Introduction
A defense against the prosecutor's final opinion explains which decision is requested from the court, and why, by examining the public prosecutor's view on the merits in light of the evidence in the file and the law to be applied. For effective preparation, the full text of the opinion must be obtained, each defendant and each charge must be assessed separately, and the decisive objections must be turned into a written and oral defense. The time needed for preparation, any missing research and any need for a supplementary defense are also made concrete at this stage.
When the prosecutor begins to read the final opinion at a criminal hearing, the way the defense works changes. It becomes visible which facts the prosecution considers established, what meaning it gives to which evidence, and what judgment it asks the court to deliver. A lawyer who listens carefully and takes notes can compare these reasons with the file. A date in the opinion, the meaning attached to a witness's account, or an inference about the mental element of the offense may become the centre of the defense.
The strength of a defense on the merits lies in clarifying the questions that matter to the decision. Which fact is disputed? Which evidence is used to prove it? Does that evidence really show the result claimed? Which rule of law may apply to the accepted account of events? This article addresses the working method that can be followed from the reading of the opinion at an ordinary criminal hearing to the completion of the defense before judgment.
The final opinion on the merits and the scope of the defense
The final opinion on the merits contains the assessment the prosecution reached at the end of the proceedings and its request for judgment. It is not a court decision; its being announced does not show that a conviction has become final. Baran Doğan also stresses that a defense on the merits should not be confined to the statements in the opinion, but should be built taking into account the whole file and the legal possibilities under discussion. [9]
CMK Article 216 regulates the discussion of evidence and the right of reply; Article 225 sets the limit of the judgment as to the act and the perpetrator; and Article 226 regulates supplementary defense where the legal characterization changes. The court is not bound by the prosecution's or the defense's legal characterization of the act. This authority does not mean that a judgment may be entered on an act outside the scope of the indictment merely by granting a supplementary defense. [1]
For this reason, the first step of the review is to place the indictment and the opinion side by side. For which defendant and which act does the opinion describe the facts? Is an event put forward that is not in the indictment, or is the same event characterized as a different offense? Is there a charge for which the prosecutor seeks acquittal? Are several acts treated as one offense, or one act as several offenses? Each of these questions calls for a different defense and a different request.
The phrase "objection to the opinion" is used in practice, but what is done here is to respond to the view on the merits. There is no independent legal remedy specific to the opinion, since it is not a court decision. Decisions such as the continuation of detention given in the same session are examined separately under their own remedy rules. The subject of the defense petition, and of any application against these decisions, should be kept clear. [1, 9]
Which notes should the lawyer take while the prosecutor reads the opinion?
Trying to rewrite every sentence while listening may cause important changes to be missed. A short note sheet prepared in advance makes it easier to follow the opinion. It is useful for the sheet to have separate areas for the following topics:
- For each defendant, the act charged, the offense and the articles whose application is requested.
- Facts and legal characterization that differ from the indictment or from an earlier opinion.
- The evidence on which the request for conviction rests, and where it is located in the file.
- The assessment of favorable evidence, and any points that are not explained.
- Grounds that increase or reduce the sentence, security measures and requests concerning detention.
- Matters requiring a text sample, an explanation, research or preparation time.
For example, if the opinion says "the defendant's presence at the scene has been established by camera recordings," the note should not simply say "camera." It should also record which footage, which time interval and which personal feature the identification was based on, and whether this was explained. If, while summarizing a witness's entire account, the opinion omits an important limitation relevant to the defense, the page of the record containing that limitation should be marked.
If there is any uncertainty between the oral statement and the written text submitted to the file, it should be clarified in the same session, by asking to be heard. The notes are then compared with the copy of the opinion in the file and with the hearing record. In files with many defendants in particular, care must be taken that a reason put forward for another defendant is not read as if it also applied to the client.
At this stage the aim is not to enter an immediate debate with the prosecutor. First the whole view is understood; the need for explanation or time is then directed to the court. In this way the defense does not become a hurried reaction to a sentence that was not clearly heard.
How is time requested for a defense against the final opinion?
Justifying the time needed for preparation
Article 36 of the Constitution guarantees the right to defense and to a fair trial. Article 6(3)(b) of the European Convention on Human Rights (AİHS) guarantees the time and facilities necessary to prepare a defense. There is no fixed period of seven, fifteen or thirty days for preparing against the final opinion that applies to all files. The time needed is assessed according to the circumstances of the concrete proceedings. [2, 3, 4]
The time request should state when the opinion was learned of, what new assessments it contains and what preparatory steps will be taken. The volume of the file, the number of defendants and charges, a new technical report, the need to meet the client, difficulty of access caused by detention, or the review of the file by defense counsel appointed later may be important in this assessment. The link between the time requested and the work to be done should be established.
Hypothetical time request: "In the opinion announced today, it is argued for the first time that the client took part in the act, based on the processing times in the annex to the technical report. We need to examine the report annexes, compare them with the records in the file and meet the client. We request that copies of the annexes relied on in the opinion be provided, and that a period suitable for carrying out these preparations be granted."
A realistic period may also be proposed where possible; however, this proposal should not be presented as a preclusive period applying to every file, or as an automatic deferral rule. The court's interlocutory decision and the date it sets must be followed. A request for time does not, on its own, adjourn the hearing automatically.
The standard shown by Constitutional Court decisions
In Kadir Toprak, the health excuse of defense counsel was rejected; the opinion was announced at a session where no defense was present, and a conviction was entered. The Constitutional Court, weighing the special conditions of the pandemic period together with the failure to allow a defense to be made, found a violation. The decision cannot be read as a general rule requiring acceptance of every excuse; it concerns the provision of a real opportunity to defend in the face of an essential procedural step. [4]
In Nadir Ünal, the applicant, who could not attend the hearing because of military service, was notified of the opinion after judgment. The Constitutional Court held that a decision given without the applicant being informed of the opinion, and this deficiency not being remedied on appeal either, constituted a violation, in the special circumstances of the case, of the time and facilities necessary for defense. [5]
In Resul Kılıç, the Constitutional Court, assessing the course of the proceedings, the excuses submitted one after another, and the applicant's ability to learn of the opinion and respond to it, found the complaint about time manifestly ill-founded. The fact that the opinion was submitted two days before the judgment in that case does not create a standard that two days is sufficient in every file. Read together, the three decisions show that the decisive question is what concrete opportunity for preparation and explanation the defense was given. [6]
Analysing the opinion through the charge, the evidence and the request
When preparing a reply to the opinion, it should be determined which result each paragraph serves. One paragraph may describe events, another may draw a conclusion from the evidence, and the final section may make the legal characterization. Separating these layers prevents an objection to the facts from being confused with an objection to the legal rule.
The table below shows a working method that can be used on entirely hypothetical situations. In a real file, the date, name and page of each document must be added to each row.
| Proposition in the opinion | Point to examine | Concrete direction for the defense |
|---|---|---|
| The footage places the defendant at the scene | Can the face be identified, and on what data does the identification rest? | Explain the limit of proof of the footage and state the technical examination required |
| The witness identified the defendant | What did the witness directly see, and is there a difference from the earlier account? | Show how the contradiction affects an element of the charge |
| The money transfer is part of the offense | Were the explanation of the transaction, the relationship between the parties and the other records examined together? | Evaluate the fact of the transfer and the inference of criminal purpose separately |
| The defendants acted together | What was the contribution and intention of each defendant, and which evidence explains it? | Separate the client's conduct from the conduct of other persons |
| The aggravated form should apply | Does the concrete event on which the increase rests exist, and was the necessary opportunity of defense given? | Examine the factual condition, the legal basis and the need for a supplementary defense |
The last column should not be filled in only with "we do not accept." What the court should examine, and the effect on the judgment, must be visible. The same record may support one fact and yet not prove another. For example, the fact that a meeting took place does not by itself explain the content of the conversation or show that it was for criminal purposes. Its value in the concrete file should be discussed together with the other data.
How is evidence assessed through specific questions?
How the evidence was obtained, and its probative value
The lawful acquisition of evidence and its reliability are examined under separate headings. CMK Article 206(2)(a) and Article 217(2) form the basic framework for unlawfully obtained evidence; Article 217(1) forms the basis for evaluating the evidence presented and discussed at the hearing. [1]
The defense should explain how it reached the conclusion that "the evidence is unlawful." Which procedure, decision or practice is being discussed? Which document shows the unlawfulness? Which part of the file should not be relied on in the judgment? Without determining the scope of the objection to unlawfulness, declaring the whole file invalid in a single sentence makes the substantive discussion vague.
In the reliability review, the integrity of the record, the source of the document, the method of examination and the relationship between the result obtained and the claim put forward are explained. If a report merely lists account movements, the inference as to criminal intent must be separately justified. A datum not used in a technical report may have been carried into the opinion as though it were the report's definitive conclusion. The defense should show this distinction by reference to the relevant part of the document.
Discussing favorable and adverse evidence together
A defense that ignores a strong adverse fact in the file leaves the court's central question unanswered. A more effective method is to accept the actual scope of that fact and discuss the conclusion drawn from it. For example, where the transfer of money between the parties is undisputed, the defense examines its legal cause and its connection with the charge, rather than objecting needlessly to the existence of the transfer.
The same care is needed for favorable evidence. The fact that a witness speaks in the defendant's favor does not by itself show that the account is reliable in every respect. The witness's opportunity to observe the event, the source of the information and the consistency of the account with other records should be explained. Beyond selecting and listing what is favorable, the defense must show why it is decisive.
The reasoning principles set out by the Constitutional Court in Sencer Başat and Others require that essential defenses capable of affecting the outcome be assessed in the reasoning. There is no obligation to respond separately to every detail. For this reason, the importance of the decisive objection should be explained clearly in the petition: "The evaluation of this document will affect the conclusion on attributing the act to the client, for the following reason." [7]
Elements of the offense and alternative legal assessment
The name of the offense used in the opinion is the result of the review. The defense should evaluate individually the elements leading to that result. The act alleged, the nature of the perpetrator, the subject of the offense, where necessary the result and causation, intent or negligence, and special purpose are dealt with according to the characteristics of the event. Where there are several defendants, individual contribution and responsibility are shown separately.
This review is not merely a matter of filling in the same headings in every file. For example, where the dispute is whether the person performed the act, identity and the link with the act take priority. If the act is undisputed but criminal intent is contested, inferences about knowledge and willing are examined. Where the legal relationship between the parties affects the character of the charge, the real scope of the contract or delivery is explained.
Lawyers' Handbook II addresses how defense strategy is built through file review, consultation with the client and evaluation of the legal options. This approach is also useful in a defense on the merits: the view on whether the event occurred and the legal assessment to be put forward if the court adopts a different view of the facts should be clearly separated. [8]
For example, while the defense "the client's participation in the act has not been proven" is preserved, if the court thinks otherwise it may separately explain why a particular aggravated form cannot apply. This second assessment should be framed conditionally. The explanation that follows the phrase "even if the act is accepted" should be discussed with the client, to check whether it may unintentionally create an admission in the account of events.
The order of alternative requests is also important. After the basis of the primary request for acquittal has been explained, the concrete provisions to be applied if the court reaches a different assessment are reasoned. Adding every discount unconnected to the file may obscure the legal option that can actually be applied.
How is the need for new evidence and for a supplementary defense indicated?
After the opinion has been announced, an important gap in the investigation may be noticed. The request should show which evidence is to be obtained, where it is located, what it will explain and why it will affect the outcome. A request for evidence cannot be rejected merely because it was submitted late; but this does not mean that every request for investigation will be accepted. CMK Articles 206 and 207 should be read together. [1]
Hypothetical investigation request: "The opinion proceeds on the premise that the transaction was made from the account used by the client. The report in the file shows account ownership; it does not identify the user at the time of the transaction. We request that the access records for the date and time interval we specify be obtained from the relevant institution and examined together with the existing technical report."
If the requested investigation is completed, the effect of the new evidence on the defense is assessed separately. The reply given to the first opinion does not automatically cover a later report or a changed view. The lawyer should again make concrete the need for supplementary explanation and preparation, on the basis of the new situation.
Where the legal characterization changes, the conditions of CMK Article 226 are observed. The current fourth paragraph regulates notifications to the defendant and, where there is one, to defense counsel; it contains a special provision for cases where notification to the defendant's last address is not possible, or where the defendant does not appear despite notification. It cannot be said that, on the basis of the former text, notification to defense counsel alone is always sufficient. [1]
Where a supplementary defense is needed, it should be clarified for which new characterization or aggravating ground the defense is to be made. The presentation of a new act that is not in the file and the different legal assessment of the existing act are not the same problem. The request should be framed so as to put this distinction before the court.
How is a written defense on the merits structured?
In a well-organized defense petition, the reader should be able to understand the dispute and the priority request from the first page. In long files, a short opening summary is useful. After the summary, the evidence and the legal explanations are developed in an order that shows how the same conclusion is reached.
The heading section should state correctly the court, the file number, the information on the defendant and defense counsel, and the date of the opinion being answered. The subject line states that a defense on the merits against the opinion is submitted. Where there is more than one opinion, it should be explained which text and which changes were examined.
For the body, the following order may be used: first the basic defense and the decisive objections; then the relevant findings of the opinion; the assessment of the evidence; the elements of the offense; any procedural deficiencies; and conditional legal requests. The conclusion section shows the decisions requested from the court concretely and in sequence. This order is adapted to the needs of the file; for example, a research gap that prevents a decision may be dealt with at the beginning.
References to documents must be verifiable. Instead of "as will be seen in the file," the name, date and page of the document, or the relevant part of the hearing record, should be given. If the name of the document in UYAP and its physical order in the file differ, using both may make it easier to find the required section. Annexes are listed under clear names, and the reason for resubmitting a document already in the file is stated.
Where case law is used, the court, date and number of the decision should be stated, along with the similarity. A violation finding or a quashing in another decision does not by itself lead to the same result. Whether the decisive condition in that decision exists in the present file should be shown, and dissimilar aspects should be honestly stated.
How can persuasive force be increased in an oral defense?
Starting with the decisive question
The opening of an oral defense should make visible the basic question the court must decide. After the statement "we do not agree with the opinion," the reasoning specific to the file should follow. For example, if it is disputed who carried out the act, the speech should begin with the evidence that determines this. Retelling the whole history of the file in the same detail may reduce the time left for the point that will affect the judgment.
Hypothetical opening: "Your Honour, in this file it is undisputed that the transaction was carried out. The question to be resolved is which evidence supports the conclusion that the client carried it out. I will present the data on which the report relies on this point, and the point it does not explain."
Separating fact from inference
A persuasive presentation sets out in separate sentences what the record says and the conclusion drawn from it. First the record is explained as to what it shows; then the meaning the opinion attaches to it is stated. Finally, it is shown why that meaning is not sufficient, or why it requires a different assessment. In this way the court can follow the defense's reasoning step by step.
Hypothetical answer: "The witness says that he saw the person; but the same record also states that he could not see the person's face. The evidence on which the identification rests is therefore important. Our defense does not seek rejection of the witness's whole account, but an assessment of this limit on the identification."
Answering the court's question directly
A question put by the court should not be postponed in order to continue a prepared speech. If the answer is known, it is given first, directly; then the relevant document is shown. If the answer needs to be checked against the file, that need is stated clearly. Completing an unknown detail as if it were certain damages the credibility of the defense.
Hypothetical answer: "Yes, the payment referred to was made. Our objection concerns not the existence of the payment but the conclusion that it was made for a criminal purpose. We explained in the relevant section of our petition the document that, we submit, shows the legal cause of the payment."
Directing the listener to the written text and completing the request
Fahrettin Kayhan addresses, within his Hybrid Rupture Defense approach (Hibrit Kopuş Savunması), the combined use of written and oral defense, the direction of the statement made at the hearing to the relevant section of the petition, and the recording in writing of important objections. This is not a statutory type of defense, nor a method that guarantees a result. What is useful in responding to the opinion is linking the speech to the concrete basis in the file. [10]
For example, while a contradiction in the report is being explained in the speech, the place of the comparison table in the petition can be indicated. It is then stated what legal request this contradiction leads to. A measured voice, an understandable sentence and, where necessary, a short pause may help the listener follow the thought. None of these replaces evidence and legal reasoning.
Hypothetical closing: "The two uncertainties we have explained are decisive as to the attribution of the act to the client. We request an acquittal on the ground that the existing evidence does not establish this link. If your Court considers additional investigation necessary, we ask that the records we identified be examined, and that the defense's view on them be obtained before any assessment is made."
How is the conclusion and request section written?
In the conclusion section, the link between each request and its reasoning must be kept. A request for investigation, for time for a supplementary defense, for acquittal, for release and for conditional favorable rulings should not be compressed into a single vague sentence. It should be clear for which defendant and which charge each request is made.
Article 223(2)(b) of CMK covers an acquittal where it is established that the defendant did not commit the offense; Article 223(2)(e) covers an acquittal where it is not established that the defendant committed the offense. An acquittal for insufficiency of evidence and a dismissal of the case are different types of decision. A request matching the concrete reasoning should be framed. [1, 8]
The example below is a hypothetical event created only to show the form of the expression: the opinion infers that the perpetrator is the defendant from footage whose suitability for facial identification is not explained, and from witness testimony containing no direct identification. In the example, the whole file is assumed to be limited to this hypothesis.
- Because the uncertainties explained regarding the footage and the witness account mean that it is not established that the charged offense was committed by the client, we request an acquittal under CMK Article 223(2)(e);
- If your Court considers an additional examination necessary before judgment, we request that the original footage be examined on the technical questions we have identified, and that the defense be given an opportunity to make submissions on the outcome of that examination;
- If the client is in detention, we request a decision on our application for release in line with the current grounds for detention and the proportionality assessment set out in the application.
This example is not a ready-made petition to be used without adaptation to the concrete file. In a real defense the primary request, the need for investigation and the detention assessment may differ. Where acquittal is sought for one offense and a different legal assessment for another, the conclusion section should preserve that distinction.
Favorable ruling requests that depend on the possibility of conviction should also be made concrete. The applicable conditions for the determination of the penalty, reduction, deferment and other individualization institutions are examined separately. Explanations in old sample petitions concerning HAGB should not be transferred directly; the relevant paragraphs of CMK Article 231 were re-regulated in 2026 by Article 15 of Law No. 7589. [11]
The lawyer's closing defense and the defendant's final word
Under CMK Article 216(3), the defendant, if present, is given the final word before judgment. The comprehensive defense on the merits made by the lawyer does not replace this personal right of the defendant. [1]
While preparing with the client, the function of the final word may be explained, and the client may be supported in expressing, in his or her own words, the matters he or she wishes the court to hear. No false expression of remorse or false account of the event should be created, and the defendant should not be made to memorize sentences he or she does not adopt. The defendant's personal statement and the defense counsel's legal assessment should not be confused.
If a new allegation, document or assessment appears after the defense, its effect should be dealt with separately. The lawyer should state the need to answer the new matter, and should follow whether the defense rights can actually be exercised at the transition to judgment. What matters is not only that a speech was made, but also on which matters there was an opportunity to speak.
Hearing record and post-judgment check
CMK Articles 221 and 222 are important for the content of the hearing record and its function as proof of the procedure. It should be requested that essential requests and objections be recorded in the minutes; after the hearing, the record should be checked together with the written defense submitted. [1]
This check examines in particular the date and scope of the opinion, requests for time or investigation, the decisions on those requests and the final word of the defendant. If a deficiency or error is noticed, what is to be corrected must be specified concretely, in writing and without delay. It is also followed up that the petition has been placed in the file and that its annexes are accessible.
When the reasoned judgment is announced, it should be examined how the decisive objections in the defense were assessed. In preparing a legal remedy, it is more useful to link the judgment's reasoning to the first petition than to copy the whole petition. Which defense mattered and why, what answer the court gave, and what legal problem remains in that assessment: the review is conducted around these questions. [7]
Frequent mistakes in a defense against the final opinion
- Reading the opinion by case number and offense name, without separating the individual charge against each defendant.
- Requesting preparation time in the abstract, without stating the work to be carried out.
- Resubmitting an earlier petition without reviewing it against the new opinion.
- Failing to respond to a decisive adverse item of evidence and listing only the favorable points.
- Describing objections to unlawful acquisition, reliability and insufficiency of evidence in the same terms.
- Using only the conclusion of a case law decision without examining its facts and reasoning.
- Leaving the order and basis of the primary request for acquittal and the conditional legal requests unclear.
- Failing to complete an oral statement with a concrete request, or failing to check the hearing record.
Conclusion
An effective defense against the prosecutor's final opinion questions which evidence and which legal assessment the conclusion reached by the prosecution rests on. The lawyer's task is to present that questioning with a clarity the court can review. A well-prepared text shows the disputed fact, explains the limit of proof of the evidence, and reaches the requested decision with reasons.
A written defense carries the detail and the document references, while the oral defense brings the decisive issue to the fore. Securing the time needed for preparation, responding to new circumstances and protecting the defendant's personal rights are part of this work. The final check is simple: can the court understand what the defense asks, why it asks it, and where its basis lies in the file?
Frequently Asked Questions
Must a sentence always follow once the prosecutor has given an opinion?
No. The opinion is the view of the prosecution. The court decides after evaluating the file and the legal conditions; the prosecutor's request for punishment does not itself determine the outcome.
How many days are there to prepare a defense against the opinion?
There is no single number of days for all files. The time needed is justified by the content of the opinion and by the preparation to be carried out. The period and the hearing date set by the court must be followed separately.
If the prosecutor seeks acquittal, is it necessary to file a defense?
The reasoning behind the request for acquittal should be examined, and the defense's own legal grounds should be explained. Because the court is not bound by the opinion, a favorable opinion does not mean that every assessment of the file has been completed.
If a written petition has been filed, can an oral defense also be made?
Yes. The decisive points of the written text may be explained at the hearing, and the court's questions may be answered. Consistency between the written and oral statements should be ensured.
Can new evidence be requested after the opinion?
Yes. What evidence is requested, and its relevance to the dispute, should be explained. Late notification alone is not a ground for rejection; the other conditions for admitting the evidence are assessed separately.
What should be done if the name of the offense changes in the opinion?
Compare the opinion with the indictment to determine whether the same act is being characterized differently. A supplementary defense under CMK Article 226 and, where necessary, a request for preparation time should be made concrete.
Does failing to respond to the opinion amount to an admission of the offense?
Remaining silent does not in itself constitute an admission of guilt. However, the reason for not responding, and whether a real opportunity to defend was given, are important. Requesting time, not attending the hearing and deciding not to make a defense are different situations.
After defense counsel speaks, is the defendant also given the floor?
The final word belongs to the defendant, if present, before judgment. The defense counsel's submissions do not replace this personal right.
Sources and legal bases
[1] Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), in particular Arts. 206, 207, 215–217, 221–223, 225–226 and 230. Ministry of Justice text (Adalet Bakanlığı metni). Current legislation: UYAP Legislation.
[2] Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Arts. 36 and 38. On the related guarantees, see also the Constitutional Court decisions below.
[3] European Convention on Human Rights, Art. 6; in particular Arts. 6(3)(b) and 6(3)(c). European Court of Human Rights, Turkish text.
[4] Constitutional Court, Kadir Toprak [GK], B. No: 2022/2407, 9 October 2024, in particular §§ 27–32; Official Gazette: 9 January 2025, No. 32777. Decision record; decision text.
[5] Constitutional Court, Nadir Ünal, B. No: 2019/27469, 6 October 2022, in particular §§ 18–23. Decision record; decision text.
[6] Constitutional Court, Resul Kılıç, B. No: 2022/4755, 14 October 2025, in particular §§ 15–18; Official Gazette: 12 February 2026, No. 33166. Decision record; decision text.
[7] Constitutional Court, Sencer Başat and Others [GK], B. No: 2013/7800, 18 June 2014, in particular §§ 31–39. Decision record; decision text.
[8] Project for Improving the Effectiveness of the Turkish Criminal Justice System, Lawyers' Handbook II: Determining Defense Strategy and Drafting Petitions (Avukatlar İçin El Kitabı II: Savunma Stratejisinin Belirlenmesi ve Dilekçe Yazma), in particular section 1.4, pp. 40–50. Publication of the Union of Turkish Bar Associations (TBB).
[9] Baran Doğan, "Defense on the Merits in Criminal Law" ("Ceza Hukukunda Esas Hakkında Savunma"), 13 June 2024. Article.
[10] Fahrettin Kayhan, "Written Defense in the Hybrid Rupture Defense" ("Hibrit Kopuş Savunmasında Yazılı Savunma"), 31 March 2026. Article.
[11] Law No. 7589, adopted 16 July 2026, Art. 15; amendment to CMK Art. 231. Grand National Assembly of Türkiye (TBMM) law text.