23 May Can The Lawyer of Complainant Listen To The Preliminary Investigation
Can his deputy listen in on the preparatory investigation?
In practice, during the preparatory investigation, the victim is resting, next to him
his deputy is also available. However, in accordance with Article 236 of the CMK; “(1) if the victim is heard as a witness, the provisions on testimony shall apply, except for the oath…(2)
A child or victim whose psychology is impaired by the impact of the crime committed can be heard once as a witness in the investigation or prosecution of this crime.” In accordance with this regulation, the victim’s statement may be considered as a witness statement, and in addition, 2. if the conditions in the paragraph are present, it can be rested 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 surrogate. So, who is present during this listening? The individual prosecution and its deputy are the Public Prosecution Authority who carry out the investigation on behalf of the public. However, as a witness statement in the future
the defendant, who is an individual defense authority, and the Defense authority, who is a social Defense authority, are not present when a statement is taken that can be evaluated. In this case, it is removed from the principles of the commonality and face-to-face of the madmen. An extremely important evidence that can be considered as a witness statement is obtained in the presence of the victim’s attorney, who can qualify as a witness. While this evidence has been obtained, the defense authorities have not been given the opportunity to discuss it, the client’s attorney is present. In addition, although the victim or client in the CMK is granted the right to request a surrogate during the investigation (article 234/1-a-3), in the presence of a surrogate
the right to rest is not recognized. However, in the regulation concerning the accused, both the right to request the appointment of a defender and the right to be present for testimony or questioning are regulated separately (article 147/1-c). Although the legislator separately regulates both the right to request the appointment of a defender for the accused and the right of the defender to be present during the testimony, he has not ruled on the right of the deputy to be present from the point of view of the victim and the client. This is not an arrangement made by mistake; it is conscious. Because, as described above, the victim’s statement can be considered as a witness statement, and such evidence is not ready for the defense
however, it is against the law to obtain it in the presence of the representative of the applicant. Moreover, although the accused has the right to silence and the right to lie, such rights are not in question for the polytheist. On the other hand, there is no chance that evidence will be obtained from the polytheist by being pressured. In other words, the interlocutor of the Forbidden interrogation methods is not the polytheist, but the defendant. In that case, it is also a right that will be guaranteed by the presence of his deputy while the client is resting during the investigation phase
there is no. In short, there is no logical basis for the attorney’s presence in the investigation, nor is there a basis for positive law. Despite this, the fact that the victim’s testimony is taken at the stage of the investigation, while the presence of his surrogate is a great mistake that occurs in practice.
In this arrangement, the legislator may be asked what he intended with the appointment of a surrogate.
The provision of Article 234/1-a of the CMK on the rights of the victim and the complainant is as follows::
“In the investigation phase;
1. Request collection of evidence,
2. Republic, provided that the investigation does not violate the confidentiality and purpose
request a document sample from the prosecutor,
3. If he does not have a lawyer, he should be assigned a lawyer by the Bar Association
wanting,
4. Investigation through his attorney in accordance with Article 153
examination of documents and items confiscated and stored,
5. The public prosecutor’s decision that there is no room for prosecution
exercise the right to appeal according to the procedure written in the law”.
Here’s the deputy’s job, 3. exercise of all rights except bend
it’s about helping. Specifically, 4. the right of review specified in the Bend was granted only to his deputy, not to the polytheist. The reason for appointing a surrogate for the client may even be to ensure that only this right is exercised. He said: “if he is not present during the hearing, what is the reason for the appointment of a deputy in the investigation?”the answer to the question is to ensure the exercise of the rights in the CMK 234/1-a provision.
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