2026Murat Volkan Dülger, Şaban Cankat TaşkınBook

Where to read

Table of contents of the 3rd edition (September 2026). The book is in Turkish; the headings below are a translation. Page numbers refer to the printed book. Select a chapter to see its sub-headings.

Preface to the 3rd Edition7
Preface to the 2nd Edition9
Preface11
Abbreviations35

Chapter OneINTRODUCTION TO CRIMINAL PROCEDURE LAW38 headings

§ 1.THE CONCEPT, PURPOSE AND FUNCTION OF CRIMINAL PROCEDURE, ITS PLACE WITHIN THE LEGAL ORDER AND ITS RELATIONSHIP WITH OTHER BRANCHES OF LAW39
I.Introduction39
II.The Concept of Criminal Procedure Law40
III.The Term Criminal Procedure Law42
IV.Function and Purpose of Criminal Procedure Law44
A.Function of Criminal Procedure Law44
B.Purpose of Criminal Procedure Law45
C.Difference between Criminal Procedure Law and Civil Procedure51
V.The Place of Criminal Procedure Law within the Legal Order and Its Relationship with Other Disciplines53
A.Criminal Procedure Law as a Discipline of Procedural Law53
B.Relationship with Criminal Law53
C.Relationship with the Law on the Execution of Sentences55
D.Relationship with Human Rights Law56
E.Relationship with Constitutional Law57
F.Relationship with Public International Law58
G.Relationship with Forensic Sciences and Forensic Medicine59
VI.Sources of Criminal Procedure Law60
A.Direct Sources61
1.The Constitution61
2.International Conventions63
3.Laws63
4.Regulations65
B.Indirect (Subsidiary) Sources66
1.Court Decisions66
2.General Principles of Criminal Procedure Law68
3.Legal Scholarship68
4.Rules of Custom and Usage69
§ 2.STAGES OF CRIMINAL PROCEDURE AND APPLICATION OF THE NORMS69
I.Stages of Criminal Procedure69
A.Investigation Stage70
B.Intermediate Stage72
C.Prosecution Stage73
II.Interpretation and Analogy in Criminal Procedure Law74
III.The Principle of Limited Legality in Criminal Procedure75
IV.Scope of Application of the Norms of Criminal Procedure76
A.Temporal Application76
B.Territorial Application78
C.Personal Application80

Chapter TwoPRINCIPLES OF CRIMINAL PROCEDURE LAW AND RIGHTS OF THE SUBJECTS33 headings

§ 1.IMPORTANCE OF THE PRINCIPLES AND THEIR RELATIONSHIP WITH HUMAN RIGHTS83
§ 2.RIGHTS AND PRINCIPLES APPLICABLE TO THE PROCEEDINGS AS A WHOLE86
I.Principle of the Rule of Law86
II.Principle of Human Dignity and Respect for Private Life88
III.Principle of Fair Dealing91
IV.Principles of the Public Nature of the Proceedings and of the Search for the Material Truth94
V.Right to a Fair Trial and Principle of Fair Trial96
VI.Principle of Equality of Arms98
VII.Right to Have the Investigation and Prosecution Completed within a Reasonable Time101
VIII.Right to Be Heard (to State One's Case) and to Influence the Course of the Proceedings107
IX.Presumption of Innocence (Guiltlessness)107
X.Right to Be Informed of the Accusation and of One's Rights112
XI.Right to Defence and to the Assistance of Defence Counsel115
XII.Right to the Assistance of an Interpreter120
XIII.Principle of Not Being Compelled to Incriminate Oneself or One's Relatives (Nemo Tenetur)122
XIV.Right to Seek a Legal Remedy124
XV.Right to a Reasoned Decision and Duty to Give Reasons125
§ 3.RIGHTS AND PRINCIPLES AT THE INVESTIGATION STAGE129
I.Principles of Confidentiality and Written Form129
II.Principle of the Obligation to Investigate and to Bring Proceedings131
III.Principle of Expediency133
§ 4.RIGHTS AND PRINCIPLES AT THE PROSECUTION STAGE135
I.Right to Be Tried by an Independent and Impartial Tribunal135
II.Right to Be Tried by the Natural Judge138
III.Principle of No Trial without a Charge139
IV.Principle of Ne Bis In Idem142
V.Principle of the Obligation to Pursue the Public Prosecution144
VI.Principle of Orality145
VII.Principle of Public Hearings (Publicity)146
VIII.Principle of Immediacy (Directness)148
IX.Principle of the Free Evaluation of Evidence153
X.Principle That the Accused Benefits from Doubt (In Dubio Pro Reo)153
XI.Right of the Accused to Be Present at the Hearing155

Chapter ThreeSUBJECTS OF CRIMINAL PROCEDURE AND THOSE ASSISTING IN CRIMINAL PROCEDURE84 headings

§ 1.SUBJECTS OF CRIMINAL PROCEDURE161
I.Judge (Yargıç) and Court162
A.Concept162
B.Organisation of the Criminal Judgeship of Peace165
C.Organisation and Subject-Matter Jurisdiction of the Courts167
D.Jurisdiction and Competence of Judges172
1.Jurisdiction Ratione Materiae (Subject-Matter Jurisdiction)174
a.Subject-Matter Jurisdiction174
b.Connection (Joinder and Severance of Cases)178
c.Incidental Adjudication and Preliminary Question183
2.Jurisdiction Ratione Loci (Territorial Jurisdiction)185
a.Rules on Territorial Jurisdiction185
b.Conflict of Territorial Jurisdiction and Its Resolution189
c.Time Limit for the Plea of Lack of Territorial Jurisdiction and Its Resolution189
d.Transfer of the Case or Holding of the Hearing Elsewhere191
3.Jurisdiction Ratione Personae192
4.Jurisdiction by Function (Functional Jurisdiction)193
E.Judges and Their Qualifications193
1.Attributes Required of Judges195
2.Cases in Which the Judge Is Barred from Hearing the Case, Withdraws or Is Challenged196
F.The Office of Assistant Judge202
II.Public Prosecutor203
A.Chief Public Prosecutor's Office203
1.Chief Public Prosecutor's Office of First Instance203
2.Chief Public Prosecutor's Office of Second Instance211
3.Chief Public Prosecutor's Office of the Court of Cassation212
B.Prosecutor's Offices and Registries213
1.Prosecutor's Offices213
2.Registries219
C.The Office of Assistant Prosecutor220
III.Suspect and Accused221
A.Concept and Status221
B.Rights of the Suspect and the Accused223
1.Right to Be Informed of the Accusations and to Be Interrogated in Accordance with the Proper Procedure223
2.Right to the Assistance of Defence Counsel225
3.Right to Request That Relatives Be Informed226
4.Right Not to Make a Statement on the Offence Charged (Right to Remain Silent)227
5.Right to Request the Collection of Specific Evidence in Order to Be Cleared of Suspicion and to Put Forward Matters in His or Her Favour228
6.Right of the Accused to Be Present at the Hearing228
IV.Defence Counsel239
A.Concept and Status239
B.Conditions Required to Act as Defence Counsel246
C.Duties and Powers of Defence Counsel247
1.Duties of Defence Counsel247
2.Powers of Defence Counsel248
a.Defence Counsel's Power to Inspect the File248
b.Defence Counsel's Power to Confer with the Suspect or Accused249
c.Defence Counsel's Power to Seek Legal Remedies251
D.Immunity of the Defence252
E.Appointment of Defence Counsel and Prohibition from Acting255
1.Appointment of Defence Counsel255
2.Prohibition of Defence Counsel from Acting258
F.Other Powers of Defence Counsel and Fees261
G.Cases in Which the Relationship between Defence Counsel and the Suspect or Accused Ends262
V.Victim, Person Harmed by the Offence and Intervening Party263
A.Concept and Definition263
B.Rights of the Victim, the Person Harmed by the Offence and the Intervening Party265
1.Rights at the Investigation Stage266
a.Requesting the Collection of Evidence266
b.Right to Request Copies of Documents from the Public Prosecutor, Provided That the Confidentiality and Purpose of the Investigation Are Not Compromised268
c.Requesting the Bar Association to Appoint a Lawyer in Respect of Certain Offences Where He or She Has No Legal Representative275
d.Right to Have the Investigation Documents and the Seized and Preserved Items Examined through His or Her Legal Representative, Subject to Article 153276
e.Right to Exercise the Right of Objection, in Accordance with the Procedure Laid Down by Law, against the Public Prosecutor's Decision Not to Prosecute276
2.Rights at the Prosecution Stage276
a.Right to Be Informed of the Hearing277
b.Right to Intervene in the Public Prosecution278
c.Requesting Copies of Records and Documents284
d.Requesting That Witnesses Be Summoned284
e.Requesting the Bar Association to Appoint a Lawyer in Respect of Certain Offences Where He or She Has No Legal Representative285
f.Recourse to Legal Remedies against Decisions Concluding the Case, Provided That He or She Has Intervened in the Case286
C.Common Provisions Applicable to the Investigation and Prosecution Stages286
VI.The Person Financially Liable291
§ 2.THOSE ASSISTING IN CRIMINAL PROCEDURE292
I.Law Enforcement292
A.Distinction between Judicial and Administrative Law Enforcement292
B.Law Enforcement's Power to Use Firearms295
C.Private Security Officers298
D.Market and Neighbourhood Watchmen300
1.Duty to Assist the Public (Law No. 7245, Art. 5)301
2.Preventive and Protective Duties and Powers (Law No. 7245, Art. 6)301
3.Judicial Duties and Powers (Law No. 7245, Art. 8)302
4.Duty to Assist the General Law Enforcement Forces (Law No. 7245, Art. 10)303
5.Power to Stop Persons and Check Identity (Law No. 7245, Art. 7)304
II.Court Clerk304

Chapter FourACTS OF CRIMINAL PROCEDURE22 headings

§ 1.CONCEPT305
§ 2.ACTS ACCORDING TO THE MANNER IN WHICH THEY ARE PERFORMED306
I.Oral Acts306
II.Written Acts307
III.Acts by Conduct307
§ 3.ACTS ACCORDING TO THE PERSON PERFORMING THEM307
I.Acts of the Judge307
II.Acts of the Prosecutor308
III.Acts of the Defence309
§ 4.ELEMENTS REQUIRED IN ACTS310
§ 5.METHODS OF NOTIFYING ACTS310
I.Acts Performed through an Intermediary310
A.Definition and General Rules310
B.Electronic Service310
C.The Debate on Whether Service Is to Be Effected on the Suspect/Accused or on Defence Counsel313
D.Service Abroad314
E.Other Provisions on Service315
II.Acts Performed without an Intermediary317
§ 6.TIME LIMITS IN ACTS AND THEIR EFFECT317
I.Time Limits and Fixing of a Date318
II.Restoration of the Status Quo Ante320
§ 7.UNLAWFULNESS IN ACTS AND ITS CONSEQUENCES322

Chapter FivePROCEDURAL CONDITIONS21 headings

§ 1.CONCEPT327
§ 2.CONDITIONS FOR BRINGING PROCEEDINGS328
I.Types328
A.Complaint328
B.Time Limit for Bringing Proceedings333
C.Request (Demand)333
D.Absence of an Alternative Penalty334
E.Decision334
F.Authorisation335
G.Absence of a Pending Case or a Judicial Decision336
H.Completion of Victim–Offender Mediation, Fast-Track Procedure or Prepayment337
I.Absence of Diplomatic Immunity or Immunity of Foreign Military Personnel337
İ.Emergence of New Evidence or a New Fact337
II.Consequences of Failure to Fulfil the Conditions for Bringing Proceedings339
§ 3.CONDITIONS FOR TRIAL339
I.Types339
A.Presence of the Accused339
B.Mental Fitness of the Accused340
C.Resolution of the Preliminary Question340
D.Absence of Parliamentary Immunity341
II.Consequences of Failure to Fulfil the Conditions for Trial342

Chapter SixMETHODS OF OBTAINING EVIDENCE AND COERCIVE MEASURES212 headings

§ 1.PRELIMINARY-FIELD INVESTIGATIONS AND THE METHODS APPLIED343
§ 2.COMMON FEATURES OF COERCIVE MEASURES343
I.Introduction343
II.Features of Coercive Measures344
A.Being Regulated by Law345
B.Being Temporary345
C.Being Instrumental346
III.Preconditions of Coercive Measures347
A.Danger in Delay347
B.Apparent Justification348
C.Proportionality349
D.Suspicion of a Certain Intensity351
1.Simple Suspicion or Initial Suspicion352
2.Reasonable Suspicion352
3.Sufficient Suspicion352
4.Strong Suspicion353
5.Proof (Establishment of the Facts)355
§ 3.TYPES OF COERCIVE MEASURES AND METHODS OF OBTAINING EVIDENCE355
I.Apprehension and Police Custody355
A.Stopping and Identity Checks356
B.Apprehension361
1.Types and Conditions of Apprehension363
a.Apprehension without an Apprehension Warrant364
aa.Apprehension That May Be Carried Out by Anyone364
bb.Apprehension That May Be Carried Out by Law Enforcement366
b.Apprehension under an Apprehension Warrant366
2.Steps to Be Taken in Respect of the Apprehended Person368
a.Notification of Legal Rights (Miranda Rule)368
b.Notification of the Apprehension370
3.Precautions to Be Taken in Respect of the Apprehended Person371
a.Pat-Down Search371
b.Medical Examination371
4.Recording of the Apprehension in a Report373
5.Apprehension in Offences Prosecuted on Complaint373
6.Prohibition of Re-apprehension373
7.Bringing the Apprehended Person before the Court or Judge374
C.Taking into Police Custody376
1.Legal Nature and Conditions376
2.Duration of Police Custody377
3.Law Enforcement's Power to Apprehend and to Take into Police Custody380
a.Power to Apprehend and to Take into Police Custody in Catalogue Offences380
b.Apprehension Following an Identity Check382
c.Preventive Apprehension (Administrative Apprehension)382
D.Bringing the Suspect Held in Police Custody before the Judge383
E.Review of Apprehension and Police Custody384
F.Apprehension and Police Custody of Minors384
G.Legal Remedies against Apprehension and Police Custody385
II.Pre-Trial Detention385
A.Nature and Purpose386
B.Relationship with Human Rights388
C.Conditions of Pre-Trial Detention390
1.Existence of Strong Suspicion of an Offence391
2.Existence of One of the Grounds for Detention392
a.Suspicion of Flight393
b.Suspicion of Tampering with Evidence395
c.Offences for Which Grounds for Detention May Be Presumed396
3.Formal Conditions of Pre-Trial Detention400
a.Absence of a Prohibition on Detention400
aa.General Prohibitions on Detention400
bb.Prohibition on Detention in the Absence of the Suspect or Accused400
b.Fulfilment of the Procedural Condition401
c.No Safe-Conduct Having Been Granted to the Accused401
d.Proportionality of Pre-Trial Detention402
D.The Detention Order403
1.Authority Competent to Issue the Order403
2.Issuing of the Order and Its Reasoning405
3.Legal Remedy409
E.Assistance of Defence Counsel at the Detention Hearing411
F.Notification of the Detention to Relatives411
G.Review of Detention412
H.Period to Be Spent in Detention414
I.Termination of Pre-Trial Detention420
İ.Crediting of the Period of Pre-Trial Detention421
III.Judicial Control423
A.Nature and Purpose423
B.Conditions of Judicial Control425
C.The Judicial Control Order425
D.Judicial Control Obligations428
E.Non-Compliance with Judicial Control Obligations430
F.Period to Be Spent under Judicial Control and Crediting431
G.Monitoring, Review and Lifting of the Judicial Control Order432
H.Provision of Security and Advance Payment432
IV.Search433
A.Definition and Concept433
B.Types of Search434
1.Preventive Search434
2.Judicial Search436
3.Other Distinctions Relating to Search436
C.Nature and Purpose of Search436
D.Scope of Search and Places Where It May Be Carried Out437
E.Conditions of Search439
F.Search Warrant and Search Order440
1.Search Based on a Warrant or Order440
2.Search Not Based on a Warrant or Order444
G.Time of Search446
H.Conduct of the Search446
V.Seizure451
A.Definition and Concept451
B.Nature and Purpose of Seizure453
C.Object of Seizure453
1.Rule453
2.Limitations on Seizure454
a.Letters and Documents454
b.Documents Constituting State Secrets454
c.Press Equipment457
D.Conditions of Seizure457
1.Degree of Suspicion457
2.Addressee of the Measure457
E.The Seizure Order458
F.Conduct of the Seizure460
G.Return of Seized Property462
H.Safekeeping or Disposal of Seized Property463
I.Special Methods of Seizure463
1.Seizure of Postal Items463
2.Search and Seizure in Lawyers' Offices465
3.Seizure of Immovable Property, Rights and Claims468
a.Purpose of the Measure468
b.Deciding Authority469
c.Degree of Suspicion469
d.Persons in Respect of Whom This Measure May Be Ordered470
e.Scope of the Measure470
f.Offences to Which the Measure May Be Applied473
g.Application of the Measure474
4.Suspension of the Account Holding the Benefit Obtained through the Commission of Cybercrime, and Seizure475
5.Appointment of a Trustee for the Management of a Company477
6.Seizure in Respect of Fugitives478
7.Seizure of Printed Works479
İ.Review480
J.Evidence Obtained by Chance481
K.Termination481
VI.Search and Seizure in Information Systems481
A.Definition and Concept481
B.Purpose and Nature of the Measure482
C.Object of the Measure483
D.Conditions of the Measure486
1.Degree of Suspicion486
2.Impossibility of Obtaining Evidence by Other Means487
3.Addressee of the Measure489
E.The Order for Search and Seizure in Information Systems489
F.Conduct of Search and Seizure in Information Systems490
1.The Measure of Search and Copying490
2.The Measure of Seizure490
G.Provision of a Copy of the Seized Data and Return492
H.Objection to the Order Imposing the Measure493
I.The Measure's Character as a Special Provision493
İ.Criticisms in Practice and the Method Applied494
J.Termination497
VII.Search and Seizure Regulated in the Cybersecurity Law497
VIII.Interception and Recording of Communications and Evaluation of Signal Information500
A.Significance in Terms of Human Rights and Fundamental Rights and Freedoms500
B.Definition and Concept501
C.Purpose and Nature of the Measure505
D.Object of the Measure506
E.Conditions of the Measure507
1.Degree of Suspicion507
2.Offences to Which the Measure May Be Applied508
3.Addressee of the Measure510
a.Rule510
b.Prohibition Concerning Persons Entitled to Refuse to Testify511
c.Prohibition Concerning Communications between the Suspect/Accused and Defence Counsel513
d.General Prohibition and Sanction513
F.The Order Imposing the Measure514
1.Application of the Measure by Decision of a Judge or Prosecutor514
2.Application of the Measure with the Person's Own Consent, without a Decision of a Judge or Prosecutor515
G.Duration of the Measure517
H.Confidentiality of the Measure517
I.Application of the Measure518
İ.Probative Value of Lawfully Obtained Evidence519
J.Evidence Obtained by Chance521
K.Objection to the Order Imposing the Measure522
L.Termination of the Measure and Destruction of the Records522
M.Locating a Mobile Telephone523
N.Detection of Communications524
IX.Assignment of an Undercover Investigator525
A.Purpose and Nature of the Measure525
B.Conditions of the Measure526
C.The Order Imposing the Measure528
D.Persons Who May Act as Undercover Investigators529
E.Application of the Measure529
F.Offences to Which the Measure May Be Applied532
G.Duration and Termination of the Measure533
H.Difference between the Undercover Investigator and Similar Concepts533
1.Informer533
2.Trusted Person534
3.Police Officer Conducting a Covert Investigation534
4.Inciting Agent (Agent Provocateur)534
5.Underground Agent537
X.Surveillance by Technical Means537
A.Purpose and Nature of the Measure537
B.Conditions of the Measure538
C.The Order Imposing the Measure538
D.Objection to the Order Imposing the Measure540
E.Duration of the Measure540
F.Addressee of the Measure541
G.Application of the Measure541
1.Rule541
2.Prohibition on Application543
3.Application of the Measure for Preventive Purposes544
H.Offences to Which the Measure May Be Applied545
I.Termination and Destruction of the Records546
İ.Compensation for Damage Suffered as a Result of the Measure547
XI.Placement under Observation547
XII.Physical Examination551
A.Physical Examination of the Suspect or Accused and Taking of Bodily Samples553
B.Physical Examination of Other Persons and Taking of Bodily Samples554
XIII.Establishing Physical Identity and Taking Fingerprints556
XIV.Molecular Genetic Examinations561
XV.Compensation for Damage Caused by Coercive Measures571
A.Claim for Compensation571
B.Conditions of the Claim for Compensation573
C.Recovery of Compensation574
D.Persons Not Entitled to Claim Compensation575

Chapter SevenEVIDENCE AND PROOF53 headings

§ 1.PROOF IN CRIMINAL PROCEDURE577
§ 2.EVIDENCE AS A MEANS OF PROOF580
§ 3.THE PRINCIPLE OF FREEDOM OF EVIDENCE AND ITS CONNECTION WITH PROOF582
§ 4.FEATURES AND TYPES OF EVIDENCE589
I.Functions of Evidence590
A.Evidence as a Means of Proof590
B.Evidence as Having Probative Force590
C.No Proceedings without Evidence591
II.Features of Evidence593
A.Representative Character593
B.Perceptibility by the Senses594
C.Obtainability594
D.Lawfulness594
E.Reliability595
F.Commonality595
G.Rationality596
III.Types of Evidence596
A.Testimonial Evidence597
B.Documentary Evidence598
C.Circumstantial Evidence599
§ 5.UNLAWFULLY OBTAINED EVIDENCE AND EXCLUSIONARY RULES601
I.In General601
II.Theory of Unlawfully Obtained Evidence603
A.Historical Development of the Theory603
B.Framework of the Theory607
1.The Concept of Unlawfulness607
2.Content and Limits of the Theory608
III.Distinction between Unlawfully Obtained Evidence and Exclusionary Rules612
IV.Function of Exclusionary Rules617
V.Relationship between the Principle of Freedom of Evidence and Unlawfully Obtained Evidence619
VI.Distinction between Absolutely and Relatively Unlawful Evidence622
A.The Relative Unlawfulness View623
B.The Absolute Unlawfulness View626
C.The Mixed View628
D.Practice of the Court of Cassation629
E.Our View and Assessment635
VII.Probative Value of Unlawfully Obtained Evidence637
VIII.Evidence Obtained by Private Persons641
IX.Unlawfully Obtained Evidence in Comparative Law and in the Judgments of the ECtHR645
A.Unlawfully Obtained Evidence in the Continental European Legal System647
B.Unlawfully Obtained Evidence in the Anglo-Saxon Legal System650
C.The ECtHR's Approach to Unlawfully Obtained Evidence651
§ 6.THE DOCTRINE OF THE REMOTE EFFECT OF UNLAWFULLY OBTAINED EVIDENCE (FRUIT OF THE POISONOUS TREE)653
I.Introduction and Concept653
II.Function and Effect of the Remote Effect Doctrine655
III.Views and Practice in Our Country657
A.Views in Legal Scholarship657
B.Judicial Practice659
C.Our View and Assessment663
IV.The Remote Effect Theory in the Different Systems of Procedure666
A.In the Continental European (German) Legal System666
B.In the Anglo-Saxon (US) Legal System668
V.The Problem of Identifying Unlawfully Obtained Evidence and/or the Evidence Derived from It (the Fruit of the Poisonous Tree) and of What Is to Be Done669

Chapter EightTHE COURSE OF CRIMINAL PROCEEDINGS64 headings

§ 1.INVESTIGATION STAGE673
I.Course of the Investigation Stage673
A.Powers of the Prosecutor674
B.Procedure for Summoning for Statement-Taking and Interrogation, and Compulsory Attendance679
C.Statement-Taking and Interrogation682
1.In General682
2.Establishing the Identity of the Suspect or Accused683
3.Explaining the Offence Charged to the Suspect or Accused684
4.Choosing or Appointing Defence Counsel684
5.Notification of the Apprehension or Police Custody687
6.Reminder of the Right to Remain Silent687
7.Right to Request the Collection of Specific Evidence in Order to Be Cleared of Suspicion and to Put Forward Matters in His or Her Favour688
8.Obtaining Information on Personal and Economic Circumstances690
9.Use of Technical Facilities691
10.Recording of Statement-Taking and Interrogation and Their Entry in a Report691
11.Statement-Taking and Interrogation by Unlawful Methods692
12.Giving of Statements in the Presence of Defence Counsel694
13.Renewed Statement-Taking697
14.Statement-Taking from and Interrogation of Children697
15.Assistance of an Interpreter697
D.Judicial Inspection699
E.Indication of the Scene701
F.Identification702
G.Autopsy704
H.Establishing the Identity of the Deceased705
II.Conclusion of the Investigation or Institution of the Public Prosecution706
A.Conclusion of the Investigation706
1.Decision Not to Investigate706
2.Decision Not to Prosecute708
3.Decision to Defer the Institution of the Public Prosecution712
B.Drawing Up of the Indictment and Institution of the Public Prosecution713
§ 2.THE INTERMEDIATE STAGE AND RETURN OF THE INDICTMENT715
§ 3.PROSECUTION STAGE721
I.Jurisdiction and Competence of the Courts722
II.Preparation for the Hearing723
III.Course and Order of the Hearing726
A.Course of the Hearing726
1.Publicity of the Hearing727
2.Persons Who May Be Present at the Hearing and Exceptions729
B.Order of the Hearing731
IV.Cross-Examination – Direct Questioning732
V.Discussion of the Evidence, Hearing of Witnesses and Experts734
A.Presentation and Rejection of Evidence734
B.Hearing of Witnesses at the Hearing, Protection of Witnesses and Refusal to Testify742
1.Hearing of the Witness742
2.Refusal to Testify748
3.Protection of the Witness and the Witness's Relatives753
C.Expert Examination and Specialist Opinion762
VI.Record of the Hearing773
VII.Conclusion of the Hearing and the Judgment774
A.Opinion on the Merits and Deliberation774
1.Opinion on the Merits774
2.Deliberation776
B.Closing of the Hearing, Pronouncement of the Judgment and Types of Judgment777
1.Judgment of Acquittal777
2.Decision That No Penalty Be Imposed778
3.Judgment of Conviction780
4.Decision of Discontinuance and Dismissal781
C.Right to an Additional Defence782
D.Reasons for the Judgment785
E.Pronouncement of the Judgment and Deferment of the Pronouncement of the Judgment789
1.Pronouncement of the Judgment789
2.Decision to Defer the Pronouncement of the Judgment790
3.Binding Effect of the Criminal Court's Judgment on Other Courts801

Chapter NineLEGAL REMEDIES149 headings

§ 1.LEGAL REMEDIES IN GENERAL803
I.Concept and Types of Legal Remedy803
A.Concept803
B.Types of Legal Remedy804
II.Common Provisions on Legal Remedies805
A.Persons Entitled to Have Recourse to Legal Remedies805
1.In General805
2.Recourse to Legal Remedies by the Public Prosecutor807
3.Recourse to Legal Remedies by the Lawyer808
a.Right of Chosen Defence Counsel / Representative to Have Recourse to Legal Remedies and Withdrawal of the Legal Remedy809
b.Right of Mandatory (Appointed) Defence Counsel to Have Recourse to Legal Remedies and Withdrawal of the Legal Remedy811
4.Recourse to Legal Remedies by the Suspect, the Legal Representative and the Spouse812
5.Recourse to Legal Remedies by a Person in Pre-trial Detention813
6.Recourse to Legal Remedies by the Intervening Party and the Legal Person814
7.Recourse to Legal Remedies by Other Persons and by Holders of Rights over Assets815
B.Mistake in Having Recourse to a Legal Remedy815
C.Effect of Recourse to Legal Remedies817
1.Extension Effect (Sirayet)817
2.Devolutive Effect820
3.Suspensive (Deferring) Effect821
D.Prohibition of Alteration (Reversal) to the Accused's Detriment822
E.Scope of the Outcome of a Legal Remedy Lodged by the Public Prosecutor825
F.Withdrawal of a Legal Remedy and Its Effect826
§ 2.ORDINARY LEGAL REMEDIES828
I.Objection828
A.Concept, Definition and Decisions Open to Objection828
B.Main Differences between the Remedy of Objection and the Other Ordinary Legal Remedies829
C.Procedure for Objection and Reviewing Authorities831
1.Procedure for Objection831
a.Procedure for Lodging an Objection831
b.What Should Be Understood by the Concept of Persons Concerned?832
c.Notification of the Objection to the Public Prosecutor and the Opposing Party, and Examination and Inquiry833
d.Procedure for Considering the File upon Objection834
2.Authorities That Examine the Objection835
a.Examination of Objections against Decisions of the Criminal Judgeship of Peace835
aa.Procedure835
bb.The Problem of the Unconstitutionality of the Examination of Objections by Criminal Judgeships of Peace836
b.Examination of Objections to Decisions Given by the Judge of the Criminal Court of First Instance and by the Assize Court841
c.Examination of Objections to Decisions of the Delegated Judge841
d.Examination of Objections to Decisions of the Criminal Chambers of the Regional Court of Appeal and to Decisions Given by the Criminal Chambers of the Court of Cassation in Cases They Hear as Trial Courts841
3.Effect of Lodging an Objection842
II.Appeal on Facts and Law842
A.General Rules on the Appeal on Facts and Law845
1.Decisions Open to Appeal on Facts and Law845
2.(Final) Decisions Not Open to Appeal on Facts and Law847
3.Time-Limit for Appeal on Facts and Law and Persons Entitled to Apply849
4.Effect on the Application of a Failure to State the Grounds of the Appeal on Facts and Law852
5.Running of the Time-Limit for Appeal on Facts and Law during the Time-Limit for Reinstatement854
6.Effect of the Appeal on Facts and Law855
7.Service of the Petition of Appeal on Facts and Law and Reply to the Appeal855
8.Prohibition of Reversal (Alteration) to the Accused's Detriment856
9.Prohibition of Persistence in the Judgment856
10.Extension (Sirayet) Effect of the Decision of the Regional Court of Appeal (BAM)859
B.Preparatory Stage before the Hearing859
1.Allocation of the File859
2.Preliminary Examination of the File859
3.Examination and Prosecution before the BAM860
a.Decisions Dismissing the Appeal on Facts and Law on the Merits860
aa.Decisions of Dismissal on the Merits860
aaa.Decision of Dismissal on the Merits on the Ground That There Is No Deficiency860
bbb.Decision Dismissing the Appeal on Facts and Law on the Merits with Rectification861
aaaa.Existence of the Violations Set Out in Sub-paragraphs (a), (c), (d), (e), (f), (g) and (h) of the First Paragraph of Article 303 (Art. 280(1)(a))861
bbbb.Where It Is Considered Appropriate, in Accordance with the Ground on Which the Public Prosecutor Lodged the Appeal on Facts and Law, to Apply the Minimum Penalty Prescribed by Law for the Offence Forming the Subject of the Conviction (Art. 280(1)(b))863
cccc.Cases Which, without the Need for Any Further Inquiry, Require a Lesser Penalty or a Decision That No Penalty Be Imposed on Account of Personal Grounds Removing the Penalty or Requiring Its Reduction, or of Personal Grounds for Impunity (Art. 280(1)(c))863
dddd.Case in Which the Appeal on Facts and Law Must Be Dismissed on the Merits after Rectification of the Unlawfulness, Where, without the Need for Further Investigation of the Facts, the Case Must Be Dismissed or an Erroneous Decision on Security Measures Must Be Rectified (Art. 280(1)(d))864
bb.Remittal Decisions864
aaa.Remittal Decision on the Ground of an Absolute Violation of Law864
aaaa.The Court Not Having Been Constituted in Accordance with the Law865
bbbb.Participation in the Judgment of a Judge Barred by Law from Exercising Judicial Functions866
cccc.Participation in the Judgment of a Judge Whose Recusal Was Requested on the Ground of Legitimate Doubt, Although That Request Had Been Granted, or after That Request Had Been Unlawfully Rejected866
dddd.The Court Having Unlawfully Held That It Had Subject-Matter or Territorial Jurisdiction to Hear the Case866
eeee.Holding of the Hearing in the Absence of the Public Prosecutor or of Other Persons Whose Presence at the Hearing Is Mandatory by Law867
ffff.Violation of the Rule of Publicity in a Judgment Given Following a Hearing867
gggg.The Judgment Being Based on Evidence Obtained by Unlawful Methods867
bbb.Remittal Decisions Where the Procedural Prerequisites of the Case (Prosecution) Are Not Fulfilled868
aaaa.Finding That a Prerequisite for Investigation or Prosecution Has Not Been Fulfilled or That the Procedure of Prepayment or Victim–Offender Mediation Has Not Been Applied868
bbbb.Where the Case Must Be Conducted Together with a Case Pending before the Court of First Instance868
C.Preparation for the Hearing and the Hearing Stage868
D.Other Duties of the Court Hearing Appeals on Facts and Law871
1.Review of Decisions Declining Subject-Matter Jurisdiction871
2.Deciding on Coercive Measures872
III.Appeal on Points of Law872
A.General Information872
B.Judgments Open and Not Open to Appeal on Points of Law875
1.Judgments Not Open to Appeal on Points of Law875
a.Reversal Decisions of the BAMs875
b.Decisions of Dismissal on the Merits Concerning Sentences of Imprisonment of Five Years or Less and Judicial Fines876
aa.The Position of Sentences of Imprisonment of Five Years or Less and of Judicial Fines876
bb.Decisions of the Regional Court of Appeal That Do Not Increase Sentences of Imprisonment of Five Years or Less Imposed by Courts of First Instance876
cc.All Decisions of the Regional Court of Appeal on Alternative Sanctions, and Decisions Dismissing the Appeal on Facts and Law on the Merits, in Respect of First-Instance Court Decisions on Alternative Sanctions Converted from Imprisonment877
dd.All Decisions of the Regional Court of Appeal Concerning Offences Falling within the Jurisdiction of the Courts of First Instance and Carrying a Statutory Maximum Penalty of up to Two Years' Imprisonment (Two Years Included), and the Judicial Fines Attached Thereto877
ee.All Decisions of the Regional Court of Appeal Concerning Judgments Given by Courts of First Instance for Offences Punishable by a Judicial Fine878
ff.Decisions Dismissing the Appeal on Facts and Law on the Merits in Respect of First-Instance Court Decisions Concerning Solely the Confiscation of Property or Gains, or Holding That There Is No Need for Such Confiscation879
gg.Decisions Dismissing the Appeal on Facts and Law on the Merits in Respect of Acquittals Given by the Court of First Instance for Offences Punishable by Imprisonment of Ten Years or Less or by a Judicial Fine879
hh.Decisions of the Same Kind Given by the Regional Court of Appeal, or Decisions Dismissing the Appeal on Facts and Law on the Merits, in Respect of First-Instance Court Decisions on Discontinuance of the Case, That No Penalty Be Imposed, or on Security Measures879
ee.Decisions of the Regional Court of Appeal Containing, in the Same Judgment, More than One of the Penalties and Decisions, Provided That They Remain within the Limits Set Out in the Sub-paragraphs Above880
2.Judgments Open to Appeal on Points of Law880
a.Judgments Directly Subject to Appeal on Points of Law880
b.Judgments Open to Appeal on Points of Law Despite Having Undergone Review on Appeal on Facts and Law880
C.Appeal on Points of Law against Decisions Preceding the Judgment882
D.Cases of Absolute Violation of Law883
1.Failure of the Judgment to Contain the Reasons Required by Article 230884
2.Restriction of the Rights of the Defence by Court Decision on Matters of Importance for the Judgment886
E.Violation of Rules Operating in Favour of the Accused886
F.Time-Limit for Appeal on Points of Law and Persons Entitled to Apply887
G.Rejection of the Request for Appeal on Points of Law by the Court That Gave the Judgment on the Ground That It Is Not Deemed Admissible890
H.Running of the Time-Limit for Appeal on Points of Law during the Time-Limit for Reinstatement891
I.Effect of the Appeal on Points of Law891
İ.Prohibition of Reversal (Alteration) to the Accused's Detriment892
J.Matters to Be Examined on Appeal on Points of Law and the Ground of Appeal892
K.Types of Decision893
1.Decision of Rejection for Non-compliance with the Time-Limit, Lack of Standing or Lack of Grounds894
2.Dismissal on the Merits of the Request for Appeal on Points of Law or Reversal of the Judgment894
3.Cases in Which a Decision Is Given on the Merits of the Case, Rectification of the Unlawfulness895
4.Pronouncement of the Judgment at the Court of Cassation896
5.Authority to Which the Decision of the Court of Cassation Is Sent896
L.Extension (Sirayet) Effect of the Decision of the Court of Cassation897
M.Procedure Following a Reversal Decision897
1.Procedure Following a Reversal Decision897
2.Decision to Persist in the Judgment898
3.Prohibition of Reversal to the Accused's Detriment899
N.Other Duties of the Court of Cassation899
§ 3.EXTRAORDINARY LEGAL REMEDIES900
I.Power of Objection of the Chief Public Prosecutor of the Court of Cassation901
II.Power of Objection of the Chief Public Prosecutor's Office at the Regional Court of Appeal905
III.Reversal in the Interest of the Law908
IV.Reopening of Proceedings914
A.Grounds for Reopening of Proceedings in Favour of the Convicted Person914
1.Use of a Forged Document914
2.False Testimony or False Expert Evidence915
3.Commission of an Offence by the Judge916
4.Setting Aside of the Civil Court Judgment917
5.Emergence of New Evidence or a New Fact917
6.Finding of a Violation of Rights by the ECtHR and the Constitutional Court (AYM)918
7.A Special Case of Reopening of Proceedings919
B.Grounds for Reopening of Proceedings to the Detriment of the Accused or the Convicted Person920
1.Use of a Forged Document920
2.Commission of an Offence by the Judge920
3.Credible Confession of the Accused before the Judge921
C.Cases in Which a Request for Reopening of Proceedings Is Inadmissible921
1.Request for Reduction of the Penalty under the Same Article921
2.Requests for Reopening of Proceedings Containing No Grounds922
3.Requests for Reopening Based on an Offence922
D.Procedure in the Reopening of Proceedings922
1.Conditions of Application, Time-Limit and Persons Entitled to Apply922
2.Examination of the Application924
a.Preliminary Examination924
b.Examination on the Merits925
c.Postponement or Stay of Execution926

Chapter TenSPECIAL AND ANCILLARY METHODS OF PROCEDURE55 headings

§ 1.TRIAL OF ABSENTEES AND FUGITIVES929
I.Definition of the Absentee and the Measures That May Be Taken in Respect of the Absentee929
II.Definition and Trial of the Fugitive933
§ 2.REPRESENTATION OF LEGAL PERSONS IN INVESTIGATION AND PROSECUTION937
§ 3.PROCEDURE IN TERRORIST OFFENCES AND ORGANISED CRIME937
I.Special Provisions on Police Custody938
II.Special Provisions on Pre-trial Detention938
III.Special Provisions on the Exercise of the Right to Defence Counsel938
IV.Courts with Subject-Matter Jurisdiction in Organised Crime941
§ 4.FAST-TRACK PROCEDURE941
I.Operation of the Procedure in General941
II.The Written Request947
III.Exclusionary Rules951
IV.Cases in Which the Fast-Track Procedure Cannot Be Applied952
V.Objection to the Judgment953
VI.SEGBİS and the Use of Letters Rogatory953
VII.Courts with Subject-Matter and Territorial Jurisdiction in the Fast-Track Procedure954
§ 5.SIMPLIFIED TRIAL PROCEDURE954
I.Operation of the Procedure in General954
II.Cases in Which the Simplified Trial Procedure Cannot Be Applied957
III.Objection in the Simplified Trial Procedure957
§ 6.VICTIM–OFFENDER MEDIATION960
I.In General960
II.Definition, Legal Nature and Restorative Justice961
III.Application of Victim–Offender Mediation965
A.Requirements for Becoming a Mediator965
B.Offences Subject to Victim–Offender Mediation967
1.Main Rules967
2.Offences Defined in the Turkish Criminal Code (TCK)967
3.Offences Defined in Laws Other than the TCK968
C.Victim–Offender Mediation at the Investigation Stage and Its Application969
D.Victim–Offender Mediation at the Prosecution Stage and Its Application972
E.Victim–Offender Mediation at the Stage of Execution of Sentences and Its Application975
F.Cases in Which Victim–Offender Mediation Cannot Be Applied976
G.Victim–Offender Mediation in Cases Involving Children977
H.Circumstances in Which Victim–Offender Mediation Comes to an End978
I.Victim–Offender Mediation in Offences with Multiple Perpetrators and Victims979
§ 7.CONFISCATION PROCEEDINGS980
I.Definition and Concept980
II.Confiscation Procedure982
§ 8.PROCEEDINGS CONCERNING THE EXECUTION OF SENTENCES983
I.Provisions in the Law on Penalties and Security Measures983
II.Provisions in the Law on Execution Judgeships986
III.Provisions in the Turkish Criminal Code990
§ 9.TRIAL OF PUBLIC OFFICIALS991
§ 10.PROCEEDINGS CONCERNING CHILDREN AND MENTALLY ILL PERSONS997
I.Proceedings Concerning Children997
A.Ordering of Protective and Supportive Measures and of Guidance Measures998
B.Investigation in Proceedings Concerning Children1003
C.Prosecution in Proceedings Concerning Children1005
D.Hearing of the Child Victim1008
II.Proceedings Concerning Mentally Ill Persons1008
§ 11.CRIMINAL PROCEDURE IN ENFORCEMENT MATTERS1010
I.Offences Subject to the Proceedings1010
II.Trial Procedure1012

Bibliography1015
Index1033

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