Rights in Police Custody — The Custody Process, Time Limits and the Suspect's Rights

General information on the length of police custody, the right to counsel, the right to silence, notification of relatives and the routes for challenging custody.

In Brief

Under the general rule of the Code of Criminal Procedure, custody may not exceed 24 hours from the moment of apprehension; the time necessarily required to bring the person to the nearest judge or court is not counted, and that travel time may not exceed 12 hours. In collective offences, where gathering the evidence is difficult or the number of suspects is large, the public prosecutor may issue a written extension order for three days, each extension not exceeding one day. Under the general rule, total custody may therefore reach four days: the initial 24 hours plus an extension of up to three days.

Custody is not detention on remand. A detention order is given by a judge. Custody is as a rule applied by decision of the public prosecutor; however, art. 91/4 of the Code of Criminal Procedure also provides a special power for a senior police officer, limited to cases of flagrante delicto and the situations listed in that article.

The suspect has the right to remain silent, to be informed of the accusation, to benefit from the assistance of defence counsel, to request the gathering of evidence in their favour, to have their relatives notified, to an interpreter, and to apply to a judge against the custody measure. The effect of a breach of one of these rights on the evidence is assessed separately according to the guarantee breached and the way the evidence was obtained.

What Is Police Custody?

Custody is the holding of an apprehended person under police supervision, where the statutory conditions are met, for a limited period and for the purpose of completing the investigation. Under art. 91/2 of the Code of Criminal Procedure, taking a person into custody depends on the measure being necessary for the investigation and on there being indications suggesting that the person committed the offence.

As a rule the custody decision is taken by the public prosecutor. The absolute statement “the police can never take a custody decision” is incorrect: art. 91/4 of the Code of Criminal Procedure contains an exceptional power limited to flagrante delicto and the situations listed in that article. Provisions of special statutes are also reserved.

Custody Time Limits

The extension order is notified to the person in custody immediately. The upper limits in the Constitution must not be confused with the ordinary custody periods in the Code of Criminal Procedure; whether a special investigative procedure or a special statute applies in the particular case must also be examined.

The Rights of a Person Taken into Custody

1. The Right to Silence

The suspect must be informed that they have a statutory right not to make a statement about the offence attributed to them (Code of Criminal Procedure art. 147/1-e; Constitution art. 38/5). Exercising the right to silence does not on its own imply guilt.

2. The Right to Be Informed of the Accusation

The offence attributed to the suspect is explained to them (Code of Criminal Procedure art. 147/1-b). At the time of apprehension, the reason for the apprehension, the allegations and the person's rights are also notified immediately once measures to prevent escape or the destruction of evidence have been taken.

3. The Right to the Assistance of Defence Counsel

The suspect may benefit from the assistance of defence counsel at every stage of the investigation. They are asked to choose counsel; if they state that they are unable to do so and wish to benefit from the assistance of counsel, counsel is appointed by the bar association.

Under art. 150/2 of the Code of Criminal Procedure, counsel is appointed without any request for a suspect or accused who is a child, who is disabled to the extent of being unable to defend themselves, or who is deaf and mute. Under art. 150/3, representation by counsel is mandatory for offences carrying a minimum sentence of more than five years' imprisonment. The criterion is not that the “maximum sentence is at least five years”.

Meetings with counsel are as a rule held where others cannot hear them, and correspondence may not be monitored. However, for the particular offences listed in art. 154/2 of the Code of Criminal Procedure, the right to meet may be restricted for up to 24 hours on the request of the public prosecutor and by decision of a judge; no statement may be taken from the person during that period. For that reason the statement “meetings with counsel can never be restricted” is not correct as an absolute proposition.

4. Notification of Relatives

The situation of a person apprehended or taken into custody is notified without delay, on the order of the public prosecutor, to a relative or to a person they designate (Code of Criminal Procedure art. 95). If the person is a foreign national, notification is also made to the consulate of the State of which they are a national, unless they object in writing.

5. The Right to Request the Gathering of Evidence in Their Favour

The suspect may request that concrete evidence be gathered in order to clear themselves of suspicion; they are given the opportunity to put forward the matters in their favour (Code of Criminal Procedure art. 147/1-f).

6. The Assistance of an Interpreter

The essential points of the accusation and the defence are explained through an interpreter to a person who does not speak Turkish well enough to express themselves. A suitable interpreter is likewise appointed for a person who, because of a disability, cannot understand the essential points of the accusation and the defence at the hearing (Code of Criminal Procedure art. 202). The interpreter costs provided for by the statute are not charged to the person as costs of the proceedings.

What Are the Main Differences Between Custody and Detention on Remand?

How Is a Custody Measure Challenged?

Against the act of apprehension and against the public prosecutor's written order taking a person into custody or extending custody, the person apprehended, their counsel, their legal representative, their spouse or a blood relative of the first or second degree may apply to the magistrate in criminal matters (Code of Criminal Procedure art. 91/5). The judge examines the matter on the papers and decides on the application before 24 hours have elapsed. Because the application is aimed at securing release while the measure is still in force, it should be made without delay.

The Effect of an Unlawful Act on the Evidence, and Compensation

Findings obtained by unlawful methods cannot be accepted as evidence (Constitution art. 38/6; Code of Criminal Procedure arts. 206/2-a and 217/2). Nevertheless it cannot be said that every procedural breach automatically invalidates all statements with the same consequence; the link between the breach and the evidence is assessed concretely. For example, a statement taken by the police without counsel present cannot form the basis of a judgment unless it is confirmed by the suspect or accused before a judge or court (Code of Criminal Procedure art. 148/4).

In the cases listed in the statute, pecuniary and non-pecuniary damages may be claimed for unlawful apprehension or custody under art. 141 and the following articles of the Code of Criminal Procedure. The conditions and time limits for such an application must be examined separately according to the particular act.

Conclusion

Under the general scheme of the Code of Criminal Procedure, custody lasts 24 hours for individual offences and, with written extensions, a total of at most four days for collective offences; the necessary travel time is additional and may not exceed 12 hours. The suspect has the rights to silence, to be informed of the accusation, to counsel, to notification, to an interpreter, to evidence in their favour, and to apply to a judge. Special statutes and the exceptions in arts. 91/4 and 154/2 of the Code of Criminal Procedure must also be observed.

Official sources: Code of Criminal Procedure no. 5271, Constitution of the Republic of Türkiye