01 Dec CAN THE ATTORNEY OF THE PLAINTIFF CAN BE IN THE PREPARATORY INVESTIGATION?
In practice, during the preparatory investigation, while the victim is resting, his deputy is also present with him. However, according to Article 236 of the CMK; “(1) If the victim is listened to as a witness, except for the oath, the provisions related to the testimony are applied …(2) A child or victim whose psychology has been impaired by the effect of the crime committed may be listened to once as a witness in the investigation or prosecution of this crime”. In accordance with this regulation, the victim’s statement may be considered a witness statement and, moreover, 2. if the conditions in the paragraph are present, he will be able to rest once in this capacity. In this case, in practice, a statement that can be considered as a witness statement in the future is taken in the presence of a proxy. Don’t listen to this very well
who is ready during? The individual prosecutor and his deputy are the public prosecutor who carries out the investigation on behalf of the public. However, in the future as a witness statement
when receiving a statement that can be evaluated, there are no defendants who are the individual defense authority and no defense counsel who are the social defense authority. In this case, the principles of the commonality and face-to-face of the insane are being removed. An extremely important piece of evidence that can be considered as a witness statement is obtained in the presence of the victim’s attorney, who can be qualified as a witness
are made. While this evidence is being obtained, the defense authorities are not given the opportunity to discuss it, but the client’s attorney is present. Moreover, in CMK, the victim or the client,
although the right to request a proxy is granted during the investigation (article 234/1-a-3), the right to rest in the presence of a proxy is not recognized. However, in the regulation on the accused, both the right to request the appointment of a lawyer and the right to be present at the deposition or interrogation of the lawyer are regulated separately (article 147/1-c). The legislator has not provided for the right of the defendant to request the appointment of a defense counsel, as well as the right of the defense counsel to be present at the time of testimony, although he has separately regulated the right of the attorney to be present from the point of view of the victim and the complainant. With this error
it is not an arrangement that has been made; it is conscious. Because, as explained above, the victim statement can be considered a witness statement, and it is illegal to obtain such evidence in front of the representative of the person making the statement, even if the defense is not ready. Moreover, while the accused has the right to silence and the right to lie, such rights are not in question for the complainant. On the other hand, there is no possibility of obtaining evidence from the client under duress. In other words, the addressee of the prohibited interrogation methods is not the complainant, but the defendant. In that case, there is also no right to guarantee that the deputy will be present while the complainant is being listened to during the investigation stage. In short, the presence of a deputy in the investigation has neither a logical basis, nor a positive legal basis.
Despite this, the fact that the victim’s statement was taken at the investigation stage, and his deputy was present at the time, is a big mistake that has arisen in practice. It may be asked what the legislator intends by appointing a deputy in this regulation. The provision of Article 234/1-a of the CMK regarding the rights of the victim and the complainant is as follows:
“During the investigation phase;
1. Request collection of evidence,
2. Provided that the confidentiality and purpose of the investigation are not violated, the Republic
requesting a document sample from the prosecutor,
3. If he does not have a deputy, a lawyer should be assigned to him by the bar association
wanting,
4. provided that it complies with Article 153, the investigation through its proxy
examination of documents and confiscated and stored items,
5. According to the decision of the public prosecutor that there is no room for prosecution
exercise the right of appeal in accordance with the procedure written in the law”.
Here is the deputy’s post, 3. it is to help exercise all the rights that are outside the bend. In particular, 4. the right of examination specified in the subparagraph is granted only to the deputy, not to the client. The reason for appointing a proxy for the complainant may even be to ensure that only this right is exercised. In short, “what is the reason for the appointment of a deputy in the investigation if he will not be present during the wiretap?”the answer to the question is to ensure the exercise of the rights under the provision of CMK 234/1-A.
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