review of a Restriction Order: CMK Article 153

The defense counsel’s authority to examine the file and take copies is an indispensable instrument by which the defense can effectively test the accusation. Under CMK Article 153/1, the defense counsel may examine the investigation file and take copies of the documents they wish free of charge. The general confidentiality of the investigation does not by itself mean that this authority of the defense counsel has been removed.

Under What Conditions Can a Restriction Order Be Issued?

Under CMK Article 153/2, a restriction is possible only in investigations concerning the offences exhaustively listed in the article, where access to the file may endanger the purpose of the investigation, by a judge’s decision upon the request of the public prosecutor. An abstract statement that “the file is confidential” does not replace the obligation to show the decision and the statutory scope of the offence. These criteria must be checked separately both in the file in which the attorney is under investigation and in the file in which the attorney defends the client.

Access to Which Documents Cannot Be Restricted?

Under CMK Article 153/3, no restriction can be applied to the records containing the statement of the apprehended person or the suspect, expert reports and the records of other judicial acts which the person concerned is entitled to attend. Even where a restriction on the defense is in question, these documents must be requested separately. In particular, the lack of knowledge of the main grounds of the accusation in detention review must be discussed separately in terms of the effectiveness of the defense and equality of arms.

End of the Restriction and the Avenue of Application

Under CMK Article 153/4, the defense counsel may examine the contents of the file and the evidence held in custody from the time the indictment is accepted by the court. An application against a restriction order issued by a judge should be considered within the framework of the general provisions on objection. In the application, the documents that could not be accessed, why they are necessary for the defense and in which respect the restriction is contrary to the law or to proportionality should be made concrete. mevzuat.gov.tr

How Is a Restriction in a File Related to the Attorney’s Own Investigation?

An attorney’s making a lawful request to access the investigation papers in a file they have undertaken, using a legal remedy or objecting to the confidentiality of documents is not, in itself, evidence of an offence. If there is an independent allegation of an offence, the concretization of the act and all safeguards, including the permission procedure, must be examined separately.

Prison Visits and the Evidentiary Nature of Legal Correspondence

Meeting a detainee or convict is one of the ordinary components of practising law. A large number of meetings or the gravity of the offence the person is accused of does not directly lead to the conclusion that the meetings were criminal activity.

Separating the Existence of a Meeting from Its Content

A prison entry record may show that a meeting took place; it does not prove the criminal content of the conversation. If there is a criminal accusation, the concrete content, the actual perpetrator of the act, the conditions of its lawful acquisition and the connection to intent must be investigated.

Legal Instructions and an Independent Criminal Act

Conveying the client’s instructions regarding petitions, appeals, release, collection of evidence or applications to institutions is defense activity. When a criminal act going beyond this relationship is alleged, it must not be confused with the legal act itself.

The Professional Role in Allegations of Organization Membership and Aiding an Organization

For TCK Article 314 and the related types of offence, the organizational link, hierarchical relationship, continuity, diversity and intensity, and the mental elements of the offence concerned must be assessed together with the characteristics of the concrete case.

A Representation Relationship Does Not Create a Presumption of Membership

Acting as defense counsel in different organization cases is not independent evidence of organizational affiliation. Why the professional relationship was established, how the event developed and the other evidence alleged to show the elements of the offence must be examined separately.

Intent and the Nature of the Act in Aiding an Organization

A legal act’s benefiting the client does not, in itself, mean that the organization was knowingly aided. It must be shown with concrete evidence that the alleged contribution corresponds to the statutory definition of the offence and in what respect it exceeds the limit of defense.

Paying Attention to the Dates of Offences and to Amendments

Because there may be changes in the statutory structure of organization or terrorism offences and in investigation procedure, the date of the accusation, entry into force and the provisions more favorable to the person must be researched separately.

Assessing Anonymous Witnesses, Cooperating Defendants and Communication Records

In reaching a judgment about an attorney, all the evidence supporting the accusation or the defense must be assessed together with the principles of a fair trial. The connection of professional records with an offence cannot be built on abstract statements.

Concreteness of Statements and Accounts

It must be separated which event the witness directly observed and which statement is based on hearsay or interpretation. The opportunities for questioning and review that the anonymous witness procedure provides to the defense must also be taken into account.

Reliability of Digital Records

Conversations, messages, screenshots or device records obtained must be examined in terms of source, integrity, date, actual user and the context of the event. The mere fact that a record comes from a device belonging to an attorney does not settle who performed all the acts in its content.

An Attorney’s Freedom of Expression, Harsh Criticism and the Limit of Insult

Conducting the defense effectively may require criticizing judicial acts, witness statements or the exercise of public power. However, freedom of expression is not an unlimited right to personal attack.

The Context of Words Spoken in Court

In assessing a statement, the attorney’s duty, the nature of the hearing, the contribution of the words to the subject matter, the factual basis and the chilling effect of the interference must be taken into account.

Statements Before the Public

Press and social media statements do not carry the same protection regime as an oral defense in court. A balance must be struck between professional secrecy, the presumption of innocence, judicial independence and freedom of expression.

ECtHR Elçi and Others v. Türkiye: Review of Interferences with Attorneys

In its judgment of 13.11.2003 in Elçi and Others v. Türkiye (application nos. 23145/93 and 25091/94), the ECtHR examined, under the provisions of the Convention, the detention of attorneys and the treatment to which they were subjected.

Assessment of the Events and the Violations

The applications of attorneys who in 1993 in particular were handling State Security Court files contain allegations of ill-treatment, deprivation of liberty and interference with professional activity. The ECtHR found more than one violation of the Convention in respect of the concrete situations of the applicants.

The Concrete Legal Result

The judgment does not show that an attorney is immune from all criminal accusations; it does, however, demonstrate the importance for the justice system of protecting the safety of those carrying out the duty of defense, the prohibition of ill-treatment and their fundamental rights.

ECtHR Nikula v. Finland and Morice v. France: Freedom of Expression in Defense

Article 10 of the ECHR is assessed together with the professional context in respect of statements made by an attorney in proceedings or in public debate.

Nikula v. Finland — 21.03.2002, 31611/96

The judgment concerns the freedom of expression of an attorney who criticized the prosecutor’s conduct while performing the duty of defense. Whether the criticism was a personal attack and the function of debate before the court are taken into account.

Morice v. France [GC] — 23.04.2015, 29369/10

The Grand Chamber examined, within the framework of Article 10 of the ECHR, an attorney’s participation in public debate about a judicial investigation. The factual basis, confidence in the judiciary, the public importance of the statement and the context of expression are assessed together.

How Should These Judgments Be Used?

None of these judgments contains a general rule in the form of “an attorney may say anything without penalty.” The finding of a violation, the facts and the balancing test applied in each judgment must be reported separately.

ECtHR Bagirov and Namazov: Disciplinary Sanction, Disbarment and Proportionality

The ECtHR may assess disciplinary sanctions imposed for professional criticism from the standpoint of both freedom of expression and the right to respect for private life.

Bagirov v. Azerbaijan — 25.06.2020, 81024/12 and 28198/15

The removal of the applicant from practice because of public statements about the police, and his disbarment because of criticism voiced at a hearing, were examined in the context of Articles 10 and 8 of the ECHR. The ECtHR found a violation in terms of the reasoning of the interferences, their legal basis and the chilling effect of the sanction.

Namazov v. Azerbaijan — 30.01.2020, 74354/13

The disbarment that followed a debate at a hearing was assessed under Article 8 of the ECHR; a violation was found in terms of the severe effect of disbarment and the procedural safeguards.

The Limit of Transposing These Judgments into Turkish Disciplinary Law

These judgments do not directly change national disciplinary legislation. However, they provide a comparative yardstick on the severity of the penalty, its consequences for professional life, the giving of reasons and effective review.

Attorneyship Law Articles 134–135: The 2025 Amendments and the Disciplinary Regime

Law No. 7571 was published in the Official Gazette dated 25.12.2025 and restructured the disciplinary provisions of Articles 134 and 135 of the Attorneyship Law. This development cannot be passed over merely by mentioning the change to the notification to the bar association in Article 59.

Which Disciplinary Penalties Are Provided For?

The updated Article 135 regulates the penalties of warning, reprimand, fine, suspension from practice and disbarment. Which disciplinary norm a concrete act corresponds to must be assessed in terms of legality, fault, proportionality and the applicable transitional provisions.

Distinguishing Defense Criticism from a Disciplinary Violation

In allegations such as criticizing judicial authorities, failing to comply with a court order or speaking about a colleague, the context of the words and the elements defined in the sub-paragraph in force must be determined separately. Professional criticism must not be treated as an automatic disciplinary violation; the value protected by the disciplinary norm and freedom of expression must be examined together.

Criminal and Disciplinary Liability Are Not the Same

The opening of an investigation does not in itself prove a disciplinary violation. On the other hand, an acquittal in a criminal case does not automatically eliminate every disciplinary assessment that has different material elements. The evidence of the concrete case and the relevant norms must be reasoned separately.

The Constitutional Court’s Grounds for Annulment and the Temporal Effect of Law No. 7571

By its decision of 06.03.2025, E.2025/50, K.2025/47, the Constitutional Court annulled the former Articles 134 and 135 of the Attorneyship Law on the grounds that the link between disciplinary acts and sanctions was not sufficiently clear and foreseeable and that the safeguards against arbitrary application were inadequate, and postponed the entry into force of the annulment by nine months. The decision was published in the Official Gazette dated 22.05.2025. Constitutional Court decision.

Law No. 7571, published in the Official Gazette dated 25.12.2025, restructured Articles 134 and 135 of the Attorneyship Law and also amended Article 136 and the related provisions. Under the new regime, it is important to assess the link between the nature of the violation and the gravity of the act and the disciplinary sanctions. Law No. 7571.

Entry into Force of the Annulment and Application of the New Law Are Separate Stages

The annulment decision of the Constitutional Court of 06.03.2025, E.2025/50, K.2025/47, was published in the Official Gazette No. 32907 dated 22.05.2025, and the entry into force of the annulled provisions was postponed by nine months from its publication. This postponement does not remove the problems of certainty and foreseeability in the reasoning of the annulment decision; it gives the legislature time for a new regulation. The disciplinary regime was restructured by Law No. 7571, published on 25.12.2025. normkararlarbilgibankasi.anayasa.gov.tr

If there is a disciplinary proceeding against an attorney because of an act before 25.12.2025, the following dates must be compared: the act, the opening of the investigation, the decision of the disciplinary board, the objection and the final judicial review. The discussions of legality in disciplinary law, legal certainty, foreseeability and the more favorable provision, together with the entry-into-force and transitional provisions of the law on whether the new norm applies to past acts, must be conducted on the basis of the norms of the concrete case. The mere fact that the new regulation has entered into force does not automatically mean that it applies to earlier events.

Pending Investigations and the Date of the Act

If the act took place before the 2025 amendment, the temporal application of the old and new regulations cannot be resolved by an automatic assumption. The date of the act, the dates of the investigation and the board decision, the transitional and entry-into-force provisions of the law, the general principles applicable in disciplinary law and the current case law on the subject must be assessed together. The distinction between a final act and a pending file must also be made separately. This article does not adopt the categorical conclusion that the new law applies directly to all pending disciplinary files.

The Effect of Obstructing Defense Counsel’s Assistance on the Client’s Proceedings

Interference with an attorney’s independence may affect not only the rights of the member of the profession but also the client’s right to choose an attorney, to confidential meetings and to an effective defense. Article 36 of the Constitution and Article 6 of the ECHR are important in this respect.

Effectiveness of the Defense and Equality of Arms

Obstructing a meeting with defense counsel, restricting access to the file or placing an attorney under pressure may in practice affect the defense’s ability to question evidence and to object in time. Not only the abstract interference but also its effect on the proceedings must be discussed.

Consequences of a Procedural Violation

Not every procedural deficiency in itself creates an acquittal or an automatic quashing. The nature of the violation, whether there is effective redress and fairness in respect of the proceedings as a whole must be assessed.

Proportionality in Searches, Arrest, Judicial Control and Other Measures

The existence of a personal or duty-related criminal accusation against an attorney does not mean that protective measures will automatically be applied. The statutory conditions of the measures and the special procedural safeguards must be assessed together.

Arrest and Judicial Control

Strong suspicion of an offence, the ground for arrest, the adequacy of judicial control and the requirements of a reasoned decision must be investigated with concrete data. The abstract use of professional contacts alone as a ground for flight or tampering with evidence must be questioned.

The Effect on the Continuation of Professional Activity

Taking a telephone or computer, searching an office and retaining documents for a long time may also affect the files of other clients. Whether lighter alternatives are possible and the duration of the measure must be assessed.

Objection to Unlawful Evidence and Confidential Defense Records

Article 38/6 of the Constitution and CMK Articles 206/2-a and 217/2 are fundamental safeguards for the assessment of unlawfully obtained evidence.

Distinguishing the Manner of Obtaining from Probative Value

That a document has been obtained by proper procedure does not show that it proves all the elements of the offence. Conversely, a breach of statutory safeguards in obtaining a document alleged to be connected with the offence makes the admissibility of the evidence a separate legal issue.

Review Questions for Digital Evidence

Which device and which event did the search order cover? Was the bar representative present? Was an objection to professional documents made? Is there an audit trail of the copy and the examination? Were the records belonging to third parties segregated? Each of these questions must be answered by a separate legal criterion.

Related articles: Unlawfully Obtained Evidence in Criminal Trials: Which Evidence Cannot Support a Judgment?.

Objection, Remedies, Compensation and Individual Application

In allegations of an unlawful investigation or protective measures, the avenue of application varies according to the type of decision. A single method of application is not redress for all violations.

Objection and Legal Remedies

Article 60 of the Attorneyship Law, the CMK provisions on objection and on appeal (istinaf) and cassation (temyiz) must be examined together according to the type of measure and the stage of the proceedings. Time limits and competent authorities must be calculated from the dates of notification or of learning of the decision.

How Are Permission and Judicial Act Distinguished?

Permission to investigate, permission to prosecute, the court’s assessment on the opening of the final investigation, protective measures such as a search or arrest, and the final judgment are not acts that replace one another. The statutory basis, competent authority, scope and, where there is one, the avenue of application of each act are determined separately. A permission granted by the Ministry under Article 58 of the Attorneyship Law does not prove that the offence was committed or that the evidence is lawful; likewise, an objection made against a particular protective measure does not by itself remove all the legal consequences of the permission act.

Why Does the Type of Decision Matter in Determining the Avenue of Application?

Judicial review of permission acts of an administrative nature, the special objection against court decisions under Article 60 of the Attorneyship Law, objection to protective measures under the CMK, and appeal (istinaf) or cassation (temyiz) against the judgment may be subject to different procedures. The competent authority and time limit must be determined by identifying the concrete act objected to. The avenues of application relating to a refusal of permission, a grant of permission to investigate, a grant of permission to prosecute and a decision to open the final investigation must not be presented under a single template; the suitability for judicial review and the conditions of interest must be examined according to the nature of the decision.

Compensation Under CMK Article 141 and Following

The possibility of compensation for unjust or unlawful protective measures is limited by the cases listed in the law and the special procedural conditions. Not every investigation or decision not to prosecute gives rise automatically to a right to compensation; the conditions as to loss and time limits must be examined.

Applications to the Constitutional Court and the ECtHR

In allegations of violation of fundamental rights, exhaustion of ordinary remedies, the time limit for application and the victim requirement are important for an individual application. An application to the ECtHR depends on the exhaustion of domestic remedies and the admissibility conditions in the Convention.

The Institutional Protective Role of Bar Associations and Professional Organizations

Bar associations’ protecting the independence of the defense, monitoring interferences that attorneys face because of professional activity and taking part in the acts provided for by law are part of the institutional rule-of-law function.

Search Representation and Notification

Under CMK Article 130, the president of the bar association or a representative is present at an office search. The current notification provision in Article 59 concerns informing the bar association about the opening of the final investigation against an attorney and about the final decisions.

Bar Support Does Not Replace Court Review

A statement by the professional organization is not a definitive court decision that an attorney is guilty or not guilty. Participation of the bar provides professional safeguards in addition to independent judicial review.

International Standards and the 2025 Luxembourg Convention

Articles 16–20 of the 1990 UN Basic Principles on the Role of Lawyers provide a framework for protecting attorneys from pressure, for their safety, for their not being identified with their clients and for statements made in good faith in defense.

CETS 226 — The 2025 Convention for the Protection of the Profession of Lawyer

The Council of Europe convention was adopted on 12.03.2025 and opened for signature on 13.05.2025. It contains provisions on the practice of the profession, the independence of organizations, freedom of expression, discipline and protective measures.

Legal Status as of 12 November 2026

The Council of Europe records show the ratification by Bosnia and Herzegovina on 28.10.2026. The ratification conditions necessary for general entry into force have not yet been completed; because Türkiye’s signature and ratification are not seen in the records, the convention should not be presented as a binding treaty in force in Türkiye.

Correct Use of International Standards

The UN Basic Principles are not presented as if they were a domestic statute; CETS 226 is cited together with its entry into force and with Türkiye’s status as a party. The binding judgments of the ECtHR must also be related to the concrete circumstances of the case and the findings of violation.

The Legal Value of Historical and Comparative Examples

The identification of an attorney with the person defended has been debated in different countries and periods. However, historical examples cannot be detached from their own context and applied directly as precedents to present-day Turkish criminal law rules.

The Elçi Case and the Judicial Basis in Respect of Türkiye

Among the historical examples concerning Türkiye, the weight of the Elçi and Others judgment lies in the fact that there is an accessible ECtHR judgment. For other accounts, the event, the accusation, the decision and the status of finality must be verified with separate documents.

Malesherbes, Hans Litten and Other Historical Examples

These names help in understanding the history of pressure on the profession of defense. However, without distinguishing between professional activity, independent political acts and the outcome of the proceedings, the judgment “was punished only because of being an attorney” cannot be made on the basis of a historical rationale.

Neutral Narration of Current Cases

In ongoing investigations and politically contested cases, the indictment, the defense, the judgment, finality and the reports of human rights organizations are presented in separate categories. Allegations of guilt or irregularity are not written as established facts where there is no decision.

Practical Guide: What to Check in an Investigation Concerning an Attorney

The regulations above do not produce a single automatic result in every case. A multi-layered review must be carried out on the basis of the event and the act.

Order of Examination from Procedure to Substance

First the link to the duty and the permission procedure, then the lawfulness of searches and protective measures, then the material and mental elements of the accusation, the evidence for and against, and finally the remedies and applications for violation of rights must be examined.

A Four-Stage Evidentiary Review in the Transition from Professional Act to Criminal Accusation

In a file where a professional act is used as if it were evidence of a crime, the legal assessment must rest on four separate questions: (i) What is the actual content of the act and its relationship with the duty of an attorney? (ii) To the material element of which statutory type of offence does the independent conduct attributed personally to the attorney correspond? (iii) With which concrete data are intent or the other required mental element supported? (iv) Were the data obtained and discussed in accordance with the safeguards of the CMK and the Attorneyship Law? Explanations in favor that the act may have been carried out for a professional purpose are examined separately.

The obtaining of evidence and the question whether the evidence proves the elements of the offence are different reviews. Even a lawfully obtained record of a meeting may not by itself prove membership of an organization; and a digital record that could show a link to the offence may, if obtained by unlawful means, raise a separate issue of exclusion of evidence. A gap in proof cannot be filled by transferring the criminal accusation against the person represented to the attorney.

Document and Evidence Matrix

Permission letters, correspondence of the investigating prosecutor’s office, the search order and record, the bar representative’s signature, the sealing record, digital image records, records of meetings with defense counsel, witness statements and the client’s power of attorney relationship must be compared in chronological order.

Assessing the Rights of the Client and of the Attorney Together

An act directed at an attorney’s professional independence must also be examined for its effect on the defense preparation and file access of the person represented. In an allegation of violation, the judicial subject matter of the attorney’s personal right and of the defendant’s right to a fair trial must be separated.

Protecting the Independence of Defense and the Duties of Combating Crime Together

Among the case law examined there is not a contradiction but a two-stage review model: first, whether the attorney’s activity falls within legal assistance and defense and the confidentiality/special procedural safeguards are assessed; then, if it is alleged that an independent offence was committed, the concrete act, intent and lawful evidence are sought. The Michaud and Versini-Campinchi judgments show that the status of attorney does not create absolute immunity; Dvorski, Sallinen and Pruteanu show that effective legal assistance and professional secrecy must be protected against arbitrary interference.

Preventing the identification of the attorney with the client and lawfully investigating the attorney’s own independent criminal act do not exclude each other; both are subject to the rule-of-law standard.

Conclusion: Conducting a Defense Is Not Taking Part in the Offence Defended

The Philosophical Touchstone of Defense and Judicial Legitimacy

The legitimacy of criminal proceedings is sought not only in the gravity of the judgment reached or its acceptance by society, but in the judgment being given at the end of proceedings that are open to independent defense, adversarial, based on lawfully obtained evidence and reasoned. Defense is therefore not an obstacle to be endured in the face of the accusation but a constitutive element that tests the credibility of the judgment.

The transformation of the defense counsel duty an attorney has undertaken into an accusation directed at the attorney solely because of the identity of the client or the nature of the accusation creates the danger of reducing the subject of the defense to the object of the accusation. Preventing this is essential both for the independence of the attorney and for the client’s right to effective legal assistance.

The touchstone is this: The state’s power to accuse and to punish may be legitimate; but the legitimacy of that power depends on its being possible to mount a lawful defense against it. The distinction between treating the professional activity of the person who defends as a crime and investigating an attorney’s independent criminal act by lawful procedure forms the common meaning of the safeguards explained throughout the article.

An attorney’s defending a client, examining the case file, meeting in prison, making a legal statement or using a legal remedy does not mean adopting the offence of the person represented. If there is an accusation arising from professional activity, the procedural safeguards in Articles 58–61 of the Attorneyship Law must be applied, and separate areas of protection such as the right to refuse to testify, professional secrecy, office searches and meetings with defense counsel must be observed.

On the other hand, the status of attorney does not create absolute immunity against independent offences whose statutory elements have been realized. A fair and reviewable result is an assessment that separates the statutory type of offence, the concrete conduct, the lawful evidence and intent from the professional duty, and that carefully determines the boundary between the protection arising from the duty and genuine criminal liability.

The effectiveness of the right of defense depends on the attorney, who is the subject of the defense, being able to carry out their lawful duty without being under the threat of being treated as guilty because of the client’s identity. This principle is a safeguard not for attorneys but for everyone who needs the right to a fair trial.

Frequently Asked Questions

Is It a Crime for an Attorney to Defend a Client?

Lawful defense activity is not in itself a crime. If an independent criminal act is alleged, its statutory elements must be proven separately.

Is the Attorney of a Person Accused of Organization Membership Also Considered a Member of the Organization?

No. A representation relationship does not in itself create a presumption of membership; the concrete independent acts and the elements of the offence are investigated.

Is the Ministry’s Permission Always Required in an Investigation Concerning an Attorney?

No. The scope of Article 58 of the Attorneyship Law, the connection with the duty and the exceptions for personal offences and flagrante delicto are assessed.

Are Permission to Investigate and Permission to Prosecute the Same Act?

No. Articles 58 and 59 regulate different procedural stages.

What Does Article 61 of the Attorneyship Law Regulate?

It regulates the exception under which, in the case of flagrante delicto for an offence within the jurisdiction of the High Criminal Court, the investigation is conducted by the public prosecutor under the general procedure.

Can an Attorney’s Office Be Searched on the Verbal Order of the Police?

Under CMK Article 130, an office search is subject to the safeguards of a court order, the supervision of the public prosecutor and the presence of a bar representative.

Can All Client Files on an Attorney’s Computer Be Examined?

The scope of the investigation and the safeguards of professional secrecy must be taken into account; an unlimited power of examination cannot be assumed.

What Is the Role of the Bar Representative in a Search?

CMK Article 130 provides for their presence; the special procedure is important for an objection that a document belongs to the professional relationship.

How Can Seizure of a Professional Document Be Opposed?

The objection, sealing and judicial decision process under CMK Article 130/2 is applied.

Can an Attorney Refuse to Testify on Grounds of Professional Secrecy?

There is a right to refuse to testify for information within CMK Article 46/1-a.

Can an Attorney Refuse to Testify Even If the Client Gives Permission?

Yes. CMK Article 46/2 distinguishes attorneys from some other professional groups.

Can a Suspect in Custody Always Meet with Their Defense Counsel?

CMK Article 154/1 regulates the basic safeguard; there is a 24-hour exception, limited by a judge’s decision, for certain offences listed in the law.

Can a Statement Be Taken During the 24 Hours in Which Meeting with Defense Counsel Is Prohibited?

No, under CMK Article 154/2.

Is a Ban from Acting as Defense Counsel a Judgment of Guilt?

No. It is a separate judicial measure subject to the conditions of CMK Article 151.

Is It a Crime to Criticize the Judge or the Prosecutor at a Hearing?

Not every criticism is a crime. For the purposes of TCK Article 128 and Article 10 of the ECHR, the context, the concrete basis and the connection with the dispute are assessed.

Does Defense Immunity Protect Every Statement?

No. TCK Article 128 has a scope and conditions; a personal attack unrelated to the dispute is not automatically protected.

Does the Number of an Attorney’s Prison Visits Prove Membership?

It does not prove it by itself. The content and purpose of the meeting and other concrete evidence are required.

Is the Statement of an Anonymous Witness Sufficient on Its Own?

The concreteness of the witness’s account, the defense’s opportunity to question and its consistency with the other evidence must be discussed.

How Is Intent Investigated in an Accusation Concerning Professional Activity?

The nature of the act, the person’s knowledge, purpose and the mental elements of the offence are determined with concrete evidence.

Is an Attorney Considered Guilty If the Ministry’s Permission Has Been Obtained?

No. The permission relates to the investigation/prosecution procedure; it is not a judgment of conviction.

Was the Disciplinary Law Amended at the End of 2025?

Yes. Law No. 7571 restructured Articles 134 and 135 of the Attorneyship Law.

Can Disbarment Be Applied for Every Disciplinary Violation?

No. The nature of the violation, statutory definition, fault, procedural safeguards and proportionality are taken into account.

What Is the Importance of the ECtHR’s Bagirov Judgment?

It is its examination of the sanctions of removal from practice and disbarment imposed for professional criticism under Articles 10 and 8 of the ECHR.

What Is the Importance of the ECtHR’s Namazov Judgment?

It is its assessment, under Article 8 of the ECHR, of the effect of the sanction of disbarment on professional life and private life.

What Is the Subject of the Elçi and Others v. Türkiye Judgment?

It concerns various violations of the Convention in relation to the detention of attorneys and the interferences to which they were subjected.

What Does Article 62 of the Attorneyship Law Regulate?

It refers to TCK Article 257 for the abuse of the duty and authority granted by virtue of the status of attorney.

Can a Document Obtained Through an Unlawful Office Search Be Used?

The lawfulness of the evidence must be discussed separately under Article 38/6 of the Constitution and the CMK provisions.

If a Suspect Is Deprived of Defense Counsel’s Assistance, Are the Proceedings Affected?

The effect of the interference with an effective defense on the proceedings as a whole and the means of redress are assessed in the concrete case.

Can an Attorney Claim Compensation for an Unjustified Protective Measure?

A claim can be assessed if the limited cases and procedural conditions in CMK Article 141 and following are met.

Is the Luxembourg Convention in Force in Türkiye?

As of 12.11.2026, Türkiye’s signature/ratification has not been verified and the conditions for general entry into force have not been completed.

Can an Attorney Decline a Case Offered to Them?

As a rule, yes under Article 37 of the Attorneyship Law; however, mandatory defense counsel and the relevant special appointment regimes are assessed separately. An obligation to decline the work may arise under Article 38 in a conflict of interest and in some other cases.

What Happens If a Statement Is Taken with Another Attorney Instead of the Defense Counsel I Chose?

The right of access and to choose defense counsel is assessed under CMK Article 149 and Article 6 of the ECHR. The ECtHR’s judgment in Dvorski v. Croatia shows that obstructing access to the chosen attorney may affect the fairness of the proceedings.

Are Attorneys Obliged to Report Every Suspicious Financial Transaction to MASAK?

Such a general conclusion is not correct. The activity-based scope of Law No. 5549 and the related legislation, its exceptions, the nature of the concrete service and the safeguards of professional confidentiality must be examined together.

Can a Telephone Conversation Showing the Attorney’s Own Participation in an Offence Never Be Used?

Neither an absolute prohibition nor an absolute permission can be concluded. The special evidentiary and communication safeguards of Turkish law apply. The ECtHR’s Versini-Campinchi judgment found no violation under the concrete circumstances; the Pruteanu judgment treated the absence of effective review as a violation.

Can Files Belonging to the Attorney’s Other Clients Also Be Searched?

The data of clients unrelated to the investigation must be protected. An office search and digital examination must be limited by the statutory scope and the safeguards of objection, above all CMK Article 130.

Do the Disciplinary Provisions Amended in 2025 Apply Automatically to Earlier Acts?

No, such a categorical assessment cannot be made. The date of the act, the stage of the decision, the transitional and entry-into-force provisions and the current disciplinary case law must be examined together.

Sources and legal bases

1. Attorneyship Law No. 1136 — current legislation.
2. Criminal Procedure Code No. 5271 — current legislation.
3. Turkish Criminal Code No. 5237 — current legislation.
4. Law No. 7571, Official Gazette 25.12.2025.
5. Ministry of Justice, General Directorate of Criminal Affairs, procedure for investigating attorneys.
6. ECtHR Elçi and Others v. Türkiye, 13.11.2003, 23145/93 and 25091/94.
7. ECtHR Bagirov v. Azerbaijan, 25.06.2020, 81024/12 and 28198/15.
8. ECtHR Namazov v. Azerbaijan, 30.01.2020, 74354/13.
9. ECtHR Nikula v. Finland, 21.03.2002, 31611/96 — text of the judgment.
10. ECtHR Morice v. France [GC], 23.04.2015, 29369/10.
11. UN Basic Principles on the Role of Lawyers (1990).
12. Council of Europe Convention for the Protection of the Profession of Lawyer, CETS 226.
13. Council of Europe, current signature and ratification record of CETS 226.
14. ECtHR Dvorski v. Croatia [GC], 20.10.2015, Application No. 25703/11.
15. ECtHR Michaud v. France, 06.12.2012, Application No. 12323/11.
16. ECtHR Versini-Campinchi and Crasnianski v. France, 16.06.2016, Application No. 49176/11.
17. ECtHR Pruteanu v. Romania, 03.02.2015, Application No. 30181/05.
18. ECtHR Petri Sallinen and Others v. Finland, 27.09.2005, Application No. 50882/99 — text of the judgment.
19. Constitutional Court, 06.03.2025, E.2025/50, K.2025/47.
20. Law No. 5549 on the Prevention of Laundering Proceeds of Crime — Legislation Information System.
21. CMK Article 153 — the defense counsel’s authority to examine the file.