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decide within seven days after the request has been made. It should be
pointed out that, at the level of the pre-trial hearing, only the legal
validity of the detention can be questioned; whether the conditions under
which the suspect is held are in conformity with the law is an issue which can
only be brought up at the trial. The pre-trial proceedings can be compared to
a certain extent with the habeas corpus procedure in common-law countries,
especially since the right to initiate such proceedings is also given to the
relatives.
24. Whenever a suspect is interrogated by the police, his lawyer is entitled
to watch and listen to the examination. In the case of a crime against the
security of the State, the lawyer may be present but may be prevented from
listening in. Article 117 of KUHAP explicitly states that information given
by a suspect and/or witness to an investigator shall be given without pressure
from whomsoever and/or in any form whatsoever. Statements of suspects and
witnesses must be recorded in the investigator's report in the minutest detail
and in their own words. The report must be signed by the investigator and the
person who made the statement. If the latter refuses to do so, the report
must contain the reason for this refusal.
25. After the police have completed the investigation, the file is handed
over to the public prosecutor who may return it to the police if he deems it
to be incomplete. The prosecutor does not have the authority to carry on
further investigations on his own; he can only decide whether the suspect will
be prosecuted and what charge will be brought. During the investigation
process the police must keep the prosecutor informed, but the prosecutor is
not entitled to order the investigation stopped or the suspect released during
the first period of 20 days after the suspect has been arrested.
26. Trials are public except in cases concerning morals or when the defendant
is a child. A confession alone is not sufficient proof to convict a suspect
but must be supported by at least one other piece of evidence. Nowhere is it
mentioned that a statement made under pressure should be dismissed as evidence.
On several occasions, however, the Special Rapporteur was informed that if a
judge is of the opinion that a statement was not freely made, he should not
base his decision on it.
27. À suspect who has been convicted by a district court has the right of
appeal. If the appelate or high court confirms the sentence, a defendant can
file a request for cassation with the Supreme Court.
28. It will be clear from the foregoing that KUHAP contains many time-limits
and formalities which have to be observed and which provide a suspect with
safeguards for his basic rights. It has been said that, on the other hand,
KUHAP does not contain any legal sanctions in case such safeguards are
violated. Neither the prosecutor nor the judge can order an investigation by
an impartial authority as to whether the argument is well-founded that, for
example, a statement has been extracted from a suspect or a witness under
duress. The only remedies provided by KUHAP are the decision during pre-trial
proceedings that an arrest or a detention was illegal and that the suspect
must be released and is entitled to compensation, and the dismissal of
evidence during trial.