The Defense of Connivance and Rupture in Criminal Cases: Jacques Vergès’s Theory and Its Legal Limits

In a criminal defense, it is possible to contest not only the truth of the charge but also the assumptions on which the proceedings are conducted. Jacques Vergès’s distinction between connivance and rupture helps in understanding the relationship between these two levels. However, the intellectual claim of a defense does not remove the responsibility to safeguard the defendant’s liberty and concrete legal interest.

Jacques Vergès’s Central Question: Is the Defense Confined to the Frame Drawn by the Charge?

In a criminal case, the defense is often handed a ready-made narrative: how the event occurred, which conduct is deemed a crime, and which person is linked to which piece of evidence have already been determined. What is expected of the defense may be to fill the place assigned to it within that narrative. Yet defense counsel’s first task is also to examine the narrative’s starting assumptions. Does a document really show the alleged fact? Does the meaning attributed to a given act actually emerge from the file? Does the proceeding truly allow the defense to reach the evidence and contest it?

In his book De la stratégie judiciaire, published in 1968, the French lawyer Jacques Vergès approaches the defense from this broad angle. The book, translated into Turkish by Vivet Kanetti under the title Savunma Saldırıyor (“The Defense Attacks”), treats the defense not merely as a technique of what is said at the hearing; it discusses the relationship among the defendant, the court, the political order and public opinion. The experience of the defenses of FLN members during the Algerian struggle for independence holds an important place in the historical context of his approach. 1

Understanding Vergès does not require adopting all of his assessments. The acts of the people he defended, the professional duty of the lawyer and the explanatory power of his theory are separate matters. Defending a person does not mean endorsing that person’s views or the acts attributed to him or her. Likewise, the fact that a method of defense has had great public impact does not by itself yield a favorable legal conclusion about that method.

The question of this article is the following: What can Vergès’s distinction teach present-day criminal defense, and at what point does one reach the limit of a historical approach? Rather than transposing the theory directly into Turkish criminal procedure, the examination evaluates the questions it raises together with the defense safeguards currently in force.

Defense of Connivance: Challenging the Charge at Its Foundation While Remaining Within the Law

Connivance is not limited to admitting the offense or seeking a reduced sentence

In Vergès’s distinction, connivance describes a situation in which the defendant and the judicial authority can carry on a debate within the same legal framework. The defense accepts the court’s jurisdiction and the basic rules of the debate, and asks that those rules be applied correctly. The result may be a request for acquittal, an objection to the legal characterization of the act, or the assertion of a ground affecting criminal responsibility. 1, pp. 13–17, 21–44

For this reason, equating connivance with passivity is misleading. Exposing a fundamental contradiction in a witness’s account, scrutinizing an expert’s method, showing that the elements of the offense have not been met, or seeking to prevent the use of unlawfully obtained evidence can radically change the case before the court. The defense does this by putting the legal order’s own safeguards into operation.

The real distinction cannot be sought in tone of voice. An objection presented in measured language can remove the entire basis of an indictment. A speech delivered in very harsh terms, on the other hand, may leave the premises of the charge entirely undiscussed. The strength of a defense should be measured by the truth of the proposition advanced, its relationship to the evidence and the outcome requested from the court.

A legal defense can be built without adopting the language of the indictment

The characterization the prosecution uses for a given act need not be the defense’s starting point. First, what the act actually was is examined; then, by what evidence it is sought to be proven; and then, to which element of the offense it is tied. If this order is reversed, a contested characterization can settle into the text as though it were an established fact.

An original defense must be able to explain the file as a whole by a different logic. This is not done by constructing a story contrary to the facts; the relationships among the existing documents and statements are shown, and points that cannot be explained are separated out. The defense’s alternative explanation must likewise be internally consistent and verifiable against the data in the file. Questioning the meaning constructed by the indictment does not require stepping outside legal argument.

Defense of Rupture: Placing the Legitimacy of the Proceedings at the Center of the Debate

In the rupture approach, the defense is not content with the question “Is this charge true?” Questions such as “By what legitimacy does this authority judge?”, “What inequality does the applied law render invisible?” or “Does the proceeding have the conditions to listen to the criticism directed at it?” also come to the fore. The direction of the accusation is thus opened to debate; the judging order itself becomes the object of the defense’s criticism. 1, pp. 47–61, 91–100

In Vergès’s historical context, this approach cannot be separated from the conflict between colonial rule and the demand for independence. The defendant may position himself or herself not merely as an individual to be assessed within the existing criminal order, but as the subject of a struggle that contests the legitimacy of that order. At this point, public opinion outside joins the legal addressees in the courtroom.

However, this change of direction that the theory describes is not, under the law in force, an act that produces consequences of its own accord. In Turkey, saying “I am conducting a defense of rupture” does not remove the court’s jurisdiction, stop the case, extend the time limit for appeal, or cause a request that was not made to be treated as made. If a legal result is sought, the conditions, the procedure and the legal basis for that result must be shown separately. 3

Two separate assessments must be conducted together here: what the defense says about the proceedings, and what legal avenue it preserves for the defendant. The first may be very strong, the second weak. Defense counsel’s responsibility is not to conceal this tension from the client.

There Is No Fixed Wall Between Connivance and Rupture

One of the most important warnings in Vergès’s work is that the two approaches are schemata. He draws attention to the point that rupture is not always absolute and connivance is not always complete. Turning his theory into a classification that places every case firmly in one of two boxes therefore loses the nuance of the text itself. 1, p. 15

A defendant may severely criticize the legal order being applied while at the same time presenting evidence that calls for acquittal. Defense counsel, while explaining concrete concerns about the court’s impartiality, may operate the recusal procedure provided by law. On the other hand, requesting a judge’s recusal does not by itself amount to rupture in Vergès’s sense; it may also be recourse to the legal order’s own corrective mechanism.

This table is neither a statutory classification nor a tool for selecting a method automatically. It is a comparative reading framework proposed by this article. Different emphases may emerge at different stages of a file; what is decisive is that the reason for the choice can be explained.

Historical Examples Illuminate the Theory; They Do Not Guarantee an Outcome

Why is the example of Socrates contested?

Vergès treats Socrates’s defense among the strong examples of the rupture approach. Ender Serdar Önaldı, in his 2023 study, evaluates Socrates’s debate with his accusers and his relationship to the judicial order, and objects to this characterization. In his view, the presence of intellectual uncompromisingness is not enough to regard the defense, in all its elements, as rupture. 1, pp. 47–50; 2, pp. 15–27, 42–43

This disagreement is instructive: a person’s courage, or refusal to give up his or her ideas, does not by itself determine the legal nature of the defense used. How a historical defense is to be classified and which method would be useful for a present-day defendant are also different questions.

The Dreyfus debate shows the inner tension of the defense

Vergès’s reading of the Dreyfus case makes visible the tension between a defense aimed at having a person’s innocence accepted and an approach that opens to debate the institutional order that makes the proceedings possible. The value here lies not in repeating a past method exactly today, but in recognizing that defense objectives within the same file may conflict. 1, pp. 82–90

For defense counsel the question that follows is clear: What concrete error does the criticism directed at the institution reveal, and to what legal result does it lead for the client? A debate that grows without this connection being made can overshadow the real issue of the file.

The Lubanga case shows the weight of procedural guarantees

In the Lubanga case before the International Criminal Court, the proceedings were stayed on 13 June 2008 because of problems connected with information not disclosed to the defense. The process later resumed, and a conviction was handed down on 14 March 2012. It is therefore wrong to equate the staying of the proceedings with acquittal. 9

The conclusion this article draws is as follows: serious procedural objections affecting the continuation of the proceedings can be developed without rejecting the legitimacy of the court altogether. The procedure of the International Criminal Court is not the same as Turkish criminal procedure; its value, for example, lies not in showing that the same result would automatically follow before Turkish courts, but in making visible the effect of defense safeguards.

Tying Strategy to Concrete Rights in Turkish Criminal Proceedings

Article 36 of the Constitution regulates the right to claim, to defend oneself and to a fair trial; Article 38 regulates the presumption of innocence, the guarantee against compulsion to self-incrimination and the rule that findings obtained unlawfully cannot be admitted as evidence. Article 6 of the European Convention on Human Rights likewise contains guarantees concerning an independent and impartial court and the preparation and conduct of the defense. 4, 5

These safeguards do not arise from Vergès’s theory. They exist before the choice between connivance and rupture, and they must be used whichever choice is made.

An objection to impartiality is raised by stating the grounds and observing the time limit

Article 24 of the Code of Criminal Procedure (CMK) allows a request for recusal not only in the cases where a judge cannot sit in a case but also on other grounds that would cast doubt on impartiality. Even so, not every adverse decision is in itself an issue of impartiality. The fact on which the objection rests, its connection with the file and why it creates objective doubt must be explained.

The time-limit regime in CMK Article 25 is particularly important: A recusal based on grounds that cast doubt on impartiality may be requested before the interrogation of the defendant begins in the court of first instance; in cases before the regional court of appeal (bölge adliye mahkemesi) with a hearing and before the Court of Cassation, until the reports specified in the article are read out. In other cases it must be raised before the examination begins. For a ground that arises or becomes known later, the request must be made before the hearing or examination ends and within seven days of learning of it. This explanation of the time limit does not mean that all situations in which a judge is legally barred from hearing a case are subject to the same regime.

Under CMK Article 26, the request may be made by a petition to the relevant court or by applying to the court clerk so that a record is drawn up; the grounds for recusal that have become known are stated together with their facts, within the time limit and all at once. In this way the assertion “The court is not impartial” becomes a procedural request that can be examined. 3

An objection to evidence is explained from the manner of its obtaining to its effect on the judgment

The reliability of evidence and its lawfulness are separate headings of review. Even if a recording appears to reflect reality, the method by which it was obtained can be assessed separately. Conversely, a statement properly taken may be contradictory or insufficient as to its content.

CMK Article 206/2-a provides for the rejection of evidence obtained unlawfully, and Article 217 provides that the judgment must be based on evidence brought to the hearing and discussed, and that the offense must be proven by evidence obtained lawfully. Defense counsel must clearly identify the record objected to, show where the violation occurred and state what result is sought. A general sentence such as “The file is unlawful” cannot carry the examination that must be made for each piece of evidence. 3, 4

When raising an objection of unlawfulness, counsel can also prepare how the content and probative force of the same record will be argued if the objection is rejected. When the order of requests is set out clearly, separately examining the reliability of a record does not mean that the objection of unlawfulness has been abandoned.

Access to the file and the power to put questions are the informational basis of strategy

Defense counsel’s authority to examine the file is regulated in CMK Article 153. A restriction at the investigation stage is limited to the offenses listed in the law and to its conditions; it is not an automatic prohibition covering all files. For the record containing the suspect’s statement, expert reports and the records of procedures that counsel is authorized to attend, Article 153/3 must additionally be taken into account. Access after the indictment is accepted is also regulated in the fourth paragraph of the same article. 3

CMK Article 201 allows defense counsel to put questions directly, in keeping with the discipline of the hearing. When a question is blocked, it must be explained which contradiction the question would clarify and for which defense need it is necessary. Not all the rules of “cross-examination” practices in foreign systems can be transplanted as they are into Turkish procedure.

If a rhetoric with public impact has been built without information and time sufficient to prepare the defense, that does not cure the deficiency. The priority is to establish what is in the file and what information could not be accessed and why. 3, 5, 10

An Effective Objection Is One That Is Entered on the Record and on Which a Ruling Is Requested

That a strong speech was made at a hearing does not show that all of its legal effects are preserved in the file. What matters in a later review is that it can be understood which request was made, on what grounds it was rejected and how the means of defense were affected.

CMK Article 221 brings requests, the grounds for their rejection and the decisions given within the scope of the hearing record. CMK Article 222 gives special weight to the record in proving the conduct of the hearing and its compliance with procedure. For this reason, one should not be content with filing a written petition; the counterpart in the record of the decisive requests and decisions raised at the hearing must also be checked. 3

Five connections can be made for each important objection:

1. Act: Which decision, practice, document or statement is being objected to?
2. Fact: What is the concrete record or event showing the violation?
3. Right: Which means of defense does this situation affect?
4. Request: What specific action or decision is requested from the court?
5. Record: Where in the file can the request, its grounds and the court’s answer be seen?

The discussion of evidence under CMK Article 216 and the giving of the last word to the defendant present before the judgment are also part of this whole. Under Article 230, the assessment of the defense’s views and of the evidence in the reasoning of a conviction is important. Under Article 289, the restriction of the defense by court decision on matters important for the judgment and reliance on unlawful evidence are regulated as separate grounds of absolute violation of law. Even so, the avenue of appeal that may be pursued is determined separately according to the type of decision and the statutory conditions. 3

The Right to Silence and Non-Participation in the Proceedings Are Not the Same Choice

CMK Article 147/1-e regulates the right of a suspect or defendant not to make a statement about the offense charged. The provision of the same article on truthfully stating identity information must also be read together with it. Exercising the right to silence is not an admission of the offense; but at what stage and to what extent the right will be exercised must be assessed with knowledge of the file and with the assistance of defense counsel. 3, 4

Making a defense does not mean answering every question immediately and without preparation. On the other hand, remaining silent is not the same as leaving the hearing, disregarding summonses, missing a filing deadline or neglecting to preserve evidence in the defendant’s favor. Each of these conducts may bring different legal consequences. The idea of rupture does not erase the differences among them.

Defense counsel must also make sure that his or her own intellectual preference does not take precedence over the client’s will. The visibility generated by a public debate may affect the person’s safety, family, work and later life. If the client is told only the impressive side of the method and the risks are not explained, a sound basis for decision is not created.

The subject of the defense is the client. A lawyer’s professional independence does not give the authority to choose a personal or political goal in the client’s place. The same independence does not require that every request of the client be treated as legally workable. Lawful options, aims and risks should be discussed openly; the accuracy of the factual account must be preserved. 6, Art. 34; 10

Harsh Criticism May Be Protected; Defense Immunity Also Has Conditions

Article 128 of the Turkish Criminal Code (TCK) does not grant an unlimited exemption for speech

TCK Article 128 protects, under certain conditions, specific accusations or negative assessments made about persons within the scope of applications, claims and defenses before judicial or administrative authorities. The accusations and assessments must rest on real and concrete facts and be connected with the dispute. 7

For this reason, the statement “I am conducting a defense of rupture” is not an independent legal ground that protects an unrelated personal attack or an unsupported accusation. On the other hand, the fact that a criticism is disturbing, sharp or directed at a judicial authority does not by itself remove its legal value. The basis of the criticism, its context, its purpose and the relationship between the words used and the dispute must be examined together.

The ECtHR assesses a lawyer’s freedom of expression together with effective defense

In the Grand Chamber judgment in Morice v. France, the ECtHR considered a lawyer’s ability to make statements about the functioning of the judiciary and to use strong criticism in the course of the defense. The Court held that the conviction imposed for criticisms that had a sufficient factual basis in the particular case violated freedom of expression. However, the judgment does not grant a general license for baseless personal attacks; it also distinguishes the context of statements made inside the courtroom from those made outside. 8, §§ 132–139, 155, 174–178

In the Grand Chamber judgment in Kyprianou v. Cyprus, on the other hand, the proportionality of a prison sentence imposed on a lawyer for his conduct at the hearing, and the chilling effect it could have on the defense, were discussed. The ECtHR found a violation of freedom of expression in the circumstances of the case. This approach takes into account defense counsel’s duty to protect the client’s interest while objecting to the court’s conduct; it does not mean that every form of conduct at a hearing is immune from sanction. 11, §§ 173–183

These judgments are not “permissions granted to a defense of rupture.” Their value for Turkey lies in their explanation of the Convention criteria used to assess interferences with freedom of defense. Rulings concerning foreign cases cannot be carried over automatically as results in a specific Turkish file.

In Turkish law, CMK Article 203 gives the presiding judge or the judge the duty of maintaining order at the hearing. For the measure of removal from the courtroom, there is a condition that the exercise of the right of defense must not be prevented. In addition, the provision on disciplinary imprisonment in the third paragraph of the same article expressly places lawyers outside its scope. This exception does not mean that all conduct is immune from other legal or professional consequences. 3

Professional secrecy and current disciplinary provisions must be considered separately

Article 34 of the Attorneyship Law regulates the obligations of diligence, honesty and professional dignity, and Article 36 regulates professional secrecy. In addition, Articles 134 and 135, as amended by Law No. 7571 of 24 December 2025, must be taken into account in the current framework of disciplinary liability. In particular, there are provisions concerning going beyond the legal framework of the defense and giving the impression of being a party to the dispute, and concerning disclosing matters learned by reason of the engagement. 6

An assessment of criminal liability and a disciplinary review are not the same thing. Even so, professional regulations cannot be read independently of the freedoms of defense and expression. What needs to be done is not to neutralize criticism but to keep its legal basis and professional purpose clear.

Appealing to Public Opinion Does Not Replace the Steps That Must Be Taken in the File

In Vergès’s approach, public opinion is an important arena in which the meaning of the case can be reconstructed. Today the speed and reach of this arena are far greater. But wide reach does not prove the truth of an allegation or the usefulness of a statement for the client.

The function of a text submitted to the court and of a statement made to the public are different. A document that has to be addressed in detail in a petition may contain information that is unsuitable to disclose publicly. It is not necessary to carry all the detail needed for legal assessment onto social media. Professional secrecy, the confidentiality of the investigation, personal data, the presumption of innocence and the rights of third parties are considered separately. 3, Art. 157; 4, Art. 38; 6, Art. 36

Before making a statement, the following questions should be asked: Which verified fact are we disclosing? Which legitimate need of the client does the statement serve? Could the same purpose be achieved with less information? Does it create a contradiction with the defense in the file? What information that cannot be taken back once published is leaving the file?

Public visibility can sometimes help a problem in the proceedings to be understood. But it does not turn an objection that was not made to the court into one that was. The reaction that grows outside the file and the rights preserved inside it must be tracked separately. As the public effect of a defense grows, so does the responsibility to monitor the accuracy of the statement and its effect on the client.

Connivance or Rupture? The Choices and Risks That Determine Defense Strategy

Defense strategy should not be chosen on the basis of the historical figure with whom the lawyer feels close. The file’s problem must be defined first. Is the problem the vagueness of the accusation, the insufficiency of the evidence, its unlawful obtaining, an obstacle to access to the defense, or a concrete doubt about impartiality? Answering these different problems with the same rhetoric may delay the necessary step.

The method assessment this article proposes rests on six questions:

1. What is the concrete legal objective? Acquittal, an objection to the characterization of the offense, release, the non-use of a particular piece of evidence, or the securing of a means of defense should be distinguished from one another. If there are several objectives, an order of priority should be set.
2. Does the objection have a verifiable basis? The strength of the rhetoric does not make up for a deficiency in the record and the legal grounds. Assumption must be separated from provable fact.
3. Which means does the chosen stance protect, and which does it put at risk? The effects must be examined separately with respect to taking the floor at the hearing, putting questions, presenting evidence and making applications.
4. Does the client know the aims and the risks? The person’s wish for public visibility, private life and defense preferences should not be determined by the lawyer’s assumption.
5. Is a sufficient record being created for later review? It should be ensured that an objection made before the court of first instance can be understood, where necessary, on appeal (istinaf), cassation (temyiz) or other relevant applications. Each avenue also has its own conditions of admissibility.
6. What development requires changing the method? New evidence, access, the reasoning of a decision or a change in the client’s circumstances may require reassessing the strategy.

Success must also be defined from the outset. That a speech is widely shared does not mean the defendant is released. The granting of a procedural request does not mean the case on the merits has been won. On the other hand, the fact that acquittal has not yet been secured does not make gains such as the admission of evidence favorable to the defendant or the removal of an obstacle to the defense insignificant.

These distinctions do not diminish the defense’s claim; they make it possible to assess its outcome honestly. The concrete change arising in the client’s legal position and the intellectual or public effect of the defense should be measured separately.

Conclusion: The Courage of a Defense Gains Meaning Together with Its Responsibility

Vergès’s lasting contribution is that he made us question the understanding that assigns the lawyer merely the role of one who answers. A defense may, when necessary, open to debate the frame of the charge, the assumptions of the proceedings and the authority itself. But using this possibility does not reduce responsibility for the details of the file; it increases it.

An effective criminal defense must be able to show on which fact it bases its claim, which right it protects and which decision it requests. When a client’s liberty is at stake, the lawyer is obliged to combine intellectual consistency with concrete legal care. However impressive a method may look, the client’s knowledge and legal interest cannot be pushed into the background.

For this reason, the most valuable lesson to be drawn from Vergès is not to choose rupture in every case. It is to be able to question the limits drawn around the defense, to use carefully all the legitimate means the law offers, and to be able to account openly to the client for the path chosen. The lasting value of a strong objection to the court emerges not only at the moment it is voiced, but in the verifiable trace it leaves in the file and the right it protects.

Frequently Asked Questions

Is a defense of connivance an admission of the charge?

No. The connivance approach discusses the charge within the accepted legal framework. Requesting acquittal by arguing that the elements of the offense have not been met, that the evidence is insufficient or that it was obtained unlawfully is compatible with this approach.

Is the defense of rupture a separate legal avenue of recourse in Turkey?

No. There is no independent avenue regulated in the law under this name. Requests concerning impartiality, evidence, the means of defense or appeal are raised within their own respective procedures and conditions. A theoretical characterization does not replace these steps.

Does declaring that one does not recognize the court stop the case?

Not by itself. Consequences concerning subject-matter jurisdiction, territorial jurisdiction, recusal of a judge or the conduct of the proceedings are assessed according to the relevant legal ground and procedure. Such a declaration also does not automatically affect filing deadlines.

Is the use of harsh criticism in a defense considered an insult in every case?

No. The basis of the statement, its context and its connection with the dispute must be examined. But saying “I am making a defense” does not protect every statement. The conditions of TCK Article 128, the guarantees of freedom of expression and professional obligations are assessed together.

Does Vergès’s theory show how a case will turn out?

No. The theory helps one think about the relationship of the defense to the order of the proceedings. The outcome depends on the concrete facts, the lawfully obtained evidence, the rules to be applied and the course of the proceedings. No guarantee of an outcome for a present-day file can be drawn from a historical example.

Sources

1. Jacques Vergès, Savunma Saldırıyor, trans. Vivet Kanetti, revised third edition, Metis, October 2012. In particular pp. 13–17, 21–61, 82–100. Metis book listing; original French work: De la stratégie judiciaire, Les Éditions de Minuit, 1968. Original publisher record.

2. Ender Serdar Önaldı, “Verges’in Uyum ve Kopuş Savunması Teorisinin Sokrates ve Lubanga’nın Savunmaları Üzerinden Değerlendirilmesi” (“An Evaluation of Verges’s Theory of the Defense of Connivance and Rupture through the Defenses of Socrates and Lubanga”), Kırklareli Üniversitesi Hukuk Fakültesi Dergisi, 1/1, 2023, pp. 1–46. In particular pp. 15–27, 42–43. DergiPark full text and citation details.

3. Code of Criminal Procedure No. 5271 (Ceza Muhakemesi Kanunu), in particular Arts. 24–26, 147–149, 153, 157, 201, 203, 206, 216–217, 221–222, 230 and 289. Legislation Information System (Mevzuat Bilgi Sistemi).

4. Constitution of the Republic of Türkiye, Arts. 36 and 38. Legislation Information System (Mevzuat Bilgi Sistemi).

5. European Convention on Human Rights, in particular Arts. 6 and 10. ECtHR Turkish text of the Convention.

6. Attorneyship Law No. 1136 (Avukatlık Kanunu), Arts. 34, 36, 134 and 135; amendments to the disciplinary provisions made by Law No. 7571. Legislation Information System (Mevzuat Bilgi Sistemi).

7. Turkish Criminal Code No. 5237 (Türk Ceza Kanunu), Art. 128. Legislation Information System (Mevzuat Bilgi Sistemi).

8. ECtHR Grand Chamber, Morice v. France, App. No. 29369/10, 23.04.2015, in particular §§ 132–139, 155, 174–178. HUDOC case record.

9. International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, official case information sheet; stay of the proceedings on 13.06.2008 and conviction of 14.03.2012. Official case information sheet.

10. Günal Kurşun and Orhan Kemal Cengiz, Ceza Avukatının İnsan Hakları El Kitabı (“The Criminal Defense Lawyer’s Human Rights Handbook”), İnsan Hakları Gündemi Derneği, Ankara, January 2021, in particular pp. 7–9, 39–40. Its explanations of defense safeguards were drawn on; the law in force has been separately verified against the current legislative texts above.

11. ECtHR Grand Chamber, Kyprianou v. Cyprus, App. No. 73797/01, 15.12.2005, in particular §§ 173–183. HUDOC case record.