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Who is a Criminal Defense Attorney or Lawyer?

The profession of attorneyship does not include any separate working field as “criminal defense attorney” in Turkey's legal system. We will use the expression of criminal defense attorney in our article since the lawyers in charge of criminal investigation and prosecution proceedings are colloquially called as such. Criminal investigation or prosecution takes place following the commitment of a crime. Accordingly, criminal defense attorney usually provides legal assistance to the parties of the crime following its commitment. If you are under criminal suspicion, you can start to defend yourself via criminal defense attorney, regardless of an apprehension process has been initiated about you. If you’re the victim of a crime, you can refer to a criminal defense attorney in order for your right to petition to be defended efficiently.

Can I request a criminal defense attorney if I am accused of a crime?

Criminal investigation is initiated following the commitment of a crime. Your right to defense starts as soon as the Police, Gendarmerie and prosecutor’s office accuse you of an alleged crime. As you are accused of a crime, your right to receive legal assistance from a criminal defense attorney arises. Your right to defend yourself also arises in case a measure is effected in order to directly limit your liberty (eg, apprehension, remanding under custody, search) without making any accusation, and you may request the legal assistance of a criminal defense attorney. If you make such a request, the police or gendarmerie cannot take your statement without your lawyer being present.

Criminal defense attorney and the suspect

If you are under criminal suspicion, you are deemed as “suspect” in terms of criminal law. Your statute as “suspect” shall not change from the moment of incrimination until an action is taken against you following the indictment. Starting from this point on, criminal defense attorney examines the allegations and evidence about the suspect in order to defend him/her.

Does defence lawyer have the right to examine the file of allegations against me?

The authority to examine the case files is a professional right stemming from both Code of Criminal Procedures and the Law of Attorneyship. Therefore, criminal defense attorney has the right to examine all documents about you (declarations, minutes, imagery recordings or footages, reports etc.). Although limitations are tried to be imposed on the lawyers’ right to examine the files in practice, this is an indispensable constituent of the right to defence.

Is a power of attorney required for the criminal defense attorney to examine the file and defend the case?

Criminal defense attorney does not require a power of attorney to examine the file and defend the suspect. Power of attorney is required only to get a copy of the documents present in the file. The lawyer may, without a power of attorney, carry out any proceedings required to make you dispose of your right to defense, during the investigation phase. When you become the subject of the measures such as apprehension, being remanded in custody, pre-trial detention, criminal defense attorney will first explain you all your rights (right to silence, right to collect evidence in your favour, right to object to measures such as apprehension, being remanded in custody) and afterwards he/she will defend the case in order for you to dispose of these rights efficiently.

Is it possible to speak to the criminal defense attorney whilst being remanded in custody? In which phases may the criminal defense attorney take place in my defense?

If the person under criminal suspicion is apprehended or remanded in custody, he/she has the right to speak to the criminal defense attorney in a separate lawyer’s room where nobody hears the conversation in between. Investigatory phase starts with the incrimination made towards the person; criminal defense attorney technically starts to defend his/her client following this phase. Criminal defense attorney is bound to keep any information provided to himself/herself by the suspect, as professional secret. Professional secrets are kept sine die, these should not be revealed during the whole life of the attorney even if he/she resigns. During the meetings between the suspect and the lawyer, defense framework is discussed and the best strategy to defend the suspect is decided on. Criminal defense attorney represents the suspect by being present while suspect’s statement is being taken by the police (or another law enforcement officer). The lawyer shall not answer the questions on behalf of the suspect during this process, rather he/she provides legal assistance. If the suspect is not released following the statement taking process by the police, he/she will be taken to the prosecutor’s office in court house. Criminal defense attorney will also defend the suspect during the prosecution phase. Criminal defense attorney has the right to speak to the suspect, in all phases, in such a way that nobody can hear. If the the suspect is not released by prosecutor’s office, he/she will be referred to criminal judicature of peace for pre-trial detention or probation. While the suspect is being interrogated by the judge, the lawyer shall also be present. If the judge decides on pre-trial detention following the interrogation of and defense made by the suspect, the suspect will be put into prison. Appeal may be lodged for the decision of pre-trial detention within 7 days. The lawyer may lodge an appeal for all proceedings carried out during the investigation phase, in representation of the suspect. In case his/her client is detained before the trial, criminal defense attorney can speak to his/her client face-to-face in a specially designed place within the prison, where the conversation in between cannot be heard. There isn’t any limitation for the number of lawyer-client meetings, as there is no need to submit a power of attorney.

Criminal Defense Attorney and the Concept of Confidentiality of Investigation

As a rule, each investigation is confidential. However, confidentiality is applied in tems of the subjects who are not a party to the investigation. In other words, confidentiality of the case does not prevent the lawyer to examine the case file. Concepts of “injunction decision” and “confidentiality of investigation” refer to completely different concepts. When an injunction decision is taken stating that the document in a file cannot be examined, then the mentioned document cannot be examined by the criminal defense attorney either. However, unless there is an injunction decision rendered by the court, the criminal defense attorney cannot be prevented from examining the file and taking a copy of it, on the grounds of confidentiality.

Criminal defense attorney (lawyer) at Prosecution Phase

If sufficient doubt exists about the suspect’s committing the crime, a case is filed on the basis of an indictment, involving the details of the crime, before Criminal Court of First Instance, Serious Crimes Court or other courts in charge of qualified crimes, regardless of the suspect’s being released or detained pending trial. When the case file is communicated to the court, it is examined and a document called “preliminary proceedings report” is issued involving the proceedings to be carried out, dates of the trials and if there is a detained defendant, its decision regarding the pre-trial detention. Criminal defense attorney may request the return of his/her indictment via a petition before a preliminary proceedings report is drafted. If approved, the indictment is returned, and the case is re-filed after the deficiencies being remedied.

Who is defendant? Defendant and Lawyer

“Suspect” gets the status of “defendant” after the case is filed. Following the trial of the defendant before the court, decision on acquittal, conviction or another decision bearing judicial consequences other then herein will be rendered. Criminal defense attorney will advocate the defendant and provide him/her the necessary legal assistance during each phase of jurisdiction. During the hearings realised without pre-trial detention, the defendant may request not to attend the subsequent hearings after being interrogated. The court is required to issue an order on ”exclusion from the hearing” regarding the defendant who doesn’t want to attend the hearings. If the court decides to exclude the defendant from the hearings, the presence of the lawyer on behalf of the defendant will suffice. Hearings are the verbal phase of the jurisdiction where evidence is discussed, defendant, plaintiff and the witnesses are heard. As a rule, the words said, requests, allegations and defenses made during the hearing are recorded in minutes. Criminal defense attorney will defend his/her client both verbally and in writing during the hearings. In the event that the case is settled against the expectation of his/her client, criminal defense attorney will appeal against the decision. He/she will defend the client until the case before the court is settled, and appellate review is finalised, during the appeals phase.

Criminal Defense Attorney and Criminal Case

Criminal defense attorney carefully examines the criminal case file he accepted, takes notes on important issues and explains these to the client. The lawyer communicates the client every information present in criminal case file being either for the benefit of or against the client. Criminal jurisdiction is an important process where parties discuss about the evidence, and submit new ones, if necessary. Legal assistance provided by the criminal defense attorney during this period will pave the way for overcoming many challenges. Each lawyer knows for sure that a criminal case initiates a process which may result in direct interference in fundamental rights and freedoms of the person tried. Therefore, lawyer-client relations should be carried out transparently and on the basis of mutual informing.

Is It Mandatory to Hire a Criminal Defense Attorney for Criminal Cases?

The scope of mandatory attorneyship within the framework of judicial system in Turkey is defined through law. Accordingly, the following has to hire a criminal defense attorney: suspects, defendants or plaintiffs who are physically disabled, deaf and mute to the extent that they can not defend themselves, minors, and suspects or defedants who are being tried for a crime the minimum limit for punishment of which is more than five years. The bar associations appoints a lawyer for free for the citizens who cannot afford to hire one. Whether the laws stipulates it or not, parties of a criminal case, regardless of being a plaintiff or a defendant, actively engages in jurisdictional process through requesting professional assistance from a criminal defense attorney. Legal assistance provided by a lawyer prevents the procedural errors to occur during jurisdiction and eliminates misunderstandings. By acting so, the right shall be claimed efficiently.

Is the Criminal Defense Attorney Authorised to Collect Evidence?

Evidence is the most important instruments of criminal procedure which help to reveal the material facts. Being able to reach the evidence is a must for an efficient defense. Criminal defense attorney has certain professional rights in terms of collecting evidence. All public institutions are obliged to bring the documents under examination of the lawyer, when requested. In practice, prosecutor’s office requests the evidence during the investigatory phase and the court requests them during prosecution phase. All evidence which are in favour of the client and supplied by client himself/herself or those reached by the lawyer himself/herself may be submitted by criminal defense attorney to the prosecutor’s office during the investigation phase, and to the court during the prosecution phase.

Is It Possible for a Criminal Defense Attorney to Make a Statement on Behalf of the Parties?

The parties have to explain the incident themselves during trial. Parties may follow the hearings via criminal defense attorneys after attending the hearing and explaining the incident. The judge listens both parties and tries to understand how the incident was realised also with the help of other evidence. The lawyer cannot explain the incidents in representation of the parties. However, criminal defense attorney may evaluate the statements about the incident, and re-explains the statements in order to put forward the contradictions among explanations, and the arguments proving the allegations of the party he/she defends.

Are the Notifications Regarding the Case Made to Criminal Defense Attorney or to Me?

Criminal defense attorney may receive papers and notifications of all kind on behalf of his client. Likewise, the court or the prosecutor’s office has to make the notification of all kind regarding the investigation and prosecution to the lawyer. As mentioned above, criminal defense attorney cannot make a statement on behalf of his/her client. Therefore, if it is mandatory to take the statement of the client at the court or at the prosecutor’s office, the notification should be made personally to the client, not to the lawyer. For all other proceedings other than that mentioned above, the notifications have to be made to the criminal defense attorney, otherwise notification shall be deemed irregular. Thus, the time limits provided for the parties for the rights such as appeals, objection shall not run.

Should I Respect the Rhetoric of “The Best Is The Serious Crimes Attorney”?

As we explain in the first paragraph of our article, attorneyship in Turkey is not branched out. Therefore, definitions such as “the best criminal defense attorney” or “serious crimes attorney” do not imply the truth. These expressions are widely used among public but do not have equivalent in terms of attorneyship jargon. Criminal defense attorney follows the criminal case he/she accepted in line with the code of practice regarding attorneyship. As we mentioned in the introductory part of our article, we defined the lawyer, who follows the criminal investigation and cases, as criminal defense attorney due to our concern of being clear and comprehensible. Or else, the identifiers used before the profession of attorneyship will have no meaning.

Criminal Defense Attorney and Law of Criminal Execution

Criminal defense attorney is not a subject who only defends his/her client at the court; he/she is the guarantee of duly executing the final decision taken by the court. Punishment is a judicial process while execution is administrative. Administration cannot impose sanctions aggragating the penalty given by the court. Punishment ordered in court’s decision should be executed in line with human dignity and execution law. Thus, criminal defense attorney is entitled to supervise whether all execution process is carried out in accordance with the law. There occurs many loss of rights during the execution process due to misinterpretation of the laws. For instance, law on probation and conditions of transfer to an open prison are being amended too often recently. Criminal defense attorney provides an efficient legal assistance by protecting the rights of his/her convicted client during the execution phase.

Criminal Defense Attorneys, Serious Crimes Lawyers

Criminal defense attorneys work in one of the challenging fields of attorneyship. This field requires the lawyer to establish an order and discipline between private life, social life and work life. Assistance of the criminal defense attorneys are required only when people become the subject of an investigation. Criminal defense attorneys may have to deal with investigatory proceedings which are carried out about their clients at inappropriate periods of time. Criminal defense attorneys should take measures and be prepared against irregularity of their workflow. Some of the above mentioned investigatory proceedings may take place even at night. Therefore, becoming a serious crimes attorney requires the person to adopt a life style in line with this profession. Serious crimes attorney is the one who defends the client at the most important cases of a country. Serious crimes attorneys are aware of the fact that they should be well prepared in order to ensure that intervention in freedom and security of a person, in terms of criminal law, be made as per the principles of state of law and relevant legislation. Serious crimes attorney follows the current legal developments to the very minute and assesses possible effects of the developments about legislation on the trial for the benefit of defendant or the victim who are the clients. Criminal defense attorney (or lawyers) prevents the mistaken interventions in fundamental rights and freedoms through its defense function and contributes significantly to the improvement of the state of law and the freedoms. ______________________________________________________________________________________________________________________________________ Istanbul - Turkey Lawyer Baran Dogan