The right to defense is not merely a procedural formality in Turkish criminal law — it is the primary safeguard against wrongful conviction. Guaranteed by the Constitution and the Code of Criminal Procedure (CMK), the right attaches before any charge is formally brought and remains active through every stage of the case.
When Does the Right Begin?
The right to defense begins at the investigation stage — not when a case goes to court, but from the moment a person is treated as a suspect. This means:
- The right to choose a defense lawyer and meet with them in private applies from the first police interview.
- The right to remain silent applies from the moment of custody.
- No statement taken without the suspect having had the opportunity to consult a lawyer will be considered properly obtained.
The most consequential decision many suspects make — often without realising it is a decision — is giving a statement to the police or prosecutor before speaking with a lawyer. Statements made at this stage are difficult to walk back and frequently shape the entire course of proceedings.
Mandatory Defense Counsel
In certain cases, Turkish law requires that a defense lawyer be assigned regardless of whether the accused wants one:
- Cases within the jurisdiction of the heavy criminal court (ağır ceza mahkemesi)
- Offences carrying a statutory lower limit of more than five years’ imprisonment
- Accused persons who are minors
- Accused persons who are deaf, mute, or blind, or who have mental or physical impairments that affect their ability to defend themselves
Where mandatory defense applies and the accused has not retained a private lawyer, the bar association assigns duty counsel. However, assigned counsel often arrives late or has minimal time to prepare. The accused always has the right to replace assigned counsel with a privately chosen lawyer.
Defense Rights at Each Stage
Investigation (soruşturma): the suspect has the right to remain silent, to consult a lawyer before any statement, to have statements taken in the presence of counsel, to be informed of the accusations, and to have an interpreter if needed.
Prosecution (kovuşturma): once an indictment is filed, the defense lawyer has the right to examine the full case file, submit evidence, cross-examine witnesses and complainants, present a written defense brief, and have the final word before the court retires to deliberate.
Appeal: the convicted person has the right to appeal to the regional court of appeal (istinaf) and, if grounds exist, to the Court of Cassation (Yargıtay / temyiz). Constitutional rights violations can be raised through an individual application to the Constitutional Court.
Common and Costly Mistakes
Giving a statement without a lawyer present: suspects frequently believe that cooperating early demonstrates innocence. In practice, a statement given under pressure, without full knowledge of the file, and without legal advice often introduces inconsistencies that are later used against the accused.
Waiving the right to silence informally: remaining silent is a legal right, not a suspicious behaviour. A suspect who begins to answer some questions but not others creates an evidentiary record that is worse than complete silence.
Relying entirely on assigned counsel: bar association duty lawyers provide an important service, but their preparation time is often limited. Where resources allow, retaining a privately chosen lawyer who has time to review the file before any hearing is strongly advisable.
Late objections: many procedural rights are subject to deadlines. Failing to object to an unlawful custody measure, an improperly obtained statement, or an irregular notification within the prescribed period can permanently foreclose that avenue of challenge.
Frequently Asked Questions
Can the prosecution use my silence against me? No. The right to silence is constitutionally protected. Exercising it cannot be treated as an admission of guilt, cited as evidence, or taken as a factor in sentencing. Courts are prohibited from drawing adverse inferences from a defendant’s refusal to give a statement.
What if I cannot afford a private lawyer? The bar association will assign duty counsel at no cost. For those with limited means, legal aid (adli yardım) is also available through the bar association, potentially covering representation by a chosen lawyer. Eligibility is based on financial circumstances.
I gave a statement to the police without a lawyer. Can I retract it? You can deny the accuracy of a statement at trial and explain the circumstances in which it was given. However, once in the file, the statement cannot simply be removed. Its impact can be mitigated — through cross-examination of the officers who took it, through evidence contradicting its content, and through challenging whether procedural requirements were observed — but early statements do matter. This is why the moment before the first statement is the most important moment to have legal advice.
Does the defense lawyer have the right to see the prosecution file? Yes. Once an indictment has been filed and proceedings have commenced, the defense lawyer has a right of access to the entire case file. During the investigation stage, access may be limited to documents that are not subject to confidentiality restrictions, but the lawyer should be proactive in requesting access at the earliest opportunity.