Frequently Asked Questions

In criminal procedure the hearing is governed by several complementary principles. Under the principle of publicity, hearings are open to everyone; they may be closed only where public morality or public security strictly requires it. The principle of orality requires that the matters on which the judgment will rest be presented orally at the hearing. The principle of immediacy requires the judge to examine the evidence in person; the principle of continuity and concentration requires the trial to proceed, as far as possible, without interruption.

To these are added the principles of “no trial without an accusation”, the search for the material truth, the equality of arms and in dubio pro reo (the benefit of the doubt goes to the accused). A violation of these principles constitutes, as a rule, unlawfulness and may require the judgment to be quashed.

Legal basis: Constitution, Art. 141; Code of Criminal Procedure (Law No. 5271), Arts. 182 et seq., 188 et seq., 225.

Confrontation is a procedural act regulated in the Code of Criminal Procedure under the heading hearing of witnesses. The Code provides that witnesses may, “where necessary… be confronted with one another and with the suspect”. It is an act of examination; and the power to examine witnesses belongs to the judge and the public prosecutor.

The police may therefore not carry out a confrontation on their own initiative; they may act only upon the order and under the supervision of the public prosecutor. Separately, the determination of physical identity (photographs, body measurements, finger and palm prints, audio and video records) is possible only for offences punishable by a maximum of two years’ imprisonment or more and upon the order of the public prosecutor.

A confrontation or identification carried out contrary to the prescribed procedure renders the evidentiary value of the resulting statement questionable.

Legal basis: Code of Criminal Procedure (Law No. 5271), Art. 52/2 (confrontation), Art. 81 (determination of physical identity).

The wording of the statute is clear: “Before the judgment, the last word is given to the accused who is present.” This is a rule at the core of the right of defence and admits of no exception. At the stage of the discussion of the evidence, the last person to speak is the accused; the fact that defence counsel has spoken does not extinguish this right.

The rule also applies at the appellate stage: at a hearing before the Court of Cassation, too, “in every case the last word belongs to the accused.” Rendering judgment without granting the right to the last word amounts to a restriction of the right of defence and is a ground for reversal.

Legal basis: Code of Criminal Procedure (Law No. 5271), Arts. 216/3 and 300/2.

Freedom of expression and dissemination of thought enjoys constitutional protection, and the internet is one of the spaces in which this freedom is exercised. The freedom is not unlimited, however: it may be restricted by law for reasons such as the protection of the reputation and rights of others, the prevention of crime, national security and public order.

In practice the limit is most often drawn by the offences of defamation, threat, violation of the privacy of private life, unlawful dissemination of personal data and incitement to hatred and hostility. In addition, Law No. 5651 provides for removal of content and blocking of access in respect of unlawful content.

The distinction between a value judgment and an allegation of fact is decisive: criticism, even harsh and hurtful, is in principle protected; an unfounded factual allegation, by contrast, may be unlawful.

Legal basis: Constitution, Art. 26; European Convention on Human Rights, Art. 10; Law No. 5651, Art. 9; Turkish Criminal Code (Law No. 5237), Arts. 125, 134, 136, 216.

Three avenues may be pursued together or separately.

Criminal route. The offence of defamation is, as a rule, subject to a complaint. The right of complaint must be exercised within six months of the day on which you learn of the act and the identity of the offender; this period is preclusive. Defamation committed by means of an audio, written or visual message is deemed by law to have been committed in the victim's presence.

Removal of content. Under Law No. 5651, an application may be made to the content or hosting provider; in addition, the criminal judgeship of peace may be asked to order removal of the content or blocking of access. For violations of personality rights, this route produces swift results.

Civil route. An action for non-pecuniary damages may be brought for an attack on personality rights.

In every case, the first step is preserving the evidence before it disappears: a screenshot of the content should be taken together with its URL, date and time, and where possible a notarial determination should be obtained.

Legal basis: Turkish Criminal Code (Law No. 5237), Arts. 125 and 73; Law No. 5651, Art. 9; Turkish Civil Code (Law No. 4721), Arts. 24–25.

Unlike defamation, threat is not in every case subject to a complaint. Where a person is threatened with an attack on the life, physical or sexual inviolability of themselves or a relative, the investigation is conducted ex officio. A threat directed at property or involving some other harm is, by contrast, subject to a complaint.

Threatening messages should not be deleted; they should be preserved together with the sender's account details, date and time. You may apply directly to the police or to the chief public prosecutor's office. If there is a concrete and imminent danger, protective and preventive measures may be requested under Law No. 6284.

If the threatening acts are continuous, the offence of stalking (persistent pursuit) may also come into play.

Legal basis: Turkish Criminal Code (Law No. 5237), Arts. 106 and 123/A; Law No. 6284.

For the police to stop you there must be a concrete reason; the statute provides that a stop “may not be carried out in a manner amounting to a continuous, de facto practice or arbitrariness”. The police must inform the person stopped of the reason for the stop, may ask questions relating to that reason and may request that you produce your identity document.

If the stop is lawful, you are obliged to disclose your identity: failing to do so, or making an untruthful declaration, entails an administrative fine under the Misdemeanours Law; giving false identity particulars may additionally constitute an offence.

The obligation to disclose identity does not, however, mean an obligation to make statements about the incident. The duration of the stop may not exceed the time strictly necessary for the act on which the stop is based.

Legal basis: Police Duties and Powers Law (Law No. 2559), Art. 4/A; Misdemeanours Law (Law No. 5326), Art. 40; Turkish Criminal Code (Law No. 5237), Art. 206.

The distinction matters. A judicial search is conducted to obtain evidence upon suspicion of an offence and requires, as a rule, a judge's order; where delay would be prejudicial, it may be conducted upon the written order of the public prosecutor or, if the prosecutor cannot be reached, of the police supervisor. However, a search in a dwelling, at a workplace or in enclosed areas not open to the public may not be conducted upon the order of a police supervisor.

A preventive search is conducted to prevent the commission of offences, upon a judge's order or, where delay would be prejudicial, upon the written order of the civil administrative authority, within a defined place and time frame.

You are entitled to ask the officer conducting the search to show the order or written authorisation. You are not obliged to consent to a search not based on an order; but rather than physically resisting, the correct course is to have your objection recorded in the official report. Findings obtained in an unlawful search cannot be admitted as evidence.

Legal basis: Constitution, Arts. 20 and 38/6; Code of Criminal Procedure (Law No. 5271), Arts. 116, 117, 119; Law No. 2559, Art. 9; Regulation on Judicial and Preventive Searches.

The inviolability of the dwelling is constitutionally guaranteed. A search of a dwelling is, as a rule, conducted upon a judge's order; where delay would be prejudicial, the written order of the public prosecutor suffices. A dwelling may not be searched upon the written order of a police supervisor.

As a rule, a dwelling may not be searched at night; this prohibition applies subject to limited exceptions such as offences caught in the act, cases where delay would be prejudicial, and the recapture of an escaped detainee or convict.

You have the right to be present during the search; if you are absent, two persons from the council of elders or among the neighbours must be present. The subject and scope of the search must be communicated to you, and on request a document showing the outcome of the search must be provided. You are not obliged to open the door without seeing the order; make sure your objections are entered in the record.

Legal basis: Constitution, Art. 21; Code of Criminal Procedure (Law No. 5271), Arts. 116–121, in particular Art. 118 (night searches) and Art. 119 (order/written authorisation).

If your statement is required in the capacity of a suspect, the proper procedure is a summons by a written notice (invitation). The notice states the consequences of non-attendance. If you fail, without a valid excuse, to comply with a duly served summons, your compulsory appearance may be ordered.

An oral invitation by telephone creates no statutory obligation; however, once you learn that you are being called to give a statement, the most prudent course is to attend at the appointed day and time together with defence counsel. Failure to attend may result in an order for compulsory appearance or arrest.

During the statement, your right to remain silent and your right to the assistance of defence counsel are preserved in all circumstances; these rights are not forfeited by attending.

Legal basis: Code of Criminal Procedure (Law No. 5271), Art. 145 (summons), Art. 146 (compulsory appearance), Art. 147 (manner of taking statements and interrogation).

The Code enumerates the rules to be observed in the taking of statements and interrogation. When you are apprehended, the following must be communicated to you:

• The nature of the offence with which you are charged.
• Your right to choose defence counsel, and that counsel may be present during the statement and interrogation. If you are not in a position to retain counsel and you so request, counsel is appointed for you by the bar association.
• That your apprehension will be notified immediately to a relative of your choosing.
• That it is your statutory right to make no statement about the alleged offence — the right to remain silent.
• That you may request the collection of concrete evidence to dispel the suspicion, and that you may put forward matters in your favour.

You are further obliged to answer questions concerning your identity truthfully; this obligation does not, however, amount to a duty to speak about the alleged offence. The Constitution expressly provides that no one may be compelled to make a statement incriminating themselves or their relatives specified by law.

The statement and interrogation are recorded in an official report. Read the report before signing it; if it contains an entry inconsistent with your statement, request its correction, and if it is not corrected, have your reason for declining to sign entered in the report.

Legal basis: Constitution, Art. 38/5; Code of Criminal Procedure (Law No. 5271), Arts. 90–95, 147; Regulation of 2 December 2016 on Apprehension, Custody and the Taking of Statements.