Rights of the Suspect and Defendant in Criminal Law

For a person drawn into a criminal investigation, the question "what can be done to me, and what can I refuse" is usually the first thing that comes to mind. The status of suspect or defendant also carries with it certain guarantees granted by law; these guarantees retain their validity from the first hour of the investigation until the end of the prosecution. In practice, ignorance of these rights can lead a person to make statements that may produce results against their own interest.

In the sections below, the rights applicable at different phases of the process are addressed under separate headings, from the right to silence to the assistance of defence counsel, and from the procedure for taking statements to detention and judicial control measures. Each heading focuses on how that right operates in practice and in which situations it becomes important.

What Is the Difference Between a Suspect and a Defendant?

In criminal procedure, the concepts of suspect and defendant do not mean the same thing; the distinction is drawn according to the phase of the process in which the person finds themselves. A suspect is a person against whom an investigation is being conducted but for whom an indictment has not yet been drawn up; this phase proceeds before the law enforcement authorities and the prosecutor's office. A defendant, on the other hand, is a person who has moved on to the prosecution phase with the court's acceptance of the indictment.

The practical significance of this distinction is that, depending on the status, certain procedural acts are carried out by different authorities. While, during the investigation phase, acts are performed by law enforcement under the coordination of the prosecutor's office, during the prosecution phase the panel of judges or the judge is involved. However, fundamental guarantees such as the right to silence, the assistance of defence counsel, and the presumption of innocence apply in the same way to both statuses; even if the status changes, the essence of the protection does not change.

In practice, confusing this distinction can cause uncertainty as to which authority a person should apply to or which avenue of objection they should use. While an objection at the investigation phase is generally directed to the criminal judgeship of the peace, at the prosecution phase objections are raised before the court hearing the case or before higher judicial authorities. Keeping clear track of the stage the file is at therefore directly affects the timing of the defence.

What Does the Right to Silence Mean?

The right to silence means that a suspect or defendant cannot be compelled to make statements against their own interest. A person is not obliged to answer the questions put to them, and their exercise of this right cannot be interpreted against them. Reminding the person of this right before the statement or interrogation begins is an inseparable part of the procedural guarantees.

• Partial silence is possible. A person may answer some questions and exercise the right to silence on others; this choice does not, on its own, create a negative presumption.
• Silence does not mean acceptance of the accusation. Not making a statement cannot be regarded as acceptance of the alleged act.
• The reminder is mandatory. The right to silence must be clearly communicated before the statement or interrogation; failure to do so gives rise to a procedural defect.

In practice, people sometimes make unnecessary explanations out of concern that exercising the right to silence "will increase suspicion." Yet scattered statements given at an early stage of the file, before the state of the evidence has become clear, can make the defence more difficult later on. For this reason, refraining from making detailed statements before consulting with defence counsel is generally regarded as a safer approach.

The scope of the right to silence applies not only before law enforcement or the prosecutor's office, but also at the interrogation phase before the court. The defendant may exercise the right not to make a statement during the prosecution as well; the court cannot interpret this choice as insufficiency of evidence or as acceptance of the accusation. The person's decision on which question to exercise the right to silence is most often shaped by an assessment made beforehand with defence counsel.

How Is the Assistance of Defence Counsel Used?

From the very beginning of the investigation, the suspect and the defendant have the right to benefit from the assistance of one or more defence counsel. This right covers the presence of defence counsel during the statement or interrogation, their ability to examine the content of the file, and their ability to meet with the person without supervision. In the case of economic hardship, the appointment of defence counsel through the bar association may be requested; for certain types of offences and age groups, the presence of defence counsel is mandatory by law.

A prior meeting with defence counsel clarifies when and how the person will exercise their rights. Support from defence counsel, particularly on how the content of the statement will be shaped, which documents may be requested, and what the avenues of objection are, largely reduces the uncertainties that may arise at later stages of the process. The confidentiality of meetings with defence counsel is recognised as a separate guarantee, and, as a rule, these meetings cannot be listened to or recorded.

The appointment of more than one defence counsel is also possible; in complex files or those with a great deal of evidence, the involvement of a second defence counsel can distribute the workload of the defence. Requesting a change of defence counsel is also the person's right; where the relationship of trust is damaged as the process advances, continuing with a new defence counsel cannot be prevented.

How Do the Statement and Interrogation Procedures Work?

Taking a statement is a procedural act carried out by law enforcement or the prosecutor's office, while interrogation is carried out by the judge or the court. In both acts, the person is clearly informed of the act of which they are suspected, is reminded of the right to silence, and is told that they may benefit from the assistance of defence counsel. Whether the statement or interrogation is carried out lawfully is decisive as to whether the resulting statement carries evidential value.

Statements taken in a manner contrary to procedure, for example without defence counsel and without that right being waived, can become disputed in practice. For this reason, it is important to clarify, before the statement or interrogation, how the process will proceed, which rights may be used, and whether the meeting is being recorded. The recording procedure forms an important point of reference in the event of subsequent objections concerning the content of the statement.

Having the record of the statement or interrogation read out to the person, or given to them to read, and allowing corrections to be requested on it before signing, is also part of the procedure. A person who believes that the statements set out in the record do not match their own account may point out this discrepancy at the signing stage; inconsistencies that emerge after signing are assessed as a separate matter of objection.

Why Cannot Unlawfully Obtained Evidence Be Used?

In criminal proceedings, it is a fundamental requirement that evidence be obtained through lawful means. As a rule, unlawfully obtained evidence cannot form the basis of a judgment; this principle aims to keep the evidence-gathering limits of law enforcement and judicial authorities within a framework determined by law. Acts such as search, seizure, and the monitoring of communications must be carried out on the basis of a decision in accordance with procedure and within the specified limits.

• A procedural decision is required. Acts such as search and seizure must generally rest on a judicial decision or on an exceptional authority provided for by law.
• A statement obtained through coercion is disputed. Statements obtained through pressure, threat, or deception are called into question in terms of reliability.
• The chain of evidence matters. How and by whom a piece of evidence was obtained must be traceable in the file.

This guarantee is not merely a theoretical principle; assessing which evidence was gathered in accordance with procedure, in the examination the defence conducts on the file, forms an important part of the case strategy. The exclusion from consideration of evidence in which a procedural defect is identified may be requested.

A similar sensitivity applies to digital evidence. Access to phones, computers, or cloud accounts generally depends on a separate procedural decision, and how these data were imaged and by what method they were examined must be shown in the file. Preserving the integrity of the data during the examination process forestalls subsequent objections regarding the reliability of the evidence.

In What Way Is the Presumption of Innocence Protected?

The presumption of innocence is the principle that no one may be regarded as guilty unless there is a finalised court decision. This principle also brings with it the rule that the burden of proof lies with the prosecuting authority and that the defendant benefits from any doubt. Expressing, presenting, or treating a person as guilty during the investigation or prosecution process is incompatible with this principle.

The presumption of innocence applies not only in the courtroom but at every stage of the process. For example, characterising a person as guilty in images or statements reflected to the public may constitute a breach of this principle. The presumption continues to operate in the person's favour until the judgment becomes final and forms one of the fundamental foundations of the defence strategy.

The fact that the burden of proof lies with the prosecuting authority means that the defence is not obliged to prove its own innocence. Under the principle that the defendant benefits from doubt, in situations where the evidence gathered cannot establish the commission of the offence beyond doubt, a decision in the person's favour is expected. This principle is also a guide as to how deficient or contradictory evidence in the file is to be interpreted.

How Long Can the Period of Detention Last?

Detention is a protective measure in which a person's liberty is temporarily restricted for the purpose of the investigation, and it is limited by the period provided for by law. The period may vary according to the nature of the offence committed and whether it was committed collectively; an extension of the period is generally possible upon the prosecutor's request and by a judicial decision. Informing the relatives of the detained person and having them examined by a physician are also among the guarantees of this process.

Whether the decisions concerning the expiry or the extension of the detention period were given in accordance with procedure is a matter that should be closely followed by defence counsel. Where release is not carried out despite the expiry of the period, or where the extension decision is without reasons, recourse to the avenue of objection is possible. At this stage, regular communication with defence counsel makes it easier to follow the process.

The person's state of health during detention is also a separate matter of guarantee. Being subjected to a physician's examination before being taken into detention and when the detention is ended is important both for protecting the person's health and for enabling any allegation of ill-treatment to be assessed objectively. The complete entry of the examination reports into the file creates a concrete record that may be resorted to at subsequent stages of the process.

What Is the Difference Between Arrest and Judicial Control?

Arrest is a protective measure in which, where certain conditions exist, a person is deprived of their liberty by a judicial decision, and it is exceptional in nature. Judicial control, on the other hand, is an alternative measure that can be applied instead of arrest and that allows the person to continue their liberty subject to certain obligations. A ban on leaving the country, an obligation to sign in at certain intervals, or notification of one's residence are applications frequently encountered within the scope of judicial control.

The court assesses, according to the circumstances of the concrete case, whether judicial control instead of arrest will be sufficient. The avenue of objection against an arrest decision is open, and in that objection it is examined whether elements such as the risk of the person fleeing or the possibility of tampering with evidence have been set out with concrete reasons. The periodic re-assessment, at certain intervals, of decisions concerning the continuation of detention is also a statutory guarantee.

When an arrest decision is given, the principle of proportionality is also observed; a balance between the sentence that may be foreseen according to the gravity of the act committed and the measure to be applied is sought. In the event of non-compliance with judicial control obligations, the conversion of this measure into arrest may come onto the agenda; for this reason, following up on the obligations is a matter that should not be neglected.

Which Rights Can Be Used During Law Enforcement Procedures?

From the moment of apprehension, a person has the right to learn on account of which act the procedure is being carried out. The reason for the apprehension and the accusations against the person must be clearly communicated, after which the right to silence and the right to benefit from the assistance of defence counsel must be reminded. Procedures concerning items on or with the person are also subject to certain procedural rules, and these procedures must be entered into a record.

For the procedures carried out at the law enforcement stage to be assessable later before the court, they must be documented in accordance with procedure. The existence of a deficiency, contradiction, or signature problem in the records may become a matter of dispute concerning the reliability of the relevant procedure. For this reason, the early involvement of support from defence counsel even at the law enforcement stage contributes to the sound progress of the process.

Informing a relative of the apprehended person is also among the statutory guarantees; this notification ensures that the person's connection with the outside world is not entirely severed. For foreign nationals, notification of the consular authorities may additionally be requested. The failure to activate such procedural guarantees in a timely manner may come onto the agenda at subsequent stages in the assessment of the file from a procedural standpoint.

How Are Access to the File and Preparation of the Defence Carried Out?

The suspect and the defendant have the right, through their defence counsel, to examine the investigation file; however, there are also exceptional situations in which a restriction may be placed on this examination depending on the nature of the investigation. Once the prosecution phase is reached, access to the file generally becomes more comprehensive, and the defence has the opportunity to prepare against the evidence set out in the indictment.

For the defence to be prepared effectively, the evidence in the file, the witness statements, and the expert reports must be examined in a timely manner. At this stage, the assessment that defence counsel conducts on the file sets out which evidence may be made the subject of objection and which witnesses will be requested to be heard. As the process advances, the defence strategy may be updated according to new elements emerging in the file.

Participation in hearings, putting questions to witnesses, and resorting to the avenues of legal remedy against the decision are also a natural extension of the preparation of the defence. Alongside the defendant's right to be present at the hearing, in some cases exemption from the hearing is also possible; in that case, defence counsel following the hearing ensures the continuity of the defence. The examination of the reasoning of the decision given at the end of the prosecution is the fundamental point of reference in determining whether to move on to the appeal or cassation stage.

Each of these processes requires careful monitoring so that the person can exercise their right in a timely and correct manner. As İzmir Avukatım, Av. Aydın provides support from defence counsel in files at the investigation and prosecution stages in Konak/Izmir, standing by your side from the very first moment of the process. For your questions, you can reach us on the line 0553 595 67 82.