In the previous article, I emphasized the profession of advocacy in this context and I mentioned the importance of being a criminal lawyer in criminal cases.
Questions and problems I have faced in time made it necessary to take the issue on the forefront again.
In this article, the features that must be present in a criminal lawyer will be examined and responsibilities and requirements of being a criminal lawyer will be mentioned.
I will consider the subject under four titles as general introduction, problems faced in criminal cases, importance of being a criminal lawyer and general evaluation.
A. Introduction
As is known, Organization of the Judiciary is classed as judicial, administrative and military judgment. As it is through criminal lawyer evaluation will be made in terms of judicial judgement. In this respect, judicial judgement is classified into two groups as civil and criminal.
Criminal proceedings are mainly made by public prosecutors and criminal judges and made by the criminal courts in terms of prosecution. The criminal courts nowadays consist of two main courts as criminal and penal courts.
As per the Article 12 of the Law No. 5235, provided that the other cases assigned by the laws will be reserved, the criminal courts are responsible for cases and works on crimes requiring life imprisonment and imprisonment for more than ten years in cases opened due to looting (Art. 148), corruption (Art. 250/1 and 2), falsifying official documents (Art. 204/2), aggravated fraud (Art. 158), fraudulent bankruptcy (Art. 161) crimes mentioned in the Turkish Penal Law, crimes against the safety of state mentioned in the fourth part of second book of Turkish Penal Law, crimes against Constitutional order and execution of this order mentioned in the fifth part, crimes against national defense mentioned in the sixth part and espionage crimes (except articles 318, 319, 324, 325 and 332) and crimes within the scope of Fight Against Terror Law No. 3713 dated 12/4/1991.
Obviously, criminal cases are consistent of heavy crimes. On this occasion, importance of advocacy is as important as the crimes.
B. Problems in Practice
As known in the Penal Judgement, ex officio research principle is applied. Therefore, a good investigation and prosecution impacts the fate of a case. Because of the principle of ex officio research, continuation of a case under control of a good prosecutor and judge will be good too and it will have a great role in taking a fair decision. However, a prosecutor who does not have sufficient knowledge or cannot give himself/herself to the case, will impact the case in negative way.
When it is considered that the number of prosecutions and investigations is referred to with millions but only twelve thousand prosecutors and judges work in our country, it would be a great optimism to expect that all prosecutions and investigations will result healthily. Indeed, it is often complained that the investigations and judgements are unfair.
The most important way to prevent above-mentioned defective results is to help the judge. Naturally, the lawyer are the ones to take care of this.
I unfortunately see that the lawyers do not or cannot make serious contributions to the cases in many files according to either my observations in the periods when I worked as judge and Criminal Court Head and Public Prosecutor of the Supreme Court or the complaints I listened to since 2013 when I was retired.
In practice, I observed that the factor on the base of problems of lawyers in giving contribution to penal judgements is mainly due to the difference of expertise areas. In this context, for instance, a lawyer who worked as enforcement lawyer and maybe did not take part in a drug case which requires special expertise would not give contribution in the mentioned case. The same problem occurs in killing, looting, corruption, fraud crimes which require life or 15-20 years of imprisonment.
the mistakes which I faced when examining the case files mostly consist of not intervening when required, not seeing the positive development, ignoring that a present evidence is not considered, not realizing that a made-up evidence was created afterwards, not having sufficient knowledge in the file, not knowing what kind of evidences are necessary for cases, not knowing the durations and not knowing the method of judgement. It is possible to further increase these causes.
Major complaints and determinations I observed in the sides of cases revealed that the lawyers are generally assigned because of being accompanies, cheap prices or no price due to being accompanies, because of the promise of absolving, giving a upper term on the results although not having sufficient information on the subject of related cases.
It is possible to improve these examples. As a simple example, in the period when I worked as the head of Criminal Court, I individually witnessed that the lawyer of the defendant required unfair provocation provisions to be applied on the defendant in a case in which it was requested that the provisions on exceeding the legal defense limits which predicts less penalty by the public prosecutor on the defendant during judgement. The conclusion which I arrived due to this was that all lawyers defending the defendant in the criminal case did not have sufficient information on criminal law.
C. Necessary Features of the Criminal Lawyer
In the previous article, I mentioned the importance of having expertise in a certain subject instead of having partial information on all law branches. I believe that the one claiming that he/she knows everything is the one who knows that everything cannot be known. In other words, saying I can do everything means not being able to do anything completely.
Unfortunately, there is no specialization at advocacy in our country. Usually, the lawyers which take heavy criminal cases are not heavy criminal lawyers but only criminal lawyers. The term `criminal lawyer` is not a title but a discourse between people. The lawyers following criminal investigations and cases are called criminal lawyers in the public.
The criminal lawyers are not the ones who takes absolute results in all cases and evidences regardless of being good or very good criminal or penal lawyer. Even the best criminal lawyer`s function is to make contribution to the case. To see what is not seen for favor of the defendant, to find sources from theoretical and practical areas and to use them in right time and place and to realize defects and errors to remove them are also among the functions.
A good criminal lawyer does not take legal cases unless there are exceptional situations. Expertise is on great importance for being a criminal lawyer as well as in all areas. On this occasion, the answer to give for the question "which features should a good criminal lawyer or heavy criminal lawyer have?" is "to be good in the related field". To be developed in field of penalties and to have seen tis field as an expertise. Indeed, the features that must be present in a good criminal lawyer is hidden in the name.
First of all, you need to know the criminal law well. A good criminal lawyer must know the criminal procedure very well. One who does not know the procedures well cannot full reflect his/her information on the principles. Procedure is the leader of principle. In our system in which legal and criminal procedures are seriously different, it is almost impossible to be expert in both legal and criminal areas. As a person who have worked as partially legal and mostly criminal judge, I believe that a lawyer cannot be expert in both of them at the same time. Indeed, I improved myself in criminal law by working as penal court judge and heavy penal court head and lastly by retiring from the Supreme Court Public Prosecution Office after working as a legal judge for a very short time. Therefore, I took care not to take legal cases although I had information. My plan is to continue in this way as far as I work as a lawyer. It should not be forgotten that limiting the freedom is the biggest penalty that can be given to a person. For this reason, criminal advocacy which is directly related to human freedom is as important as the freedom.
One of the features that must be present in a good heavy criminal lawyer is, as can be understood from its name, to be a heavy criminal lawyer, so to know the severity of crime. Criminal law is a broad field. Criminal cases are also broad in the same sense. Here, the important factor is to know the heavy crimes sufficiently.
Criminal lawyer means the lawyer who is expert in heavy crimes. Cases requiring heavy penalties are mentioned above. In this context, being experienced in crimes requiring heavy penalties and being improved in this subject are necessary. I, as a lawyer who worked as the head of heavy criminal court for about seven years and as the Supreme Court`s Public Prosecutor for about twelve years, take care for taking more legal cases as I feel myself closer to heavy criminal cases with its name in practice. In my opinion, one cannot be a good criminal lawyer or a legal or administrative judge lawyer unless he/she has expertise in legal cases, criminal cases, administrative judgement cases.
One of the features that must be present in a good heavy criminal lawyer is, as can be understood from its name, to be well at heavy criminal advocacy. The term `well` should be understood as expertise. Having knowledge on crimes or heavy crimes is not sufficient for being a good heavy criminal lawyer. For taking this name even in the language of public, it is necessary to improve yourself in the field of penalties as well as crimes. Naturally, expertise requires too much effort and time. This is possible only by focusing on this field against the time to be spent for the other law fields. The statement "a good heavy criminal lawyer can save defendant from halter" which is common in the public becomes real in this way.
A lawyer having the features mentioned above naturally has high self confidence. In this way, the lawyer`s chance to succeed becomes high in the same level. This confidence brings the result with it.
D. General Evaluation
Advocacy is an art of defense. Criminal advocacy is in close relation with protection of person`s honor, rights and freedom. Therefore, a criminal lawyer makes contribution to creation of a state of law by having efficient role in processes against law
Regardless of being defendant or damaged, the earlier help of advocacy is taken, the more contribution the lawyer will give.
A good heavy criminal lawyer knows his/her responsibilities. He/she tells the real situation instead of what is wanted to be heard. A trusted criminal lawyer never gives guarantee on the result of the case. In particular, ones who guarantee discharge, absolvance or guarantee the result of cases must be avoided. Unfortunately, there are many artists on the market in this subject. Ones who say that they will take results by giving money to judge or prosecutor or in other ways must not be believed.
Before deciding that you found a good criminal lawyer, it is beneficial to make face-to-face interview. Thus, the impact to be left by the lawyer on you will have great role for determination of the lawyer.
It should not be forgotten that a lawyer cannot give guarantee on result of the cases. Therefore, when looking for a good heavy criminal lawyer, lawyers who have knowledge and ability for making the best follow-up for taking results must be preferred. 12.11.2015