Criminal LawWhat are the stages of investigation and prosecution?

Investigation and Prosecution in Criminal Procedure: Stages, Differences and Your Rights

Criminal proceedings are a complex process that extends from the emergence of a suspicion of a criminal offence to the evaluation of this suspicion by the judicial organs and the conclusion of a judgement. The two main pillars of this process are the “investigation” and “prosecution” stages. Both stages have their own rules, competent authorities and objectives. In this article, we will examine these two main stages of criminal proceedings in detail, reveal the differences between them and explain the rights of individuals in these processes.

Investigation Phase (Preparatory Phase): Investigation is the phase that starts with the suspicion of a crime being learnt by the competent authorities and continues until the indictment is accepted by the court. This phase is regulated by the Code of Criminal Procedure (CPC) and is often referred to as the “preparatory phase”.

• Definition and Purpose: The main purpose of the investigation is to investigate the material truth, to determine whether the offence has been committed, and if so, by whom, and what the evidence is. At this stage, it is aimed to collect evidence that will create sufficient doubt to open a public case.
• Executing Authority: The investigation is conducted by the public prosecutor. Law enforcement officers (police, gendarmerie) carry out the investigation procedures in line with the orders and instructions of the public prosecutor.
• Confidentiality Principle: As a rule, the investigation phase is confidential (Article 157 of the Code of Criminal Procedure). This confidentiality aims to prevent the tampering of evidence, to ensure the healthy conduct of the investigation and to protect the right of suspects not to be defamed. However, the defence counsel (lawyer) of the suspect may examine the investigation file and take samples if authorised by a power of attorney.
• Investigation Procedures:
  • Evidence Collection: The public prosecutor is obliged to collect all evidence both in favour of and against the suspect (Article 160 of the Code of Criminal Procedure). This is a requirement of the right to a fair trial. Evidence collection methods include listening to witnesses, taking the statement of the suspect or victim, discovery, expert examination, crime scene investigation, document collection, technical surveillance and physical surveillance.
  • Statement Taking and Interrogation: The statement of the suspect is taken. The suspect has the right to benefit from the assistance of a defence counsel, to remain silent and to present evidence. The suspect must be reminded of his/her rights during the interrogation.
  • Protection Measures: Some protection measures may be applied in order to ensure the effectiveness of the investigation and to protect the evidence. These include measures such as detention, search, seizure, surveillance of communication and arrest. Since these measures restrict fundamental rights and freedoms, they must be applied in accordance with the conditions and procedures specified in the law. In particular, arrest is the most severe protection measure that can be applied with a judge’s decision and in the presence of certain conditions.
• Conclusion of the Investigation: At the end of the investigation, the public prosecutor makes one of two basic decisions by evaluating the evidence collected:
  • Decision of No Prosecution (KYOK): In cases such as lack of evidence to create sufficient suspicion, lack of elements of the offence, expiry of the complaint period, statute of limitations, amnesty, the prosecutor gives KYOK. The appeal against this decision is open.
  • Preparation of the Indictment: When sufficient suspicion is established, the prosecutor draws up an indictment demanding the punishment of the suspect and submits it to the criminal court in charge. The indictment shall clearly state the identity of the suspect, the alleged offence, the place and time of the offence, the evidence and the articles of law to be applied.

Prosecution Phase (Trial Phase): Prosecution is the phase that starts with the acceptance of the indictment by the court and continues until the finalisation of the judgement. This phase is also known as the “trial phase”.

• Definition and Purpose: The purpose of the prosecution is to discuss the evidence obtained as a result of the investigation before the court, to decide whether the defendant is guilty or not, and to determine the appropriate punishment if found guilty.
• Conducting Authority: The prosecution is conducted by the competent and authorised criminal court (Criminal Court of First Instance, High Criminal Court, etc.).
• Publicity Principle: The prosecution phase is, as a rule, public (open to the public) (Article 182 of the Code of Criminal Procedure). Hearings are open to everyone. However, for reasons such as public morality or public security, it may be decided to hold the hearings in secret.
• Prosecution Procedures:
  • Trial Preparation: After accepting the indictment, the court sets a date for the hearing, notifies the parties (defendant, defence counsel, victim, participant) and completes the necessary preparations.
  • Trial: Hearings shall be conducted under the direction of the presiding judge or a judge.
    • Interrogation of the Accused: The defendant is identified and his/her defence is taken regarding the alleged offence. The defendant’s right to remain silent and the right to benefit from the assistance of a defence counsel continue at this stage.
    • Presentation and Discussion of Evidence: The evidence collected during the investigation phase is read, watched and discussed by the parties at the hearing. New evidence may be presented or requested to be collected.
    • Witness Hearing: Witnesses are heard, their statements are taken and questions are asked by the parties.
    • Prosecutor’s Opinion on the Merits: After all the evidence has been collected and discussed, the public prosecutor presents his/her opinion on the merits (opinion) to the court on whether the defendant is guilty or not and what punishment should be imposed.
    • Final Defence of the Accused and his/her Lawyer: The accused and his/her lawyer have the right to make their final defence against the prosecutor’s closing statement.
  • Judgement The court makes a judgement after considering all the evidence and defences. The types of judgements are as follows:
    • Acquittal The accused is found not guilty.
    • Conviction: The defendant is found guilty and sentenced.
    • Dismissal of the Case: Disappearance of the condition of the case (for example, death of the defendant, amnesty, statute of limitations, waiver of complaint).
    • Decision of No Sentencing: Although the act is a crime, there is a reason that eliminates the culpability of the perpetrator (for example, mental illness, legitimate defence).
    • Decision on Security Measures: Such as security measures for the mentally ill.

Basic Differences Between Investigation and Prosecution:

Your Rights at Both Stages: The fundamental rights of individuals are guaranteed at both stages of criminal proceedings:

• The Right to Benefit from the Assistance of an Advocate (Lawyer): The suspect or defendant has the right to the legal assistance of a lawyer at every stage of the investigation and prosecution. In certain cases (e.g. offences punishable by imprisonment of more than five years) the appointment of a lawyer is mandatory.
• Right to Silence: The suspect or accused has the right not to testify or to remain silent during interrogation about the charges against him/her.
• Right to Present Evidence: The suspect or the accused has the right to present evidence in his/her favour and to request its collection.
• Right to Appeal and Legal Remedies: The right to appeal against decisions (e.g. arrest warrant, KYOK, judgement) and to apply for legal remedies (appeal, cassation).
• Right Not to Be Stigmatised: In accordance with the presumption of innocence, the right to be presumed innocent until proven guilty and not to be stigmatised.

The investigation and prosecution phases are the basic phases of criminal proceedings, which complement each other but have different functions. Each of these processes is based on the principles of the rule of law, the right to a fair trial and respect for human rights. It is of great importance for individuals to know their rights at these stages and to receive legal support when necessary in order to achieve a fair outcome. Considering the complexity of criminal proceedings, obtaining counselling from an expert criminal lawyer is a critical step in managing the process correctly and preventing loss of rights.