Giving Statements And Detention Procedures During The Investigation Phase

The criminal process consists of two principal phases: the investigation (soruşturma) and the prosecution (kovuşturma). The investigation is the preparatory phase that commences upon the discovery of a criminal suspicion and is conducted under the direction of the public prosecutor; law enforcement (police/gendarmerie) acts at the prosecutor's instructions during this phase. The individual is referred to as a suspect (şüpheli) during this phase. Statements, detention, and evidence-gathering take place here. When an indictment is filed and the matter proceeds to trial, the prosecution phase begins and the individual assumes the status of defendant (sanık).

The steps taken during the investigation phase carry particular importance because they often determine the direction of the entire subsequent process.

When a person is arrested on suspicion of a crime, they may be detained by order of the public prosecutor. The fundamental periods under the Code of Criminal Procedure are as follows:

• In individual offences, the detention period may not exceed 24 hours, excluding the travel time required to bring the person before the nearest judge or court.
• In collectively committed offences (involving more than one person), the detention period may be extended by the prosecutor's written order for up to three days, provided that each extension does not exceed one day.

The detained person must be notified of the following rights without delay:

• The nature of the offence charged
• The right to remain silent
• The right to legal assistance from defense counsel (attorney)
• The right to have a relative notified of the arrest

Failure to notify these rights constitutes a serious deficiency that directly affects the lawfulness of the process.

A statement (ifade) is the hearing of the suspect by law enforcement or the prosecution. During this process, the law provides safeguards protecting the suspect:

• Right to remain silent: The suspect cannot be compelled to give a statement or answer questions. Remaining silent cannot be used as evidence against the suspect.
• Right to counsel: The suspect may request the presence of an attorney during the taking of their statement. In certain circumstances (minors, persons unable to defend themselves, or offences carrying a minimum sentence of more than five years of imprisonment), the appointment of defense counsel is mandatory.
• Prohibition of unlawful methods: Torture, coercion, threats, fatigue, deception, or any methods affecting free will are absolutely prohibited during the taking of statements. Statements obtained through such methods cannot be used as evidence, even if consent was given.

There is a particularly critical rule: A statement taken by law enforcement in the absence of defense counsel cannot serve as the basis for a judgment unless confirmed by the suspect before a judge or court. This rule directly underscores the value of the attorney's role during the investigation phase.

During the investigation phase, the attorney's function is not merely to "be present"; it is an active role of ensuring the lawful conduct of the process:

• Pre-statement consultation: The attorney may meet with the suspect before the statement is taken, in a setting where others cannot overhear. During this meeting, the suspect is informed of their rights and the process.
• Advising on the right to remain silent: An assessment is made as to whether giving a statement or remaining silent would be in the suspect's best interest under the circumstances.
• Presence during the statement: The attorney is present throughout the statement; they intervene against leading or unlawful questions and indicate matters they wish to have recorded in the minutes.
• Monitoring the lawfulness of detention: Where periods have been exceeded or rights have not been notified, the attorney may pursue remedies against the detention.
• File review: Unless a restriction order is in place, the attorney may review the investigation file.

Through these functions, the aim is to prevent irreparable loss of rights in subsequent phases.

In İzmir, investigation procedures commence at the relevant district police directorate or station, depending on where the incident occurred. For example, in the Konak district, following procedures conducted at stations in the Karataş, Çankaya, and Konak areas, the suspect is transferred within the detention period to the Office of the Chief Public Prosecutor at the İzmir Courthouse (Bayraklı).

The general flow is as follows:

1. Arrest and detention (relevant police station/directorate)
2. Notification of rights and access to defense counsel
3. Taking of the statement by law enforcement (accompanied by defense counsel)
4. Transfer to the prosecution within the detention period (İzmir Courthouse, Bayraklı)
5. Statement before the prosecutor and the prosecutor's assessment

Following the statement at the prosecution office, the public prosecutor may decide in one of three directions:

• Release: The suspect may be released while the investigation continues.
• Request for judicial supervision: Instead of arrest, the suspect may be referred to the Criminal Judgeship of Peace for measures such as a reporting obligation or a travel ban.
• Request for arrest: Where the conditions are met, the prosecutor refers the suspect to the Criminal Judgeship of Peace with a request for arrest. At this stage, the person referred for arrest gives a statement before the judge (interrogation), and the attorney's defense is determinative here as well.

In İzmir, this assessment is conducted at the Criminal Judgeships of Peace within the İzmir Courthouse.

• Giving a statement without an attorney despite having been informed of the right to counsel
• Giving incomplete or contradictory statements in haste, unaware of the right to remain silent
• Signing the minutes without reading the recorded statements
• Failing to notice detention period violations or rights infringements

What is the detention period? For individual offences, 24 hours excluding travel time; for collectively committed offences, it may be extended by the prosecutor's order for up to three days, with each extension not exceeding one day.

Is it mandatory to have an attorney present when giving a statement? It is not mandatory in every case; however, the appointment of defense counsel is mandatory for minors, persons unable to defend themselves, and offences carrying a minimum sentence of more than five years of imprisonment. In other circumstances, requesting defense counsel is the suspect's right.

What is the right to remain silent? It is the suspect's right not to be compelled to give a statement or answer questions. Remaining silent cannot be used as evidence against the suspect.

Is a statement given without an attorney valid? A statement taken by law enforcement in the absence of defense counsel cannot serve as the basis for a judgment unless confirmed by the suspect before a judge or court.

Where is a detained person transferred to in İzmir? Following police station/directorate procedures, the suspect is transferred within the detention period to the Office of the Chief Public Prosecutor at the İzmir Courthouse (Bayraklı).

What happens after the prosecution stage? The prosecutor may decide to release the suspect, request judicial supervision, or refer the suspect to the Criminal Judgeship of Peace with a request for arrest.

The investigation phase is the most critical stage that determines the direction of the criminal process. Knowledge of detention periods, the rights to remain silent and to have defense counsel, and the lawful conduct of the process from the police station through to the prosecution are of great importance in preventing loss of rights in subsequent phases. Consulting an attorney before giving a statement contributes to the sound progression of the process.

For legal support regarding detention, statement, and investigation processes, you may contact Yücesoy Attorney Partnership & Law Office.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy