KÜHEYLAN HUKUK
LIST OF ABBREVIATIONS A.e. : Ibid. Ibid. : The mentioned work is A.g.m. : The mentioned article A.y. : Same place ECHR : European Court of Human Rights Constitutional Court : Constitutional Court Part Number : Application Number C. : Volume CMK : Code of Criminal Procedure No. 5271 E. : Main GK : General Assembly
ECHR: European Convention on Human Rights IU SBE: Istanbul University Institute of Social Sciences K.: Decision art. : Article para. : Paragraph RG : Official Gazette
p. : Page SYOK : Decision on No Place for Investigation T. : Date TBBD : Journal of the Union of Turkish Bar Associations TCK : Turkish Penal Code No. 5237 et al. : And others YCGK : Supreme Court Criminal General Assembly
The principle of conducting the investigation secretly in criminal procedure aims, on the one hand, to prevent the danger of obscuring the evidence, and, on the other hand, to preserve the suspect's right not to be tainted and the presumption of innocence. The most basic exception to this confidentiality principle is the right to defence. In this study, CMK art. The effects of file restriction decisions taken in accordance with Article 153/2 on the right to defense, equality of arms and adversarial trial principles during the control process of detention, which is the most severe protection measure limiting freedom, were examined.
As a result of the examination, it was determined that the complete concealment of the basic evidence that constituted the basis for the arrest from the defense and the decision made by the Criminal Judgeships of Peace on printed grounds eliminated the possibility of effective judicial review. The public interest expected from the confidentiality of the investigation will gain legitimacy only to the extent that a restriction regime is adopted that does not harm the minimum standards of the right to defense. In this context, it has been emphasized that merely informing the defense abstractly is not sufficient, and that providing minimum actual access to the decisive evidence that forms the basis for the restriction of freedom is a constitutional obligation. As a result, in limited cases, ECHR art. 6 (fair trial) guarantees are not provided directly, art. It was concluded that it caused a violation of Article 5/4 (personal freedom) and that the principles of fair trial are a founding element of detention control. Key Words: Confidentiality of Investigation, Restriction Order, Detention Control,
.
According to Article 153 of the Code of Criminal Procedure No. 5271, which regulates the defense attorney's authority to examine and take samples of the investigation file, the defense attorney, as a rule, will be able to examine the contents of the file during the investigation phase and, if he wishes, will be able to obtain a copy of the documents in the file free of charge. However, if the right of the defense counsel to examine this file may endanger the purpose of the investigation, it may be restricted by the decision of the Criminal Judgeship of Peace upon the request of the public prosecutor. The law specifies the crimes for which a restriction order may be issued, by enumeration1.
According to the relevant article in the Turkish Penal Code No. 5237; intentional homicide, sexual assault (except for the first paragraph), sexual abuse of children, production and trade of drugs or stimulants, forming an organization for the purpose of committing a crime, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, crimes against state secrets and espionage crimes, as well as weapons smuggling regulated in Law No. 6136, embezzlement regulated in Law No. 5411 and crimes regulated in Anti-Smuggling Law No. 5607. In investigations, the attorney's authority to examine the file may be restricted. A restriction order cannot be issued for any crime other than these crimes.
To this end; First of all, CMK m. The place of the regulation in Article 153/2 in the balance between the confidentiality of the investigation and the right of defense will be determined; Then, the importance of the file review authority on the judicial review of the arrest decision as a protective measure will be emphasized. Finally, the standards of detention control under the restriction regime within the scope of the right to a fair trial will be discussed in the light of the jurisprudence of the Constitutional Court and the European Court of Human Rights.
Criminal Procedure consists of the investigation phase, which begins with the receipt of news of the crime and ends with the decision not to prosecute or the indictment is submitted to the court, and the prosecution phase, which begins with the acceptance of the indictment and ends with a verdict. In Article 2 of the Criminal Procedure Code, it is defined as "Investigation: The phase from the time when the suspicion of a crime is learned by the competent authorities according to the law to the acceptance of the indictment." According to the Supreme Court, investigation refers to the phase from the notification of the suspicion of a crime to the competent authorities to the acceptance of the indictment4.
The purpose of this phase is to prepare for prosecution. The truth of the crime allegation is investigated and evidence is collected. Whether or not the prosecution phase will proceed will be determined as a result of the decision to be made at the end of this phase.
During the investigation process carried out on behalf of the public, the public prosecutor begins to investigate the matter as soon as he receives the impression that a crime has been committed through the notice or complaint he receives. The main purpose of this research is to decide whether there is a need to file a public lawsuit in the light of the evidence collected. If the public prosecutor is convinced that a crime has occurred as a result of his investigations, he prepares an indictment; otherwise, he decides that there is no need for prosecution.
As a matter of fact, in cases where it is clearly understood that the act subject to the notice or complaint does not constitute a crime that does not require any investigation, or if the notification is abstract and general in nature; The public prosecutor decides that there is no need for an investigation.
In this case, the person complained of cannot be given the title of 'suspicious' and the right not to be tainted is protected. The decision stating that there is no need for investigation (SYOK) is notified to the whistleblower or complainant. Against this decision, CMK art. An objection may be made to the Criminal Judgeship of Peace in accordance with Article 173.
The investigation phase has two purposes. The primary purpose is to determine whether there is sufficient reason to issue an indictment as a result of the investigation conducted on the suspicion, and the other purpose is to collect evidence for the healthy progress of the prosecution phase.
Austria CMK art. According to Article 91, the investigation phase is to clarify material facts and suspicion of crime through investigations; It provides the prosecutor's office with the opportunity to file a lawsuit, to withdraw the trial, or to decide to dismiss the trial and to hold the hearing.
The phase, called the preliminary investigation phase in Swiss Law, consists of the investigation procedures of the police and the investigation procedures of the prosecutors. In the preliminary investigation, evidence is investigated based on the suspicion that a crime has been committed, and it is investigated whether a criminal decree should be issued against the suspect, whether a lawsuit should be filed against the suspect, or whether a decision of non-prosecution should be given.
The investigation phase has certain characteristics. These are generally written, messy, public, obligatory and confidential. Conducting the investigation secretly aims primarily to protect the suspect's presumption of innocence and to prevent the society from making a judgment based on allegations that have not yet been determined. The other reason is to prevent evidence from being obscured. As a result of being conducted secretly, suspects or other people will be prevented from obscuring the evidence. During the investigation, the Public Prosecutor who wants to reach the material truth in the concrete incident may resort to security measures such as monitoring with technical means, appointing a secret investigator or eavesdropping on communications. Being aware of these measures may cause the evidence to be obscured or other suspects within the scope of the file to be informed and give different statements. This situation may lead to the investigation being inconclusive 7 .
The limit of the principle of confidentiality of the investigation is the right to defense. CMK. m. 157 ruled that secrecy in transactions is only possible "on condition that it does not harm the rights of defense". This regulation clearly confirms that the principle of confidentiality cannot be used as an obstacle that would render the defense ineffective.
In accordance with the Code of Criminal Procedure, the confidentiality of the investigation continues from the beginning until the end of the investigation. Therefore, investigation procedures are, as a rule, confidential, from the beginning of the investigation until the decision not to prosecute or the decision to accept the indictment. CMK. m. In accordance with Article 153/4, upon acceptance of the indictment, the defense counsel; He/she has the authority to examine the contents of the file and the preserved evidence, and to obtain copies of all minutes and documents free of charge. This regulation ensures that with the acceptance of the indictment, the investigation phase ends and the prosecution phase begins, and from this stage onwards, the defense has full access to the file.
Defender, CMK art. In the provision of 2/1-c; It is defined as "the lawyer of the suspect or defendant who defends himself in criminal proceedings". Therefore, in criminal proceedings, whether voluntary or compulsory, the lawyer who undertakes the defense of the suspect in the investigation phase and the defendant in the prosecution phase gains the title of defense counsel. Defender; It is an independent subject who fulfills the defense function from the trio of argument, defense and verdict, which are the founding elements of criminal justice. The prosecution is represented by the public prosecutor, and the sentencing authority is represented by the judge. There is a dialectical role played by each of these three founding subjects that constitute criminal procedure. While the prosecution puts forward a thesis, the defense will present an antithesis to this thesis, and the impartial judgment authority outside the dispute will reach the synthesis at the end of this reasoning process.
The attorney's authority to examine the file differs during the investigation and prosecution phases. There is no restriction on the defense counsel's ability to examine the file during the prosecution phase. Due to the reasons arising from the public nature of the hearings, the defense attorney can freely examine the case file during the prosecution phase. The burden that the preliminary investigation poses for the defendant and the fact that this stage of the trial is of great importance for the later stages make it indispensable to provide the right to examine the file as early as possible in order to make an effective defense.
In order for the defense counsel to prepare his defense in the best possible way, he must be aware of the content of the case file. This imputation of authority granted to the defense attorney is an extension of the right to learn. This right is guaranteed by the 19th and 36th articles of the Constitution and the 5th and 6th articles of the European Convention on Human Rights, as an integral part of the principle of equality of arms10.
The attorney's authority to examine the file during the investigation phase does not differ depending on whether the file is in the law enforcement or prosecutor's office. The defense attorney has the authority to examine the file held by the law enforcement agency without the need for any permission in accordance with the Criminal Procedure Code and the Law on Lawyers. When it comes to the defense counsel's request to review the file, law enforcement officers or the prosecutor do not have the authority to reject this request. However, if there is a situation that may endanger the purpose of the investigation, this authority of the defense attorney may be restricted upon the request of the public prosecutor and only by the decision of the Criminal Judge of Peace. Otherwise, his defense counsel can freely examine the file11.
The right of the defense to obtain information, CMK. m. It is guaranteed by the provision of Article 153/1 and, as a rule, the lawyer is free to examine the contents of the file during the investigation phase. This authority is provided by the Lawyers' Law. 12 in 46/2 is supported by the mandatory provision that lawyers can examine files without presenting a power of attorney. Therefore, in accordance with the principle of effectiveness of the defense, the defense attorney is not obliged to submit a power of attorney to access the file; It is a legal obligation for the relevant units to fulfill this request.
CMK. m. According to Article 153/1, the defense attorney, as a rule, has the right to examine the entire content of the file during the investigation phase. The exception to this right granted to the defense attorney is the limitation imposed in the 2nd paragraph of the same article. Accordingly; “The defense attorney's authority to examine the contents of the file or to take samples from documents may be restricted by a judge's decision upon the request of the public prosecutor, if it may endanger the purpose of the investigation.” This limitation relates to the defense attorney's ability to examine the contents of the file or take samples during the investigation phase. The defense attorney is not subject to any restrictions during the prosecution phase.
7. Crimes Against the Constitutional Order and the Functioning of This Order (articles 309, 310, 311, 312, 313, 314, 315, 316),
8. Crimes Against State Secrets and Espionage (articles 326, 327, 328, 329, 330, 331, 333, 334, 335, 336, 337).
b) Arms smuggling (article 12) crimes defined in the Law on Firearms, Knives and Other Tools dated 10/7/1953 and numbered 6136.
c) The crime of embezzlement defined in Article 160 of the Banking Law No. 5411 dated 19/10/2005.
In order to emphasize the exceptional nature of the restriction decision, the legislator has limited this measure only to the limited number of catalog crimes listed above. In a type of crime other than this list, a confidentiality order cannot be given, no matter how high the possibility of the investigation being endangered. However, in practice, it is often seen that the prosecution instrumentalizes the crime just to close the case against the defense. Even if it does not match the nature of the action, conducting an ordinary financial or judicial crime investigation under the guise of "establishing an organization to commit a crime" or "crimes against the security of the state" at the initial stage has become a method of obtaining a restriction decision in practice. Subjecting the crime qualification to an arbitrary and expansive interpretation in this way completely eliminates the guarantees provided by the law to the defense and paves the way for the Criminal Judgeships of Peace, which is the judicial control authority, to issue printed secrecy decisions based on this artificial crime qualification.
This authority of the defense attorney may be limited in cases where the investigation may be endangered. Being one of the crimes mentioned above by counting method is not sufficient for limitation alone. It must endanger the purpose of the investigation carried out in respect of that crime. It may jeopardize the purpose of the investigation; This is the case if, if the file is not examined by the defense counsel, it will be difficult to elucidate the material facts and the investigation will be delayed or prevented.
The authority to decide to limit the defense counsel's authority to examine the file belongs to the Criminal Judge of Peace. The Criminal Judge of Peace may make this decision upon the request of the prosecutor. The judge is not obliged to adhere to the request. It may review the request and decide whether to accept or reject it. CMK. In accordance with Article 267, an appeal can be filed against the decisions of the Criminal Judge of Peace.
The decision of acceptance or rejection given by the Criminal Judge of Peace must be reasoned. Because, in accordance with the Criminal Procedure Code, judge and court decisions must be reasoned. In the justification presented, it must be justified why not examining the file or taking a sample would jeopardize the purpose of the investigation. Although printed confidentiality decisions that are not based on any concrete evidence may have the nature of a reasoned decision, they will be contrary to the spirit of the law.
The main reason for the existence of legal remedies in criminal procedure law is to correct the erroneous decisions made by the first instance authorities through legal and actual control, thus preventing violations of rights. In this context, CMK art. In accordance with Article 153/2, the decisions to restrict the defense attorney's authority to examine the file are not a final decision, but like every decision made by judges, they are subject to CMK Art. In accordance with Article 267, the objection is subject to the supervision of the legal remedy15. However, the current legal structure and implementation of this remedy is far from serving its theoretical purpose. One of the basic rules of the legal remedy mechanism is that the dispute must be completely isolated from the decision-making authority and transferred to the review of a higher, vertical and independent higher court, which is hierarchically higher. However, in the current system, the objection made against the restriction decision given by a Criminal Judgeship of Peace is examined by another Criminal Judgeship of Peace following that judgeship in number, instead of a higher court. This mechanism, called horizontal control in the doctrine, seriously damages the functional independence and impartial control criteria of the legal remedy. The tendency of peer judges, who work in the same courthouse, in the same status and are burdened with similar workload, to avoid interfering with each other's discretionary powers due to a reflex of professional solidarity, renders this control step dysfunctional. This horizontal supervision procedure among the Criminal Judgeships of Peace has also been subject to heavy criticism in the reports of international legal supervision bodies. The Council of Europe touched upon this issue in the report "Opinion on the Duties, Powers and Functioning of Criminal Judgeships of Peace" published by the Venice Commission in 2017. In the said report of the Commission; He clearly emphasized that the examination of objections by another Criminal Judge of Peace of equal rank in the same courthouse, instead of a hierarchically higher court, creates a closed-circuit system18. The report states that this closed-loop system violates Article 13 of the European Convention on Human Rights, as it weakens the objective control purpose expected from legal remedies and poses a risk of collegiality. It has been determined that it is far from meeting the standard of the right to effective application regulated in the article. Therefore, examining objections against restriction or detention orders within this mechanism, which is structurally unable to provide an independent and vertical control, seriously endangers the legal security of the suspect whose freedom is restricted.
The review method adopted by the appeal authority deepens the injustices. The judgeship reviewing the objection does not have the data to review the public prosecutor's office's abstract and cliché claims that "the purpose of the investigation may be endangered" on the basis of concrete events. The fact that the examinations are carried out completely without a hearing and only on the limited file presented by the prosecutor's office, contrary to the principles of equality of arms and adversarial trials, makes it impossible for the defense counsel to verbally concretize his objections.
If the purpose of the investigation would be jeopardized by the Criminal Judge of Peace, the attorney's authority to examine the file may be limited. However, this restriction power is not unlimited. According to Article 153/3 of the Code of Criminal Procedure, the authority to examine the minutes containing the statements of the captured person or the suspect, expert reports and other judicial proceedings in which the mentioned persons are authorized to be present cannot be restricted in any way. The report containing the statement of the captured person or suspect; These are the minutes regarding the testimony at the law enforcement and prosecutor's office or the interrogation before the judge. The suspect's written statements regarding the statement should be evaluated within the scope of the statement report. On the other hand, the minutes regarding the other statements made by the suspect are in accordance with CMK 153/3. They are not considered as documents listed in the article.
It is of vital importance for the defense counsel to have access to the documents mentioned in the law so that he can properly defend himself. Therefore, these documents are not subject to any restrictions. Under no circumstances can the Criminal Judge of Peace restrict the defense counsel's access to these documents upon the request of the Public Prosecutor.
CMK article, which regulates the situations in which the authority to examine the contents of the file cannot be restricted during the investigation phase. In the provision of Article 153/3, expert reports have a special position. While the other documents listed in the article (the suspect's statement or the trial proceedings in which he was found to be present) are, by their nature, constitutive proceedings organized with the personal participation of the suspect; Expert reports emerge as a result of the expert processing of the materials collected by the prosecution.
The main legal reason for the exclusion of expert reports from restrictions is that these reports are no longer raw data, but have become objective with expert opinion and have turned into technical texts that will not endanger the confidentiality or safety of the investigation. At this point, the most fundamental mistake to be made in practice is to confuse raw data with the expert report. For example; While HTS records, digital material images or evidence that has not yet been classified in the file in raw form can be subject to a restriction decision, the version of these data sent to an expert review and converted into an analytical report is prohibited under CMK art. In accordance with Article 153/3, it must be made accessible to the defense attorney immediately.
The defense can develop arguments to prove the contrary against the technical opinion presented and can effectively use its right to request an additional report (CMK Article 68) in order to reveal the material truth, if it has full and unhindered access to the report. Hiding an expert report from the defense for the sake of confidentiality of the investigation will directly damage the principle of "proportionality", which must be observed in every limitation in criminal procedure, and the guarantee of equality of arms, which is the fundamental element of a fair trial.
Criminal Procedure Law aims to reveal the material truth. When this goal is achieved, the decisions made as a result of the trial must be implemented. For this reason, it may be necessary to take some protective measures in criminal proceedings in order for the trial activities to proceed properly.
Arrest is a temporary protective measure used for reasons such as preserving evidence and preventing the suspect or defendant from escaping. It is considered the most severe measure in the CMK because it directly restricts freedom. An arrest warrant can be issued both at the investigation and prosecution stages.
This measure is a direct interference with the person's freedom, which is one of his most fundamental rights. For this reason, it is subject to strict conditions in the CMK. However, despite all the regulations made in practice, arrest is used as a means of punishing the suspect or defendant rather than as a protective measure24.
Freedom is one of the most fundamental rights of the individual and is protected in accordance with Article 5 of the European Convention on Human Rights and Article 19 of the Constitution. Any interference with personal freedom directly violates this right. Personal freedom can be restricted in accordance with the procedure specified in the law and by meeting the conditions and periods in the law.
In order for an arrest warrant to be issued for the suspect or defendant, there must be evidence showing the existence of a strong suspicion of crime and a reason for arrest. Even if these conditions exist, the judge or the court is not obliged to apply for detention protection measures. This is an optional protection measure25. During the investigation phase, the arrest of the suspect is decided by the Criminal Judge of Peace upon the request of the public prosecutor, and during the prosecution phase, the arrest of the defendant is decided upon the request of the public prosecutor or by the court ex officio. In these systems, justification is always given and legal and factual reasons indicating that the application of judicial control will be insufficient are included. In decisions regarding the continuation of detention or refusal of release, it must be justified by evidence showing that there is a strong suspicion of crime, the existence of reasons for detention, that the detention measure is proportionate, and that judicial control will be insufficient.
Issuing an arrest warrant must be proportionate, considering the crime charged. The crime for which there is a strong suspicion of committing a crime by the suspect or the defendant must be balanced with the arrest warrant and the interference with freedom. If the crime charged is much more severe than the measure to be taken, this measure should not be applied. This proportionality should be taken into consideration both when making an arrest decision and during detention reviews. The person who will evaluate this proportionality is the Criminal Judge of Peace 26 .
Objecting to arrest is one of the most important rights granted to the suspect or defendant. About this European Convention on Human Rights art. 5/3 27 and Constitution art. 19/7 is 28. It is two weeks from the date on which the decision to object to the arrest decision is learned. During the investigation phase, it is decided by the Criminal Judge of Peace upon the request of the Public Prosecutor, upon the request of the Public Prosecutor, by taking into account the provisions of Article 100, by hearing the suspect or his defense counsel, whether the suspect's detention will need to be continued during the period he is in prison and for a period of thirty days at the latest.
During the investigation phase, upon the request of the public prosecutor, the Criminal Judge of Peace may decide to arrest the suspect. In order for the right of defense to be fully exercised during the decision to arrest, the defense attorney must be given the opportunity to prepare his defense, especially before the arrest hearing.
CMK. m. Pursuant to Article 153, the attorney's authority to examine the file and take samples from the file may be restricted. The content of the file, which forms the basis for the arrest warrant that may be issued as a result of this restriction, and whether the evidence must be presented to the suspect and the defense attorney are also of great importance for the safety of the trial.
There is no regulation in our Code of Criminal Procedure stating that an arrest warrant cannot be issued for the suspect in files where a restriction decision has been made, or that if there is a request for arrest for the suspect, the evidence underlying this request must be examined by the suspect or his defense attorney. As can be seen in the decisions of the European Court of Human Rights, failure to disclose the evidence that constitutes the basis for the arrest decision to the defense counsel to justify the restriction decision violates the right to freedom and security regulated in Article 5 of the ECHR. In accordance with the established jurisprudence of the European Court of Human Rights; The authority that controls the legality of a measure restricting personal freedom must observe the balance of equality of arms between the prosecution and defense authorities. An arrest decision made without submitting the evidence that forms the basis of the arrest decision to the review of the defense attorney will violate the person's right in the context of Article 5.
Although the ECHR did not find the restriction decision given for the file to be against the contract in case the purpose of the investigation would be endangered, it ruled that the suspect and the defense counsel should have access to the evidence that led to this measure, and that this evidence should not be hidden from them, considering that the freedom of the person would be restricted if this measure was taken. In another decision, he stated that the suspect's and his defense counsel's inability to prepare an effective defense due to their inability to examine the file due to restrictions was in violation of Article 5 of the contract. According to the Court, the information that was ruled not to be kept secret from the defense counsel and the person whose freedom was restricted is not all the events and evidence within the scope of the file, but only the events and evidence that formed the basis for the arrest decision. Provided that the events and evidence that form the basis of the arrest decision are examined by the defense counsel and the person whose freedom is restricted, it is possible to restrict the access of these people to other content in the file.
The Constitutional Court ruled that it is possible to issue an arrest warrant despite the restriction of the defense attorney's authority to examine the file. However, according to the Court, the person must be aware of the content of the information and documents that form the basis of his detention and have the opportunity to prepare his defense accordingly. With the changing jurisprudence, the court stated that the right to defense cannot be bypassed with information alone, and that access to evidence is a necessity.
Arrest; It is a severe protective measure that results in the suspect or defendant being temporarily deprived of his freedom for a period of time before a final judgment is made about him, in case of strong suspicion based on concrete evidence that he has committed a crime and a reason for arrest. Constitution art. In Article 19/8, "A person whose freedom is restricted, for whatever reason, has the right to apply to the competent judicial authority in order to ensure that a decision is made about his situation in a short time and that he is released immediately in case this restriction is against the law." In accordance with the governing regulation, it is a constitutional guarantee to be able to effectively object to this measure limiting the right to personal liberty and security.
In our law, the legal remedy of objection is a normal control mechanism that can be applied against judge's decisions and court decisions in cases clearly indicated by the law. CMK m. Pursuant to Article 101/5, the opportunity to object to arrest decisions has been kept open, and as a result of the current amendment made by Law No. 7499, the objection period has been determined as two weeks from the date of learning of the decision. CMK m. Pursuant to paragraph 268/3-b, the examination of objections made against the decisions of the Criminal Judgeship of Peace regarding arrest and judicial control belongs, as a rule, to the judge of the criminal court of first instance in whose judicial district he is located.
CMK m. This regulation introduced by Article 268/3-b creates a serious operational problem in practice within the criminal procedure legal remedy system. In order to provide a more secure control against arrest measures that directly affect personal freedom, the legislator gave the objection review to the Criminal Court of First Instance, which is a higher authority. On the other hand, objections made against the file restriction decision, which forms the basis of the arrest decision and directly prevents the defense from producing arguments, are still subject to horizontal supervision by the Criminal Judgeships of Peace.
Judicial review of detention is not limited to the appeal law. During the investigation phase, while the suspect was in the detention center, CMK art. In accordance with Article 108, the issue of whether the detention should continue in thirty-day periods at the latest must be examined by the Criminal Judge of Peace ex officio or upon the request of the prosecutor. In practice, this control mechanism has been transformed into an almost automated document review system, contrary to the letter and spirit of the law, far from substance and judicial depth. Instead of discussing the concrete facts by personally listening to the suspect whose freedom is restricted or his defense counsel, judges mostly approve the prosecution's abstract extension requests by reviewing the documents on the file and automatically continue the detention. This situation turns a protective mechanism that should protect personal freedom into a dysfunctional and formal procedure.
The habit of examining this form in practice also deepens the problem of unjustified decisions. While the Criminal Judgeships of Peace decide on the continuation of detention or reject objections, especially in cases where there is a restriction order, Constitutional Art. 141/3 and CMK art. It avoids showing the concrete and verifiable justifications sought by 34. Instead; Stereotyped, literal and abstract formulas such as "the nature and nature of the crime", "the current state of evidence", "the continuation of the restriction order" or "judicial control will be insufficient" are repeated. Depriving the decisions of justification in this way makes it impossible for the defense counsel to know which evidence, which suspicion-based fact to produce an argument against; It completely paralyzes the right to a reasoned decision and, accordingly, the right to object.
The restriction regime on the investigation file fundamentally undermines this guarantee of equality of arms. While the prosecution, using its public power, has full knowledge of witness statements, technical follow-ups and HTS records and bases its accusation on these data; As a result of the restriction decision, the defense counsel only appealed to CMK Art. The suspect is forced to defend himself through statements, minutes and expert reports, which are narrow exceptions to Article 153/3. Faced with this emerging asymmetry, the defense attorney cannot concretely refute the accusations; because he does not know what he is objecting to and exactly which secret document is used as the basis for the arrest. The defense is necessarily built on assumptions instead of evidence, which leads to the emergence of printed objection petitions that "have become copies of each other" in the practical field.
Arrest decisions made in cases where the defense counsel's access to the file is restricted have always been a matter of debate. This situation has been thoroughly evaluated both in the decisions of the European Court of Human Rights and in individual applications to the Constitutional Court.
The European Court of Human Rights has determined the requirements of a fair trial based on the concept of fair trial. According to the ECHR, in order for a fair trial to take place, the measures taken during the trial should not violate the essence of the right to defence.
According to subparagraph (b) of the 3rd paragraph of Article 6 of the Convention, the defendant must be able to organize his defense appropriately, express all relevant defense statements before the trial court and thus have the opportunity to influence the outcome of the trial. This issue is also a requirement of the principle of adversarial trial.
In order for the suspect to defend himself against the accusations against him, he must have access to the evidence in the file, which is restricted to him and his defense counsel. Failure to access these documents may result in a violation of the right guaranteed under subparagraph (b) of the 3rd paragraph of Article 6 of the Convention. Therefore, the person must be allowed access to these documents in order to prepare his defence. However, the ECHR accepts that the right to access the file is not an absolute right. It is not necessary for there to be complete equality between the parties at every stage of the trial in terms of access to the documents in the file38.
Although the ECHR does not find it contrary to the ECHR to restrict the defense attorney's authority to examine the file in case the purpose and confidentiality of the investigation would be endangered, it has ruled that the content of the file, which contains the events and evidence that form the basis for applying for this measure, cannot be hidden from the person whose freedom is restricted and the defense counsel, on the grounds that personal freedom will be restricted in case of resort to arrest measures. This issue was explained in the Garcia Alva v. Germany decision39 as follows:
“The court ensures that criminal investigations are carried out effectively.
To prevent suspects from obscuring evidence and obstructing the course of justice.
It cannot be used at the expense of a fundamental violation of the right to defence.
information important to the suspect's lawyer in a manner that is accessible to him/her.
In the Dochnal v. Poland decision, the fact that both the suspect and his defense counsel could not prepare an effective defense during the investigation phase because they could not examine confidential documents for a long time was found to be in violation of Article 5 of the ECHR. According to the Court, the information that was ruled not to be kept secret from the defense counsel and the person whose freedom was restricted are not all the events and evidence within the scope of the file, but only the events and evidence that form the basis of the arrest decision. Provided that the events and evidence that form the basis of the arrest decision are examined by the defense counsel and the person whose freedom is restricted, it is possible to restrict the access of these people to other content in the file.
German Criminal Code, which was added by a law that came into force in Germany on 1.11.2000. m. 147/5 provides for a special judicial review in three cases against the denial of the right to examine the file by the prosecutor41.
Accordingly, against the rejection of the request by the Prosecutor's Office to examine the file, legal action may be taken in three cases:
a) If the record that the preliminary investigation has ended has been entered in the file,
b) If there is an objection to the examination of privileged documents stipulated in German Criminal Code Article 147/3;
c) If the defendant is deprived of his freedom.
Thanks to this innovation, the right to review the file will be prevented from being hindered by restriction decisions made without sufficient justification and placed on the file on the grounds that the purpose of the investigation will be endangered.
In order to keep the detention measure free from arbitrariness, judicial authorities should not be satisfied with the existence of reasonable suspicion alone; At the same time, it must provide satisfactory reasons specific to the concrete incident that serve the purpose of arrest. The obligation to provide justification finds immediate application with the first arrest warrant issued after the arrest.
In its Ceviz/Turkey decision, the European Court of Human Rights explained as follows: Although the statements of the prime suspect, telephone records and technical monitoring results could not be accessed because the defense counsel's authority to review the file was restricted during the investigation phase, the suspect and the defense counsel were given oral information about all the evidence mentioned in the suspect's statement taken by the public prosecutor and the judge, and explained that the allegation that the right to personal liberty and security regulated in Article 5 of the ECHR was violated was clearly unfounded as follows:
“The ECHR asserted that the applicant was deprived of his right to review.
The content of the file in question is the basis for the person concerned to object to the legality of his detention.
It is understood that they had access to the documents that formed the basis of detention.
The applicant and the defense counsel referred to the contents of these documents. Because,
The ECHR found that the applicant and his defense counsel had sufficient knowledge of the content of the documents in question.
that they have sufficient information and are adequately informed of the reasons for their detention.
The restriction decision imposed for the purpose of confidentiality of the investigation does not, on its own, constitute a violation of the guarantees provided by the European Convention on Human Rights; However, if this restriction makes it impossible for the defense attorney to access the main evidence that forms the basis for the arrest, it will constitute a violation of rights. In other words, if the person whose freedom is restricted is completely deprived of the opportunity to test and refute the reasons for his arrest, the supervision process is within the scope of Article 1 of the Convention. It is considered neutralized in the sense of 5/4.
The Constitutional Court ruled that the presence of a restriction order in the investigation file,
It states that it will not constitute an obstacle to the implementation of the arrest measure.
According to the Constitutional Court, a person must be aware of the evidence that forms the basis for his arrest.
In order for the defense attorney to adequately defend his client, he must present the investigation file.
is of great importance. In the eighth paragraph of Article 19 of the Constitution, whatever
information about the situation of the person whose freedom is restricted, regardless of the reason, in a short time.
decision and immediate release in case this restriction is against the law.
It has been stated that he has freedom-restrictive protection, especially such as arrest.
In order to make an effective objection against the measures, the person or his/her lawyer must
Have sufficient knowledge about the content of the information and documents that form the basis of decisions
In Hidayet Karaca's application, the court finds the information provided by the public prosecutor or the court during the statement sufficient, and does not require the examination of the file. The court explains this situation as follows:
Questions were asked regarding the content of the documents and the decision to detain the applicant was made.
Acceptance that he/she has had the opportunity to adequately object to the reasons for his/her situation.
is required. In such a case, the person must submit the documents that form the basis for detention.
In the application made by Izettin Alpergin, stating that he could not make an effective defense due to the confidentiality order given in the investigation file, the Constitutional Court decided that having sufficient information about the documents that formed the basis of the person's detention would not constitute a violation in terms of Article 19/8 of the Constitution45. The relevant part of the decision is as follows:
“When the applicant's defense taken during the interrogation process is examined, the Police and
from the documents and information about which he was asked and which constitute the basis for the criminal charge against him.
It is seen that they were informed and defended in detail together with their defense counsel.
Particular reference was made to the meeting in which it was recorded. Therefore, the applicant and
It is understood. In the said decision, the court stated that, depending on the suspicion that a crime had been committed,
and the basic elements underlying the accusations to the applicant or his defense counsel.
notified and the applicant was given the opportunity to object thereto.
is taken, the possibility of access to the investigation file is prevented due to the restriction decision only.
accepted as the allegation of deprivation was clearly unfounded.
The Constitutional Court changed its current jurisprudence and introduced new criteria regarding the restriction decision on the investigation file. Especially in cases of forming an organization for the purpose of committing a crime, crimes against the state and terrorism crimes, the restriction decision is given almost automatically46. This jurisprudence structure has changed with the Constitutional Court's Huda Kaya application 47. In this decision, the Constitutional Court stated that the right to defense cannot be bypassed with just information, and that access to evidence is a necessity. He explained the difficulties caused by restricting access to the file and the need to compensate for this as follows:
“However, based on the information, documents and evidence in the investigation file of the detained person
There is no unlimited access right. To protect the fundamental rights of third parties, to
to protect their interests, the methods used by judicial authorities when conducting investigations,
to prevent them from harming their well-being, to allow judicial authorities to conduct certain investigations
for purposes such as keeping secret methods or confidential information of the state in the investigation file.
Have documents or information such as secret organization correspondence that must be kept
It may be necessary. However, the restriction on the right to access the file may be limited to the purposes in question.
must be absolutely necessary in light of (...) In this context, the investigation authorities
sufficient evidence that the restriction is absolutely necessary in the light of the purposes envisaged
The difficulties imposed by the restriction on defense must be adequately compensated. This
In this context, the principles of equality of arms and adversarial trial must be respected.
In accordance with the principles of equality of arms and adversarial trial, the reasons for arrest and
In its evaluation on a concrete case basis, the Constitutional Court pointed out that neither the prosecution's request for restriction nor the relevant judicial decision concretized the risks that opening the contents of the file to the defense would pose for the safety of the investigation. According to the Court, in the restriction request and decision, only the wording of the legal regulation was repeated, CMK Art. It is not sufficient to legitimize this severe interference with the right to defense in accordance with Article 153. Therefore, restricting the file to the defense attorney without clearly proving the existence of a superior public interest; It has eliminated the suspect's capacity to monitor the reasons for his deprivation of liberty and to develop an effective defense against them. As a result, preventing the defense from accessing evidence without any legal basis violates Article 19/8 of the Constitution. It ruled that he had violated his right guaranteed under the article.
The Constitutional Court consistently maintains the jurisprudence established by the Huda Kaya decision and acts in the same line in similar cases. In cases where the defense is prevented from accessing the content of the file without providing a justified and concrete reason; It finds that the suspects have no chance of developing a qualified and convincing objection to the allegations restricting freedom. Accordingly, the court does not reconcile depriving the defense of the opportunity to inspect the evidence with a fair detention review, and continues to give violation decisions because such restrictions make the detention control dysfunctional.
It must be carried out in a fair balance with the suspect's right to a fair trial.
The confidentiality of the investigation rule and the file review that is a reflection of this rule
decisions are made almost "automatically" without concrete and convincing justifications.
Granting it as such seriously damages the essence of the right to defence.
Applying for arrest measures is the most fundamental violation of the right to a fair trial.
It violates the principle of equality of arms, which is one of its guarantees. to the file and
Defender whose access to evidence is restricted, the basis of the accusations against his client
The objections are to printed texts that are disconnected from the concrete event, abstract and repetitive.
is transforming; The objection mechanism lost its legal function and became a formal approval procedure.
It becomes.
As a matter of fact, the current decisions of the European Court of Human Rights and the Constitutional Court
The jurisprudence also clearly draws attention to this danger in the trial. Constitutional Court's Huda
Restricting access to the file on the grounds of the safety of the investigation is categorically
Even though it is not considered a violation, the main evidence that forms the basis for the arrest is taken from the defense
The evidence that forms the basis for detention should not be made available to the defense counsel, Article 5 and
considers it as a violation.
Arrest warrants issued without the opportunity to refute the accusations are a form of protection.
It ceases to be a precautionary measure and turns into a pre-emptive punishment tool. to this law
In order to overcome the contradiction, judicial authorities must comply with CMK art. Narrow the restriction conditions in Article 153
Adding a mandatory clause will eliminate hesitations in practice and ensure the rule of law.
It will guarantee the right to a fair trial as a requirement of the principle.
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1 Code of Criminal Procedure, C. 5271, C. 5271 §, (2004), (Online) www.mevzuat.gov.tr, 23.11.2025. art.153 (Access Date: 12.05.2026). 2 3 2 Nurullah Kunter, Feridun Yenisey, Ayşe Nuhoğlu, Criminal Procedure Law, 14th Edition, Beta, Istanbul 2017, p. 87.
3 Code of Criminal Procedure Art.2.
4 YCGK, T. 17.06.2006, E. 2006/5-165, K. 2006/160. (Online) https://www.lexpera.com.tr, (E.T.: 12.05.2026) 5
5 Yener Ünver, Hakan Hakeri, Criminal Procedure Law, 24th Edition, Seçkin, Ankara 2025, p. 1401. 6 Nur Centel, Hamide Zafer, Criminal Procedure Law, Istanbul 2024, p. 103.
7 Serhat Sinan Kocaoğlu, Müdafi, 2nd Edition, Seçkin, Ankara 2012, p. 172. 8 Code of Criminal Procedure art.2. 9 Fatih Selami Mahmutoğlu, Selman Dursun, Prohibited Cases of Defense Counsel in Turkish Law, Seçkin, Ankara 2004, p. 20.
10 Mustafa Ruhan Erdem, The Right to Examine the Preliminary Investigation File for the Detained Defendant in the Light of ECHR Decisions, Legal Theory, Vol. 3, No. 5, 2016, p. 46
11 Mehmet Emin Alşahin, The Power of the Defender to Examine the File, Legal Law Journal, Vol. 4, No. 40, April 2006, p. 1297
12 “Lawyers Law”, C. 1136, C. 1136 §, (1969), (Online) www.mevzuat.gov.tr/MevzuatMetin/1.5.1136.pdf, 15.06.2026. Article 46. (E.T.: 12.05.2026) 13 13 Mahmutoğlu / Dursun, ibid. , p. 139. 14 16
14 Ahmet Gökcen / Mehmet Emin Alşahin / Kerim Çakır / Murat Balcı, Criminal Procedure Law, 17th Edition, Adalet Publishing House, Ankara, 2024, p. 715-718.
15 Nurullah Kunter / Feridun Yenisey / Ayşe Nuhoğlu, Criminal Procedure Law, (Enhanced Edition), p. 832. 16 Gökcen / Alşahin / Çakır / Balcı, ibid. , p. 722; 17 19 17 Bahri Öztürk / Durmuş Tezcan / Mustafa Ruhan Erdem [et al.], Theoretical and Applied Criminal Procedure Law, Seçkin Yayıncılık, Ankara, 2023, p. 680.
18 Council of Europe Venice Commission, Opinion on the Duties, Competences and Functioning of the Criminal Peace Judgeships in Turkey, Opinion No: 852/2016, 13 March 2017, CDL-AD(2017)004, para. 73. 19 Council of Europe Venice Commission, op.cit. , para. 74-75. 20 20 CENTEL / ZAFER, ibid. , p. 121. 21 22 23 21 Ibid. 22 Nurullah KUNTER, Criminal Procedure Law as Law of Procedure, 9th Edition, Beta, Istanbul 1989, p. 329.
23 Bahri ÖZTÜRK et al., “Detention Periods and Appeal Stage”, Istanbul Bar Association Journal, Vol. 85, No. 1, 2011, p. 34.
24 Murat BALCI, “Detention Periods and Appeal Stage”, Istanbul Bar Association Journal, Vol. 85, No. 6, November 2011, p. 34-45
25 YCGK, T. 16.12.2008, E. 2008/4-225, K. 2008/231. (Online) https://www.lexpera.com.tr, (E.T.: 21.05.2026)
26 Veysel GÜLTAŞ, Arrest Under the Light of the Criminal Procedure Code No. 5271, 1st Edition, Günaydın Publications, İzmir 2006, p. 50. 29 30
27 European Convention on Human Rights”, C. ECHR, C. ECHR §, (1950), (Online) www.google.com/search?q=avrupa+insan+rights%C4%B1+s%C3%B6zle%C5%9Fmesi, 15.06.2026. art.5, (E.T.: 21.05.2026)
28 Constitution of the Republic of Turkey”, Vol. 2709, C. 2709 §, (1982), (Online) www.mevzuat.gov.tr/mevzuat?MevzuatNo=2709&MevzuatTur=1&MevzuatTertip=5, 15.06.2026. art.19,(E.T.: 21.05.2026)
29 Hasan SINAR, Detention in Criminal Procedure Law, 1st Edition, Seçkin, Ankara 2001, p. 245. 30 ÜNVER / HAKERİ, ibid. , p. 253. 32 33
31 CENTEL / ZAFER, ibid. , p. 103; ÜNVER / HAKERİ, ibid. , p. 253.
34 ERDEM, “In the Light of ECHR Decisions... (2004)”, ibid. , p. 80.
35 ERDEM, “In the Light of ECHR Decisions... (2004) ”, ibid. , p. 85; ERDEM, “In the Light of ECHR Decisions... (2016)”, ibid. , p. 46. 36 37
36 ECHR, Can v. Austria, App. No: 9300/81”, C. Can v. Austria, C. Can v. Austria §, (1984)para. 53., (Online),hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57457%22]}, Access Date: 15.06.2026, ECHR, Gregacevic v. Croatia, App. No: 58331/09”, C. Gregacevic v. Croatia, C. Gregacevic v. Croatia §, (2012)para. 51., (Online),hudoc.echr.coe.int/eng?i=001-112090, Access Date: 15.06.2026
37 ECHR, Rasmussen v. Poland, App. No: 38886/05”, C. Rasmussen v. Poland, C. Rasmussen v. Poland §, (2009)para. 48-49., (Online),hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-92429%22]}, Access Date: 15.06.2026 40 38 Sibel İNCEOĞLU, The Right to a Fair Trial in the Decisions of the European Court of Human Rights, Beta, Istanbul 2013, p. 237.
39 ECHR, Garcia Alva v. Germany, App. No: 23541/94”, C. Garcia Alva v. Germany, C. Garcia Alva v. Germany §, (2001)para. 42., (Online),hudoc.echr.coe.int/eng?i=001-59208, Access Date: 15.06.2026
40 ECHR, Dochnal v. Poland, App. No: 31622/07”, C. Dochnal v. Poland, C. Dochnal v. Poland §, (2012)para. 84-85., (Online),hudoc.echr.coe.int/fre?i=001-113139, Access Date: 15.06.2026 42
41 Mustafa Ruhan ERDEM, “The Right to Examine the Preliminary Investigation File for the Detained Defendant in the Light of ECHR Decisions”, Dokuz Eylül University Faculty of Law Journal, Vol. 6, No. 1, 2004, p. 67-111
42 ECHR, Alparslan Altan v. Turkey, App. No: 12778/17”, C. Alparslan Altan v. Turkey, C. Alparslan Altan v. Turkey §, (2019)para. 130., (Online),hudoc.echr.coe.int/eng?i=001-195054, Access Date: 15.06.2026
43 ECHR, Ceviz v. Turkey, App. No: 8140/08”, C. Ceviz v. Turkey, C. Ceviz v. Turkey §, (2012)para. 47-48., (Online),hudoc.echr.coe.int/eng?i=001-77506, Access Date: 15.06.2026 44
44 Constitutional Court, Hidayet Karaca, Case No: 2015/144”, C. Hidayet Karaca, C. Hidayet Karaca §, (2015)para. 107., (Online), decisionsbilgibankasi.anayasa.gov.tr, Access Date: 15.06.2026 45 Constitutional Court, İzzettin Alpergin, B. No: 2013/385”, C. İzzettin Alpergin, C. İzzettin Alpergin §, (2015)para. 56-57., (Online), decisionsbilgibankasi.anayasa.gov.tr, Access Date: 15.06.2026
46 Volkan ASLAN, “The Effect of Restricting Access to the Investigation File on the Right to Personal Freedom and Security in the Light of the Current Decisions of the Constitutional Court”, Süleyman Demirel University Faculty of Law Journal, Vol. 15, No. 2, 2025, p. 1277-1294
47 Constitutional Court, Hüda Kaya, Chamber No: 2023/102251, OG. 05.08.2025, No. 32977”, C. Hüda Kaya, C. Hüda Kaya §, (2025)para. 92., (Online), decisionsbilgibankasi.anayasa.gov.tr, Access Date: 15.06.2026 48
48 Volkan Aslan, “The Effect of Restricting Access to the Investigation File on the Right to Personal Freedom and Security in the Light of the Current Decisions of the Constitutional Court”, Süleyman Demirel University Faculty of Law Journal, Vol. 15, No. 2, 2025, p. 1277.
KÜHEYLAN HUKUK