Detention and Judicial Control — Conditions, Periods and Objection

Comprehensive legal information under the Code of Criminal Procedure on the conditions for detention, judicial control measures, detention periods and routes of objection.

Detention and Judicial Control — Conditions, Periods and Objection

In criminal procedure, detention is the most severe protective measure affecting personal liberty. Article 19 of the Constitution and the Code of Criminal Procedure No. 5271 (CMK) provide that it may be applied only on specified conditions. Judicial control measures, which must be assessed alongside detention, were introduced as an alternative to it and have become increasingly widespread in practice. This article deals in detail with the conditions for detention, catalogue offences, detention periods, judicial control measures, electronic monitoring, objection to a detention order, applications for release, and individual application to the Constitutional Court.

What Conditions Must Be Met Together for a Detention Order?

Under CMK Art. 100 there must be both concrete evidence indicating strong suspicion of an offence and a ground for detention. Facts of flight or concealment; destruction, concealment or alteration of evidence; or an attempt to put pressure on a witness, victim or other person, are among those grounds. The judge must also establish concretely whether the measure is proportionate to the anticipated penalty and security measure, and why judicial control would be insufficient.

In catalogue offences, where there are grounds for strong suspicion, a ground for detention may be presumed; this is not automatic detention. The name of the offence and the severity of the penalty do not take the place of individualised reasoning.

Under CMK Art. 100/4 no detention order may be made for offences carrying only a judicial fine. In addition, apart from offences committed intentionally against bodily integrity, there is a prohibition on detention for offences whose maximum sentence does not exceed two years. The criterion is not “less than two years” but a maximum that “does not exceed two years”.

The order must set out separately the concrete evidence indicating strong suspicion, the facts showing a risk of flight or interference with evidence, and why judicial control would be insufficient. The level of the penalty, its public impact or a formulaic reference to the file does not take the place of individualised reasoning. Offences for which detention is prohibited, and cases carrying only a judicial fine, are checked separately.

What Are Catalogue Offences and How Do They Affect a Detention Order?

In the catalogue offences listed in CMK Art. 100/3, where there are grounds for strong suspicion that the offence was committed, a ground for detention may be presumed; that presumption is not conclusive, however, and must be assessed on the circumstances of the case. Catalogue offences are types of offence the legislature regards as serious by nature and in which it accepts that the risk of flight and of interference with evidence is typically high.

The catalogue in CMK Art. 100/3 does not consist only of Penal Code offences; it also includes certain offences in special statutes. As regards the Penal Code, the principal groups are genocide and crimes against humanity, intentional homicide, the forms of armed or aggravated injury specified in the statute, torture, the forms of sexual assault specified in the article, sexual abuse of children, theft, robbery, the manufacture of and trafficking in narcotics, the paragraphs specified in the article on forming an organisation to commit offences, and the offences listed against state security and the constitutional order. Certain offences in the legislation on firearms, banking, smuggling, cultural property, assembly and terrorism also appear in the current subparagraphs. It should not be said that an offence falls within the catalogue without seeing its full name, its paragraph and the text of the article in force at the date of the offence.

Falling within a catalogue offence is not an automatic ground for detention. The concrete evidence indicating strong suspicion, the ground for detention and proportionality under CMK Art. 100 are assessed together; why judicial control would be insufficient must be established concretely in the order.

What Are the Detention Periods and How Are They Calculated?

CMK Art. 102 provides for a maximum of one year, extendable by six months where necessary, for matters outside the jurisdiction of the assize court; and a maximum of two years, with extensions totalling three years where necessary, for matters within it. Special extension limits apply to the offences listed in the article concerning state security, the constitutional order, national defence and state secrets, and to offences within the scope of the Anti-Terror Law. For children, reductions apply according to age group.

These periods do not justify the automatic continuation of detention until they expire. At each review, the currency of the suspicion and the grounds for detention, the diligence shown in the proceedings, the time already spent in detention and the alternatives of judicial control must be assessed with concrete reasons. The investigation and prosecution stages and the legal status after judgment are distinguished according to the file.

Even where the maximum period has not yet expired, the continuation of detention is not of itself justified. As evidence is gathered, the risk of interference may decrease; the risk of flight is also examined together with the person's residential, family and employment ties. The effect on the calculation of the period of the investigation stage, the first-instance trial and the status of liberty after judgment must be distinguished according to the stage of the file.

What Are Judicial Control Measures and When Do They Apply?

Judicial control under CMK Art. 109 includes obligations such as not leaving the country, reporting to specified places, providing security, restrictions concerning specified places or persons, and not leaving one's residence. Several obligations may be applied together; each must be necessary and proportionate.

Under CMK Art. 110/A the period is two years, extendable by one year where necessary, for matters outside the assize court's jurisdiction, and three years, extendable by three years where necessary, for matters within it. Different extension limits apply to the special offences listed in the article; the periods are reduced for children. The maximum period of detention varies according to the type of offence and the suspect's age; no single upper limit applies to all files.

A deliberate breach of an obligation may give rise to detention under CMK Art. 112; but not every breach automatically leads to detention. The nature of the breach and proportionality are assessed by the judge or the court.

One or more obligations may be chosen, such as not leaving the country, regular reporting, not going to specified places, providing security, not possessing a firearm and not leaving one's residence. The measure must be connected with the allegation and the risk, suitable and proportionate. The suspect or defendant may seek its lifting or variation; the forum must review at intervals whether the measure needs to continue.

How Does Electronic Monitoring Work?

Electronic monitoring is the supervision by technology of suitable judicial control obligations. It may be used to monitor obligations such as not leaving one's residence, not leaving a specified area of residence, or not going to specified places; its use is not confined to house arrest. The system is operated by the probation directorate under Law No. 5402 and the related regulation.

The method and limits of monitoring are determined by the obligation set out in the order. If the device is removed or damaged, or a defined boundary is breached, the matter is reported to the relevant authority. Whether the breach was deliberate, and the consequence to be applied, are assessed by the judge or the court within the framework of CMK Art. 112 and the principle of proportionality; not every technical alert of itself gives rise to detention.

How Is an Objection Made to a Detention Order?

Orders for detention, for the continuation of detention and refusing an application for release may be challenged under CMK Art. 267 et seq. Since 1 June 2024 the general period for objection has been two weeks from becoming aware of the order; the former seven-day period is out of date.

The application is made to the authority that gave the order. If that authority does not correct its order, it sends the file to the objection forum specified in the statute. The petition should establish concretely the evidence indicating strong suspicion, the absence of any risk of flight or interference with evidence, the gathering of the evidence, the length of detention and the availability of sufficient judicial control alternatives.

The objection petition may set out not only a request for release but also the deficiencies in the evidence constituting strong indications, the failure to establish concretely a ground for detention, the effect of the time elapsed on proportionality, and suitable judicial control options. The forum and the procedure for examining the objection are determined under CMK Art. 268; the regular review of detention and the suspect's or defendant's application for release at any stage are separate avenues.

How and When May an Application for Release Be Made?

An application for release may be made at any stage by the suspect or defendant or their counsel, by written petition addressed to the magistrate judge at the investigation stage and to the trial court at the prosecution stage. There is no time limit and it may be made repeatedly. It should rest on concrete grounds such as that the conditions for detention have ceased, that the evidence has been gathered, that there is no suspicion of flight, or that proportionality has been breached. Individual circumstances such as health, family situation and employment may also be advanced.

An objection may also be brought against the refusal of an application for release. Where there is a new development in the file or circumstances change after a refusal, a fresh application for release is legally possible. In practice the completion of the evidence-gathering process, the length of detention and the fact that witness statements have been taken are factors that weigh in favour of granting such applications.

How Is Detention Reviewed by Individual Application to the Constitutional Court?

An individual application to the Constitutional Court may be made, once the ordinary remedies have been exhausted, alleging that a right within the common protection of the Constitution and the European Convention on Human Rights has been violated by public authority. The period is as a rule thirty days from becoming aware of the final decision exhausting the remedies or, where there is no remedy, from becoming aware of the violation.

The Court does not re-weigh the evidence like an appellate court; it reviews, as a matter of constitutional rights, the statutory basis of the detention, the strong indications, the legitimate aim, the reasoning, proportionality, the length of detention and the guarantees of an effective remedy. Where a violation is found, consequences such as a retrial or compensation may follow in order to remedy the violation and its effects; not every finding of violation is automatically an order for release.

An interim measure is exceptional. The strict conditions in the Rules of Court are required, such as a serious risk to the applicant's life or physical or mental integrity. A mere allegation of lengthy detention or the existence of a health problem does not mean that an interim measure will be granted without regard to the circumstances of the file.

In an individual application the ordinary remedies available and effective in relation to the complaint must as a rule be exhausted. An application made without using the objection route available against a detention order or an order continuing detention may be declared inadmissible unless there is a justified reason showing that the route was ineffective in the particular case. In ongoing detention, the remedy to be exhausted and the time of application must be assessed separately according to the nature of the complaint and the most recent detention order. The application must clearly identify the right violated, the act constituting the violation and its consequences.

What Is the Role and Importance of Defence Counsel?

Defence counsel is the attorney who provides legal assistance to the suspect or defendant at every stage of the detention process, undertaking critical functions such as being present at questioning when detention is sought, objecting to the detention order and applying for release. Under CMK Art. 101/3 the right to object to detention orders is also afforded to counsel.

Counsel's presence during questioning is of vital importance for the protection of the suspect's rights. Counsel checks whether any unlawful practice occurs during questioning, reminds the suspect of their rights and makes submissions against the grounds for detention. In particular, the appointment of counsel is mandatory under CMK Art. 150 for certain offences and in certain conditions.

Counsel has a right to examine the file in the objection process. Under CMK Art. 153 counsel as a rule has that power at the investigation stage; but it may be restricted where it could endanger the purpose of the investigation. A restriction order may itself be challenged.

Frequently Asked Questions

Is detention mandatory in a catalogue offence?

No. Although a ground for detention may be presumed in catalogue offences, the concrete evidence indicating strong suspicion, proportionality and why judicial control would be insufficient must also be assessed.

What is the period for objecting to a detention order?

Under CMK Art. 268 the general period is two weeks from becoming aware of the order. Whether a special provision applies must be checked separately for the particular order.

How many times may an application for release be made?

The suspect or defendant and their counsel may seek release at any stage of the investigation and prosecution. Explaining concretely any new facts and changed circumstances is important for the assessment of the application.

Is electronic monitoring used only for an order not to leave one's residence?

No. Electronic monitoring may be used to supervise other judicial control obligations whose nature makes it suitable. The method applied is determined by the content of the order.

Official sources: Constitution of the Republic of Türkiye, Code of Criminal Procedure No. 5271, Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court, Probation Services Law No. 5402