How to Open a Criminal Case? Detailed Guide to Investigation and Prosecution Processes
A criminal case is a legal process that begins with the allegation that an offence has been committed and ends with the punishment or acquittal of the perpetrator. This process can have serious consequences that can deeply affect the lives of individuals. In Turkey, a criminal case is a “public case”, meaning that it is the duty of the state to pursue and punish the offence. In this article, we will discuss in detail how a criminal case begins, the stages of investigation and prosecution, the main actors in these processes and important legal concepts.
Initiation of the Criminal Case: The criminal proceedings usually begin when the authorities learn of a suspicion of a criminal offence. This learning can take place in various ways:
- Complaint: Some offences are pursued upon the complaint of the victim or the injured party. These offences are called “offences subject to complaint” (e.g. insult, simple injury, sexual harassment). The complaint must be filed within 6 months after the offence has become known. The complaint can be made by written petition or verbal statement to the police, gendarmerie or directly to the Chief Public Prosecutor’s Office.
- Notification: For offences that are not subject to complaint (ex officio), the process starts when any person notifies the competent authorities that the offence has been committed (denunciation). The denunciation may be in writing or verbally and the identity of the denunciator may be kept confidential. Offences such as intentional homicide, theft (qualified forms), drug trafficking are pursued ex officio.
- State of Offence: It is the situation where the perpetrator is caught during or immediately after the offence is committed. In this case, law enforcement officers (police, gendarmerie) intervene directly and initiate the necessary procedures.
Investigation Phase: The phase that starts with the suspicion of a crime and continues until the indictment is accepted by the court is called the “investigation phase”. This phase is conducted in accordance with the provisions of the Code of Criminal Procedure (CPC) and is usually confidential.
- Role of the Public Prosecutor: The main authority and executive of the investigation is the public prosecutor. The public prosecutor is obliged to investigate the material truth. In this context, it collects all evidence both in favour of and against the suspect.
- Evidence Collection: Procedures such as witness statements, suspect statements, discovery, expert examination, crime scene investigation, document collection are carried out.
- Statement Taking: Statements of suspects and witnesses are taken. The suspect has the “right to remain silent” and the “right to benefit from the assistance of a defence lawyer”.
- Protection Measures: Some protection measures may be applied in order to carry out the investigation properly and to protect the evidence. These include measures such as detention, search, seizure, surveillance of communication and arrest. Arrest is the most severe protection measure and is applied by a judge’s decision in the presence of certain conditions.
- Duties of Law Enforcement Forces: The police and gendarmerie carry out investigation procedures in line with the orders and instructions of the public prosecutor. They fulfil duties such as crime scene investigation, evidence collection and statement taking.
- Finalisation of the Investigation: At the end of the investigation, the public prosecutor makes one of two basic decisions:
- Decision of No Prosecution (KYOK / Decision of Non-Prosecution): In cases where the evidence collected does not create sufficient suspicion that the crime has been committed, the elements of the crime do not occur, the complaint period has expired or the crime has expired, the prosecutor gives KYOK. The appeal against this decision is open.
- Preparation of the Indictment: When there is sufficient suspicion of a criminal offence, the prosecutor prepares an indictment demanding the punishment of the suspect. The indictment includes 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. The indictment shall be submitted to the competent and authorised criminal court.
Prosecution Phase (Trial Phase): The phase that starts with the acceptance of the indictment by the court and continues until the finalisation of the judgement is called the “prosecution phase” or “trial phase”. This phase is conducted publicly in court.
- Acceptance of the Indictment and Opening of the Case: The court examines the indictment and checks whether it meets the legal requirements. When the court accepts the indictment, the public case is opened and the suspect takes the title of “defendant”.
- Trial Preparation: The court sets a date for the hearing, notifies the parties (defendant, defence counsel, victim, participant) and continues to collect the necessary evidence.
- Hearing Process: Hearings are held under the direction of the presiding judge or a judge.
- Interrogation of the Accused: Identification of the accused is made and his/her defence is taken regarding the alleged offence. The accused has the right to remain silent.
- Witness Hearing: Witnesses are heard and their statements are recorded in the minutes.
- Presentation and Discussion of Evidence: All collected evidence (documents, expert reports, discovery reports, etc.) are read out at the hearing and discussed by the parties.
- Prosecutor’s Opinion on the Merits: At the end of the hearings, the public prosecutor presents his/her opinion (opinion) as to whether the defendant is guilty or not and with which punishment he/she should be sentenced according to all the evidence collected.
- Defence of the accused and his/her lawyer: The accused and his/her lawyer present their final defence against the prosecutor’s closing statement.
- Judgement The court makes a judgement after assessing all the evidence and hearing the parties. The types of judgements are as follows:
- Acquittal The accused is found not guilty.
- Conviction: The accused is found guilty and sentenced.
- Dismissal: 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.
Legal remedies The judgement is not final. If the parties think that the judgement is unlawful, they may apply for legal remedies:
- Appeal: Application to the Regional Courts of Appeal.
- Appeal: Application to the Court of Cassation.
Once these remedies have been exhausted, the judgement is finalised and the execution phase begins.
The criminal case process is a very complex and technical process. At every stage, there are important safeguards that protect the rights and freedoms of individuals. In this process, especially in the investigation and prosecution stages, getting legal support is of vital importance in order to prevent loss of rights and to have a fair trial process. The guidance of a lawyer is indispensable for a correct understanding of the process and an effective defence.