Arrest is the most severe protective measure of criminal procedure. It restricts the freedom of the suspect or defendant during the prosecution. Code of Criminal Procedure (CMK) No. 5271, Article 100 regulates the conditions of detention, and Articles 101-108 regulates the duration, justification, objection and control issues.
Conditions of Arrest (CMK article 100)
For an arrest warrant to be issued, the following three conditions must be met:
1) Existence of Strong Crime Suspicion
There must be a strong suspicion of crime based on concrete evidence that the suspect/defendant committed the crime. Abstract accusations, simple suspicion or a single witness statement are not sufficient; Concrete material evidence (CCTV images, fingerprints, message records, autopsy report, etc.) is sought.
2) Existence of a Reason for Arrest
Article 100/2 lists two main reasons for arrest:
a) Suspicion of Escape
There must be facts showing strong suspicion that the suspect/accused will escape:
- Previous escape or attempted escape
- Lack of a fixed residence and employment
- Foreign connections, dual citizenship
- Concrete evidence that a trip abroad is being prepared
b) Obscuring Evidence or Pressuring Witnesses/Victims
- Suspicion of destruction, concealment or alteration of evidence
- Attempted coercion of witnesses, victims or others
- Continuing contact with people who cooperate in committing crimes
3) Proportionality of Arrest
Arrest should be proportionate according to the importance of the crime charged and the expected punishment. Arrest is disproportionate in crimes requiring light punishment.
- As a rule, there is no arrest in crimes that require only judicial fines.
- Arrest is avoided in crimes that carry a penalty of less than 2 years.
- If judicial control measures are sufficient instead of arrest, arrest cannot be made (CMK article 101/1).
Catalog Crimes (CMK article 100/3)
If there is strong suspicion that the following crimes have been committed, the existence of a reason for arrest is legally assumed:
- Genocide and crimes against humanity
- Deliberate murder
- Torture (art.94, 95)
- Sexual assault (art.102, 103, 104, 105)
- Theft (art. 141, 142) and plunder (art. 148, 149)
- Manufacture and trade of narcotic/stimulant substances (Art.188)
- Establishing an organization for the purpose of committing a crime (Art.220 - paragraphs 1-2)
- Crimes Against the Security of the State (Art. 302-339)
- Crimes Against the Constitutional Order and the Functioning of This Order
- Crimes within the scope of the Anti-Terror Law No. 3713
- Crimes stipulated in the Anti-Smuggling Law that require imprisonment
In these crimes, the judge assumes that there is a reason for arrest if there is strong suspicion; However, this presumption that works against the defendant can be refuted by proving that the suspicion of escape/obscuring evidence does not really exist in the concrete case.
Arrest Prohibitions
- Those under the age of 15: Cannot be arrested for crimes whose upper limit is not more than 5 years (ÇKK article 21).
- Crimes requiring judicial fine: Arrest cannot be applied.
- Crimes requiring a prison sentence of less than 2 years: Judicial control should generally be preferred.
Duration of Arrest (CMK article 102)
Detention periods vary depending on the type of crime and the stage of the case:
In Crimes That Do Not Fall Within the Jurisdiction of the High Criminal Court
- In the investigation phase: maximum 1 year
- During the prosecution phase: maximum 1 year and 6 months (6 more months if necessary)
In Crimes Falling Within the Jurisdiction of the High Criminal Court
- In the investigation phase: maximum 2 years
- During the prosecution phase: maximum 5 years (including extension)
Crimes Against the Security of the State and Constitutional Order, Terrorist Crimes
- In the investigation: maximum 7 years
Periodic Inspection of Detention (CMK article 108)
Upon the request of the public prosecutor during the investigation, the criminal judge of peace decides every month whether the detention will continue or not. In prosecution, the court reviews the detention situation at least every 30 days.
Objection to Arrest (CMK article 101/5)
The possibility of objecting to the arrest decision and the decisions regarding the continuation of detention is open. The objection is made to the judge/court that made the decision within 7 days. If the judge/court does not find the objection appropriate, it sends the file to a higher authority. The authority examining the objection may accept the objection and terminate or reject the detention.
End of Detention
- Release of the suspect/defendant (decision not to prosecute, acquittal, suspension of sentence, etc.)
- Conversion into a judicial control decision
- Expiration of the maximum period of detention
- Execution in case of conviction
Compensation After Detention (CMK article 141)
Those who are arrested as suspects or defendants in the following cases may claim all kinds of material and moral damages from the state:
- Caught, detained outside the conditions specified in the law
- Removed after the conviction against him became final
- It was decided that there was no need for prosecution or that he would be acquitted
- The prison sentence he was sentenced to is less than the period of detention
A compensation lawsuit is filed in the high criminal court of the person's residence within 3 months as of the finalization of the decision, and in any case within 1 year as of the act.
Important Constitutional Court and ECHR Approach
The Constitutional Court and the ECHR consider the failure to issue arrest warrants for "sufficient and expedient" reasons, the long periods of time, or the automatic application of the catalog crime justification without linking it to the concrete event, as a violation of the right to personal liberty. The Constitutional Court frequently considers the inadequacy of the grounds for arrest as a reason for violation in individual applications.