Right to Defence Counsel — Defence Rights of Suspects and Defendants

What is the right to defence counsel and when is representation mandatory? A comprehensive legal guide to the defence rights of suspects and defendants under CMK Arts. 149-156, Article 36 of the Constitution and Article 6 of the ECHR.

The right to a defence is one of the fundamental elements of the right to a fair trial and guarantees that a suspect or defendant in criminal proceedings may benefit from the assistance of an attorney (defence counsel). 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 (CMK) govern the right to defence counsel and defence rights in detail. The right to defence counsel is not confined to the right to retain an attorney; it also encompasses many rights such as examining the case file, challenging evidence, questioning witnesses and being present at hearings. This article deals in detail with the legal basis of the right to defence counsel, the cases of mandatory representation, appointment under CMK Art. 150, assignment by the bar association, the rights and obligations of defence counsel, and the problems encountered in practice.

The Constitutional and International Basis of the Right to a Defence

The right to a defence is guaranteed by Article 36 of the Constitution of the Republic of Türkiye, which provides that “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 a defence as a fundamental right and freedom.

Article 6(3)(c) of the European Convention on Human Rights provides that every defendant has the right to defend themselves in person or through legal assistance of their own choosing. The assignment of counsel of the court's own motion, where a defendant lacks sufficient means to pay for legal assistance and the interests of justice so require, is also guaranteed under this article. Decisions of the Constitutional Court and the European Court of Human Rights emphasise that the right to a defence must be exercised not merely formally but effectively. The right to an effective defence encompasses counsel having adequate time and facilities, being able to examine the case file, being able to meet the client freely and in confidence, and being able to challenge the evidence effectively.

Who Is Defence Counsel, and What Is the Difference Between Defence Counsel and a Representative?

Defence counsel is the attorney who defends a suspect or defendant in criminal proceedings. Under CMK Art. 2/1-c, defence counsel means the attorney who conducts the defence of a suspect or defendant in criminal proceedings. The term is used only in criminal proceedings; in civil actions an attorney is referred to as a “representative”.

Defence counsel conducts the defence of the suspect or defendant in criminal proceedings; a representative, by contrast, may act for an intervening party, a person harmed by the offence, or a party financially liable. The practice of law is both a public service and an independent profession. Defence counsel is independent and performs the defence function within the bounds of the law and professional rules.

The choice of defence counsel depends, as a rule, on the will of the suspect or defendant, who may choose any attorney as counsel. More than one counsel may be chosen. The limit of three attorneys applies during the taking of a statement at the investigation stage and, in the prosecution of offences committed within the framework of an organisation's activities, at the hearing. This limit does not apply to all hearings. The right to choose counsel may be exercised at every stage from the moment of apprehension.

When Is Representation by Defence Counsel Mandatory?

Where a suspect or defendant states that they are not in a position to choose counsel and so requests, counsel is assigned by the bar association. Without any request being required, counsel is assigned to a child, to a person so disabled as to be unable to defend themselves, to a person who is deaf and mute, and to a suspect or defendant charged with an offence carrying a minimum sentence of more than five years' imprisonment (CMK Art. 150). Mandatory representation may also arise where detention is sought, in cases of fugitive status, where a defendant disrupting the order of the hearing is removed, and in the special cases set out in the statute. Art. 22 of the Child Protection Law contains no separate category described as “a child displaying behavioural disorder”.

How Do Appointment Under CMK Art. 150 and Assignment by the Bar Association Work?

Upon the request of the investigating or prosecuting authority, the bar association assigns defence counsel. The fee is initially paid by the Treasury; on whom the costs of the proceedings are imposed at the conclusion of the case is determined under CMK Arts. 324–325 and the current tariff and Constitutional Court decisions. It is not absolute that a fee will never in any circumstances be sought from the suspect or defendant.

What Are the Rights of Defence Counsel?

Defence counsel may examine the case file and take copies; although restrictions may be imposed by judicial order in respect of documents that could endanger the purpose of the investigation, the statement of the apprehended person, expert reports and the records of proceedings at which counsel was entitled to be present fall outside that restriction. A person who has been apprehended, is in police custody or is detained may meet counsel without a power of attorney being required, in an environment where others cannot hear, and correspondence may as a rule not be monitored. Restrictions in organised crime and terrorism offences are possible only on an express statutory condition, by judicial order, and within the prescribed period and procedure.

Defence counsel may be present when a statement is taken and at questioning; legal assistance may not be obstructed. A statement taken by the police without counsel present cannot form the basis of a judgment unless confirmed before a judge or court (CMK Art. 148/4). A maximum of three attorneys may be present when a statement is taken during the investigation, and a maximum of three counsel at the hearing in a prosecution within the scope of an organisation's activities. This is not a general limit applicable to all hearings.

Defence counsel takes part in the discussion of the evidence, puts questions directly and may pursue avenues of appeal. The order of the hearing is governed by CMK Art. 203 et seq. and direct questioning by Art. 201; Art. 151 concerns the barring of defence counsel. The last word belongs to the defendant present at the hearing (Art. 216/3), not to counsel.

What Are the Obligations of Defence Counsel?

Alongside these extensive rights, defence counsel also bears important obligations. These arise from Attorneys Law No. 1136, the provisions of the CMK and the rules of professional conduct.

The principal obligations of defence counsel are as follows: the duty to maintain regular communication with and to inform the client; the duty to attend hearings and prepare the defence; the duty to keep the client's confidences (attorney-client privilege); the duty to conduct the defence lawfully; and the duty to perform the function with care and loyalty.

Where defence counsel breaches these obligations, disciplinary, civil or criminal liability may arise depending on the nature of the conduct. From the standpoint of the proceedings, it is separately examined whether the breach restricted the right to a defence.

The Right to Defence Counsel in Police Custody

A person who has been apprehended or taken into police custody is informed of the right to choose counsel and is enabled to benefit from counsel's legal assistance. Where representation is mandatory, no statement may be taken and no questioning conducted without counsel. In other cases, whether chosen counsel is to be summoned, whether counsel is present, and whether the procedure may be postponed are assessed according to the specific conditions of the CMK and the Regulation on Apprehension, Police Custody and the Taking of Statements. An important provision as regards the exercise of the right to counsel in police custody is CMK Art. 150/1, under which counsel is assigned by the bar association upon request where the suspect states that they are not in a position to choose counsel. In cases of mandatory representation, counsel is assigned without any request from the suspect.

Meetings with counsel take place as a rule in an environment where others cannot hear, and correspondence may not be monitored. However, in the offences listed in CMK Art. 154/2 the right to meet may be restricted for a maximum of twenty-four hours by judicial order upon the public prosecutor's request; no statement may be taken from the person during that period. Other special restrictions on meetings with detainees may likewise be applied only on the statutory conditions.

The Right to Defence Counsel for Children

The assignment of counsel is mandatory in all cases for suspects or defendants under the age of eighteen. Under CMK Art. 150/2 a child suspect or defendant cannot be tried without counsel by reason of their age. Child Protection Law No. 5395 also contains special provisions on children's right to counsel.

Counsel assigned for children are expected to have knowledge of child law and child psychology. Some bar associations have created special lists for the representation of children and have provided training to the attorneys on those lists. The active participation of counsel in proceedings involving children is of considerable importance in protecting the best interests of the child.

Change of Defence Counsel and Withdrawal from the Case

A suspect or defendant may change their chosen counsel. An attorney may also withdraw under the rules of professional conduct and Art. 41 of the Attorneys Law; the duty continues for fifteen days from service of the notice of withdrawal. Where representation is mandatory, no procedural step may be taken without a defence once a new assignment has been made. There is no absolute rule that “counsel may never withdraw without just cause”.

Violation of the Right to Defence Counsel and Its Consequences

A procedural step affecting the judgment taken without the mandatory counsel present restricts the right to a defence and may constitute a ground for reversal or unlawfulness on appeal. The consequence is not in every case an automatic retrial; the stage at which the violation occurred and its effect on the procedural step and on the judgment are assessed. The rule that a police statement taken without counsel cannot form the basis of a judgment unless confirmed before the court applies in addition.

Conclusion and Assessment

The right to defence counsel is one of the indispensable elements of the right to a fair trial in criminal proceedings. Article 36 of the Constitution, Article 6 of the ECHR and CMK Arts. 149-156 set out the scope of this right and its safeguards in detail. The system of mandatory representation is an important mechanism for guaranteeing the effective exercise of the right to a defence. Counsel's rights to examine the file, to meet the client, to be present at hearings and to pursue avenues of appeal are fundamental conditions of an effective defence. Since a violation of the right to counsel may render the proceedings unlawful and lead to reversal of the judgment, protecting this right is of considerable importance both individually and for the public.

Legal notice: This article has been prepared for general information purposes and does not take the place of legal advice. If you are facing a specific legal problem concerning your right to defence counsel you are advised to consult an attorney. Information may differ in line with legislative changes and current case law.

Frequently Asked Questions

Does the limit of three counsel apply at every hearing?

No; it is a special limit for statements at the investigation stage and for prosecutions within the scope of an organisation's activities.

Can a police statement taken without counsel be used?

It cannot form the basis of a judgment unless confirmed before a judge or court.

Who has the last word?

The defendant present at the hearing.

May counsel stop acting immediately upon withdrawing?

The duty continues for 15 days from service of the notice.