Can The Victim’s Counsel Be Present At The Wiretap In The Preparatory Investigation?
Can the Victim’s Counsel be Present at the Hearing in the Preparatory Investigation?
In practice, during the preliminary investigation, while the victim is being heard, his/her attorney is also present. However, pursuant to Article 236 of the Code of Criminal Procedure; “(1) In the event that the victim is heard as a witness, the provisions regarding testimony shall apply, except for the oath…(2)
A child or victim whose psychology has been disturbed by the crime committed may be heard once as a witness in the investigation or prosecution of this crime”. Pursuant to this provision, the victim’s statement can be considered as a witness statement and moreover, if the conditions in paragraph 2 are present, it can be heard once in this capacity. In this case, in practice, a statement that may be considered as a witness statement in the future is taken in the presence of the attorney. But who is present during this hearing? The individual prosecutor and his/her attorney, the public prosecutor who carries out the investigation on behalf of the public. On the other hand, the defendant, who is the individual defense authority, and the defense counsel, who is the public defense authority, are not present during the taking of a statement that may be considered as a witness statement in the future. In this case, the principles of commonality of evidence and confrontation are departed from. An extremely important piece of evidence, which can be considered as a witness statement, is obtained in the presence of the attorney of the victim, who can be considered as a witness. While this evidence is obtained, the counsel of the complainant is present, although the defense is not given the opportunity to discuss it. Moreover, although the CPC grants the victim or complainant the right to request an attorney during the investigation (Article 234/1-a-3), the right to be heard in the presence of an attorney is not recognized. However, in the regulation on the accused, both the right to request the appointment of a defense counsel and the right of the defense counsel to be present during interrogation or interrogation are regulated separately (Article 147/1-c). While the legislator has separately regulated both the right to request the appointment of a defense counsel and the right of the defense counsel to be present during the interrogation or interrogation for the accused, it has not regulated the right of the attorney to be present for the victim and the complainant. This is not an accidental arrangement; it is intentional. Because, as explained above, the victim’s statement can be considered as a witness statement, and it is unlawful to obtain such evidence in the presence of the representative of the declarant, even if the defense is not present. Moreover, while the accused has the right to remain silent and the right to lie, the complainant does not have such rights. On the other hand, there is no possibility of obtaining evidence from the complainant under duress. In other words, the addressee of prohibited interrogation methods is the accused, not the complainant. Therefore, there is no right to be guaranteed by the presence of his/her attorney while the complainant is being heard during the investigation. In short, there is neither a logical basis for the presence of the attorney during the investigation nor a basis in positive law. Nevertheless, the presence of the victim’s attorney while the victim’s statement is taken during the investigation phase is a major mistake that has emerged in practice. One may ask what the legislator intended by appointing an attorney in this regulation. Article 234/1-a of the Code of Criminal Procedure on the rights of the victim and the complainant reads as follows
“During the investigation phase;
1. To request the collection of evidence,
2. Provided that it does not violate the confidentiality and purpose of the investigation, the Republic request a copy of the document from the prosecutor,
3. If he/she does not have a lawyer, to have a lawyer assigned to him/her by the bar association
Don’t ask,
4. Investigation through his/her attorney, provided that it is in accordance with Article 153 examine the documents and the confiscated and stored goods,
5. The public prosecutor’s decision of non-prosecution to exercise the right of appeal according to the procedure prescribed by law”.
It is the duty of the attorney to exercise all rights other than subparagraph 3. to assist the complainant. In particular, the right of review set out in subparagraph 4 does not extend to the complainant, but only to to his/her attorney. The reason for appointing an attorney for the complainant is only to ensure that the exercise of this right
may even be to provide. In short, “if he/she will not be present during the interception, he/she may act as a proxy in the investigation.
“What is the reason for the appointment?” The answer to the question is that the rights under Article 234/1-a of the Code of Criminal Procedure is to ensure that it is used.
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