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Criminal law is basically a section of public law that examines the concepts of crime and punishment, which operates to ensure social order and peace, to protect the rights and freedoms of individuals and to ensure justice. Criminal law can be divided into general criminal law and special criminal law.
In general terms, criminal law is the field that regulates the basic principles and theories that dominate the field of criminal law, such as the material and moral elements that must exist for an act to constitute a crime, the reasons that eliminate or reduce the crime, and the principles on which the criminal case will be based. Private criminal law, on the other hand, is the field of criminal law that examines the legal elements of crime and punishment, such as which acts or actions are defined as crimes in the relevant country, which crime will be sanctioned and how.
The most basic legislation in the field of criminal law in our country is the Turkish Penal Code No. 5237. In addition to this, criminal law is regulated in the legal framework with many legislations such as the Code of Criminal Procedure, the Law on Misdemeanors, and the Law on the Execution of Criminal and Security Measures.
Under Turkish criminal law, natural persons do not have the possibility to file a criminal case individually. Criminal cases are opened by the prosecutor’s office by issuing an indictment. Therefore, the first stage of opening a criminal case is the investigation stage. The prosecutor’s office starts a criminal investigation after the suspicion of a crime arises or upon a complaint, even if there is no individual complaint. The investigation is the procedure to investigate the reality of the suspicion of a crime.
In this context, the prosecutor’s office investigates the reality of the action subject to suspicion in line with the suspicion of a crime by using law enforcement officers. If sufficient suspicion is reached that a crime has occurred in line with the evidence and information obtained as a result of the investigation, the prosecutor’s office issues an indictment. With the acceptance of the indictment, the investigation phase ends and the prosecution (trial) phase begins.
If there is insufficient suspicion that a crime has occurred as a result of the investigation, the prosecutor’s office decides that there is no grounds for prosecution (KYOK). The result, popularly referred to as non-prosecution, is KYOK. In some cases, it may be decided to postpone the opening of the public case instead of KYOK. However, there are a number of conditions that must coexist for this.
For example, postponement of the opening of the public case cannot be decided for organized crimes, crimes against sexual inviolability, crimes committed against public officials due to their duties. On the other hand, in order to decide to postpone the opening of the public case; – The crime is not subject to reconciliation or prepayment, – The sanction of the crime is not a prison sentence of more than 3 years, – The suspect has not been convicted of a crime committed intentionally before, – The damage suffered by the victim or the public has been compensated – The prosecutor’s opinion that the suspect will not commit a crime again in line with his behavior.
As a result, every criminal case filed upon a complaint or as a result of a spontaneous investigation by the prosecutor’s office is legally a public case.
Lawyers constitute the defense pillar of the judicial power, which is one of the three fundamental powers that constitute sovereignty. Therefore, the work of lawyers can basically be defined as defense. Even though there is no such distinction in the legislation, there are expressions such as criminal lawyer or felony lawyer, as used by the public or by colleagues from time to time. This is actually an erroneous expression that is frequently used.
Legally, there is no difference between a criminal lawyer and a civil lawyer. The reason for this perception in the eyes of the society is that the right protected by the criminal lawyer is the right to freedom, which is one of the most fundamental rights. Although we do not adopt this term, the terms criminal lawyer and criminal lawyer will be used in this article for ease of expression and reading. As mentioned before, in the presence of suspicion of a crime or upon complaint, the prosecutor’s office initiates the investigation phase. With the start of the investigation, the person suspected of committing the crime becomes the suspect, and the person who is thought to be harmed by the crime becomes the complainant.
The right of defense of these persons (especially) the suspect arises. The right to defense is one of the most important elements of the right to a fair trial protected by the Constitution. The duty of the criminal lawyer starts exactly at this stage. Because defense and complaint petitions are of great importance in the field of criminal law. In order to avoid loss of rights, it is of great importance that these petitions are prepared by the best criminal lawyer.
The defense petition is the petitions prepared for the reasons such as proving that the person who is alleged to have committed a crime during both the investigation and prosecution (lawsuit) phase did not commit the alleged crime, mitigating the imputed crime, etc. First of all, it should be noted that a good defense petition can be prepared by the best criminal lawyer. In order to prepare a defense petition, which is a highly technical work, first of all, the investigation or prosecution file should be examined in all details, important details should be discussed with the client to be defended and the scope of the file should be mastered.
Then, the legislation in force, the doctrine on the subject, and the previous decisions of the Supreme Court of Appeals, etc. should be subjected to a comprehensive examination. This is because, in addition to the legislation in force, the jurisprudence of the Supreme Court and the doctrine also guide the criminal law practice. As in every petition, there are certain technical issues that must be included and paid attention to in the defense petition.
For example, the petition must be addressed to the authorized unit, contain the mandatory elements arising from the law, have a clear and understandable language, summarize the incident, and include legal arguments and evidence. As can be appreciated, working with a competent criminal lawyer who specializes in all these issues is of undeniable importance in terms of preventing possible loss of rights.
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Each member of the society can initiate the legal procedure by submitting a complaint petition to the judicial authorities against situations that they are exposed to and that they think constitute a crime. The complaint petition can be submitted to the prosecutor’s office or to law enforcement agencies such as police and gendarmerie. However, it should be noted that the complaint petition should be submitted to the competent and authorized authority. In this respect, the competent prosecutor’s office is the prosecutor’s office where the alleged crime is committed. For example, the complaint petition to be submitted to the prosecutor’s office for a crime allegedly committed in Kağıthane should be submitted to the Istanbul Chief Public Prosecutor’s Office.
Although it is not mandatory, it is important to establish a connection between the concrete event subject to the complaint and the provisions of the law, and to explain why the alleged event constitutes a crime in the context of this connection in order to ensure that the process is healthier and relatively fast. Although it is possible that only a complaint petition mentioned in the incident can initiate the investigation, it should be kept in mind that a complaint petition that is not prepared by the best criminal lawyer may lead to loss of rights.
Because even if the event subject to the complaint really constitutes a crime, incorrect preparation of the complaint petition may lead to a decision of non-prosecution and loss of rights. Therefore, it is recommended that the complaint petition is prepared by the best criminal lawyer who has a command of the above-mentioned and similar practices, who can understand the concrete event and reflect it in the complaint petition with all its important elements and establish the connection between the legal norms and the event. This issue is of great importance in order for the legal process to proceed in the fastest way possible. In terms of the complaint petition, there are elements that should be similar to the defense petition. In the complaint petition, the alleged crime, the incident subject to the allegation, all available evidence must be specified.
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Lawyers constitute the defense pillar of the judicial power, which is one of the three fundamental powers that constitute sovereignty. Therefore, the work of lawyers can basically be defined as defense. Even though there is no such distinction in the legislation, there are expressions such as criminal lawyer or felony lawyer, as used by the public or by colleagues from time to time. This is actually an erroneous expression that is frequently used. Legally, there is no difference between a criminal lawyer and a civil lawyer. The reason for this perception in the eyes of the society is that the right that the criminal lawyer protects is the right to freedom, which is one of the most fundamental rights. Although we do not adopt this term, the terms criminal lawyer and criminal lawyer will be used in this article for ease of expression and reading. As mentioned before, in the presence of suspicion of a crime or upon complaint, the prosecutor’s office initiates the investigation phase. With the start of the investigation, the person suspected of committing the crime becomes the suspect, and the person who is thought to be harmed by the crime becomes the complainant.
The right of defense of these persons (especially) the suspect arises. The right to defense is one of the most important elements of the right to a fair trial protected by the Constitution. The duty of the criminal lawyer starts exactly at this stage. Because defense and complaint petitions are of great importance in the field of criminal law. In order to avoid loss of rights, it is of great importance that these petitions are prepared by the best criminal lawyer.
As is the case for all lawyers, criminal lawyers represent their clients in cases and proceedings before the criminal court of first instance, criminal court of first instance, criminal court of peace, juvenile court, juvenile criminal court, criminal court of execution, criminal court of intellectual and industrial rights and execution judge. Legally, apart from being a lawyer, there is no special competence or documents to be possessed, etc. in this regard.
The Turkish Penal Code stipulates that most of the crimes will be tried in the criminal courts of first instance. The general criterion for the cases to be tried in heavy criminal courts is the penalty stipulated in the law for the crime to be tried.
In other words, if the penalty for a crime is life imprisonment, aggravated life imprisonment, or in any case, if the penalty for the crime requires a prison sentence of more than 10 years, the trial falls within the jurisdiction of the heavy criminal court, except for the crimes that are specifically regulated to be tried in the heavy criminal court. This information alone demonstrates how important it is to work with the best criminal lawyer in terms of cases in the heavy criminal court.
It is possible to say that the Assize Court deals with a wide range of cases. Some crimes that fall within the jurisdiction of the Assize Court will be discussed below, but not all of them:
- The crime of intentional homicide (Article 81 - 82 of the TPC)
- The offense of causing death by negligence (Article 85 TPC)
- The crime of injury aggravated by the consequences (Article 87/4 of the TPC))
- The crime of plunder (extortion) (Article 148 - 149 of the Turkish Penal Code)
- Fraudulent bankruptcy offense (Article 161 of TPC) - Qualified fraud offense (Article 158 of TPC)
- Forgery of official documents (Article 240 of the Turkish Penal Code)
- Embezzlement offense (Article 247 of the Turkish Penal Code)
- The crime of extortion (Article 250 TPC)
- Bribery offense (Article 252 TPC)
- Crimes against the security of the state (Article 302 - 308 of the TPC)
- Crimes against the constitutional order (TCK articles 309 - 316)
- Crimes against national defense (Article 317 - 325 of the Turkish Penal Code)
- Crimes against state secrets and espionage (Article 326 - 339 TPC)
- Crimes falling within the scope of the Anti-Terrorism Law No. 3713 (membership of an organization, making propaganda, etc.)
- Forgery of money (Article 197 of the Turkish Penal Code)
- The offense of manufacturing or trafficking in stimulants and narcotics (Article 188 of the Turkish Penal Code)
- The crime of human trafficking (Article 80 of the Turkish Penal Code)
- Sexual assault offense (Article 102 of the Turkish Penal Code)
Above, some types of crimes that fall within the jurisdiction of the oral criminal court have been listed. Apart from these, heavy criminal courts also have some duties regarding the investigation phase carried out by the prosecutor’s office. The reason for this is to decide on the imposition of measures restricting the freedom of the person. Due to its importance, the heavy criminal courts are assigned with this duty. Below you can find the duties of the heavy criminal court regarding the investigation phase:
– It is possible to intercept and record communications via telecommunications and to evaluate signal information. This requires the decision of a heavy criminal court.
– It is possible to intercept and record communications via telecommunications and to evaluate signal information. This requires the decision of a heavy criminal court. (Article 135 of the Turkish Penal Code)
– It is possible to appoint a secret investigator for the investigation. However, this requires the decision of a heavy criminal court. (Article 139 of the Turkish Penal Code
The activities of the suspect or defendant in public places and his/her workplace may be monitored by technical means and audio or video recordings may be taken. This is subject to the decision of a heavy criminal court (Article 140 of the Turkish Penal Code).
In some cases, it is also possible to seize immovable property, rights and receivables. However, this requires the decision of a heavy criminal court. (Article 128 of the Turkish Penal Code)
If there is a conflict of jurisdiction between prosecutors, the heavy criminal court determines the competent prosecutor. Jurisdiction geographically determines which prosecutor’s office will/should conduct the investigation. In the event that both prosecutor’s offices issue a decision of lack of jurisdiction for an investigation, the heavy criminal court decides which prosecutor’s office is competent. (Article 161/7 of the Turkish Penal Code)
As can be understood from the above explanations and the types of crimes, heavy criminal courts carry out judicial activities regarding crimes that are more serious in terms of their consequences, cause more damage and require more punishment. Therefore, the decision rendered by the court should be much more just.
For this reason, heavy criminal courts are not composed of a single judge, but of a panel of three judges, one of whom is the president and two of whom are members. The decisions taken by the heavy criminal court are taken by unanimity or majority vote of this panel. In the light of all these explanations, it is clear that the decisions taken by the heavy criminal court have very important consequences for the parties to the proceedings. Therefore, it is recommended that people who have a case that is/will be seen in the heavy criminal court should definitely work with an expert and competent heavy criminal lawyer.
The criminal court of first instance is the court in charge of hearing criminal cases related to offenses that do not fall within the jurisdiction of the heavy criminal court, the juvenile and children’s heavy criminal court and the other courts listed above. Therefore, the criminal court of first instance conducts the proceedings regarding many acts that are regulated as crimes in the law.
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The question of how long criminal trials last is an intriguing one for many members of society. However, it should first be noted that it is neither possible nor correct to give a clear answer to this question. As in many cases, there are many factors that may affect the duration of the proceedings in criminal cases, such as the scope of the file, the alleged events, the evidence that needs to be collected, and the number of parties. For example, failing to collect evidence that should have been collected or failing to hear a witness that should have been heard may prolong the proceedings. It should also be kept in mind that many decisions are open to appeal and cassation.
Appeal means that the decision of the court of first instance (local court) is reviewed by a higher court. Appeal is a higher court that comes after the appeal stage. The Court of Cassation conducts the appellate review. The higher courts can either confirm the decision or overturn it and send it back to the lower court for retrial. Therefore, this situation leads to prolongation of the proceedings. In the ordinary case, a criminal case that is not very extensive may take a few years on average, but for many of the reasons mentioned above, it may take many years to finalize the proceedings.
As mentioned above, serious criminal cases, as compared to the ordinary criminal cases, are conducted in relation to more serious crimes for which higher penalties are envisaged. Therefore, due to the nature of the crimes and the ordinary course of life, serious criminal cases take longer than other criminal cases. The reason for this situation is that the punishment to be imposed will cause very serious changes in the current situation of individuals. Therefore, the trial must be conducted with great care and diligence. This situation also results in the prolongation of the trial process.
On the other hand, the stages of appeal and cassation, which we have explained under the previous heading, also apply to the decisions of the Assize Court. In cases such as the appeal of the decisions of the Assize Court and the appeal of the decisions of the Court of Appeal to the Court of Cassation, the duration of the proceedings is considerably prolonged.
If the decision rendered by the court of first instance at the end of the criminal proceedings does not satisfy the parties to the case, the parties may apply to the legal remedy of appeal for the review of this decision by the Regional Court of Appeal. The legal remedy of appeal is the first legal remedy to be applied against the decision of the court of first instance. There are certain conditions for this application and these are regulated in the Criminal Procedure Code. As a rule, the Court of Appeal’s review of the decision of the court of first instance is subject to the filing of an application for appeal. However, if the court of first instance sentences a prison sentence of 15 years or more, the court of appeal will review the judgment even in the absence of an application. An appeal can be lodged by petition or orally. The oral appeal is addressed to the clerk and recorded in the minutes.
An appeal can be filed by the judge approving the record kept by the clerk. If the decision is read out to the parties’ faces during the hearing, i.e. while the parties are in court, an application for appeal must be filed within 7 days. However, if the decision was made in the absence of the parties, an appeal can be filed within 7 days from the date the decision was notified to the parties.
Except for the applications of the prosecutor’s office, the grounds for the application do not have to be shown in the application for appeal. However, since showing and explaining these grounds may have favorable consequences, it would be the best option to prepare the petition of appeal application by the best criminal lawyer.
Article 272 of the Code of Criminal Procedure regulates the decisions that cannot be appealed. According to this
– Convictions for judicial fines up to three thousand Turkish Liras, excluding judicial fines converted from imprisonment, – Acquittals for crimes that require a judicial fine with an upper limit not exceeding five hundred days,
– No legal remedy of appeal can be applied against the decisions that are stated to be final in the laws. It is possible to apply to the legal remedy of appeal against decisions other than these. Upon the application for appeal, if there is no procedural error or deficiency in the application, the relevant criminal department of the Regional Court of Justice examines the file on the merits. In this context, the Court of Appeal
– To dismiss the application on the merits by conducting the examination on the file,
– If it is possible to correct the decision of the court of first instance, to dismiss it on the merits,
– If there is a serious violation of law in the decision of the court of first instance, the decision of the court of first instance shall be reversed and the file shall be sent to the court of first instance for re-examination,
– The court of first instance may decide to re-hear the case before the court of appeal.
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The Turkish Criminal Code stipulates that most of the crimes will be tried in the criminal courts of first instance. The general criterion for the cases to be tried in heavy criminal courts is the penalty stipulated in the law for the crime to be tried. In other words, except for the crimes that are specifically regulated to be tried in the heavy criminal court, if the penalty for a crime is life imprisonment, aggravated life imprisonment or in any case, if the penalty for the crime requires imprisonment for more than 10 years, the trial falls within the jurisdiction of the heavy criminal court. This information alone demonstrates how important it is to work with the best criminal lawyer in terms of cases in the heavy criminal court.
It is possible to say that the Assize Court deals with a wide range of cases. Some crimes that fall within the jurisdiction of the Assize Court will be discussed below, but not all of them:
Savcılık makamının başvuruları hariç istinaf başvurusunda başvuru gerekçesi gösterilmek zorunda değildir. Ancak bu gerekçelerin gösterilmesi ve açıklanması lehe sonuçlar doğurabileceğinden en iyi ceza avukatı tarafından istinaf başvuru dilekçesinin hazırlanması en doğru seçenek olacaktır. Ceza Muhakemesi Kanunu’nun 272 Maddesinde istinafa başvurulamayacak kararlar düzenlenmiştir. Buna göre; - Hapis cezasından çevrilen adlî para cezaları hariç olmak üzere, sonuç olarak belirlenen üç bin Türk Lirası dâhil adlî para cezasına mahkûmiyet hükümlerine, - Üst sınırı beşyüz günü geçmeyen adlî para cezasını gerektiren suçlardan beraat hükümlerine, - Kanunlarda kesin olduğu yazılı bulunan hükümlere, Karşı istinaf kanun yoluna başvurulamamaktadır. Bunlar haricindeki kararlara karşı ise istinaf kanun yoluna başvurulabilmesi mümkündür. İstinaf başvurusu üzerine, başvuruda usulü bir hata veya eksiklik yok ise Bölge Adliye Mahkemesi ilgili ceza dairesi dosyayı esastan inceler. Bu kapsamda istinaf mercii; - İncelemeyi dosya üzerinden yaparak başvurunun esastan reddine, - İlk derece mahkemesi kararının düzeltilmesi mümkünse düzelterek esastan reddine, - İlk derece mahkemesi kararında ciddi bir hukuka aykırılık hali görürse ilk derece mahkemesince verilen kararın bozulmasına ve dosyanın yeniden incelenmek üzere karar veren ilk derece mahkemesine gönderilmesine, - İlk derece mahkemesince karar verilen davanın istinaf mahkemesinde yeniden görülmesine karar verebilmektedir.
Yukarıda temyiz edilemeyecek kararlar gösterilmiştir. Ancak yukarıdaki kapsamda olmasına rağmen bazı kararlar suç tipine göre temyiz edilebilmektedir. Bunlar:
- Hakaret suçu (madde 125, üçüncü fıkra),
- Halk arasında korku ve panik yaratmak amacıyla tehdit suçu (madde 213),
- Suç işlemeye tahrik suçu (madde 214),
- Suçu ve suçluyu övme suçu (madde 215),
- Halkı kin ve düşmanlığa tahrik veya aşağılama suçu (madde 216),
- Kanunlara uymamaya tahrik suçu (madde 217),
- Halkı yanıltıcı bilgiyi alenen yayma suçu (madde 217/A),
- Cumhurbaşkanına hakaret suçu (madde 299),
- Devletin egemenlik alametlerini aşağılama suçu (madde 300),
- Türk Milletini, Türkiye Cumhuriyeti Devletini, Devletin kurum ve organlarını aşağılama suçu (madde 301),
- Silahlı örgüt suçu (madde 314),
- Halkı askerlikten soğutma suçu (madde 318),
- Terör örgütlerinin; cebir, şiddet veya tehdit içeren yöntemlerini meşru gösterme ve övme(propaganda) suçu,
- Toplantı ve Gösteri Yürüyüşleri Kanunu’nda düzenlenen bazı suçlar.
Yukarıda yer verilen bu suçlara ilişkin istinaf kararları, bir üstte sıralanan temyiz başvurusu yapılamayacak kararlardan olsa dahi, herhangi bir sınırlama olmaksızın temyiz edilebilmeleri mümkündür.
As a rule, it is not necessary to hire a lawyer for a criminal case. It is possible for individuals to pursue their cases without a lawyer. However, in some cases in the field of criminal law, a lawyer is mandatory. In criminal proceedings, the defendant’s attorney is called a defender. The word “defense counsel” comes from the word “defense”. Pursuant to Article 150 of the Criminal Procedure Law No. 5271, as a general rule, in crimes with a lower limit of five years or more imprisonment, the defendant must be represented by a defense counsel. In addition, in cases where the suspect or accused is a child, disabled to the extent that he/she cannot defend himself/herself, or deaf and dumb, a defense counsel is appointed from the bar association even if the person does not request one. In these cases, the person can choose his/her own defense counsel. However, in cases where he/she does not choose or is not in a position to choose, and where defense counsel is mandatory, a defense counsel is appointed by the bar association.
In addition to the legal regulations, we find it useful to include our evaluation. As it has been repeatedly explained, since criminal and serious criminal cases can cause situations that restrict the freedom of the person as a result, we believe that the parties to the criminal case should definitely be followed up with the best criminal lawyer.
As explained in the above heading, a criminal lawyer is mandatory in some cases, while in other cases it is subject to the person’s request. In cases where the presence of a criminal lawyer is mandatory, if the person does not have a lawyer, a defense counsel is appointed by the bar association. However, if there are no compulsory cases, the person can work with the criminal lawyer of his/her choice, or it is possible to follow the case without a lawyer. In this case, if the person declares that he/she is unable to choose a criminal lawyer but requests a defense counsel, a defense counsel is appointed by the bar association. As explained, the defendant or suspect is free to work with the criminal lawyer of his/her choice and follow his/her case. At this stage, it is important to work with the best criminal lawyer.
Because criminal cases can lead to the restriction of a person’s freedom due to their severe consequences. For this reason, in order to avoid any loss of rights, it is recommended to work with the best criminal lawyer specialized in the field. You can contact us at our phone number or e-mail address to work with our team of the best criminal lawyers specialized in criminal law practice.
In Turkey, it is legally prohibited to practice law for free. Therefore, the Association of Bar Associations and the Ministry of Justice publish in the official gazette a mandatory minimum fee tariff for lawyers. Provided that it is not less than this figure, lawyers set their fees based on the fees of the local bar associations. It should be kept in mind that a separate evaluation will be made for each concrete case, and the attorney’s fee may vary depending on factors such as the scope of the file, the allegations of crime, the state of evidence, and the current status of the file.
According to the minimum fee schedule announced by the Istanbul Bar Association for the year 2024 for a criminal lawyer in Istanbul, in criminal and juvenile court cases;
- The fee for the defense of the defendant / juvenile (child dragged into crime) is 90.000-TL - The fee for the defense of the victim / participant is 60.000-TL. You can access the minimum wage schedule for 2024 published by the Istanbul Bar Association here: https://www.istanbulbarosu.org.tr/HaberDetay.aspx?ID=18533&Desc=2024- year-minimum-fee-schedule-published
According to the minimum fee schedule announced by the Istanbul Bar Association for the year 2024, the minimum fee for a criminal lawyer in Istanbul is 135.000-TL for the defense of the accused and 87.000-TL for the representation of the victim/participant;
- The fee for defending the accused is 135.000-TL - The fee for representing the victim/participant is 87.000-TL. - You can access the minimum wage schedule for 2024 published by the Istanbul Bar Association here: https://www.istanbulbarosu.org.tr/HaberDetay.aspx?ID=18533&Desc=2024- year-minimum-fee-schedule-published
