Criminal Law and Criminal Procedure: Questions and Answers

A suspect has the rights to learn of the accusation, to remain silent, to benefit from the assistance of defense counsel, to request that evidence in the suspect’s favor be collected, and to give a statement in accordance with the law.

Article 147 of the Code of Criminal Procedure (CMK) sets out the basic safeguards for statements and interrogation. The accusation must be explained, identity details must be recorded accurately, and the suspect must be informed of the right to the assistance of defense counsel and the right to remain silent. A suspect cannot be compelled to make a statement without knowing these rights; whether the statement was voluntary is important. Where mandatory defense counsel is required, the rules under Article 150 of the Code of Criminal Procedure apply. It is important that the statement record be read from beginning to end, that corrections be requested for incorrectly written sentences, and that documents and witnesses in the suspect’s favor be clearly identified. Being summoned to give a statement or being subjected to a law enforcement measure does not mean the person is guilty; the defense strategy must be built on the accusation and the concrete evidence.

As a rule, defense counsel may review the investigation file; for certain offenses, a restriction on review subject to statutory conditions may be imposed by a judge’s decision.

Article 153 of the Code of Criminal Procedure regulates defense counsel’s authority to review the file and obtain copies of documents during the investigation phase. For certain listed offenses, if it would jeopardize the purpose of the investigation, this authority may be restricted by a judge’s decision upon the request of the public prosecutor. However, documents that the law expressly excepts and the suspect’s right of defense remain separately protected. Rather than stating in general terms that access to the contents of the file has been denied, the defense should identify the scope of the restriction decision, its reasoning and which document it affects. A restriction does not mean the authority to keep the entire file secret indefinitely. The regime of openness in the prosecution phase is assessed separately from the investigation phase.

Whether unlawfully obtained evidence can be used as the basis of a judgment is assessed in line with the express prohibitions of the Code of Criminal Procedure; the criminal accusation alone does not show that the evidence is lawful.

Articles 206(2)(a) and 217(2) of the Code of Criminal Procedure are among the basic safeguards concerning the use of unlawfully obtained evidence as the basis of a judgment. For evidence such as searches, seizures, digital examinations, identifications, and telephone and camera recordings, it is checked whether the relevant procedure was followed. The manner in which the evidence was obtained, its preservation, the procedure by which it was added to the file, the preparation of records and its discussion at the hearing are separate matters. Because the consequence of each procedural deficiency may not be the same, the effect of the specific violation on the reliability of the evidence and on its use as the basis of the judgment must be reasoned. Defense counsel may request that evidence in the suspect’s favor be collected and that unlawful evidence not be used as the basis of the judgment.

A person in police custody may meet with defense counsel; the statutory cases of mandatory defense counsel are also taken into account.

A person who is apprehended or taken into custody must be informed of the reason for the measure and of his or her rights. The possibility of meeting with defense counsel, the right to remain silent, the medical check and the provisions on notifying relatives are assessed under the criminal procedure legislation. The duration of police custody, any extension decision and the statutory conditions of the measure must be followed. The person’s request for defense counsel must be clearly entered in the record; restrictions in practice can be examined only on the basis of a statutory ground and conditions.

Pretrial detention is a severe protective measure that restricts liberty; judicial control, on the other hand, may be carried out through lighter obligations provided for by law.

For pretrial detention, the concrete evidence showing strong suspicion of an offense, the ground for detention and the requirements of proportionality must be assessed together. Under judicial control, obligations such as signing in or a ban on leaving the country, or other statutory obligations, may be applied. The mere gravity of the offense or the fact that it is a listed offense does not make a reasoned and individualized assessment unnecessary for pretrial detention. The conditions for continuing and lifting the measure must be examined separately.

A legal remedy may be pursued against a pretrial detention decision; in addition, a request for release and for judicial control may be considered.

The reasoning of the detention decision, the accusation, the concrete evidence, the risks of flight or of tampering with evidence, and why alternative measures were considered insufficient must be examined. The authority competent to hear the objection and the time limits under the Code of Criminal Procedure must be checked according to the nature of the decision. Individual circumstances such as health, family, occupation, a fixed residence and the stage the investigation has reached may be presented with supporting documents. Making an application does not mean that the measure is lifted automatically.

A criminal complaint should clearly state the act, the date, the place, the persons concerned and, where possible, the evidence.

The event giving rise to the complaint should be narrated chronologically; who carried out which act and when, which events the witnesses know of, and where the existing documents were obtained should be made concrete. Where possible, the originals of messages, camera footage, medical reports, bank transactions and other digital records should be preserved. A legal characterization does not take the place of the public prosecutor’s function; however, the material facts to be proved must be conveyed completely. For offenses prosecuted only upon complaint, the time limit for filing the complaint must be checked separately.

A complainant may hold certain rights during the investigation, and, once a request to intervene is accepted in the prosecution phase, the rights of an intervening party provided for by law.

A person harmed by the offense may exercise rights such as requesting that evidence be collected during the investigation and, in cases the law allows, obtaining copies from the file. After a public prosecution has been initiated, the possibility of joining the prosecution through a properly filed request to intervene is assessed. Rights to legal remedies, representation by counsel, being notified of the hearing and the capacities held in the file must be distinguished from one another. Having filed a criminal complaint does not, in every file, automatically confer the status of intervening party (katılan).

A decision of non-prosecution (kovuşturmaya yer olmadığı kararı) may be objected to within the framework of the statutory conditions.

The reasoning of the public prosecutor’s office decision, the offense and the suspects in respect of whom it was issued, the date of notification and the authority competent to hear the objection must be examined. In the objection, the investigative steps that were left incomplete, the evidence not collected, the witnesses or errors of legal assessment should be shown concretely. Article 173 of the Code of Criminal Procedure regulates the basic application procedure. Whether other avenues of application are possible is determined separately according to the type of decision and the circumstances of the file.

Yes; a person has the right not to be compelled to make a self-incriminating statement.

Under Article 147 of the Code of Criminal Procedure, the accusation must be explained and the person must be informed of the right to the assistance of defense counsel and the right to remain silent. The obligation to state identity details accurately is distinct from the right to remain silent regarding the accusation.

Interference with digital data may be subject to the statutory procedure and to a decision of the competent authority, depending on the scope of the measure.

The conditions of search, copying, seizure and digital examination measures must be examined under Article 134 of the Code of Criminal Procedure and other relevant provisions. The record, the handing over of the device, the scope of the examination and the preservation of the data are important for the defense.

Yes; objections and a request for a further examination may be made regarding the report’s technical assumptions, method and conclusions.

The data on which the report is based, the procedure by which it was added to the file, the documents not examined and the limits of the expert’s expertise should be identified one by one. If the expert makes a legal characterization, the court’s authority to make the legal assessment may be pointed out.

Pretrial detention must be assessed on the basis of concrete grounds and the conditions in the Code of Criminal Procedure.

The facts showing strong suspicion of an offense, the risk of flight or of concealing evidence, and why judicial control is insufficient must be discussed in the decision. Proportionality and individualized reasoning can be reviewed.

Release or judicial control may be requested on the basis of the concrete state of health, the treatment options and the necessity of the protective measure.

Current physician reports, institutional health records, the risk of delay in treatment and alternative measures should be presented. Not every illness is regarded as a ground for release in itself.

Yes; the lifting or modification of the ban or, where necessary, a temporary exemption may be requested.

The reason for travel, work or health documents, compliance with summonses and concrete data showing that there is no suspicion of flight are important. From which authority the decision is requested and the avenue of objection in case of refusal are examined separately.