CMK Article 174 regulates that if the court examines the indictment in terms of its form and content and finds any deficiencies, it can be returned to the Public Prosecutor's Office. This institution maintains the legal standard of the file at the beginning of the prosecution phase.
Return Reasons
- Deficiencies in the form of the indictment: Insufficient information about the crime and the defendant, and insufficient supporting evidence.
- Investigation deficiencies:
- Incomplete taking of witness statements.
- Absence of critical expert report.
- Lack of crime scene report.
- Determinative documents have not been provided.
- Lack of sufficient evidence to support a strong suspicion of crime.
- Crime quality debate:The crime shown in the indictment should clearly be considered as another type of crime.
- Lack of jurisdiction: Not falling within the court's jurisdiction.
Process
Importance for Defense Counsel
If the defense attorney notices the incompleteness of the indictment, he may request extradition from the court:
- Discovering evidence that was not obtained during the investigation phase.
- New investigative steps to support the defendant's defense.
- Interrogation of strong suspicion of crime.
- Strategy to gain time if there is a detained defendant.
Non-Returnable Deficiencies
- Pure evaluation/comment difference.
- Minor uncertainties that can be resolved in prosecution.
- Evaluations within the discretion of the judge.
- Evidence discussions (evaluated on merits).
Supreme Court and CGK — Established Approach
CGK and the chambers stated that the institution of return of the indictment is applied in cases of "fundamental deficiency" and that the decision to return the indictment is not appropriate in cases of purely formal defects; It accepts that the investigation should provide a basis that is "conducive to a sound trial".
Status of the Accused in the Returned File
- If there is detention, it continues; However, time runs while the deficiencies are corrected.
- Judicial control conditions are maintained.
- During the extradition period, new evidence may be sought against the defendant.
- The prosecutor's office may object to the extradition decision.
"Criminal Characteristics Change" — In Lieu of Extradition
The court may change the nature of the crime during the prosecution phase instead of extradition (CMK article 226):
- Extra time is given to the defendant to make his/her defense.
- Open defense opportunity if there is a crime with a more severe penalty.
Practical Advice for Defense Counsel
Returning the indictment ensures that faulty/incomplete investigations are not continued. Experienced criminal defense attorney uses this right strategically.