Defense Counsel's Rights and Defense Strategies in Investigations with a Confidentiality (File Restriction) Order

Confidentiality of the Investigation, Restriction of File Access and the Limit on Publicity Are Not the Same Thing

Criminal procedure contains four separate legal institutions that look similar. Grouping them under one concept can lead to a wrongly framed route of application and a wrongly framed defense request.

The confidentiality of the investigation is the general statutory regime

CMK Art. 157 treats procedural acts in the investigation phase as confidential, subject to cases where the statute provides otherwise and provided that the rights of the defense are not harmed. Confidentiality serves legitimate purposes such as protecting evidence, preventing suspects from fleeing, keeping investigation methods from losing their effectiveness, and respecting the presumption of innocence and the right not to be stigmatized.[2]

However, confidentiality is not an unlimited and indefinite curtain against the defense. The aim of conducting the investigation soundly and the suspect's rights to learn of the accusation, to benefit from the assistance of defense counsel and to effectively challenge decisions restricting his or her liberty must be protected together.

A file restriction order is a special and exceptional measure

Under CMK Art. 153/1, the rule is that defense counsel may examine the investigation file and obtain copies of the documents he or she wishes free of charge. The restriction in the second paragraph is an exception to this general authority. For that reason, it is not enough that the offense appears in the catalog; it must be tied to the concrete case that access could endanger the purpose of the investigation.[2]

A publication ban or liability under TCK Art. 285 is different from the right to examine the file

Defense counsel's ability to access the file does not mean that he or she may disclose the documents and information obtained to the press, social media or unrelated third parties. A strict distinction must be made between use for the purpose of the defense and public disclosure. The content, scope and manner of publicity of the specific disclosure are assessed separately in terms of professional secrecy, personal data, the presumption of innocence and TCK Art. 285.[11]

Under What Conditions May a File Restriction Order Be Issued Under CMK Art. 153?

CMK Art. 153/2 makes a file restriction order subject to interrelated conditions. The absence of any one of these conditions makes the lawfulness of the order open to dispute.

The offense under investigation must be in the catalog in the statute

A restriction can be applied only in investigations into the offenses listed exhaustively in the article. Intentional killing, certain sexual offenses, the manufacture and trade of narcotic or stimulant substances, establishing an organization for the purpose of committing offenses, certain offenses against the security of the state and the constitutional order, arms smuggling, embezzlement in banking and smuggling offenses fall within this catalog.[2]

Not only the name of the legal characterization of the offense but also the statutory elements of the specific act attributed to the suspect must be examined. If defense counsel believes that presenting the act as falling within a catalog offense is not supported by concrete facts, counsel should raise this not only as a substantive criminal law defense but also with respect to the statutory basis of the file restriction order.

The public prosecutor's request must exist

A judge cannot issue a file restriction order on his or her own motion. There must be a request from the public prosecutor conducting the investigation. The request should show, as far as possible, which document or information, if accessed, would endanger which investigation procedure and in what way.

The decision must be issued by a judge

An oral statement by the prosecutor's office, the police, the front office or the clerk's office that "there is confidentiality in the file" is not a file restriction order within the meaning of CMK Art. 153/2. Defense counsel must find out which criminal judgeship of peace (sulh ceza hâkimliği) issued the decision, on what date and under what miscellaneous case number, and what its scope is.

The danger to the purpose of the investigation must be made concrete

The statute makes the restriction conditional on access to the file being capable of "endangering the purpose of the investigation." Writing the statutory sentence verbatim into the decision does not by itself amount to concrete reasoning. The danger must be explained through facts specific to the file, such as ongoing covert procedures, evidence not yet collected, suspects not yet located, the possibility of pressure on witnesses, the alteration of digital records, or the exposure of covert investigation methods.[2] [5] [6]

The presence of a catalog offense is not an automatic ground for restriction

The catalog offense requirement is a precondition for issuing the decision; it is not sufficient reasoning on its own. The judge must also assess the concrete danger of access to the file.

Restriction should be assessed document by document instead of for the entire file

If the danger exists only with respect to certain documents or groups of procedures, keeping the entire file closed for a long time may raise a proportionality problem. Whether lighter tools would suffice should be discussed, such as redacting identity information, keeping certain annexes closed, opening completed procedures, or limiting only the manner of obtaining copies.

The currency of the grounds for restriction must be maintained

The danger that existed on the date the file restriction order was issued may disappear as the investigation progresses. If evidence has been collected, the persons concerned have been apprehended, search and seizure procedures have been completed, or the legal characterization of the accusation has changed, the continuation of the order must be reassessed. Although under CMK Art. 153/4 the restriction ends upon acceptance of the indictment, a measure whose grounds have already ceased to exist need not be automatically continued until that date.

How Should the Concrete Reasoning of a File Restriction Order Be Reviewed?

It is often not enough for defense counsel's objection merely to say "my right of defense was restricted." The deficiency in the decision should be shown through the concrete questions it leaves unanswered.

In the Hüda Kaya decision, the Constitutional Court accepted that access to the file is not absolute, but that a restriction must be reviewed in terms of strict necessity, concrete reasoning and the possibility of an effective objection to pretrial detention. In the Ömer Faruk Kırnıç decision as well, applying a similar standard, it found that restricting access to the file may impair the right to an effective application concerning the lawfulness of detention.[5] [6]

In Yüksekdağ Şenoğlu and Others v. Türkiye, the ECtHR reached a finding of violation under Article 5 § 4 of the Convention because access to the file had been restricted on the basis of stock reasoning. This decision shows that general expressions such as "confidentiality of the investigation" are not sufficient on their own.[7]

Who May Examine the File? The Capacity of Defense Counsel and the Distinction from a Power of Attorney

The right to examine the file depends on the capacity of defense counsel in the specific investigation

The direct right to examine and obtain copies under CMK Art. 153 is granted not to any lawyer but to the defense counsel who undertakes the suspect's defense in criminal proceedings. In its decision of 28.10.2025, E.2024/3311, K.2025/10746, the Court of Cassation 10th Criminal Chamber emphasized that lawyer status alone does not provide access to any investigation file; the link of defense counsel or representation with the person concerned must be identifiable. The decision explained this approach with the statement that "such an authority has not been granted to every lawyer."[4]

A notarized power of attorney is not the only means of proof

The existence of the capacity of defense counsel cannot in every case be tied to a notarized power of attorney. In a specific case, this link can be shown by

• a bar association appointment letter,
• a UYAP defense counsel record,
• the suspect's explicit statement before the authority,
• a written selection of defense counsel,
• a power of attorney or another legally sufficient record.

Nevertheless, to avoid doubts in practice, it is important that the defense counsel relationship be submitted to the file without delay and that the UYAP record be completed. The rule on examination without a power of attorney in Article 46 of the Attorneys' Law relates, by its wording, to case and enforcement files; defense counsel capacity in an investigation file should be assessed together with the special provisions of the CMK.[3] [4]

What Should Defense Counsel Do If File Access Is Blocked Without a Judge's Decision?

A de facto barrier to access should not be confused with a file restriction order issued by a judge. If there is no valid judge's decision, defense counsel's request cannot be dismissed with an oral statement that "the file is confidential."

Order of steps to follow

1. Ask for the identity of the decision: The criminal judgeship of peace that issued the decision, its date and its miscellaneous case number must be established.
2. Learn the scope: Ask whether the decision covers the entire file or specific documents.
3. Submit a written request to examine: A request to examine the file and obtain copies must be submitted through UYAP or in person, relying on CMK Art. 153/1 and the relevant regulatory provisions.[2] [3]
4. Specify the documents one by one: In particular, the documents claimed to fall under Art. 153/3 must be listed separately.
5. Record the refusal: A reasoned letter, a file examination record, a front-office entry or a UYAP document number must be obtained.
6. Identify the actual legal act: If there is a judge's decision, a CMK Art. 268 objection; if there is only a prosecutor's office or clerk's office practice, a written application and a route of review appropriate to the nature of the act must be set up.
7. Explain the effect on the defense: How the inaccessible document affects the statement, pretrial detention or judicial control objection must be made concrete.

Settling for an oral refusal makes it harder to prove later which document was not provided, when and on what grounds. For this reason, every request and every refusal must be made visible in the file.

Documents That Cannot Be Restricted Under CMK Art. 153/3

CMK Art. 153/3 provides for three groups of documents that must remain open to access even if a file restriction order has been issued.[2]

Records containing the statement of the apprehended person or the suspect

Depending on the stage of the specific file, defense counsel must be able to examine and obtain copies of

• the police statement record,
• the public prosecutor's office statement record,
• the criminal judgeship of peace interrogation record.

Expert reports

Expert reports submitted to the file are outside the scope of the restriction. Forensic medicine, criminal laboratory, ballistics, financial or digital examination reports may fall into this group. However, raw data, working notes or output of an ongoing examination that has not yet acquired the character of a report must be distinguished from a completed expert report.

Records of other judicial procedures at which presence is authorized

The statute protects the records of judicial procedures at which the suspect or defense counsel is authorized to be present. For this reason, not only the name of the document but also whether there is authority to be present at the relevant procedure must be examined.

Not every search and seizure record can be treated as open automatically

Whether a search, seizure, site-pointing or on-site inspection record falls within Art. 153/3 is determined by taking into account the nature of the procedure, the suspect's connection with that procedure and the authority to be present. A categorical generalization that all search and seizure records are in every case automatically open to access should not be made.

In digital evidence, the report, decryption record, image and raw data should be distinguished

In terms of digital examination, the following elements are not the same thing:

• a forensic copy or image,
• raw data,
• a decryption or determination record,
• an expert report,
• report annexes.

The request should be framed so as to show which record is needed for which defense claim. The manner in which digital evidence was obtained, its preservation, the procedure of its inclusion in the file and its admissibility as a basis for judgment should be assessed separately.

Document request matrix

How Should the Defense Be Built at the Statement and Interrogation Stage?

In an investigation where access to the file is limited, the statement strategy should reduce the risk of speculative explanations about unknown evidence.

The attributed act must be made specific

Under CMK Art. 147, the offense attributed to the suspect must be explained. A file restriction order does not allow the accusation to be left vague as to time, place, act and personal connection. Defense counsel should ask

• what the specific act attributed is,
• on what date and at what place it is alleged to have been committed,
• with which person, procedure or record the suspect is linked,
• from which fact the question put arises.

The right to remain silent can be a safeguard against speculative defense

If the file contents are unknown, a suspect who makes statements that are hard to retract and may contradict one another faces a serious risk. Defense counsel should consider, in the specific case, the right to remain silent, a limited statement, or a detailed defense only after certain documents have been seen. The right to remain silent does not create a presumption of guilt; however, the timing and scope of its use should be determined strategically according to the circumstances of the file.

Evidence in the suspect's favor should be requested clearly and specifically

Under CMK Art. 147/1-f, the collection of concrete evidence that would help clear the suspicion may be requested. Evidence such as camera footage, location data, bank records, HTS/base-station records, witnesses, entry and exit records, health or travel documents should be requested, as far as possible, stating the date and the institution.

Sufficient time and facilities for the defense should be requested

In its decision of 01.10.2024, E.2022/3028, K.2024/11024, the Court of Cassation 3rd Criminal Chamber emphasized that defense rights must be interpreted as "not theoretical and abstract, but effective and practical" and treated the existence of reasonable facilities for defense counsel to examine the file, prepare the defense and meet the suspect or defendant as part of the right of defense.[9]

Access to the File and the Core Evidence Test in the Pretrial Detention Process

The heaviest effect of a file restriction order appears in the defense against a pretrial detention order that restricts the suspect's liberty. Access to the whole file is not an absolute right; however, withholding entirely from the defense the content of the evidence that is decisive for discussing the lawfulness of pretrial detention may make an effective objection impossible.[5] [6] [7]

What is the core evidence underlying pretrial detention?

Core evidence is not every document in the investigation file. It is the evidence that forms the basis of strong suspicion of an offense and that is alleged to establish the person-specific link in the pretrial detention order. For example, where

• a decisive witness statement,
• a communication record,
• a digital examination finding,
• a money movement,
• physical surveillance or camera footage,
• a concrete record establishing the claim of organizational affiliation

has been used as the main basis of the pretrial detention, the defense must at least be able to learn the substance of the evidence.

Core evidence access test

1. Has the evidence been expressly used in the referral letter or order for pretrial detention?
2. Is this evidence the main basis of strong suspicion of an offense?
3. Can the defense meaningfully challenge the suspicion of an offense without knowing the substance of the evidence?
4. Has the content of the evidence been explained to the suspect in the statement or interrogation?
5. Has the difficulty created by the restriction been compensated by another procedural safeguard?
6. If disclosing all of the evidence is risky, is it possible to disclose its substance or the relevant part?

The common standard of the Hüda Kaya and Ömer Faruk Kırnıç decisions

In the Hüda Kaya decision, the Constitutional Court examined the restriction of access to the investigation file under Article 19/8 of the Constitution and emphasized the importance of the core evidence being comprehensible to the defense in order to object effectively to the lawfulness of detention. In the Ömer Faruk Kırnıç decision as well, it reached a finding of violation of the same right because of the restriction of access to the file.[5] [6]

The ECtHR's Yüksekdağ Şenoğlu approach

The ECtHR accepted that restricting access to the file through stock and abstract reasoning may remove the possibility of effectively discussing the lawfulness of detention. The Court looks for a refusal of access to be based on concrete reasoning specific to the file.[7]

The presence of defense counsel at the pretrial detention interrogation is mandatory

Under CMK Art. 101/3, when pretrial detention is requested, the suspect or defendant benefits from the assistance of defense counsel, whether chosen by him or her or appointed by the bar association. In its decision of 13.05.2024, E.2021/9821, K.2024/2293, the Court of Cassation 12th Criminal Chamber found a pretrial detention order issued without defense counsel contrary to the law and reversed the rejection decision in the compensation case.[8]

Requests that may be made at the pretrial detention interrogation

• Reading of the pretrial detention referral letter and provision of a copy,
• Disclosure of the basic facts alleged to constitute strong suspicion of an offense,
• Not making evidence that is inaccessible the sole ground for pretrial detention,
• Assessment of the evidence in the suspect's favor,
• Making concrete why judicial control would be insufficient,
• Granting a reasonable time to prepare the defense,
• Narrowing the file restriction order at least with respect to the documents underlying the pretrial detention.

Defense Strategy in a Judicial Control Order

Although judicial control is a lighter measure than pretrial detention, it can cause serious restrictions on rights, particularly with measures such as not leaving the residence, a heavy signature obligation or bans that in practice prevent professional activity.

Defense counsel should not be content with saying "let judicial control be applied"; counsel should document the suspect's personal and file-specific circumstances and explain which measure would address which risk. A fixed residence, a regular profession, family ties, health condition, the fact that the evidence has been collected, the absence of any possibility of contact with witnesses and travel history can be shown with concrete documents.

Case law is not entirely uniform on the extent to which the core-evidence access approach developed for pretrial detention will apply to heavy judicial control measures such as not leaving the residence. Nevertheless, for measures that severely narrow the sphere of liberty, the grounds of the decision must be knowable to the defense and a proportionality review must be carried out.

Objection to a File Restriction Order, Time Limit and Competent Authority

The current general objection period is two weeks

Under CMK Art. 268/1, in cases where the statute does not otherwise provide, the objection is made within two weeks from the date the decision is learned. Because of the transitional provisions of Law No. 7499, the time-limit regime in force on the date of the event must be checked separately for decisions issued before 1 June 2024.[2] [10]

Time limit warning: The current period is two weeks. However, for an older decision, the current period information found online should not be applied automatically; the date of the decision and the transitional provision must be examined together.

The objection is submitted to the authority that issued the decision

The petition is submitted to the authority that issued the file restriction order. If that authority does not find the objection well founded, it sends the file to the review authority indicated in the statute.

The objection authorities for a file restriction order and a pretrial detention order may differ

An objection to a criminal judgeship of peace's file restriction order is, as a rule, examined by the criminal judgeship of peace that follows it by number. By contrast, an objection to the pretrial detention and judicial control decisions of a criminal judgeship of peace is examined, under the current CMK Art. 268/3-b, by the judge of the criminal court of first instance in the relevant judicial district.[2]

An objection does not automatically stay the implementation of the decision

Under CMK Art. 269, an objection does not, as a rule, stay the execution of the decision. For this reason, defense counsel must separately explain the urgent need for access and the damage, difficult to remedy, that delay would cause in the statement, interrogation or pretrial detention defense.[2]

Main grounds that may be raised in the objection petition

• The offense attributed is not in the CMK Art. 153/2 catalog,
• There is no properly made request from the public prosecutor,
• The decision was not issued by a judge,
• The danger to the purpose of the investigation has not been made concrete,
• The entire file has been restricted disproportionately,
• Documents under CMK Art. 153/3 have also not been provided,
• The substance of the core evidence underlying the pretrial detention is withheld from the defense,
• The ground for the restriction has ceased to exist because evidence was collected after the decision,
• Lighter methods of access have not been considered.

A graduated and alternative request should be framed

Requesting only complete removal in the objection may cause a more proportionate solution in the specific file to be overlooked. The order of requests can be framed as follows:

1. Complete removal of the file restriction order,
2. If this request is not accepted, limiting the order to specific groups of documents,
3. Opening the documents relating to completed investigation procedures,
4. Providing copies with personal data redacted,
5. Disclosing at least the substance of the core evidence underlying the pretrial detention,
6. Immediately providing the documents under CMK Art. 153/3,
7. Reassessing the order after a certain period.

Duration of a File Restriction Order and Request for Re-examination

CMK Art. 153 does not provide an independent maximum calendar period for the restriction. The restriction, as a rule, ends upon acceptance of the indictment. However, this rule does not permit the order to be continued without reasoning throughout the investigation.

Defense counsel should apply again for the order to be lifted or narrowed

• when evidence has been collected,
• when covert procedures have been completed,
• when suspects have been apprehended,
• when witnesses have been heard,
• when the characterization of the offense has moved outside the catalog,
• when the defense burden has grown heavier while pretrial detention or heavy judicial control continues.

There may be different approaches in practice on whether a restriction can be lifted directly by the prosecutor. The safe method is to file a request for lifting or narrowing before the judgeship that issued the restriction and, at the same time, to ask the public prosecutor's office to make a request supporting that application.

Preserving Documents and Records for Constitutional Court and ECtHR Applications

Whether a complaint about file access can be reviewed later depends on the barrier to access having been documented. In the ECtHR's Kışanak and Tuncel v. Türkiye decision, the applicant's failure to submit the file restriction order prevented the Court from assessing the legitimate ground for the limitation and led to the complaint not being substantiated.[12]

Records that must be preserved

• A full copy of the file restriction order,
• The date and miscellaneous case number of the judgeship that issued the decision,
• A copy of the prosecutor's request for restriction, if accessible,
• Petitions to examine the file and obtain copies,
• UYAP document registration numbers,
• Front-office or clerk's office records,
• A detailed list of the documents not provided,
• Refusal letters and the grounds for refusal,
• The petition objecting to the file restriction order and the decision on the objection,
• Pretrial detention orders, orders continuing detention and judicial control decisions,
• Annotations in the interrogation record showing that the evidence was not disclosed,
• Records of when and to what extent access was later granted.

In an application to the Constitutional Court or the ECtHR, it is not enough to say only that "the file was confidential." It must be explained concretely which document's being unknown rendered which liberty or defense objection ineffective.

Confidentiality of the Investigation, Professional Secrecy and the TCK Art. 285 Risk

Defense counsel's right of access to the file contents is limited to the purpose of the defense. Disclosing the documents obtained to the public may, depending on the nature of the sharing, give rise to a breach of the confidentiality of the investigation, unlawful transfer of personal data, a breach of professional secrecy or disciplinary liability.[11]

For the purpose of the defense,

• informing the suspect,
• preparing a legal application,
• necessary and proportionate sharing to obtain an expert opinion,
• researching evidence in the suspect's favor

are not the same as making the file contents public through the press or social media. The purpose of the sharing, the recipient, its scope and the security method must be assessed separately.

A Short Scope Note for the Representative of the Injured Party

CMK Art. 153/5 provides that the victim, the complainant, the person harmed by the offense and their representatives also benefit from the rights to examine the file and obtain copies. However, this article focuses mainly on the defense rights of the suspect's defense counsel. The access of the injured party's representative must be assessed separately in the specific case in terms of party status, personal data, protection of the investigation and the scope of the file restriction order.[2]

Principal Court Decisions and Their Effects in Practice

A Staged Practical Roadmap for Defense Counsel

At the first request for access

• Submit defense counsel capacity to the file and check the UYAP record.
• Find out the date, number and scope of the file restriction order.
• Request the documents under CMK Art. 153/3 separately.
• Put the refusal in writing and date it.

Before the statement

• Ask for the accusation to be explained in terms of time, place, act and link.
• Meet the suspect confidentially and for a sufficient time.
• Consider a strategy of silence or a limited statement against unknown evidence.
• Request in writing that evidence in the suspect's favor be collected.

At referral for pretrial detention

• Request the referral letter and the basic facts underlying the pretrial detention.
• Have it entered in the record that the substance of the core evidence has not been disclosed.
• Do not allow an interrogation to be conducted without defense counsel.
• Discuss the grounds for pretrial detention and the alternatives of judicial control separately.

In the objection to the file restriction order

• Review the catalog offense, the prosecutor's request, the judge's decision and the concrete danger under separate headings.
• Frame partial and document-based requests alongside complete removal.
• Explain the currency of the order and why lighter tools would suffice.
• Check the objection period and the competent authority according to the date of the decision.

As the investigation progresses

• Renew the request for lifting or narrowing as evidence is collected.
• Assess new facts regarding pretrial detention and judicial control in a separate application.
• Keep all access requests, refusals and decisions in chronological order.

Common Mistakes in Practice

Settling for the oral statement "the file is confidential"

Without the date and number of the decision, the subject of the objection cannot be determined.

Failing to register defense counsel capacity in UYAP

A lawyer's identity alone does not provide the right of access to every investigation file.

Not separately requesting the CMK Art. 153/3 documents

The rejection of a general request to examine may result in the exempt documents never having been requested at all.

Treating all search and seizure records as automatically open

The authority to be present and the nature of the procedure must be examined separately.

Failing to put the refusal in writing

The barrier to access cannot be proven in a later objection and individual application.

Giving a detailed speculative statement in a restricted file

Explanations made against unknown evidence may needlessly narrow the room for defense.

Merely alleging an abstract violation of rights

It must be explained which document prevented which defense objection.

Confusing the objection authorities for restriction and pretrial detention

The special authority rule must be checked for each decision.

Assuming the objection period is subject to the same date regime in every case

For decisions before 1 June 2024, the transitional provisions must be examined separately.

Not preserving decision and application records

The review before the Constitutional Court and the ECtHR rests on the specific decision and refusal records.

Related articles: Objection to Pretrial Detention and Release Request: Strong Suspicion, Proportionality and Review of Reasoning; Digital Evidence in Criminal Proceedings: Phone Examination, Lawfulness and Objection; Right to Liberty and Security of the Person: Arrest, Police Detention, Pretrial Detention and Remedies; Criminal Law and Criminal Procedure: Questions and Answers; Pretrial Detention and Judicial Control Legal Support Page

Conclusion

Restricting access to the investigation file is not a measure that suspends defense counsel's duty of defense or leaves the suspect defenseless against the accusation. A file restriction order is an exceptional regulation subject to the conditions of a catalog offense, the public prosecutor's request, a judge's decision and a concrete danger to the purpose of the investigation.

Defense counsel's first task is to identify the real act behind the word "confidentiality." Whether a valid judge's decision exists, which groups of documents it covers, and whether the documents under CMK Art. 153/3 are being kept open to access must be established. The concrete effect of the barrier to access on the statement, interrogation, pretrial detention or judicial control defense must then be explained.

Six core criteria stand out for an effective defense:

1. Making defense counsel capacity and access requests visible in the file,
2. Obtaining without delay the documents that cannot be restricted,
3. Reviewing the file restriction order for concrete reasoning and proportionality,
4. Securing access to the substance of the core evidence underlying the pretrial detention,
5. Framing graduated and document-based requests alongside complete removal,
6. Preserving all decision and refusal records with a view to Constitutional Court and ECtHR applications.

Not being able to see the whole file does not mean that the defense cannot do anything. Defense counsel must read correctly every document that can be seen, request every document not provided with concrete reasoning, and record every barrier to access in good time. The balance between the soundness of the investigation and the right of defense can be preserved only if file restriction orders are applied within statutory limits and with reasoning specific to the file.

Frequently Asked Questions

Is there a "confidentiality order" in every investigation file?

No. Investigation procedures are confidential as a rule under CMK Art. 157. Restricting defense counsel's authority to examine the file and obtain copies, however, requires a separate judge's decision that meets the conditions of CMK Art. 153/2.

If there is a file restriction order, can defense counsel not see any documents?

No. The suspect's statement and interrogation records, expert reports and the records of procedures at which the suspect or defense counsel is authorized to be present remain outside the scope of the restriction.

Is a notarized power of attorney required to examine the file?

A notarized power of attorney can show the defense counsel relationship, but it is not the only method. A UYAP defense counsel record, a bar association appointment, the suspect's explicit statement or another legally sufficient record may also be used. By contrast, a lawyer's identity alone does not give authority to access any investigation file.

Can a prosecutor alone place a restriction on the file?

Under CMK Art. 153/2, a restriction can be imposed by a judge's decision upon the public prosecutor's request. An oral statement by the prosecutor's office or the front office does not replace a judge's decision.

What is the period for objecting to a file restriction order?

The current general period is two weeks from the date the decision is learned. For decisions issued before 1 June 2024, the time-limit regime in force on the date of the event must be examined separately.

Does an objection automatically stay the file restriction order?

No. Under CMK Art. 269, an objection does not, as a rule, stay the implementation of the decision. The urgent need for access must be explained separately in the petition.

When does a file restriction order end?

Under CMK Art. 153/4, it ends upon acceptance of the indictment. However, if the grounds for the restriction have ceased earlier, lifting or narrowing of the order may be requested.

Can a pretrial detention order be issued in a restricted file?

A restriction alone does not prevent pretrial detention. However, the defense's lack of knowledge of the core evidence underlying the pretrial detention may violate the right to object effectively to the lawfulness of detention.

Is the presence of defense counsel mandatory at a pretrial detention interrogation?

Yes. Under CMK Art. 101/3, when pretrial detention is requested, the suspect or defendant benefits from the assistance of defense counsel. The Court of Cassation 12th Criminal Chamber has found a pretrial detention order issued without defense counsel contrary to the law.[8]

Can documents obtained from the file be shared in the press or on social media?

The right of access to the file does not grant authority to disclose the documents to the public. Sharing for purposes other than the defense may have consequences in terms of TCK Art. 285, the protection of personal data, professional secrecy and disciplinary liability.

Which documents should be preserved if a Constitutional Court or ECtHR application is contemplated?

The file restriction order, the requests to examine, the refusal records, the objection petitions and decisions, the pretrial detention orders and all records showing when access was granted must be preserved.

Sources and legal bases

1. Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), in particular Arts. 19 and 36. mevzuat.gov.tr
2. Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), in particular Arts. 100, 101, 109, 147, 153, 154, 157, 267-269. mevzuat.gov.tr
3. Attorneys' Law No. 1136 (Avukatlık Kanunu), in particular Arts. 2 and 46; Regulation on the Conduct of Administrative and Clerical Services of the Regional Courts of Appeal, the Courts of First Instance in the Judicial Jurisdiction and the Chief Public Prosecutors' Offices (Bölge Adliye ve Adlî Yargı İlk Derece Mahkemeleri ile Cumhuriyet Başsavcılıkları İdarî ve Yazı İşleri Hizmetlerinin Yürütülmesine Dair Yönetmelik), Arts. 136-137. mevzuat.gov.tr
4. Court of Cassation (Yargıtay) 10th Criminal Chamber, 28.10.2025, E.2024/3311, K.2025/10746. app.dejure.ai
5. Constitutional Court (Anayasa Mahkemesi), Hüda Kaya [Plenary Assembly], Application No: 2023/102251, 25.02.2025. kararlarbilgibankasi.anayasa.gov.tr
6. Constitutional Court (Anayasa Mahkemesi), Ömer Faruk Kırnıç [First Section], Application No: 2023/53415, 11.03.2026. kararlarbilgibankasi.anayasa.gov.tr
7. ECtHR, Yüksekdağ Şenoğlu and Others v. Türkiye, Application Nos. 14332/17 and others, 08.11.2022. hudoc.echr.coe.int
8. Court of Cassation (Yargıtay) 12th Criminal Chamber, 13.05.2024, E.2021/9821, K.2024/2293. app.dejure.ai
9. Court of Cassation (Yargıtay) 3rd Criminal Chamber, 01.10.2024, E.2022/3028, K.2024/11024. app.dejure.ai
10. Law No. 7499 on Amendments to the Code of Criminal Procedure and Certain Other Laws (7499 sayılı Ceza Muhakemesi Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun), Official Gazette 12.03.2024, No. 32487. resmigazete.gov.tr
11. Law No. 5237, Turkish Penal Code (Türk Ceza Kanunu), in particular Art. 285. mevzuat.gov.tr
12. ECtHR, Kışanak and Tuncel v. Türkiye, 2026. hudoc.echr.coe.int