DIFFERENCES BETWEEN INVESTIGATION AND PROSECUTION

DIFFERENCES BETWEEN INVESTIGATION AND PROSECUTION

1. Introduction: Two Separate Phases of the Same File

In criminal proceedings, investigation and prosecution are two different phases of the same case; however, they differ significantly in terms of their legal consequences, the roles of the parties, and the procedural rules to be applied. Often, questions like "Has a case been opened or not?" and "Is the person a suspect or an accused?" cannot be clarified without understanding this distinction.

Briefly:

• The investigationis the stage where the "allegation of a crime" is examined, evidence is gathered, and a decision is made on whether or not to file a public prosecution.

• Prosecution is the stage that takes place before the court after a public case has been opened, and it culminates in a verdict.

This simple distinction, when examined in greater depth, reveals significant nuances in terms of both rights and strategy.

2. Initiation Criterion: When does the investigation begin, and when does the prosecution begin?

The investigation phase begins with a crime report or complaint made to the prosecutor's office, or when law enforcement learns of a crime. At this stage, there is no "case" yet; only suspicion of a crime exists. The person believed to be the perpetrator is considered a "suspect."

The prosecution phase begins with the acceptance of the indictment, that is, with the court's decision to initiate public prosecution. From this moment on:

• The suspect now an "alleged defendant" .

• The file is considered "transferred" from the prosecutor's office to the court.

• The trial, hearings, and final verdict occur at this stage.

An important nuance:
It is not enough for the prosecutor's office to prepare the indictment; prosecution only with the court's decision to accept the indictment . This is a critical distinction in determining the competent court, statute of limitations, certain procedural actions, and the calculation of forfeiture periods.

3. The Roles and Rights of the Parties: The Difference Between Suspect and Defendant

During the investigation phase, the person being processed is a "suspect." In the prosecution phase, they are referred to as a "defendant." This change in status is not merely a change of name; it also expands the scope of rights and responsibilities.

• Suspect: A person against whom a public prosecution has not yet been initiated. The process is primarily focused on gathering evidence. Protective measures such as questioning, detention, searches, and seizures are most commonly encountered at this stage.

• Defendant: The person against whom an indictment has been filed and accepted by the court. The defense is no longer merely aimed at "dispelling doubt," but influencing the verdict .

This nuance is particularly important:
some institutions (such as expedited proceedings, conciliation, prepayment alternative procedures) are primarily brought up during the investigation phase, postponement of the announcement of the verdictare more often considered at the end of the prosecution, during the verdict phase.

4. Competent Authority: Distinction Between the Public Prosecutor's Office, Law Enforcement, and Courts

The public prosecutor is the "judge" of the investigation ; the court is the judge of the prosecution .

4.1. The Role of the Prosecutor's Office and Law Enforcement in the Investigation

• The prosecutor is in charge of the investigation and gives orders and instructions to law enforcement to gather evidence.

• Law enforcement conducts investigations on behalf of the prosecutor; they interview witnesses, perform on-site reconstructions, and collect camera footage.

• While law enforcement may carry out certain procedures on their own initiative in cases where delay would be detrimental, the prosecutor is the owner and responsible party for the investigation.

At this stage, courts are primarily authorities with specific jurisdiction, intervening mainly of protective measures (such as arrest, judicial supervision, wiretapping, and search warrants).

4.2. The Jurisdiction of the Court in Prosecution

During the prosecution phase:

• The authority that conducts the trial and makes the final decision is now the court.

• Evidence gathering, witness questioning, and expert examination are carried out by court order.

• The prosecutor now becomes "one of the parties"; the court, meanwhile, acts as an arbiter.

In summary, the investigation is led by the prosecutor, while the prosecution is managed by the court. This is a fundamental difference that should not be overlooked when determining procedural strategy.

5. The Logic of Evidence Gathering: Investigating Doubt – Proving

The aim during the investigation phase is to determine whether there is "sufficient suspicion." Prosecutor:

• He gathers the evidence,

• He has to evaluate both the evidence for and against,

• If the court finds sufficient suspicion, it prepares an indictment; otherwise, it decides that there is no basis for prosecution.

At this stage, the "sufficient suspicion" phase has been passed, and a public prosecution has been initiated. The main objective of this phase is:

• The goal is to determine whether the commission of the crime has been proven beyond any reasonable doubt with conclusive and convincing evidence

The subtle point here is:
In the investigation phase, suspicion "surmountable" level; what matters is that it is sufficient to initiate proceedings. In the prosecution phase, however, for a conviction, this suspicion must be minimized, and any remaining doubt must be interpreted in favor of the accused, in accordance with the principle that "the defendant benefits from the doubt."

6. Subtle Differences in Protective Measures

Protective measures (arrest, judicial control, search, seizure, communication interception, etc.) seem to primarily occur during the investigation phase, but they can also be applied during the prosecution phase.

• During the investigation: A wide range of protective measures are used to ensure the proper collection of evidence and to prevent the suspect from escaping.

• In the prosecution phase: Since the trial is now taking place before the court, decisions on arrest or release are made directly by the court. Each hearing now also serves as a review function regarding the status of detention, the evidence presented, and the proportionality of the decision.

The subtle nuance is this:
while protective measures during the investigation phase are often unilaterally (in the absence of the defendant) , during the prosecution phase the defendant and their lawyer have more opportunity to directly discuss the detention before the court.

7. Outcome Decisions and Legal Impact

Investigations and prosecutions conclude with different types of final decisions

7.1. Conclusion of the Investigation: Decision of No Grounds for Prosecution – Indictment

The investigation ends with one of these two main conclusions:

1. Decision of no grounds for prosecution (DGPC):
   The prosecutor issues a DGPC if there is insufficient suspicion or if another circumstance exists that eliminates criminal liability. This decision;

   • This is an appealable decision from the victim's perspective.

   • For the suspect, this means "no charges have been filed"; however, it doesn't always mean "there is no risk left" (the case can be reopened if new evidence emerges).

2. Drafting the indictment:
   If the prosecutor believes there is sufficient suspicion, they prepare an indictment and submit it to the court. If the court accepts the indictment, the prosecution begins.

7.2. Conclusion of the Prosecution: Judgment

As a result of the prosecution, the court;

• Acquittal,

• Conviction,

• Fall,

• There is no basis for imposing a penalty

• Dismissal of the case

The court issues one of the following decisions. These decisions can be appealed and challenged, and once finalized, they have serious consequences in both criminal and civil law (criminal record, compensation claims, administrative actions, etc.).

A subtle point:
A prosecutor's decision to dismiss the case and a court's acquittal are not the same thing. A dismissal means "I did not file a lawsuit"; an acquittal means "a lawsuit was filed, a trial was held, and the crime was not proven." This distinction is particularly important in cases involving compensation, moral damages, and certain administrative procedures.

8. Strategic Importance in Practice: How to Proceed at Each Stage?

The investigation phaseis often the stage that determines the fate of a case. Because:

• Evidence is first collected at this stage.

• The suspect's initial statement is often one of the strongest pieces of evidence.

• A well-conducted investigation either prevents a case from being opened or shapes the framework of any case that might be opened.

The prosecution phase is the stage where a now-formed case is managed in court through legal techniques and the discussion of evidence. At this stage:

• Exclusion of procedurally irregular evidence,

• Uncovering contradictory statements,

• Objections to expert reports,

• Witness questioning

Techniques such as these come to the forefront.

Therefore, understanding the differences between investigation and prosecution is not just theoretical knowledge, but also the strategic backbone.

9. Conclusion

In summary, the differences between investigation and prosecutionare crucial, not only in terms of the timeline or the jurisdiction of the court, but also in terms of the scope of rights, the logic of evidence gathering, the application of protective measures, and the impact of final decisions. Subtle nuances such as the distinction between suspect and defendant, the reversal of roles between prosecutor and court, the acceptance of the indictment, and the difference between dismissal of charges and acquittal play a decisive role in the practice of criminal procedure.

Therefore, for effective representation and defense in criminal proceedings, it is necessary to correctly answer the question of "investigation or prosecution?" at every step and develop an appropriate strategy accordingly