What are the basic rights of a suspect during interrogation before arrest?

1. Constitutional and International Basis

• Article 19 of the Constitution: Liberty and security of person – arrest is only possible in cases prescribed by law and by a judge's decision.

• Article 38 of the Constitution: No one can be compelled to make statements that incriminate themselves or a close relative.

• Article 5 of the ECHR: Right to liberty and security – “reasonable suspicion” is required for arrest, and the right to be brought before a judge within a reasonable time is granted.

• Article 6 of the ECHR: Right to a fair trial – includes guarantees such as the right to defense, interpreter, legal counsel, and adversarial proceedings.

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2. Rights of the Suspect under the Code of Criminal Procedure

2.1. Notification of Rights (CMK Article 147)

• The crime attributed to the suspect is clearly stated.

• The right to remain silent and the right to legal counsel are recalled.

• The right to choose a lawyer or request one from the bar association is granted.

2.2. Prohibited Interrogation Methods (Article 148 of the Code of Criminal Procedure)

• Methods such as torture, ill-treatment, deception, false promises, and threats are prohibited.

• A statement taken by law enforcement without legal counsel unless it is corroborated .

2.3. Arrest Procedure (Code of Criminal Procedure, Article 101)

• The interrogation before an arrest is conducted in the presence of a judge.

• The defense attorney is present during the interrogation.

• The decision is explained with reasoning, showing why judicial supervision was insufficient.

2.4. Review of Detention (Article 108 of the Code of Criminal Procedure)

• Detention orders are reviewed automatically every four weeks

• The suspect or their lawyer may request release.

2.5. Priority of Judicial Control (CMK Article 109)

• Instead of arrest, measures such as signing in regularly, a travel ban, house arrest, and electronic ankle monitoring may be applied.

• The judge must justify why these measures are insufficient.

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3. Fundamental Rights of the Suspect – Detailed Assessment

3.1. Right to Legal Counsel

• The suspect must have legal assistance.

• In cases involving crimes with a minimum sentence of more than 5 years, as well as in the cases of children and disabled individuals, the appointment of a defense lawyer is mandatory.

• In the ECHR (Salduz/Türkiye) decision, interrogation without legal representation was deemed a violation of the right to a fair trial.

3.2. The Right to Remain Silent

• The suspect cannot be forced to incriminate himself.

• The exercise of the right to remain silent cannot be accepted as evidence against the defendant.

• It is directly related to the presumption of innocence.

3.3. Rights of the Translator

• A free interpreter is assigned to suspects who do not speak Turkish or have a disability .

• This is also guaranteed by Article 6/3-e of the ECHR.

3.4. Access to Evidence and Adversarial Proceedings

• The suspect and their lawyer have the right to be informed of the evidence supporting the arrest warrant request.

• Even with a "confidentiality order," the essential evidence justifying the arrest must be disclosed.

• According to the principle of adversarial proceedings, the prosecutor presents the indictment; the suspect and their lawyer present their counter-arguments.

3.5. Being Brought Before a Judge Within a Reasonable Time

• The person taken into custody must be brought before a judge within 48 hours at the latest

• In cases of mass crimes, this period 4 days.

• Otherwise, the person is released.

3.6. Right to Appeal Arrest

• the arrest warrant to a higher court .

• Appealing to the courts is an important safeguard of the right to a fair trial.

3.7. Respect for Human Dignity and the Right to Health

• Detention interrogations must be conducted in a manner that respects human dignity.

• Ill-treatment, torture, and oppression are strictly prohibited.

• The suspect's health condition should be taken into consideration during questioning.

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4. Supreme Court Case Law

• Constitutional Court, Mehmet Hasan Altan (2018): Lack of justification for arrest and restriction of the right to legal counsel constitute a violation.

• ECHR, Salduz/Turkey (2008): An interrogation taken in the early stages without legal representation violates the right to a fair trial.

• ECHR, Buzadji/Moldova (2016): Abstract grounds for arrest are not sufficient; alternative measures should be discussed.

• Supreme Court Criminal General Assembly, 2019/2211: Arrest does not aim to punish; an arrest warrant cannot be issued in cases where judicial supervision is sufficient.

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5. Strategic Notes for Legal Practice

• The document reminding you of your rights must be checked carefully.

• access to the file is blocked, a human rights violation should be alleged based on the case law of the Constitutional Court/European Court of Human Rights.

• During the arrest interrogation, factors supporting the client's fixed residence, family ties, criminal record, and employment relationships, should be emphasized.

• A judicial control package should be proposed (signature + YÇY + electronic monitoring, etc.).

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6. Conclusion

In arrest and interrogation, the suspect's fundamental rights form the core of the right to a fair trial and the rule of law

• The right to legal counsel, the right to remain silent, the right to an interpreter, the right to access evidence, the right to appear before a judge within a reasonable time, the right to appeal, and the right to respect for dignity…
  any of these is violated, the arrest warrant becomes invalid and liability for damages arises.

                                                                                                                                                            Ada Ceren KENDİGELEN