Arrest is the protective measure that restricts personal freedom in the most severe way. Within the scope of CMK Article 100, it is necessary that strong suspicion of crime and reason for arrest be present together.
Legal Conditions (CMK article 100)
1. Strong Suspicion of Crime
There is strong evidence that the suspect/defendant committed the crime. "Simple suspicion" is not enough for arrest; It must be based on concrete evidence.
2. Reason for Arrest (CMK article 100/2)
Existence of at least one of the following:
- Concrete facts that raise suspicion of escape of the suspect/defendant
- Suspicion of destroying, concealing or altering evidence from the behavior of the suspect/accused
- Attempt to put pressure on witnesses, victims or others
Presumption of Arrest in Catalog Crimes (CMK article 100/3)
It is stated that the reason for arrest can be "presumed" for the following crimes:
- Genocide, crimes against humanity
- Deliberate murder
- Sexual assault, sexual abuse of a child
- Drug/stimulant production and trade
- Establishing an organization to commit crimes
- Crimes against the security of the state, crimes against the constitutional order
- Belonging to an armed organization / Crimes within the scope of the TMK
Authority to Decide on Arrest
- Investigation phase: Criminal Court of Peace
- Prosecution phase: Relevant court (first instance/high penalty)
Detention Periods (CMK article 102)
- The jurisdiction of the Criminal Court of First Instance: 1 year + 6 months extension = maximum 1.5 years
- The jurisdiction of the High Criminal Court: 2 years + 3 years extension = maximum 5 years
- Terrorist crimes: Up to 7 years in total
Judicial Control - Alternative to Arrest (CMK article 109)
Judicial control is applied if lighter measures are sufficient to achieve the purpose of the arrest:
- Prohibition on traveling abroad
- Obligation to sign at a specific location
- House arrest (CMK article 109/3-j)
- Electronic clamp
- Passport delivery
- Not leaving the residence or workplace
Objection Way (CMK article 267)
An objection against the arrest decision may be made within 7 days to the criminal judgeship of peace or a higher judgeship that issued the decision. Objection can also be used against decisions to continue detention.
Request for Evacuation
The suspect / defendant or his defense attorney may request release at any time. The request may also be evaluated outside the detention review periods (at least every 30 days).
Court of Supreme Court and Constitutional Court Jurisprudence
The Constitutional Court has emphasized in many individual applications that arrest is a "last resort" and that the concrete reason for arrest must be justified by specific facts, not general statements. Otherwise, the right to personal freedom (Art. 19) will be violated.
The Supreme Court of Appeals has consistently adopted that arrest is a "precautionary measure", not a "punishment", and that the expectation of conviction alone cannot be used as a justification for arrest.
Advocacy and Practical Advice
- The defense attorney must be present before the first statement
- The right to written/oral statement should be used against the arrest request
- Advocating judicial control options as alternatives
- It is critical not to miss the objection period (7 days)
The measure of arrest is the most severe interference with personal freedom; support from a lawyer experienced in the field of criminal law is indispensable.