Criminal LawThe Role of the Lawyer in Criminal Cases: Guarantee of the Right of Defence and Representative of Justice

Criminal proceedings are a sensitive process in which the state exercises its power to punish and in which the most fundamental rights of individuals such as freedom and honour are directly affected. In this process, there is a natural power imbalance between the prosecution and the suspect/accused. In order to redress this imbalance, protect the rights of the individual and ensure that justice reaches the material truth, the lawyer, i.e. defence counsel or attorney, plays a vital role. As stated by the Constitutional Court, being a lawyer is a profession that “assists the judicial organs in the full application of the rules of law for solutions in accordance with justice and equity by giving their knowledge and experience primarily to the service of justice” and “a fair trial can only be ensured with their active participation” (CONSTITUTIONAL COURT SECOND PART, Application Number: 2015/14340).

In this article, we will examine in detail the role of the lawyer in criminal cases, the legal framework, his/her duties during the investigation and prosecution stages, and his/her indispensable place in ensuring the right to a fair trial.

Legal Framework: The Role of the Lawyer in Criminal Proceedings

The role of the lawyer in criminal proceedings is guaranteed by national and international legal instruments.

• Constitution: “Freedom of Right to Seek Rights” and “Right to a Fair Trial” regulated in Article 36 of the Constitution constitute the basis of the right to defence. Everyone has the right to make a claim and defence as a plaintiff or defendant before the judicial authorities by using legitimate means and procedures.
• European Convention on Human Rights (ECHR): Article 6 of the ECHR, the “Right to a Fair Trial”, expressly provides that everyone accused of an offence has the right “to the assistance of a defence counsel of his own choice” and “if he lacks the financial means to hire a defence counsel and the interests of justice so require, to have the assistance of a defence counsel appointed ex officio by the court, free of charge”. The judgments of the European Court of Human Rights (ECtHR) repeatedly emphasise that the right to be effectively defended by a lawyer is one of the fundamental characteristics of a fair trial (Criminal General Assembly 2022/179 E., 2022/322 K.).
• Law on Advocacy: The Law on Advocacy defines advocacy as a public service and an independent profession. The purpose of the lawyer is to ensure the organisation of legal relations and the resolution of all kinds of legal issues and disputes in accordance with justice and equity.
• Criminal Procedure Code (CPC): The Criminal Procedure Code regulates in detail the right of the suspect and the accused to be assisted by a lawyer (defence counsel) and the right of the victim/participant to be represented by a lawyer (attorney).

The Role of the Lawyer in the Investigation Phase: The First Step to Prevent Loss of Rights

The investigation is a critical phase, from the suspicion of a crime until the indictment is accepted, during which the evidence is collected to a great extent. The presence of a lawyer at this stage is essential to protect the rights of the suspect and to ensure that the process proceeds in accordance with the law.

1. Legal Advice and Strategy Development: The lawyer analyses the client’s situation, makes a legal characterisation of the case and determines an effective defence strategy from the outset. The lawyer informs the client about his/her rights (right to remain silent, request for evidence collection, etc.).
2. Being Present at Statement and Interrogation: The lawyer has the right to be present when the suspect is interrogated by the law enforcement (police/gendarmerie) or prosecutor’s office. This right cannot be restricted. The lawyer provides legal assistance to his/her client during the interrogation, checks the legality of the questions asked, may advise his/her client not to answer some questions if necessary, and ensures that the statement record is kept accurately.
3. File Examination and Evidence Collection: The lawyer may examine the contents of the investigation file and obtain a copy of the documents he/she requests, free of charge (Article 153 of the Code of Criminal Procedure). This authority is critical for the preparation of the defence. In addition, the lawyer may request the prosecutor’s office to collect evidence in favour of his/her client, and may request witnesses to be heard.
4. Objection to Protection Measures: When he/she thinks that protection measures such as detention, arrest, search and seizure are unlawful, he/she objects to the criminal judge of peace against these decisions. In particular, he/she prepares reasoned objection petitions against freedom-restrictive measures such as arrest and tries to ensure that his/her client is released or tried with judicial control.
5. Right to Meet with the Client: The detained suspect has the right to meet with his/her lawyer at any time and in an environment where no one can hear him/her, without the need for a power of attorney. These meetings cannot be subject to supervision.

The Role of the Lawyer in the Prosecution (Litigation) Phase: Active Defence Before the Court

The prosecution is the public phase of the proceedings, which starts with the acceptance of the indictment and lasts until the finalisation of the judgement. At this stage, the lawyer acts as a concrete representative of the principle of “equality of arms”.

1. Representation and Defence in Hearings: The lawyer actively represents his/her client (defendant or participant) in the hearings. He/she defends against the allegations of the prosecution, discusses the evidence and presents legal arguments.
2. Right to Ask Direct Questions: With an important authorisation granted by the Criminal Procedure Code, the lawyer may ask direct questions to the accused, the participant, witnesses, experts and other persons summoned to the hearing (Article 201 of the Criminal Procedure Code). This right is very effective for revealing the material truth and eliminating contradictions.
3. Presentation and Evaluation of Evidence: The lawyer may present new evidence in favour of his/her client to the court, claim that the existing evidence is unlawful and request its exclusion. The lawyer may object to expert reports and request a new report.
4. Defence against the Opinion on the Merits: After the prosecutor presents his/her opinion on the merits, the lawyer makes his/her final defence (defence on the merits) against this opinion. This defence is one of the most important moments that will affect the court’s decision.
5. Victim/Participant Representation: The lawyer may represent not only the defendant but also the victim of the crime. In this case, in the capacity of “participant’s attorney”, he/she works for the proof of the crime, the punishment of the defendant and the compensation of the damages suffered by his/her client. In the event of a conviction, he/she requests an award of attorney’s fee in favour of his/her client against the defendant (General Assembly of Criminal Court 2005/1-66 E., 2005/65 K.).

The Role of the Lawyer at the Legal Remedies Stage: Legal Supervision

Parties who consider that the decision of the court of first instance is unlawful may apply for legal remedies. The role of the lawyer at this stage is to provide technical and legal supervision.

1. Appeal Application: When the lawyer considers that the judgement of the local court is erroneous both in terms of facts and legal practice, the lawyer applies to the Regional Court of Appeal (Appeal). The lawyer prepares a reasoned petition of appeal and requests that the judgement be annulled or corrected.
2. Appeal Application: In cases where the decision of the Court of Appeal is also unlawful, an application is made to the Court of Cassation (Appeal). The appeal stage is a stage where the correct application of the legal rules is examined rather than the material aspects of the case. The lawyer prepares an appeal petition supported by precedent Court of Cassation decisions and doctrinal opinions, and requests the decision to be reversed.

The Right to a Fair Trial and the Role of the Lawyer

The presence of a lawyer concretises the right to a fair trial.

• Equality of Arms: The defence of the accused through a lawyer with legal knowledge and experience, in the face of the powers and means of the prosecution (prosecution), ensures the balance between the parties.
• Guarantee of the Right to Defence: The lawyer ensures that his/her client effectively exercises all his/her legal rights, from the right to remain silent to the right to present evidence.
• Prevention of Unlawful Evidence: The lawyer ensures that evidence obtained through unlawful methods during investigation and prosecution (e.g. unlawful searches, unlawful interrogation methods) is excluded from the file and not used as a basis for judgement, thus ensuring that the proceedings remain fair.

The role of the lawyer in criminal cases goes far beyond simple representation. By representing the independent defence, one of the constituent elements of the judiciary, the lawyer plays a central role in ensuring justice, protecting the rule of law and securing individual rights. From the very beginning of the investigation to the finalisation of the judgement, the lawyer’s legal knowledge, experience and strategy directly affect the course of the case. As the European Court of Human Rights has emphasised, the right to be “effectively” defended by a lawyer is the cornerstone of a fair trial. Therefore, obtaining professional legal assistance in criminal law proceedings is not a luxury, but an indispensable requirement to prevent loss of rights and achieve a fair outcome.