The Rights of The Intervener and Defense Counsel in Turkish Criminal Law.
Intervention in Criminal Proceedings
The procedure of intervention in a public case has been regulated under Article 237 and the following articles of the Criminal Procedure Code No. 5271.
The procedure of intervention in a public case is a procedure where the prosecutor is personally present with the person who has been damaged by the crime.
In order to be an intervener or a participant, it is necessary to carry the title of being damaged by the crime. In the Criminal Procedure Code, there is no definition for person who has been damaged by the crime. In brief, a person who has been damaged by the crime is a person whose right/advantage is affected( it should not be forgotten that this person has to be directly affected .)
If the victim or the individual who suffered damages from the crime is a child, deaf or mute , or an individual who is mentally ill to the extent that he cannot make his own defense, then request is not needed in order to appoint a lawyer. In cases where the victim or the individual who suffered damages from the crime has intervened the prosecution , a lawyer shall be appointed by the Bar Association in cases of sexual assault and in crimes that carry imprison ment of five years at the lower lewel and less , if he puts forward a request to the court.
The victim, real persons and legal entities, who have been damaged by the crime, as well as the individuals liable for pecuniary compensation , are entitled to intervene in the public prosecution during the prosecution phase at the court of the fi rst instance at any stage, until the judgment has been rendered , announcing that they are putting forward their claim.Intervening shall be accomplished after the public prosecution has been opened .Intervention application cannot be made during investigation process; even if application is made, it would not be take into consideration. Intervention can be made during the prosecution phase at the court of the first instance at any stage.
However, in practical terms; if a person who have been damaged by the crime attends the first hearing, it will be asked by the court if he has an intervention demand or not. It is not permitted to put forward a request for intervening in the public prosecution during the proceedings of legal remedies. However, if the request that has been put forward during the proceedings at the court of the first instance has been rejected, or if there was no decision rendered at that stage, this issue shall be decided, if there is an explic it request on this point at the application for the legal remedy. If a person who has been damaged by the crime announce that he is not putting forward their claim, intervention will be nomore possible according to the Supreme Court.
Unless the court legitimise the intervention request of the person who has been damaged by the crime, the legal status of intervener cannot be gained. In other words, unless the court makes a decision, his legal status will continue as a complainant and he will not be able to benefit from the rights of intervention.The court takes the opinion of the prosecutor and the defendant if there is a request for intervention; and make the decision according to this opinion. In case the defendant rejects the request for intervention, this decision will be considered in appellate procedure.
There is no obligation for the intervener or his attorney to follow the proceeding. If the case is not followed, the intervention status is not lost, but the rights to be put forward in the trial may be lost. The hearings where the court, the intervener or his attorney are not present are not repeated.
If the request to participate is accepted by the court, the person who has been damaged from the crime will gain the status of an intervener.(participant). The intervener, has specific rights in the prosecution process. These rights include the right to request the written opinion of the court appointed expert, to benefit from the assistance of experts, exclusion against the judge, expert and clerk, to call witnesses, to ask the judge or the court press, to be asked what he will say after listening and reading a document, to participate in the discussion of the evidence and to take legal action. The intervening party may apply for legal remedies without being depending upon the public prosecutor.
Powers of Defense Counsel in Criminal Proceedings
Defense counsel is a lawyer, who defends the suspect or the accused during the criminal proceedings. The suspect or the accused shall be asked to choose a defense counsel on his behalf. In cases where the suspect or accused declares that he is not able to choose a defense counsel, a defense counsel shall be appointed on his behalf, if he requests such. If there is a request, it is compulsory to appoint a lawyer; otherwise, the right to a fair trial is violated. If the suspect or the a ccused who does not have a defense counsel is a child, or an individual, who is disabled to that extend that he can not make his own defense, or deaf or mute, then a defense counsel shall be appointed without his request. The suspector accused may benefit from advice of one or more defense counsels at any stage during the investigation or prosecution. In the investigation phase, during the interview , the maximum number of lawyers allowed to be present shall be three . The legal power of attorney is needed for the defense counsel who appointed by accused.
However, attorneys appointed by the Union of Turkish Bar Associations do not need a power of attorney. In practice, some courts require a power of attorney from lawyers appointed by the bar association but this fact is faulty and not legal. The defense counsel chosen by the accused submits his power of attorney in the prosecution process and starts his duty as an attorney. The courts do not have any legal validity and authority to decide on the admission of the defense counsel. However; in practise courts do not obey this and suppose that they have a power.Defense counsels can do their jobs with police,constabulary, prosecution,criminal court of peace in preliminary hearing without showing their power of attorney.
The defense counsel may review the full contents of the file related to the investigation phase and may take a copy of his choice of documents, and is not obliged to pay any fees for such. The power of the defense counsel may be restricted, upon motion of the public prosecutor , by decision of the Justice of the Peace, if a review into the contents of the file, or copies taken, hinder the aim of the ongoing investigation. This restriction applies to investigations aiming to prevent Voluntary manslaughter, Sexual abuse, Child molestation, Production and trading of addictive or relieving/exciting drugs, Forming organized groups with the intention of committing crime, Provocation of war against the State, Offenses against Legislative Organs, arms trafficking and smuggling. The records of the submissions provided by the individual or by suspect who was arrested without a warrant , as well as the written expert opinions and the records of other judicial proceedings, during which the above mentioned individuals who are entitled to be present, are exempted from provisions of restrictions.Restriction decision cannot be made except for the above mentioned crimes, these crimes are listed (numerus clasus) in Criminal Procedure Code. The judge will not give a restriction order when he identifies reasons that would go against the purpose of the investigation and could endamage the investigation. The judge’s decision of restriction will arise in cases where it is necessary because; the restriction decision is one of the decisions that may violate the right to defense and the right to a fair trial.
Any suspect or accused at any time shall have the right to an interview with a defense counsel in an environment where other individuals are unable to hear their conversation; a power of attorney is not required. Written correspondence by these individuals to their defense counsel are not subject to control. The right of the lawyer to consult with the suspect or the accused, to be present during the interview or interrogation, and to provide legal assistance shall not be prevented, restricted at any stage of the investigation and prosecution phase. Breach of this fact will undoubtedly violate the right to a fair trial;in case of such a situation, the defense counsel should immediately take a statement down and file a criminal complaint against the concerned officers.
The relationship between the accused and the defense counsel is an advocateship relationship, and its purpose is to assist the accused. This assistance takes place as defense. However, the defense counsel is independent of the accused. Therefore, the defense counsel uses the powers conferred by law and represents the accused. This task includes representing the accused when he is not there.
In addition to the powers written above, everything required for defense of the accused is taken into account as a duty of defense counsel. As regulated under Article 289 Criminal Procedure Code No. 5271; any limitation of the right to defense is a reason for the absolute violation of the provision.In addition to the above mentioned rights, the defense counsel has the power to attend the proceedings, to put forward evidence, to make statements, to ask questions directly, to represent the accused, to meet with the suspect and the accused, and to apply for legal remedies.
Defence Counsel has a plea/defense immunity. This fact has been regulated under Article 128 Turkish Criminal Code No. 5237. No punishment is imposed if the written or verbal declarations before the courts or administrative authorities contain concrete accusations or negative evaluations about the persons within the scope of plea/defenses. However, in order to achieve such consequence, the accusations and evaluations should be based on real and concrete facts and also be related with the dispute between the parties.
Due to the defense immunity, lawyers should not ask for the permission to speak. Defense counsels should stand up to this because as it has been said above, ; any limitation of the right to defense is a reason for the absolute violation of the provision.
 Bahri Öztürk, Nazari ve Uygulamalı Ceza Muhakemesi Hukuku, s. 252
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