Can the Attorney for the Complainant Hear in the Preliminary Investigation?
In practice, during the preliminary investigation, while the victim is resting,
An attorney is also present. However, in accordance with Article 236 of the Criminal Procedure Code; “(1) Victim
In the event that he is heard as a witness, the provisions regarding the testimony apply, except for the oath…(2)
The child or the victim whose psychology is impaired by the effect of the crime committed, the investigation into this crime
or once as a witness in the prosecution”. Under this regulation, the victim
statement may be considered as witness statement and moreover, if the conditions in paragraph 2 are met
In this capacity, it can be heard once. In this case, in practice, as a witness statement in the future.
A statement that can be evaluated is taken in the presence of the attorney. Well listen to this
Who is present during the Individual prosecution and attorney, on behalf of the public
the social prosecution authority that carried out the investigation. However, as a witness statement in the future
While taking a statement that can be evaluated, the defendant, who is the individual defense authority, and the social
There is no defense counsel. In this case, the commonality of the insane and the
away from the principles of superficiality. Extremely serious, which can be considered as witness statement.
substantial evidence is obtained in the presence of the victim’s attorney, who can be qualified as a witness.
is being done. While obtaining this evidence, the defense authorities were not given the opportunity to argue.
In this case, the attorney of the complainant is present. Moreover, in the CMK, the victim or the complainant,
Although the right to request a proxy is granted during the investigation (article 234/1-a-3), in the presence of the attorney
The right to rest is not recognized. However, in the regulation regarding the accused, both the appointment of a lawyer
the right to request, as well as the right of the defense counsel to take a statement or be present at the interrogation.
regulated (article 147/1-c). The legislator, for the accused, to both request the appointment of a lawyer,
and the right of the defense counsel to be present during the statement separately, the victim and the
the right of the attorney to be present for the complainant. with this error
it is not an arrangement made; is conscious. Because, as explained above, the victim statement,
may be considered as a witness statement and such evidence is not ready for the defense.
In this case, it is unlawful to obtain it in the presence of the representative of the person making the statement. Moreover, the accused
Although he has the right to remain silent and to lie, such rights are in question for the complainant.
is not. On the other hand, the possibility of obtaining evidence from the complainant under pressure is also possible.
there is none. In other words, the addressee of prohibited interrogation methods is not the complainant, but the accused. So the investigation
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At this stage, there is a right to be guaranteed by the presence of the attorney while the complainant is heard.
there is none. In short, what is the logical basis for the presence of the attorney in the investigation,
nor its basis in positive law.
Despite this, while the victim’s statement is taken during the investigation phase, the attorney’s
It is a big mistake in practice.
In this regulation, it may be asked what the legislator intends with the appointment of a proxy.
The provision of Article 234/1-a of the CMK regarding the rights of the victim and the complainant is as follows:
“In the investigation phase;
1. Requesting the collection of evidence,
2. Republic, on the condition that it does not violate the confidentiality and purpose of the investigation.
requesting a copy of a document from the prosecutor,
3. If he does not have a representative, he is to be appointed by the bar association to a lawyer.
don’t want,
4. Investigation through his representative, in accordance with Article 153
examination of documents and confiscated and guarded goods,
5. The decision of the public prosecutor not to prosecute
exercising the right of objection according to the procedure written in the law”.
Here, the duty of the attorney is to ensure that all rights other than the 3rd paragraph are used.
is to help. In particular, the right of inspection referred to in paragraph 4 is only available to the complainant, and not to the complainant.
recognized by his attorney. The reason for the appointment of a proxy for the complainant is to use this right only.
may even provide. In short, “if he is not present during the hearing, the attorney at the investigation
What is the reason for your appointment?” The answer to the question is that the rights in the Criminal Procedure Code 234/1-a
to ensure its use.
