Criminal procedure law is a branch of law that deals with the state’s duty to ensure the justice and security of society by prosecuting individuals under suspicion of crime, that is, perpetrators, in criminal cases and, if necessary, by imposing punishment at the end of the trial. Criminal procedure is like the sharp sword of the state. In this field, where the individual is extremely weak and vulnerable, the person who is strong and helps the individual in his defense and does not leave the individual alone against the strong state is the lawyer, the defender in the criminal case.
Undoubtedly, the need for a lawyer is extremely important both in civil cases and in administrative jurisdiction cases. However, the need for a lawyer is even more important, as penalties that directly restrict freedom can be given in criminal proceedings and criminal cases. From the moment the incident occurred and the investigation started, to the final sentence of the trial and the execution is completed, it is for the suspect, who is under suspicion of crime, the accused
against whom a public case is brought, or to the victim who was harmed by the crime, extremely important for the truth to emerge and for a fair trial
to defend their rights through their lawyers.
First of all, it should be noted that; Although concepts such as criminal lawyer or severe criminal lawyer are often used among the public, in fact, such classifications are not legally valid in the legal system of the Republic of Turkey. There is no specialization or branching in advocacy in Turkey. For this reason, every lawyer can be a legal representative in criminal or severe criminal cases. Generally, however, each of the lawyers gains experience by gaining expertise in certain areas. In this way, individuals seeking legal representatives prefer to receive support from lawyers who have a high success rate in their own cases, especially in criminal cases, and who develop themselves in this field. In fact, this preference is made compulsory by individuals, especially in criminal and heavy criminal cases, as they may face consequences that restrict the freedom of the person. In this sense, it is very important for the lawyer to be good and expert in his profession in criminal cases. Because, the duty of defense in an effective investigation and prosecution process to be carried out by the criminal lawyer can directly affect the outcome of the case.
What is the Importance of Advocacy in the Investigation Phase of Criminal Proceedings?
The duty of investigating crimes committed under the Turkish legal system belongs to the public prosecutors according to our Criminal Procedure Code. Public prosecutors carry out their investigations either in person or through judicial law enforcement officials. At this stage, the person under suspicion of crime is called the “suspect”. The suspect is referred to as a suspect until a prosecution is brought against him. Even if the suspect is in custody or in prison, he or she can contact his or her lawyer without seeking a power of attorney. Conversations and correspondence of suspects with their lawyers cannot be audited. This stage is very important for the person under suspicion of crime. Because almost all the evidence is collected during the investigation phase.
In fact, in our legal system, although the Public Prosecutors are obliged to collect all the evidence for and against the suspect and stating them in the indictment if a prosecution is initiated, unfortunately, it is a known fact that in practice prosecutors are not always putting enough effort in collecting evidence in favor of the suspect. For this reason, it is vital for suspects to seek legal support from an experienced and expert lawyer in criminal cases at this stage.
On the other hand, almost all public and private institutions in our country are reluctant to fulfill the suspect’s requests for information and documents and make it difficult for the suspect to access the evidence with sentences such as “If the prosecutor wants, we will send it, if needed, the court will request it from us, the lawyer can take a copy…”. For this reason, if the suspect is represented at the beginning of the investigation by an experienced and expert lawyer in criminal cases, the evidence will be collected completely and he or she will have the opportunity to get rid of the crime by getting a positive result with an effective defense. Or even if he or she is punished, he or she will receive a lesser and fairer punishment.
Likewise, lawyers can always meet with detained suspects in prisons, without taking into consideration the working hours, even without presenting a power of attorney. If a relative of the detained suspect applies to the notary public, the power of attorney to be drawn up by the notary public is taken to the prison and signed by the detained suspect/defendant and submitted to the investigation file by the lawyer. In practice, since the detained suspects attend the hearings intensively from the prison via SEGBİS, if there is no lawyer at this stage, it will be difficult for the detained to defend him or herself.The need for a lawyer in criminal cases is undeniable at the point of reaching the evidence completely and ensuring that all evidence is collected at the investigation stage.
Public Prosecutors, who are in charge of the investigation, take their source from Criminal Procedural Law of Turkey (CMK) in terms of accessing evidence during the investigation phase. During the use of these instruments at the stage of evidence collection, lawyers of the suspect or the victim can always be present.
What is the Role and Importance of the Criminal Lawyer in Evidence Collection Methods Used in the Investigation?
One of the most fundamental rights of the suspect under investigation is the right to defense. According to article 6 of the European Convention on Human Rights, the right to defense is one of the elements of the right to a fair trial. As a rule, the suspect’s ability to use his right of defense properly depends on receiving legal assistance. Because the suspect mostly lacks legal knowledge; It is impossible for the suspect, who lacks legal knowledge, to defend himself against the prosecutor, who constitutes the prosecution office and carries out a professional profession. The suspect, even with legal knowledge, may become alarmed, angry or lose his cool because a charge has been made against him. For these reasons, the right of defense, as a rule, requires absolute benefit from the help of a lawyer.
I-a) What is the Role and Importance of the Criminal Lawyer in the Detention Process?
Even though the name is similar, being under observation is not a detention process. This issue is a separate institution regulated in Article 74 of the CMK. If the suspect has a mental illness or weakness, to determine whether he is mentally ill, if he is mentally ill, how long you have been ill and its effects on the behavior of the person; Upon the recommendation of the specialist physician, after hearing the public prosecutor and his defense counsel, it may be decided by the magistrate in the investigation phase, by the court during the prosecution phase, to take him under observation in an official health institution. This is in favor of the suspect. Because, if it is concluded that the suspect’s mental faculties are not in place, he will either not be penalized according to Article 32 of the TPC, or a reduction in the amount of the penalty he will receive will be applied at varying rates. However, if there is no lawyer, the danger of being deprived of this right will arise. In addition, it will be easier for people who constantly disturb their family members due to their neurological diseases or addictions and who commit crimes against them, to be kept under observation for therapeutic purposes until they find a social cure.
I-b) What is the Role and Importance of Criminal Lawyer in Internal Body Examination and Body Sample Collection?
In order to obtain evidence of a crime, it is possible to conduct an internal body examination on the suspect or the accused, or to take blood or similar biological samples from the body, as well as samples such as hair, saliva, nails; At the request of the public prosecutor or the victim, or ex officio, the judge or the court may take a decision by the public prosecutor in cases where delay is inconvenient. The decision of the public prosecutor is submitted to the approval of the judge or court within twenty-four hours. The judge or court gives its decision within twenty-four hours. Unauthorized decisions will be null and void. In the presence of the victim’s consent, there is no need to take a decision in order to carry out these actions. However, this consent is invalid for the suspect. Definitely a decision must be made.
I-c) What is the Role and Importance of a Criminal Lawyer in Location and Discovery Procedures?
Location is not an exploration. While this process is carried out under the direct supervision of the Public Prosecutor during the investigation phase, discovery; It is made by the judge or the court or the regent judge or the rogatory judge or the court and the public prosecutor in cases where delay is inconvenient. The importance of discovery in criminal proceedings is great. The lawyer of the suspect or the accused also has the right to participate in the discovery. According to our procedural law, the discovery site is like a courtroom. The judge takes all precautions in this regard.
I-d) What is the Role and Importance of a Criminal Lawyer in Search and Seizure Procedures?
According to articles 116 and 117 of the Code of Criminal Procedure, in case of strong suspicion based on concrete evidence that criminals can be caught or criminals can be obtained; the suspect or the accused or other persons, their belongings, residence, workplace can be searched. Law enforcement officers may search upon the decision of the judge or with the written order of the public prosecutor in cases where its delay is inconvenient, or by the written order of the law enforcement chief in cases where the public prosecutor cannot be reached. Here, the duty of the suspect’s lawyers is to check whether the search is carried out in accordance with the procedure. Because search and seizure have many different and restrictive features. Even if evidence is found in illegal searches, this evidence cannot be taken as the basis of the judgment, since it will be in the category of forbidden evidence. The current decision of the Supreme Court on this issue is striking and is like a clear proof of how effective a careful defendant’s lawyer is in the file.
7th Criminal Chamber of the Supreme Court 2021/581E. 2021/7919 K.
“ According to the scope of the file; Although there is a written search warrant issued by the Public Prosecutor on the request of the law enforcement officers on 01/10/2015, on the basis of reasonable suspicion and delay, although the notice that constitutes the basis for the search was made on 29/09/2015, there is inconvenience in delaying the search decision. When the date and time of the search report dated 01/10/2015 in the file is not stated, the search decision cannot be given by the prosecutor’s office because the search was carried out during working hours on weekdays, and the search made accordingly is against the procedure and the law, and the unlawful search result is discussed. that the item mentioned is prohibited evidence, smuggling of the item will not change the situation, that the accused does not have any acknowledgment that he has smuggled cigarettes, which are the subject of the crime, for commercial purposes. /one. According to its articles and paragraphs, a conviction cannot be made on the basis of unlawfully obtained evidence and it is necessary to acquit the accused on this ground.”
Circumstances where a search cannot be made, persons who can or must be found in the search, items that cannot be confiscated…etc. The lawyer of the suspect or the accused will always be by his side and defend their rights in violations of rights that may occur in many restrictive situations and in the recovery of confiscated goods.
I-e) What is the Role and Importance of a Criminal Lawyer in Arrest and Detention Procedures?
The arrest and detention process is one of the protection measures that limit the fundamental rights and freedoms protected by the Constitution. Many of the personal applications made to the ECHR against our country are related to the deficiencies in the arrest and detention processes.
An arrest warrant may be issued by the magistrate, upon the request of the public prosecutor, for the suspect who did not come to the call or could not be summoned during the investigation phase. In addition, in case of objection to the refusal of the request for arrest, an arrest warrant may also be issued by the appeal authority.
The arrest warrant issued during the investigation cannot be seen on e-government or Uyap citizens under any circumstances. However, in the lawsuit filed and ongoing proceedings, it can be seen whether there is an arrest warrant for the person on trial by entering the court files in the UYAP citizen page, which is entered with the e-government password.
Consideration should be given to removing the post-expression capture process. Otherwise, despite the statement being taken, re-capture will come to the agenda and the person will be a victim. In addition, since there is no arrest in absentia in our Code of Procedure, arrests for arrest are issued. Unfortunately, since the person is not aware of it, there will be no objection. In practice, the Criminal Judgeships of Peace perceive these arrests for detention as the conversion of an arrest made in absentia into a vicahi. However, at this stage, with an effective defense and presentation of evidence, an arrest may not occur. Because, as the name suggests, the previously given arrest process is not an arrest, but an arrest.
Detention, on the other hand, is the detention of a person by law enforcement until he appears before a judge or prosecutor after he is caught on suspicion of crime. Detention decision is absolutely given in writing and is subject to objection. Unfortunately, detention decisions are made very easily in practice and it has often turned into a practice that the prosecutor C. gives verbally beforehand and then puts in writing. In an incident that took place in the evening, due to the incomplete description of the incident on the phone by the law enforcement officer or the inability to fully examine the evidence, the on-duty Public Prosecutors instruct the suspect to be taken into custody and be present with his documents the next day, and the detention decision is signed in these documents the next day. It is obligatory to notify the relatives of the detained person. At this stage, the lawyers of the detainees can see the suspect in custody. He can appeal the decision. In the event of an appeal, many of these detention orders can be lifted. Because these decisions are based on the explanation without seeing the documents, and there is a strong possibility of being wrong.
