Defence Counsel at the Investigation Stage

What we do in this area

The investigation begins when the public prosecutor's office learns of a suspicion of an offence and ends with the acceptance of the indictment or a decision of non-prosecution (Article 2 and Article 160 et seq. of the Code of Criminal Procedure, CMK). At this stage the firm acts as defence counsel for the person summoned to give a statement as a suspect or arrested: being present at the police and prosecutor statements, attending the questioning before the criminal judgeship of peace (sulh ceza hakimliği), objecting to custody and detention orders, requesting the lifting or modification of judicial control measures and regularly monitoring the investigation file are all parts of this work. For the party harmed by the offence, the preparation of the complaint petition, the submission of evidence and the objection to a decision of non-prosecution are handled at the same stage.

The suspect's right to choose defence counsel is regulated in Article 149 CMK; defence counsel may meet the suspect at every stage of the investigation and be present at the statement and questioning. This page is a sub-topic of the criminal law tree; the stage following the acceptance of the indictment is described on the prosecution and trial process page.

Common types of file

How the process works

The first step is to learn what the accusation is. Defence counsel may examine the investigation file and obtain copies (Article 153 CMK); even where a restriction order has been issued on the file, the records containing the suspect's statement, court-appointed expert reports and the records of proceedings the suspect is entitled to attend remain open to examination. Before the statement, the legal nature of the alleged act, possible protective measures and whether the right to remain silent should be exercised are assessed.

Before the statement is taken, the suspect is reminded of their rights (Article 147 CMK): explanation of the accusation, the right to choose defence counsel, the right to remain silent and the right to request the collection of evidence in their favour. A statement taken by the police without defence counsel present cannot form the basis of a judgment unless confirmed by the suspect before a judge or court (Article 148/4 CMK).

If the prosecutor requests detention, the suspect is referred to the criminal judgeship of peace. Detention requires concrete evidence indicating strong suspicion of an offence, a statutory ground for detention and proportionality (Article 100 CMK). Detention is prohibited for offences punishable only by a judicial fine and, except for intentional offences against bodily integrity, offences with a maximum prison sentence of two years or less. Defence counsel assesses whether judicial control under Article 109 CMK is sufficient.

Time limits and points to watch

Police custody ordinarily may not exceed twenty-four hours, excluding the necessary transfer time to the nearest judge or court, which cannot exceed twelve hours. In collective offences, difficulties in collecting evidence or the number of suspects may justify a written order by the prosecutor extending custody by up to three additional days, in increments of no more than one day (Article 91 CMK). An objection to detention is made within two weeks of learning of the decision (Article 268 CMK). During investigation, detention is reviewed at intervals of no more than thirty days (Article 108 CMK), and release may be requested at any stage (Article 104 CMK). Maximum detention periods vary according to the competent court, offence, procedural stage and age of the suspect or accused (Article 102 CMK).

The most common problem in practice is the statement given without defence counsel on the assumption that "there is nothing to tell"; a sentence recorded in the transcript remains in the file and is difficult to correct afterwards. Another is the voluntary handover of telephones and computers; the scope of the seizure order and the examination procedure (Article 134 CMK) later become a matter of dispute.

How we work

The firm meets the person summoned to give a statement before the statement, examines the file and is present at the statement and questioning. In the event of detention, objections and requests for release are reasoned according to the state of the evidence in the file; prison visits are made regularly. The effect of the decision issued at the end of the investigation on the next stage is assessed; if an indictment is issued, the defence continues into the prosecution stage with the same knowledge of the file. The general framework of our working arrangements is described on the our working process page.