Uluslararası Akademik Araştırmalar Kongresi, 24 - 26 January 2022
The suspect and accused have the right to interview with defense counsel in an environment where others cannot hear in principle each stage of both investigation and prosecution according to Turkish Criminal Procedure Code numbered 5271 art. 154. However the paragraph 2 of article 154 prescribes that the right to interview with defense counsel of the suspect in custody may be restricted for 24 hours upon motion of the public prosecutor and by the order of the judge in particular types of crimes (terrorism crimes, crimes against the security of the state, producing and trading with narcotic or stimulating substances in an activity of criminal organization). This provision has been amended to Turkish Criminal Procedure Code with Decree Law numbered 676 and dated in 3.10.2016 following attempted coup in 15th July 2016 and Code numbered 7070 article 3 dated in 1.2.2018. The purpose of this provision is not to leave the suspect defenceless and use him/her to reach the evidence. The main purpose is to eliminate the concern that the defense counsel may lead the information from the suspect to the other members of criminal organization or vice versa, with this way the perpatrators may flee or destroy, hide or change the evidence. However in practice, this restriction is abused such as instrumentalisation of the suspect to reach evidence, exploitation of public prosecutor or law enforcement authorities by interview with the suspect without defense counsel to get information and making pressure on the suspect in defenceless.
In this context, this study will discuss the importance of the right to benefit from defense counsel and its legal characteristics, the ratio legis of Turkish Criminal Procedure Code art. 154 paragraph 2, the conditions of this restrictions compatibility with Turkish Constitution, European Convention on Human Rights, the case law of European Court of Human Rights, which interactions allowed or not during this restriction, what the test shall be, what the meaning of “the suspect statement shall not be taken” in this provision and the situation of the evidence gathered incompatible with this provision.
Keywords: Right to defense, the restriction on the interview with defense counsel, Salduz and Ibrahim test.