Attorney’s Authority to Review Files Under the CMK

Attorney’s Authority to Review Files Under the CMK. Article 153 of the Code of Criminal Procedure (CMK) No. 271 regulates the defense attorney’s authority to review the file during the investigation phase, establishing one of the most critical safeguards of the constitutionally guaranteed right to a fair trial and the principle of “equality of arms.” This provision guarantees the suspect’s early access to evidence and accusations against him for an effective defense. It also allows for restrictions to be imposed on this authority by a criminal judge of peace upon the request of the public prosecutor in cases that could jeopardize the purpose of the investigation. However, despite this exceptional restriction regime, the right to access documents that form the core of the right to defense, such as minutes containing the statements of the suspect/apprehended and expert reports, is absolute and unrestricted, pursuant to Article 153/3 of the CMK. This represents a delicate balance that must be maintained under the rule of law and judicial oversight.

I. LEGAL NATURE OF CCP ARTICLE 153 AND ITS RELATIONSHIP WITH THE RIGHT TO DEFENSE

Article 153 of the Criminal Procedure Code (CCP/CMK, Law No. 5271) regulates the defense counsel’s authority to examine the case file and obtain document copies, establishing one of the most critical safeguards for the right to defense during the investigation phase. This provision plays a central role concerning the right to a fair trial, guaranteed under Article 36 of the Constitution, and its fundamental component, the principle of “equality of arms.” CCP Article 153 manages the dilemma of meeting the need to protect the secrecy and purpose of the investigation while simultaneously ensuring the suspect’s access to necessary information for an effective defense.

A. Subject, Purpose, and Structure of the Article

The purpose of this report is to deeply analyze the scope of CCP Article 153, the conditions and procedure for its restriction, and the legal conflicts that arise in practice. Due to the sensitivity of the issue—the risk of the restriction authority turning arbitrary, potentially leading directly to constitutional rights violations—a critical assessment will be presented in light of national and international jurisprudence.

B. Impact of Structural Differences Between Procedural Stages on Authority

The scope of the defense counsel’s authority to examine the file fundamentally changes depending on the stage of the criminal procedure.

Investigation phase is typically conducted by the Public Prosecutor’s Office and is structurally “dispersed.” The investigation may be carried out by different prosecutors and various law enforcement officers at different places and times. This dispersion and the incomplete nature of the investigation increase the need for its protection and thus lay the groundwork for restriction decisions. Furthermore, the investigation phase is not subject to strict formality rules like the prosecution phase.

The prosecution phase (trial) is subject to stricter rules and the principle of publicity (openness) is essential. Consequently, the authority to impose restrictions ceases in the prosecution phase, and the defense counsel’s access gains full freedom. At the end of the investigation phase, the Public Prosecutor may either issue an indictment, requesting the transition to prosecution, or issue a decision not to prosecute (DNP/KYOK). If reconciliation is decided upon during the investigation and the agreed performance is fulfilled, a DNP decision is issued, no indictment is prepared, and thus the prosecution phase is not commenced. In this case, the issues of file secrecy and examination authority are technically terminated since the prosecution has not begun.

II. DEFENSE COUNSEL’S AUTHORITY TO EXAMINE THE FILE AND THE RESTRICTION REGIME DURING THE INVESTIGATION PHASE (CCP Art. 153/1-2)

A. The Rule: Full Accessibility and the Right to Obtain Document Copies

According to CCP Article 153/1, the defense counsel’s fundamental authority is, as a rule, to examine the entire content of the investigation file and obtain a copy of the requested documents without charge. This rule is a legal prerequisite for the defense counsel to learn about the evidence and allegations against their client, thereby formulating a sound and effective defense strategy. Legal doctrine and Court of Cassation jurisprudence consider the restriction of this rule, unless an exception applies, as an absolute ground for reversal (CCP Art. 289/1.h) due to the violation of the right to defense.

B. The Exception: Conditions for a Restriction Order (CCP Art. 153/2)

The defense counsel’s authority to examine the file can be exceptionally limited when vital interests of the investigation are at stake.

1. Justification and Procedure

The sole objective justification for issuing a restriction order is the possibility that the defense counsel examining the file content or obtaining document copies could jeopardize the purpose of the investigation. This restriction authority cannot be used arbitrarily; it is bound by strict conditions concerning procedure and authority: The restriction can be imposed upon the request of the Public Prosecutor and by the decision of the magistrates’ judge (Sulh Ceza Hâkimi). This necessitates that the restriction decision be a judicial decision. The common practice of law enforcement or the prosecutor unilaterally impeding the defense counsel’s file access through verbal or administrative means, without a judicial decision, is strictly unlawful and lacks any legal basis.

2. Offenses Subject to Restriction (Catalogue Offenses)

CCP Article 153/2 does not extend the restriction authority to every offense but limits it only to specific types of offenses listed in the law (catalogue offenses). These offenses are generally those that gravely threaten public security and social order and require complex investigation processes, such as organized crimes, terrorism offenses, crimes against the state, and sexual assault offenses.

This regulation, by linking the restriction to the ‘nature of the offense,’ represents an attempt to objectify, to a certain extent, the justification for limiting the right to defense. However, this restriction mechanism, combined with the dispersed structure of the investigation phase, carries the risk of inherently weakening the right to defense, especially in catalogue offenses. Since catalogue offenses are often complex and involve multiple suspects, restriction orders are frequently issued. In this situation, the fact that the only objective measure for restriction is the “possibility of jeopardizing the purpose of the investigation” leaves the door open for decisions to be made with standard and abstract justifications, leading to a subjective interpretation of this possibility in practice. Preventing the defense counsel’s access to files in simple offenses not included in the catalogue constitutes a direct violation of the law.

III. THE CORE OF THE RIGHT TO DEFENSE: ABSOLUTE ACCESS TO DOCUMENTS THAT CANNOT BE RESTRICTED (CCP Art. 153/3)

A. Legal Basis and Scope of Absolute Access

The Criminal Procedure Code guarantees the defense counsel absolute access to certain documents that constitute the minimum and inviolable core of the right to defense, even if a restriction order (secrecy) has been issued pursuant to CCP Article 153/2. Defense counsel’s authority to access these documents cannot be restricted.

The documents that cannot be restricted are:

The record containing the statement of the apprehended person or the suspect.
Expert reports.
Records related to other judicial proceedings at which the suspect/apprehended person was entitled to be present.

B. Purpose of Absolute Access and its Connection to Liberty

This absolute right of access is vital for the defense counsel to establish a fundamental defense strategy and monitor the client’s legal status at the earliest stage. In particular, examining the record containing the suspect’s statement allows for the scrutiny of whether the statement was taken lawfully and whether it involved coercion. Early access to expert reports provides the opportunity to learn the technical basis of the accusation and prepare counter-evidence.

The accessibility of these documents is more than a mere procedural rule; it is a direct constitutional guarantee. Especially for detained defendants or suspects, the right to examine the file is closely linked not only to the right to defense but directly to the right to liberty and security (Constitution Art. 19). Since detention orders are issued rapidly and these decisions are typically based on the suspect’s statement or technical evidence (expert reports), the defense counsel’s inability to access these bases effectively renders the objection mechanism against detention (CCP Art. 104) inoperable. If the prosecutor examines all evidence when submitting the request for detention to the court, the defense counsel’s inability to view this evidence constitutes a grave violation of the “equality of arms” principle during the detention review. Therefore, preventing the absolute right of access specified in CCP 153/3 means a fundamental violation of the right to defense and can be a ground for compensation (CCP Art. 141) in case of grievance.

The table below summarizes why access to documents that form the core of the right to defense and cannot be restricted is so critical:

Documents to which Defense Counsel Has Absolute Access Despite a Restriction Order (CCP Art. 153/3)

Document Type	Legal Basis	Importance for the Right to Defense
Record Containing the Statement of the Apprehended Person/Suspect	CCP Art. 153/3	Legal scrutiny of the client’s statements, determination of the fundamental defense strategy. Direct link to the Right to Liberty and Security (Detention).
Expert Reports	CCP Art. 153/3	Learning the technical basis of the accusation, opportunity to prepare counter-evidence/report, and ensuring the ‘equality of arms’ principle.
Records Related to Judicial Proceedings at which They Were Entitled to be Present	CCP Art. 153/3	Procedural scrutiny of proceedings (e.g., search, seizure, identification). Preventing access to these records makes judicial review impossible.

IV. PROCEDURE FOR OBJECTION TO THE RESTRICTION ORDER AND JUDICIAL REVIEW

A. Legal Nature of the Restriction Order and the Right to Object

A restriction order issued pursuant to CCP Article 153/2 is judicial in nature. Therefore, the suspect’s defense counsel can object to this decision as per Article 267 of the Criminal Procedure Code.

The procedure and duration of the objection are clearly defined: The objection is reviewed by another magistrates’ judge working within the same judicial district as the judge who issued the decision. It is mandatory for this objection to be evaluated by the reviewing authority within 7 days. This short timeframe reflects the necessity of urgently protecting the right to defense.

B. The Issue of Indefinite Duration and Practical Setbacks

Although the duration of the secrecy order is not explicitly regulated in the CCP, an indefinite order is unlawful, and in practice, magistrates’ judges usually set a period between 15 and 30 days. The decision does not automatically extend when the period expires; a new reasoned decision must be obtained upon the request of the prosecuting authority.

A serious issue frequently encountered in practice is deviating from the legal procedure. Claims of file secrecy made by law enforcement or the Public Prosecutor merely through verbal statements, without a magistrates’ judge’s decision, thus impeding access, are legally invalid.

This situation leads to a lack of protection for legal safeguards. For the defense counsel to effectively exercise their right to object, they must first obtain a lawful, written, and reasoned restriction order. However, when law enforcement/prosecutor impede access without a legal decision, the defense counsel’s ability to initiate the legal objection mechanism (CCP 267) is delayed or rendered impossible. This reduces the practical value of the 7-day objection period, which is critical for ensuring procedural justice, and leads to the weakening of the right to defense against administrative barriers. Restriction orders applied indefinitely or unlawfully can constitute a violation of rights and a ground for compensation under CCP Article 141.

V. AUTHORITY TO EXAMINE THE FILE AND THE TERMINATION OF RESTRICTIONS DURING THE PROSECUTION PHASE (CCP Art. 153/4)

A. Principle of Full Freedom: Access Upon Acceptance of the Indictment

The restriction regime of the investigation phase fully terminates from the date the indictment is accepted by the court. From this date, the defense counsel may examine the file content and the evidence held in custody, in accordance with the principle of publicity of the prosecution phase, and obtain copies of all records and documents without charge. This authority also applies to the representative of the aggrieved party. With the termination of the restriction order, the defense counsel resumes exercising all their authorities specified in CCP Articles 153/1 and 153/4 (examining the file, obtaining copies, meeting with the suspect, and preparing the defense).

B. Doctrinal Debate: Scope of the Phrase “Evidence Held in Custody”

The phrase “evidence held in custody” in CCP 153/4 has led to doctrinal discussions regarding the scope of access in the prosecution phase. Some interpretations have raised the question of whether this phrase imposes a limitation.

However, according to the dominant doctrinal view (Öztürk-Erdem), this phrase cannot be interpreted as a limitation. It is essential for the lawyer to be able to examine the entire file, in accordance with the principle of publicity of the prosecution phase (CCP Art. 182 and Constitution Art. 141). If the legislator intended to foresee a restriction, they would have stated it explicitly, as they did for the investigation phase. Since the Prosecutor’s Office is obliged to hold all collected evidence in custody, this phrase should be accepted as confirmatory rather than restrictive.

Furthermore, there is an incompatibility between the legislation regarding the commencement moment of the file examination authority. While CCP 153/4 sets the start as the “acceptance of the indictment,” Article 22/4 of the Regulation on the Clerk’s Office of Criminal Courts (CKY) stipulates that the defense counsel’s unlimited authority begins with the “submission of the indictment to the courthouse.” Doctrine argues that CCP 153/4 should be interpreted in line with CKY Art. 22/4, which expands the right to defense and is more favorable to the suspect.

C. Limited Existence of Secrecy in the Prosecution Phase

The prosecution phase is generally public. However, secrecy can be applied exceptionally at the judge’s discretion. Pursuant to CCP Articles 182/2 and 3, a decision may be made to hold the hearing in camera when general morality or public security strictly necessitates it. However, this secrecy pertains to the conduct of the hearing and does not restrict the defense counsel’s right to examine the file content or obtain copies after the indictment has been accepted.

VI. CCP ARTICLE 153 IN LIGHT OF CONSTITUTIONAL COURT AND ECHR JURISPRUDENCE

A. ECHR Art. 6 (Fair Trial) and the Principle of Equality of Arms

Within the framework of Article 6 of the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) identifies the defense lawyer’s inability to access the case file or facing difficulties in this regard during the investigation stage as a violation of the right to a fair trial. ECtHR jurisprudence emphasizes that the lawyer’s access to the file is vital for effectively organizing the defense, gathering evidence favorable to the defendant, and preparing for questioning procedures.

B. Importance of File Access in Detention Proceedings

Although the defense counsel’s right to examine the file is valid irrespective of whether the defendant is detained, having early and comprehensive knowledge of the file content is significantly more important for the defense when the defendant is detained.

The ECtHR recognizes the right of the defense to be informed about the entire file presented to the court, particularly during the review of detention status. From the moment the prosecutor requests the detention of the suspect or the continuation of the detention status, the defense counsel must be provided with the opportunity to examine the entire file submitted to the magistrates’ judge. This approach directly bases the achievement of the equality of arms principle in detention proceedings on the principle of fair trial.

In the context of the impact of international court decisions on national law, it is noteworthy that in the German example, the ECtHR’s decisions concerning the right to examine the file (three decisions) were evaluated by the German Federal Ministry of Justice as not requiring legislative intervention. In Turkey, the absolute access exception introduced by CCP 153/3 is widely considered a legislative progress incorporated to ensure the minimum guarantee of the right to defense, largely under the pressure of ECtHR and Constitutional Court (AYM) jurisprudence.

C. Constitutional Court (AYM) Perspective

The Constitutional Court holds the view that the defense counsel’s access to the documents in the investigation file is essential for formulating a defense strategy and protecting the client’s right to liberty. The AYM has issued decisions (e.g., AYM Decision No: 2013/849) evaluating the prevention of the defense counsel’s file access as a violation of the principle of equality of arms within the scope of the right to a fair trial.

VII. CRITICAL CRITICISM AND SOLUTION PROPOSALS FOR CCP ARTICLE 153 IN LEGAL DOCTRINE

CCP Article 153 is one of the most debated and criticized provisions in legal doctrine, as it regulates the tension between investigation secrecy and the right to defense.

A. Doctrinal Conflict Over the Principle of Equality of Arms

The CCP 153/2 provision has sparked two main views on whether it violates the “equality of arms” principle, which is the cornerstone of the right to a fair trial.

Point of Discussion	View 1: Supremacy of the Right to Defense (Violation of Equality of Arms)	View 2: Protection of the Investigation (Prosecution’s “Arm”)
Restriction Order	When a secrecy order is issued without justified reason, it violates the equality of arms, as depriving the defense counsel of the right to examine the entire file while the Prosecutor does so is incompatible with fairness and restricts the defense.	Allowing the defense counsel to see all documents, just like the Prosecutor, does not equalize the arms but, conversely, disrupts the equality against the Prosecutor. The investigation file is the Prosecutor’s “arm,” and thus the discretion to show or not to show this arm should be exclusive to the Prosecutor (Mahmutoğlu & Dursun View).
Conceptual Approach	Investigation is a contentious process where rights begin.	Investigation is entirely a preparatory process and the state’s search for the truth.

This conflict is a natural consequence of Turkish criminal procedure law incorporating elements from both continental European (inquisitorial) and Anglo-Saxon (adversarial) systems. Although the current CCP 153 regulation takes a significant step in favor of the defense with CCP 153/3, it cannot fully restrict the authority of the prosecuting body.

B. Conflicts Between Regulations and the Narrowing of the Right to Defense

The safeguards introduced by CCP 153 are at risk of being restricted by other legal regulations.

1. Conflict with the Attorneyship Law

While the CCP does not condition the appointment and authority of the defense counsel on the requirement of a power of attorney, in practice, access to the documents under the absolute access exception of CCP 153/3 can be impeded for defense counsel without a power of attorney, citing Attorneyship Law (Av.K.) Articles 2/final and 46/2. Even if this impediment is legally accepted, it restricts the suspect’s right to defense by preventing an effective defense and constitutes a violation of the equality of arms principle. The requirement of a power of attorney for the defense counsel to examine the file, introduced by Article 45 of the Regulation on the Clerk’s Office of Criminal Courts (CKY), narrows the safeguards in CCP 153 and can seriously restrict the right to defense by leading to varying interpretations in different courts.

2. File Examination Authority of the Victim/Complainant’s Representative

CCP 234/1.a.4 stipulates that the victim or the next of kin can only have the investigation documents examined through their representative and subject to CCP 153. However, this regulation conflicts with CCP 234/1.a.2 and CKY Art. 45/4, which grant the victim/next of kin the right to request document copies directly from the Public Prosecutor. These conflicts increase the asymmetry between the authorities of the defense counsel and the victim’s representative during the investigation phase and lead to legal uncertainty.

VIII. CONCLUSION AND REFORM PROPOSALS FOR CRIMINAL PROCEDURE LAW

CCP Article 153 is a fundamental regulation aimed at establishing the critical balance between investigation secrecy and the right to defense. The catalogue offense limitation introduced by the Article and, particularly, the right to absolute access defined by CCP 153/3, have provided significant progress in protecting the defense against restrictions.

However, the analytical assessment and practical problems indicate that this balance is constantly at risk of being disrupted against the defense. The greatest setbacks in practice are the impeding of access through unlawful verbal secrecy claims without a judicial decision, and the restriction of access even to documents where absolute access is mandatory, such as statement records and expert reports (as specified in CCP 153/3). Such restrictions, in light of international and constitutional jurisprudence, directly constitute a violation of the right to a fair trial.

The following reform and implementation proposals are essential for fully establishing an effective right to defense and the principle of equality of arms:

Judicialization and Transparency of the Process: It must be strictly prohibited for law enforcement or the Prosecutor’s Office to impede access without a judicial decision, and administrative and legal sanctions against public officials engaged in such actions must be effectively enforced.
Determining Restriction Durations: Considering the unlawfulness of indefinite restriction orders, the legal maximum duration of the decision must be clarified in the legislation, and the requirement for concrete, measured, and proportionate justifications for extension decisions must be strictly enforced.
Broadening the Commencement of the Prosecution Phase: In line with doctrinal views favoring the defense, CCP 153/4 should be interpreted to accept the moment of “submission of the indictment to the courthouse” as the commencement of full access authority (in line with CKY Art. 22/4), instead of “acceptance of the indictment.”
Increasing the Guarantee of Absolute Access: If access to the documents under CCP 153/3 is impeded, effective enforcement of legal liability against the authority issuing the decision or the officials failing to implement it, including compensation avenues under CCP 141, will increase deterrence against the violation of the right to defense.

These proposals are essential for ensuring the full compliance of the Turkish criminal procedure law with international standards and Constitutional principles, and for ensuring that restrictions on the right to defense during the investigation phase remain only as necessary and temporary exceptions.

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