A Comparative Analysis of Pre-Trial Procedure in Europe: The Search for an Ideal Model

Abstract

The right to have an early access to legal assistance has a distinguishing feature among various jurisdictions as it receives varying responses depending on whether the system is predominantly inquisitorial or adversarial. At the same time, this feature renders the suspect’s right to access to legal assistance in the pre-trial phase highly challenging. In this landmark case, Salduz v. Turkey, the European Court of Human Rights (the ECtHR), brought that problem up to surface and hit the different jurisdictions throughout Europe. Doubtless, the Salduz judgment does not answer all questions regarding defence lawyer in the pre-trial stage, but it stands as a cornerstone on the matter. Yet, this judgment is described as a cause of earthquake. Because it is the Turkish law that lays on its main line carrying that quake, the study aims to sketch Turkey’s pathway to access to legal assistance particularly for the pre-trial after the Salduz. Restrictions on this right due to crimes against the State, inter alia, terror crimes, today still remains as a heated debate in Turkey, considering the very recent judgment of the Turkish Court of Constitution. To that end, the study begins with providing insights into facts and proceedings before domestic authorities as well as the assessments of the ECtHR in Salduz. Then, the study outlines the deficiencies in Turkish criminal procedure law that failed to meet fair trial standards and were brought to the case before the ECtHR. As such, the legal background in Turkish law that led the case to the ECtHR will be displayed. And finally, the study analyses whether the Salduz- generated reforms in Turkey came into existence or not.