Effective Defense in Criminal Procedure

2022-02-21T17:18:14+00:00 2 June 2021|

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EFFECTIVE DEFENSE IN THE INVESTIGATION PHASE OF CRIMINAL PROCEDURE

Concept of Criminal Procedure: The process that starts with the learning of the suspicion of crime by the authorities and continues until this suspicion is defeated.

INVESTIGATION: The process starting with learning of the suspicion of crime and until the indictment is accepted.

PROCEEDING: It is the process that starts with the acceptance of the indictment until the verdict is finalized.

If it is desired to be a good criminal procedure subject, attention should be paid to the concepts.

Judicial law enforcement: Police, gendarmerie. Private law enforcement officers; Customs Enforcement, Coast Guard,

In its decision dated 25.09.2006 of the 3rd Criminal Chamber of the Supreme Court of Appeals 2006/9884E., 2007/6845K., “forest guards (private law enforcement officers) are stopping a truck with a closed box in a forest. They suspect that it contains illegal forest products. They’re searching the truck. The effort to seize something hidden is the search process. Opening the box of the truck is a search. According to Article 4 of CMK Article 119 and its regulation numbered 5271, forest guards are not included in the definition of law enforcement, and a search cannot be carried out with the order of the forest conservation chief, in the face of the court decision stating in the justification of the rejection of the search request in terms of procedural terms. Opening a truck safe is a forensic search. It’s the forest ranger who ordered the search here. However, the forest conservation supervisor was not counted in the judicial police. Therefore, if the search warrant is unlawful, the evidence obtained is unlawful and there is no other evidence that will affect the conviction, a decision of acquittal must be given. CMK md164/1 counted 4 judicial law enforcement officers. AY md13. It is not possible to restrict any freedom unless it is expressly written in the law. For this reason, many transactions related to Covid are illegal.

FORENSIC SEARCH: It is a forensic search if a specific person, property, residence or workplace is searched by making an allegation. If the person’s bag is suspected of having a gun or drugs, and the person’s bag is opened, this is a forensic search.

Conditions of forensic search:

Judge’s decision. In cases where delay is inconvenient, the order of the prosecutor is required, and if the prosecutor cannot be reached, the order of the law enforcement chief is required.

PREVENTION SEARCH: When a rally is held in Taksim Square, if everyone’s bags are searched while entering the rally area, there is a prevention search. There is no allegation here. There is no question of an elected person, everyone who enters the rally is sought.

Searching someone’s bag, poking around in their pocket is a search activity.

How Do Authorities Learn about Suspicion of Crime?

  • Spontaneously (Ex officio)
  • Indictment
  • Court Records
  • Request of the Minister of Justice

What should law enforcement do when they learn of the suspicion of crime?

CMK art. 161/2-The law enforcement officers should immediately notify the public prosecutor about the crimes they learned, the events they seized, and the people caught, and act in accordance with his order. If the law enforcement does not immediately notify the public prosecutor and does not act in accordance with his order, the evidence obtained by the law enforcement will be unlawful.

In a file, only the indictment, reasoned decision, hearing minutes are not important. The search records in the file are also very important. For example, the search was made at 14:00, but it appears as 16:00 in the search warrant. Searching here is illegal. Not every search warrant by the Supreme Court is in accordance with the law. A search warrant issued without reasonable suspicion is unlawful. When these issues are caught, effective defense will be in question.

There are 2 suspects in a recent drug file. Only one suspect’s residence is being sought. There is a conflict of interest between the two suspects. Law enforcement showed the other suspect as a witness during the forensic search. The documents are arranged in this direction. Forensic search was not conducted in accordance with the conditions here. Due to the conflict of interest, other suspect witnesses cannot be shown. The search must include the public prosecutor or two neighbors or two members of the village headman. Therefore, the drugs obtained in the incident are illegal and cannot be used as evidence. In the file in question, it was decided to release and acquit the accused.

Law enforcement, crime;

  • criminal complaint,
  • Stopping
  • He learns by being caught red-handed.

STOPPING:

The main rule is that the number of actions that the law enforcement can do without asking the chief and taking orders from him or asking the prosecutor and getting orders from him is very limited. One of them is stopping.

According to PVSK md4-a, people can be stopped without taking orders from the law enforcement chief. In order for the stopping power to be used, a reasonable reason must be found, based on the experience of the police and the impression of the situation. Here, what is meant by the experience of the police is as follows; First of all, the police should have statistical data. For example, house burglaries occur in the Beykoz district of Istanbul. The police go and search the house when the news comes. The tools used in the repair of the door automobile tires were detonated and theft was committed. The police have data that the theft was done that way in those days. Around 00:00-01:00, the police come across someone while on patrol, and the man is walking on the road with the tools used to repair automobile tires. There is a reason why the police stopped this person. The second crater is; it must be something out of the ordinary, that is, the police have a reasonable cause, according to their impression. For example, blood is flowing from the man’s chest and he is running around the street with a knife in his hand. It turns out that someone stabbed that person and the man is running after them with the knife he found, and the police did not see the first stabbing. There is a reason to stop here. Except for these two criteria, it is against the police to stop the person. Except for a preventive call, it is unlawful for the police to stop and search a person by stopping a person in the subway or in the square, saying come and look here, in terms of restriction of freedoms. If there are police conditions, they should stop the person by stating the reason for the stop and ask questions.

The police have the power to search for prevention and stopped a car. The police can actually search every part of the car with this intercept search. What matters is whether the conditions for the prevention search are met. There’s an intercept call, so we can’t say they can’t search the trunk of the car. There are places such as residences and workplaces where a prevention search simply cannot be done. In the decision of the Supreme Court; Cops stop a van. The bag hangs from under the van and there are two wires at the end of the bag. The cops say that this may be the bomb, let’s not touch it and they pull the minibus to the garden of the police station and call the bomb squad. It seems that there is indeed a grenade in the bag hanging under the van. When the inside of the minibus is searched, it is determined that there is a stashed explosive material. Lawyers here are asking the police if there is a warrant. They say that there is a decision to search for prevention in the police. In this file, a sentence of conviction is established for the defendants for violating the law on firearms and knives. Supreme Court; here, the prevention search has changed to a courthouse search and there is no judicial search warrant. If explosive weapons, etc., are inside the vehicle during the police intercept search. if he had found it, if he had seized it at that moment, he could have done these with the authority to search for prevention, it would not be an illegality. However, the police did not make the call themselves during the prevention search at that moment. He made an accusation saying it could be a bomb and towed the vehicle to the garden of the police station. In this case, the prevention search has now turned into a forensic search. Therefore, the Court of Cassation reversed the decision of the first instance court, since there were no judicial search conditions and there was no objectionable delay.

In the prevention search, for example, the police said to the person he stopped, open the trunk, the person opened the trunk and there is a bag in the trunk and a gun was found in the bag. There is no illegality in the search for prevention here.

GBT search is based on authentication authorization PVSK md4-a or prevention search. It is something that restricts a person’s freedom and does not comply with the law. The state claims that it caught people with an arrest warrant in this way and that it is in accordance with the law. However, it is the state’s duty to catch someone with a warrant. This person should almost be found and captured. The state restricts the freedom of 100 people for 5 minutes in order to seize 2-3 people. This is not acceptable.

PVSK 4-A/6- The police may take the necessary measures to prevent harm to themselves or others, if there is sufficient suspicion that there is a weapon or other dangerous item on the person stopped or in his vehicle. For this purpose, it is not desirable to remove the person’s clothing or to open the parts of the vehicle that are not visible when viewed from the outside. This task was also given to the bazaar and neighborhood guards, but these officers can work at night. The exception to this is; If there are clear indications that the public order will be disturbed, the law enforcement chiefs under their command may assign these persons during the day. For example, the night watchman’s duty will start at 20:00. These guards get bored and start touring the neighborhood at 17:00. They stop people, feel them, and if they resist, they lay them on the ground. Here, as a lawyer, it should also be examined whether the guard is on duty at that hour, apart from the guard’s authority to stop. If it is claimed that the watchman was assigned at that hour, a duty letter should be requested as a lawyer. Even if they send a duty letter, it should be asked by saying that there is a clear indication of which public order is disturbed, and this guard has been appointed.

When the police stop the person, if there is sufficient suspicion that the person has a gun or other dangerous goods on the person, the police can manually check the person from the outside. If such evidence is obtained, this evidence is reflected in the criminal procedure. 2nd Penal Chamber of the Supreme Court of Appeals said, “The police are stopping the person walking with a black bag in the afternoon. As the reason for stopping the police; He wrote that his situation is considered suspicious and he has a criminal record for some crimes. It does not comply with the definition of having a reasonable reason based on the experience of the police, which is defined in the law here, based on the impression he got from the current situation. In the continuation of the incident, the police opened the black bag in the person’s hand and there was a sweater taken from the workplace in the bag. The police are searching the place of business and asking if the sweater was taken from them. The business owner says we don’t know whether the person bought them or stole them. Thereupon, the police leave the sweater and search the person. There is a switchblade knife on the person. It is against the law numbered 6136. As a result of the proceedings, the person was convicted in the local court. As a result of the objection, the Supreme Court; It overturns the decision of the local court on the grounds that there is no reasonable suspicion for the search, that the search is unlawful, and that the evidence obtained is also unlawful. The decision of the Supreme Court is also missing here. Because the illegality of an evidence is determined according to the first transaction. If the first transaction is illegal, all subsequent transactions will be illegal. The fruit of the forbidden tree is also poisonous. Therefore, the decision of the Supreme Court to be lawful or unlawful is different. First of all, the Supreme Court should have checked whether the suspension was legal or not.

THE ISSUE TO BE CONSIDERED AT THE HEALING IS THE FOLLOWING:

We claim that the narcotic substance that comes out of the person’s bag or on him is illegal evidence by telling the judge that the person was stopped unlawfully. The judge, on the other hand, looks at the result here and says that if he had not obtained evidence, I would have found it unlawful, but since the evidence was obtained, I would accept it as lawful. Our response to this is; If the evidence had not been obtained, there was no need for us to have a discussion of unlawful evidence. If the evidence is obtained, we have to say that it is against the law anyway. For example, if there are no conditions for the search when the police go through the trunk of the car, if there are no conditions for stopping the person when they stop the person, the amount or the amount of the drug obtained does not matter.

THIS IS EFFECTIVE DEFENSE

The Court of Cassation accepts that the evidence obtained in the event of red-handed external control is in accordance with the law. Supreme Court Penal General Assembly, 18.10.2016T., 2016/10-57E., 2016/374K., “The police receive a report saying, ‘Someone is selling drugs around the health center’. He goes to the health center to do research in the police and sees a person suitable for the description. When they stop the person and check the person from the outside, they find drugs in his back pocket. This evidence is not illegal. Because, in order to say that the investigation has started, there must be an accusation against a concrete person. In other words, there should be a report saying that Ahmet is selling drugs. Not so in this case. How and on what basis the police would get permission from the prosecutor was this event. Therefore, since there was no denunciation of a concrete person in the incident, the judge finds the evidence obtained here in accordance with the law.” The Supreme Court claims that unlawful evidence is obtained if the police obtain evidence without informing the public prosecutor or the law enforcement chief when the investigation begins. But in this decision, he says the investigation phase has not started yet, so it is legal. The point to be discussed here is whether there is a concrete report or not. Or it should be discussed whether the process described reflects the reality.

The Court of Cassation accepts that if there is no flagrante delicto, the evidence obtained under manual external control was obtained illegally. Criminal General Assembly of the Supreme Court of Appeals 20.12.2018T., 2016/10-1014E., 2018/664K., “The police are receiving a notice regarding a concrete person. There is a report that says “X person is selling drugs around these places”. In fact, a woman gives a petition to the police with the content of “person X is selling drugs to my husband, catch the person so that this person will not sell drugs to my husband anymore”. Here, there is a concrete criminal charge against a concrete person. The law enforcement was informed here and the investigation started. In this case, the Supreme Court of Appeals would have found it unlawful because the evidence was obtained without informing the prosecutor. He said that if the police had searched the person and found drugs, then he would have said it was against the law.” This view of the Supreme Court is also wrong. If the police didn’t go there, would person X take the drug out of his pocket when he sees the police? Even this is the fruit of the forbidden tree.

The other issue to be discussed is whether this is actually the case. Did the suspect really see the police and drop the drugs on the ground? We can learn this by reading the report and asking the suspect. However, there are 50 police signatures under the report. Therefore, the judge can ask a question whether the police are lying. The directness of the evidence is one of the basic principles of criminal procedure. Therefore, if the law enforcement made a report, we should ensure that these law enforcement officers who signed the hearing are invited. Often, the court asks the law enforcement, “Is this your signature?” The police say ‘yes’ and leave. Here we have the right to ask questions. Questions such as “were you there?, tell me how it happened, the suspect says it wasn’t like that”. Remember that it is not up to the defenders to prove the contrary. In some cases, the law has explicitly accepted the burden of proof of the document itself. For example, the proof power of the hearing report is the minutes written by the traffic police. The falsity of the minutes of the hearing can be claimed. The state is an authority and it has to prove its claim. So, as a lawyer, we have to claim that this is not the case.

Sample; In a notice sent to CIMER, it is stated that the newly appointed district governor spent a lot of money, got into a very expensive car, that these images were evidence that he had taken a bribe, and that an investigation should be made against him for the crime of bribery. Thereupon, CIMER sent its denunciation petition to the District Chief Public Prosecutor’s Office as required. What will the prosecutor’s course be and what will his decision be?

– CMK md158/6 regulated not to start an investigation. If the act subject to the report does not constitute a crime or if the denunciation is general and abstract, it decides that there is no place for an investigation.

THE WALK OF CRIMINAL PROCEEDINGS

INVESTIGATION:

Crime à Commencement of Investigation à Conduct of Investigation.

Prosecutor in the conduct of the investigation;

apply for protective measures
He will gather the evidence
Other operations

AUTHORITIES OF THE DEFENDANT IN THE INVESTIGATION PHASE

1-Examination of the file and taking samples (CMK art. 153):

The biggest problem in practice. There is no need for a power of attorney to be able to examine the file of the lawyer or to talk about the relationship with the defense counsel. If the suspect cannot be reached by asking the person’s lawyer, and if the suspect cannot be reached and there is an emergency, for example, the objection to the arrest, the statement of family members, even if all these are absent, the statement of the lawyer should be respected. The only exception to this is the crimes listed in the law. In other words, the Judge may restrict his authority to examine the file, upon the request of the Prosecutor, if it may reduce the purpose of the investigation to discharge in the crimes listed in the law. When we want to examine a file, they say whether there is a restriction decision or not;

We have to ask for the restraining order. This restriction can be appealed. In the restriction decisions given, the reason for the restriction is generally not explained. For example, the organized crime syndicate will be precipitated. Everything was prepared, one person to be operated escaped. A restraining order may be made for this. In other words, there should be a reasoned decision in the reasoning that ‘we could not capture one of the suspects, there will be information leakage’. Even if there is such a reason, it should be investigated later, is it really because X person has escaped and a confidentiality decision is made? X people searched? Or was a decision made so that the lawyers wouldn’t get tangled up in it? These should be looked into. Because the judge and the prosecutor have the right to complain about these crimes.
There is an exception to the restraining order. Documents in this exception can be requested. Expert reports, the suspect’s statement, and other procedures authorized to be present can be requested even if there are restrictions.
The restraining order may be given until the indictment is accepted. However, if the purpose of the investigation has been saved from being compromised, the restriction must be lifted.

Our objection; If there is no reason, we should justify it.
If there is a reason, its accuracy should be discussed.
There is a restraining order and we appealed and it was denied. After 1-2 months, we have to petition for the restriction to be lifted. If it hasn’t been removed yet, you have to request it again. If a lawyer is not persistent, demands are not met.

Things to look for when examining the file:

Blame should be looked into. When we go to the file we are assigned to, we need to go to the law and have information about the crime.
Evidence should be looked at. Is it legal or not?
Check the trade information
Actions should be taken into account. It says on the record that he took it out of his pocket and dropped it. The suspect should be asked about this.

2- Authority to meet and correspond with the suspect or accused

First, we need to introduce ourselves to the suspect. (I was assigned to you as a lawyer from the bar association. We should briefly describe the defense, we should emphasize that we will not do anything against him.) Direct statements should not be made.
Ask if there has been any abuse. (For example, the drug addict is trembling because he cannot take drugs. He should be relieved, medication should be requested. Otherwise, how will the statement be made?)

3- Authorization to provide legal aid and to be present

The lawyer’s legal assistance varies according to the characteristics of the concrete case. For example, while the statement is active in the query, the defender is passive in the diagnosis process.

Informing the suspect or the accused about the material event and its legal nature
Informing the suspect or the accused about their rights
He does not have the right and authority to change the event and to lie about the event.
Questions may be asked during deposition and interrogation
Questions asked can be objected to.
Sample; A person is found stabbed to death in the room of a business inn. While walking around the floors in the evening, the attendant sees that the door is ajar and looks inside. The murdered person stands on the sofa, stabbed in the stomach. When the police see and examine the paramedics, it is determined that the person did not commit suicide but was stabbed by someone else. It is unclear who stabbed the knife. Time passes and a report comes to the police by saying, “The murderer of the deceased is person X.” When the police say who are you, the reporter hangs up. The police inform the prosecutor, and the prosecutor also says; He says “Get the X person and bring it to me”. Here’s what the attorney in charge should do;

There is no evidence in the file to show that person X committed that crime, except for the denunciation. Therefore, the suspect should be told that he has the right to remain silent. It should be said that even if the defense counsel tells that X person killed him, he can use his right to remain silent. It should be reminded that apart from the right to remain silent, he will not be punished if he lies.
Sample; Criminal General Assembly of the Supreme Court of Appeals, 17.10.2006, 2006/5-165, 2006/213, Person M by calling the lawyer; he says that he is the only person in charge of the safe in the institution he works for, he only has the key and it is understood that 5.000 TL is open in the count today. Here the first question of the Advocate is to ask the suspect if he really took it. The person says that if it is real, the transactions are being investigated more in-house. Here we need to know the crime of embezzlement and the effective remorse in the crime of embezzlement. It is necessary to know that if he returns what he has taken before the investigation begins, 2/3 of his sentence will be reduced. According to the data in the file, it is obvious that this person will be found to have committed the crime. Therefore, it will be more favorable to take advantage of effective repentance. The advocate should provide optimum benefit.

4-Power to apply for legal remedy

Recourse to legal action during the investigation phase is a method that lawyers often do not use.

Applying to legal remedy has two purposes;

Supervising the judiciary
Sometimes it’s to serve a purpose.
For example, the person was caught, detained. An application was made to the Criminal Judge of Peace in CMK Article 90. There are almost no references in the files on this subject. The detention period is 24 hours, and when the person is kept in custody, the arrest becomes unlawful. If the arrest is deemed to be unlawful when we object, all evidence obtained will be unlawful. This was not objected to in a timely manner, and in the hearing, appeal, etc. When it is expressed, it is said that it is not objected in time.

Stj. Hunting. DİLAN ECEM CEYLAN

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