CMK Legislation – Criminal Proceedings

CMK Legislation – Criminal Proceedings. The Code of Criminal Procedure (CMK) regulates the procedure for criminal trials in Turkey. Law determines the process that begins when a suspicion of crime arises. The rights of the suspect and the state’s judicial authority are balanced by this law. CMK provisions guarantee that the trial process is conducted fairly and lawfully. The Law protects individual freedoms against arbitrary practices. In this article, the fundamental principles of the CMK legislation are examined. The 5 main stages of criminal procedure, from investigation to judgment, are discussed in detail. The trial process is conducted as a process where the rights of all parties are protected.

I. Fundamental Principles and Legal Basis of Criminal Procedure

The CMK lays out the basic principles that must be adhered to for the sake of justice. These principles have guided the entire trial process.

• Principle of Legality: Procedural actions can only be carried out according to the provisions clearly stated in the law. Thus, arbitrary practices are prevented.
• Principle of Directness: The judge bases their judgment directly on the evidence received. Statements of the witness and expert witness are heard face-to-face.
• Equality of Arms: Equal legal opportunities are provided to the prosecution and defense. This is the fundamental condition for a fair trial.
• Presumption of Innocence: Everyone is considered innocent until proven guilty. The suspect or defendant does not receive guilty treatment. This presumption is protected throughout the trial.
• Principle of Orality (Verbal Proceeding): Claims and defenses during the hearing are presented verbally. Court decisions are put into writing.

II. 8 Critical Rights and Guarantees in Criminal Procedure

The CMK has secured fundamental human rights. These rights held by the suspect and the defendant are important for the health of the process.

1. Right to Remain Silent: The defendant cannot be compelled to provide evidence against themselves. The right to refrain from making a self-incriminating statement is held.
2. Assistance of Counsel (Lawyer): The suspect and the defendant are ensured to benefit from the assistance of a lawyer at every stage. Compulsory counsel is appointed to those with insufficient financial means.
3. Exclusion of Unlawful Evidence: Evidence obtained through unlawful means cannot be used in the trial. This rule prevents rights violations.
4. Interpreter Assistance: A free interpreter is appointed to a defendant who does not know Turkish. The full exercise of the right to defense is ensured.
5. Notification of Relatives: A person taken into custody has the right to notify their relatives. This prevents arbitrary custody practices.
6. Objection to Arrest: The right to appeal against the arrest decision can be exercised. These objections are regularly reviewed by the court.
7. Evidence Examination: The defendant or their counsel has the right to examine all evidence in the file. Furthermore, the right to submit new evidence is also protected.
8. Deferral of Judgment: The pronouncement of the sentence handed down can be deferred under certain conditions. This offers the defendant a supervised period.

III. 5 Main Phases of Criminal Procedure

CMK Legislation – Criminal Proceedings. The process from the emergence of a crime to the enforcement of the judgment is examined in 5 main phases.

1. Emergence of Suspicion of Crime: The process begins with the suspicion that a crime has been committed. For example, judicial authorities are informed upon a notification or complaint. Law enforcement agencies (Police/Gendarmerie) perform the initial evidence collection procedures.

2. Investigation (Preparation) Phase: This phase is the critical stage where the decision on whether there is room for prosecution is made. It is managed by the Public Prosecutor and confidentiality is essential.

• Role of the Prosecutor: The prosecutor collects all evidence against and in favor of the suspect. Reaching the material truth is aimed for.
• Protective Measures: Measures such as custody, search, and seizure are applied at this stage. However, these measures are carried out by a judge’s decision.
• Decision: As a result of the investigation, the prosecutor decides whether to draw up an indictment or whether there is no room for prosecution (non-prosecution). The non-prosecution decision is also subject to objection.

3. Prosecution (Trial) Phase: The indictment is accepted by the court. The prosecution phase is entered with this acceptance. Holding hearings is the foundation of this phase.

• Role of the Court: The judge or court presides over the hearings and conducts the trial. Therefore, the impartial conduct of the case is ensured.
• Judgment: At the end of the trial, the court decides on the punishment, acquittal, or dismissal of the defendant.

4. Legal Remedies (Review of Judgment): The lawfulness of the judgment rendered by the court is reviewed by higher courts. This is the control of the decision before it becomes final.

• Appeal (Regional Court of Justice): The judgment is ensured to be reviewed in terms of both factual events and legal aspects. Errors of the first instance court are corrected here.
• Cassation (Supreme Court of Appeals): The decision of the appellate court is reviewed only from a legal perspective. Whether the rules of law have been correctly applied is controlled.

5. Enforcement of Judgment: The enforcement process begins with the finalization of the given sentence. The sentence is carried out in accordance with the procedures specified in the Law. Enforcement is implemented in different forms, such as supervised release or open prisons.

IV. Details of Protective Measures and Restriction of Freedoms

Protective measures are necessary for the purpose of the trial to be achieved. However, these measures restrict the right to freedom.

• Conditions for Arrest: A strong suspicion of guilt must exist for an arrest warrant to be issued. Additionally, the danger of flight or tampering with evidence must be present. The existence of these conditions is meticulously investigated.
• Judicial Control: Judicial control measures are stipulated as an alternative to arrest. A travel ban abroad or the obligation to sign can be given as examples.
• Procedure for Search and Seizure: These procedures are subject to a judge’s decision. The inviolability of the home must not be violated. The procedurally correct performance of the operations ensures the legal validity of the evidence.

V. Special Circumstances and Points to Consider in Practice

Some special circumstances exist in the application of the CMK.

• Reconciliation: The defendant and the victim can resort to reconciliation in some crimes. If reconciliation is achieved, a public prosecution is not filed or is dropped.
• Summary Procedure: This procedure is applied in certain types of crimes. The public prosecutor and the suspect can reach an agreement.
• Deficiencies in CMK Implementation: The disproportionate use of protective measures causes problems in practice. The effective use of objection mechanisms is required.

Justice Secured by the CMK

CMK Legislation – Criminal Proceedings. The CMK legislation forms the basis of the criminal procedure process. The Law aims to clarify the crime and reach the truth. In addition to this, it ensures the protection of individual rights and freedoms. Respecting the rights of the defendant is mandatory in the investigation and prosecution phases. Consequently, the CMK is accepted as the most important guarantee of the right to a fair trial.