Right to Defense Counsel — Defense Rights of the Suspect and the Accused

The right to defense is one of the fundamental elements of the right to a fair trial, guaranteeing the right of suspects and the accused to benefit from the assistance of a lawyer (defense counsel) in criminal proceedings. Article 36 of the Constitution, Article 6 of the European Convention on Human Rights (ECHR), and Articles 149 to 156 of the Code of Criminal Procedure No. 5271 (CPC) regulate the right to defense counsel and defense rights in detail. The right to defense counsel is not limited to the right to retain a lawyer but also encompasses many rights such as examining the file, objecting to evidence, questioning witnesses, and being present at hearings. This article examines in detail the legal basis of the right to defense counsel, mandatory defense counsel cases, CPC Article 150 appointments, bar association assignments, the rights and obligations of defense counsel, and practical issues encountered in application.

Constitutional and International Basis of the Right to Defense

The right to defense is guaranteed in Article 36 of the Constitution of the Republic of Turkey as follows: "Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures." This article protects the right to defense within the scope of fundamental rights and freedoms.

Article 6, paragraph 3(c) of the European Convention on Human Rights provides that every accused person has the right to defend themselves in person or through legal assistance of their own choosing. Where an accused does not have sufficient means to pay for legal assistance, this provision also guarantees that legal assistance shall be given free when the interests of justice so require.

In decisions of the Constitutional Court and the ECtHR, it has been emphasized that the right to defense must be exercised not merely formally but effectively. The right to effective defense encompasses the defense counsel having adequate time and facilities, being able to examine the file, conferring freely and confidentially with the client, and being able to effectively challenge evidence.

Who Is a Defense Counsel and What Is the Difference Between Defense Counsel and Representative?

A defense counsel (mudafi) is the attorney who defends the suspect or the accused in criminal proceedings. Pursuant to CPC Art. 2/1-c, defense counsel refers to the attorney who conducts the defense of the suspect or accused in criminal proceedings. The concept of defense counsel is used only in criminal proceedings, while in civil cases the attorney is called a "representative" (vekil).

The fundamental difference between defense counsel and representative is that defense counsel undertakes a duty of a public service nature. Defense counsel is obligated to consider not only the interests of the client but also the realization of justice. Therefore, the independence of defense counsel has special importance. While defense counsel is bound by the client's instructions, they are not obligated to fulfill requests that are contrary to law.

The selection of defense counsel is, as a rule, dependent on the will of the suspect or accused. The suspect or accused may choose any attorney as their defense counsel. The appointment of multiple defense counsel is also possible; however, a maximum of three defense counsel may be present at the hearing (CPC Art. 149/2). The right to choose defense counsel can be exercised at every stage from the point of apprehension.

What Are the Mandatory Defense Counsel Cases?

The CPC has made the appointment of defense counsel mandatory in certain situations. Mandatory defense counsel comes into play in cases where the trial of the suspect or accused without defense counsel would be incompatible with the right to a fair trial. The mandatory defense counsel cases are regulated pursuant to CPC Art. 150 as follows:

In mandatory defense counsel cases, when the suspect or accused does not select defense counsel, counsel is appointed by the bar association. This appointment is made within the scope of CPC Art. 150, and the fee of the appointed defense counsel is covered by the state. Procedures conducted without defense counsel in mandatory defense counsel cases are unlawful and constitute grounds for reversal.

How Does the CPC Article 150 Appointment and Bar Assignment Work?

Pursuant to CPC Art. 150, in mandatory defense counsel cases or upon the request of the suspect or accused for defense counsel, counsel is assigned by the bar association. The defense counsel appointment process begins with the notification by the public prosecutor's office or the court to the bar. The bar appoints a suitable defense counsel from among its member attorneys, and this counsel commences duty with the assignment letter.

In CPC 150 appointments, the fee of the appointed defense counsel is determined pursuant to the Union of Turkish Bar Associations CPC Fee Tariff and is paid by the Treasury. The duty of the defense counsel continues until the end of the investigation or prosecution. If the defense counsel fails to properly fulfill their duties, a change may be made by the bar.

The point to note in bar assignments is that the appointed defense counsel must contact the client as soon as possible and begin preparing the defense. In practice, there are criticisms in some cases that appointed defense counsel attend hearings without sufficiently consulting with their clients and fail to provide an effective defense. The Constitutional Court and the ECtHR have emphasized that appointed defense counsel must provide an effective defense.

In discretionary defense counsel cases, the suspect or accused may request the appointment of defense counsel from the bar pursuant to CPC Art. 150/1 upon their request. In this case as well, the fee of defense counsel is covered by the Treasury. Discretionary defense counsel refers to the person requesting defense counsel of their own will in cases falling outside mandatory defense counsel situations.

What Are the Rights of Defense Counsel?

Defense counsel possesses broad rights in criminal proceedings in order to effectively conduct the defense of the suspect or accused. These rights are regulated in various articles of the CPC and are indispensable for defense counsel to properly fulfill their duties.

Right to Examine the File and Obtain Copies

Pursuant to CPC Art. 153, defense counsel has the right to examine the contents of the file during the investigation stage and to obtain copies of desired documents free of charge. However, in cases that may endanger the purpose of the investigation, the defense counsel's authority to examine the file may be restricted by a decision of the criminal judgeship of peace upon the request of the public prosecutor. This restriction does not apply to the suspect's statement records, expert reports, and records of other judicial proceedings at which the suspect or defense counsel is authorized to be present.

During the prosecution stage, the defense counsel's right to examine the file is not subject to any restriction. Defense counsel may examine the entire case file and obtain copies of desired documents. This right is one of the fundamental conditions of effective defense.

Right to Meet with the Suspect or Accused

Pursuant to CPC Art. 154, the suspect or accused has the right to meet with defense counsel at all times and in an environment where conversations cannot be heard by others, without a power of attorney being required. This right to meet begins from the moment of apprehension and continues at every stage of the proceedings. The confidentiality of the defense counsel-client meeting is an inseparable part of the right to defense.

In meetings between detained suspects or accused persons and defense counsel, the number and duration of meetings cannot be restricted. However, certain restrictions may be envisaged in offenses within the scope of counter-terrorism and organized crime [TO BE VERIFIED]. Judicial review of these restrictions is possible, and the Constitutional Court has evaluated such restrictions in many of its decisions.

Right to Be Present During Statement Taking and Arraignment

Pursuant to CPC Art. 149/3, defense counsel has the right to be present during the taking of the suspect's statement or arraignment. The right of defense counsel to be present during statement taking or arraignment cannot be obstructed or restricted. During statement taking and arraignment, defense counsel may provide legal assistance to the suspect, prevent the asking of unlawful questions, and have their objections recorded in the minutes.

Defense counsel also has the right to be present during statement taking conducted by law enforcement. CPC Art. 149/3 explicitly regulates this right. Statements taken without the presence of defense counsel cannot be used as evidence in court (CPC Art. 148/4). This rule is one of the most important guarantees of the right to defense.

Right to Be Present and Speak at Hearings

Defense counsel has the right to be present at every stage of the hearing. Pursuant to CPC Art. 151, defense counsel must comply with hearing order while performing their duties; however, the right of defense counsel to be present at the hearing cannot be restricted. Defense counsel has the authority to question witnesses, object to evidence, present their opinion on the merits, and exercise the right of final word at the hearing.

The active participation of defense counsel at the hearing is an indispensable condition for the realization of the right to defense. According to Court of Cassation precedents, the absence of defense counsel at the hearing in mandatory defense counsel cases constitutes absolute grounds for reversal. This situation may necessitate a retrial.

Right to Appeal

Pursuant to CPC Art. 261, defense counsel may appeal to legal remedies provided this does not conflict with the explicit will of the suspect or accused. The right to file an appeal and cassation appeal is one of the most important rights of defense counsel. Defense counsel can ensure that a conviction decision is reviewed by the appellate court by filing an appeal or cassation appeal.

The right of defense counsel to appeal is dependent on the will of the accused. If the accused explicitly requests that no appeal be filed, defense counsel cannot pursue this avenue. However, in cases where the accused has no explicit will, defense counsel may appeal in a manner that benefits the accused.

What Are the Obligations of Defense Counsel?

In addition to their broad rights, defense counsel also bears important obligations. These obligations arise from the Attorney Act No. 1136, CPC provisions, and professional rules.

The main obligations of defense counsel are as follows: the obligation to maintain regular communication with and inform the client, the obligation to attend hearings and prepare the defense, the obligation to keep the client's secrets (attorney-client confidentiality), the obligation to conduct a lawful defense, and the obligation to fulfill their duties with diligence and loyalty.

If defense counsel violates their obligations, disciplinary investigation, compensation lawsuit, and criminal liability may come into play. In particular, the neglect of duties by defense counsel appointed under CPC 150 may produce more severe consequences as it constitutes a violation of the right to defense.

Right to Defense Counsel During Custody

A person who has been apprehended or taken into custody has the right to immediately benefit from defense counsel pursuant to CPC Art. 149/1. This right begins from the moment of apprehension, and the person must be reminded of this right. If the apprehended person requests defense counsel, a statement cannot be taken until the defense counsel arrives (subject to mandatory defense counsel cases).

An important regulation regarding the exercise of the right to defense counsel during custody is found in CPC Art. 150/1. According to this, if the suspect declares that they are not in a position to select defense counsel, defense counsel is appointed by the bar upon their request. Additionally, in mandatory defense counsel cases, defense counsel is appointed without requiring the suspect's request.

The right to meet with defense counsel during custody cannot be restricted in any manner. The defense counsel-client meeting is conducted confidentially, and listening to or recording this meeting is prohibited. This guarantee is vitally important for the suspect to be able to defend themselves and determine strategy with their defense counsel.

Right to Defense Counsel for Children

The appointment of defense counsel is mandatory in all cases for suspects or accused persons under eighteen years of age. Pursuant to CPC Art. 150/2, it is not possible to try a child suspect or accused without defense counsel due to their age. The Child Protection Law No. 5395 also contains special regulations regarding children's right to defense counsel.

Defense counsel appointed for children are expected to have knowledge of child law and child psychology. Some bar associations have created special lists for child defense counsel and have provided training to attorneys on these lists. The active participation of defense counsel in juvenile proceedings is of great importance for protecting the best interests of the child [TO BE VERIFIED].

Change of Defense Counsel and Withdrawal of Defense Counsel

The suspect or accused has the right to change their defense counsel at every stage of the proceedings. The appointment of new defense counsel means the termination of the former defense counsel's duty. However, bad faith applications aimed at prolonging the trial due to change of defense counsel may be rejected by the court.

The withdrawal of defense counsel from duty is possible pursuant to Article 41 of the Attorney Act No. 1136. Defense counsel cannot withdraw from duty without just cause. In mandatory defense counsel cases, if defense counsel withdraws from duty, a new defense counsel must be immediately appointed. Withdrawal must be made in a manner that does not violate the client's rights and at an appropriate time.

If defense counsel appointed under CPC 150 withdraws from duty or neglects their duties, a new defense counsel is appointed by the bar. In this process, the essential principle is the uninterrupted protection of the defense rights of the suspect or accused.

Violation of the Right to Defense Counsel and Sanctions

Violation of the right to defense counsel constitutes a violation of the right to a fair trial and leads to the unlawfulness of the proceedings. The main situations in which the right to defense counsel is violated include: taking a statement without defense counsel, conducting a trial without appointing defense counsel in mandatory defense counsel cases, unlawfully restricting the defense counsel's right to examine the file, and obstructing defense counsel-client meetings.

In case of violation of the right to defense counsel, the following sanctions may be applied: Statements taken without defense counsel cannot be used as evidence (CPC Art. 148/4). Proceedings conducted without defense counsel in mandatory defense counsel cases constitute grounds for reversal. Violation of the right to defense counsel may be the subject of individual application to the Constitutional Court and application to the ECtHR.

The ECtHR has rendered numerous violation judgments against Turkey due to violations of the right to defense counsel. Chief among these are restriction of the right to access a lawyer during custody, failure to ensure the presence of defense counsel at hearings, and cases of ineffective defense counsel. ECtHR jurisprudence has been an important factor in strengthening the right to defense counsel in Turkish law.

Conclusion and Evaluation

The right to defense counsel is one of the indispensable elements of the right to a fair trial in criminal proceedings. The provisions of Constitution Art. 36, ECHR Art. 6, and CPC Art. 149-156 regulate the scope and guarantees of this right in detail. The mandatory defense counsel system is an important mechanism aimed at ensuring the effective exercise of the right to defense. The rights of defense counsel to examine the file, meet with the client, be present at hearings, and appeal are fundamental conditions of effective defense. Since violation of the right to defense counsel may lead to the unlawfulness of the proceedings and reversal of the judgment, the protection of this right is of great importance both individually and publicly.

Legal Disclaimer: This article has been prepared for general informational purposes and does not constitute legal advice. If you are facing a specific legal issue regarding your right to defense counsel, it is recommended that you consult an attorney. Information may vary in line with legislative changes and current judicial decisions.