A criminal investigation is one of the most serious legal processes that has a direct impact on the freedom and reputation of individuals. From the moment the status of suspect or defendant is acquired, the person is faced not only with an allegation, but also with the state's power to punish. Therefore, it is of great importance that rights are fully protected during the stages of accusation, detention and taking statements, and that the process is conducted in accordance with the procedure.
As Azel Law and Consultancy, in this article, within the framework of current provisions of the Code of Criminal Procedure (CMK) and the Turkish Penal Code (TCK), we explain the fundamental rights that individuals possess during the criminal investigation process by shedding light on issues frequently encountered in practice.
Legal Information Regarding the Process of Accusation, Detention and Statement-Taking
Accusation Stage: When Does the Status of Suspect Begin?
When there is reasonable suspicion that an act attributed to a person constitutes an offence, that person acquires the status of a “suspect”. At this stage, pursuant to Article 2 of the Criminal Procedure Code (CMK), the right to a defence and other guarantees come into effect.
The basis of the criminal investigation“principle of legality”creates". That is to say, if an act is not explicitly defined as a crime in law, nobody can be punished for that act. The charge levelled against the suspect must be clear, concrete and specific.
Also, pursuant to Article 73 of the Turkish Penal Code (TCK), the prosecution of certain offences is subject to a complaint. If the right to complain is not exercised by the victim within six months, an investigation cannot be conducted. This period begins to run from the day the victim learns of the act and the offender.
Handy Tip:
- When an accusation is made against you, make sure to find out what crime is being alleged, what evidence is being used, and on the basis of which legal article the investigation is being conducted.
- Check whether the offence is subject to a complaint. An unlawful investigation may be carried out due to a time-barred complaint.
- “In accordance with the principle of ”the benefit of the doubt" (CMK art. 223/2-e), a conviction cannot be handed down unless there is definitive and convincing evidence that the offence has been committed.
Custody Process: The Stage Where Personal Freedom is Most Closely Monitored
Under Article 91 of the Code of Criminal Procedure (CMK), detention in police custody may only be applied in cases of necessity and by complying with the statutory time limits.
- Detention period in individual crimes It is a maximum of 24 hours from the moment of capture.
- In mass offences (for example, offences committed by three or more persons), the Public Prosecutor may, by written order, extend [it] by one day each time maximum four days may grant a period of police custody.
- The detained person must be informed of their rights immediately: the right to remain silent, the right to consult a lawyer, the right to have their relatives notified, and the right to undergo a medical examination form the basis of this process.
The detention procedure carried out without these rights being notified is unlawful and gives rise to the right to compensation.
In Court of Cassation practice, exceeding the time limit or being prevented from consulting a lawyer are considered serious procedural errors that affect the validity of both the investigation and the evidence obtained.
Points to Note During Application
- Of the period of custody from the moment of capture Remember that it has started processing.
- Do not allow prosecutors or law enforcement officers to arbitrarily prolong the period under the pretext of “travel time”.
- If the right to confer with a lawyer is being prevented, this situation can be recorded in the minutes, and subsequently, a claim for compensation or an objection to procedural irregularities can be made.
- If you are not released even though your period of custody has expired, it is a legal requirement that you be brought before a judge.
The Process of Taking a Statement: The Starting Point of the Defence
The interrogation is the most critical stage of the investigation process. Therefore, Article 147 of the Code of Criminal Procedure regulates in detail all procedural safeguards that must be observed during the taking of statements.
Before a statement is taken, these matters must be clearly explained to the person:
- What offence the statement was given for
- the right to choose a lawyer was available
- He has the right to remain silent
- that anything you say may be used as evidence against you
Criminal defence lawyer Giving a statement without one often leads to a loss of rights. Because a lawyer both monitors how questions are directed and ensures that the statements to be entered into the record are included correctly.
Practical Tips
- You should definitely consult your lawyer and determine your strategy before your statement is taken.
- If you feel any pressure, guidance or threats during your statement, state this clearly and have it recorded in the official report.
- Read the statement record line by line before signing it. Ask for any missing or incorrect parts to be corrected.
- “The right to remain silent is not an admission of guilt, but a constitutional safeguard. Do not hesitate to exercise this right when necessary.
Most Common Issues in the App and Solutions
- Unlawful extension of police custody
- When the time limit is exceeded, the person must be released immediately or brought before a judge. Otherwise, an action for compensation may be brought on the grounds of unlawful detention.
- Restriction of the right to confer with a lawyer
- The right to confer with a defence counsel can be restricted only by a judge's decision and in exceptional circumstances. Arbitrary restriction by law enforcement is unlawful.
- Failure to make statutory notifications
- If the rights are not explained to a person who is taken into custody or whose statement is taken, this situation affects the validity of the evidence.
- Making an accusation with insufficient or questionable evidence
- Under the principle of ’benefit of the doubt“ set out in Article 223 of the CMK, a conviction cannot be handed down on the basis of inconclusive evidence.
- Missing the deadline for filing a complaint
- In offences subject to complaint, applications made after the expiry of the six-month period are invalid. The period must be calculated correctly in the capacity of victim.
Frequently Asked Questions (FAQ)
What is the maximum duration of police custody?
For individual crimes it can be a maximum of 24 hours, and for collective crimes, up to four days by decision of the prosecutor.
Can the detained person speak with a lawyer?
Yes. Giving a statement without the assistance of defence counsel leads to the impairment of the right to defence. The right to consult a lawyer is a fundamental safeguard.
What happens if a statement is taken from me without my rights being informed to me?
This situation is contrary to procedure. If your rights are not communicated to you, the statement may be deemed invalid and you can take legal action.
Can I claim compensation for unlawful detention?
Yes. Under Article 141 of the Code of Criminal Procedure (CMK), you have the right to file a claim for pecuniary and non-pecuniary compensation in the event of unlawful detention or arrest.
If I use my right to remain silent during the statement, will it be used against me?
No. The right to remain silent does not create a presumption of guilt. The exercise of this right cannot be used as evidence against a person.
Result
The criminal investigation process is one of the most sensitive areas of our legal system. The violation of rights during the accusation, detention and statement-taking stages leads to harm not only to the individual, but also to justice.
As Azel Law and Consultancy, we act with the aim of protecting our clients' rights at every stage of criminal proceedings, managing the process correctly and safeguarding the right to a fair trial.
Every individual has the right to access information, support and professional defence when facing a criminal charge. Therefore, seeking legal support without wasting time when faced with a situation involving a criminal investigation will prevent irreversible loss of rights in the later stages.
A robust defence, which is the guarantee of the right to a fair trial, is the most natural right of every individual. As Azel Law and Consultancy, we are by your side at every step of this process.
