Judicial Control
Judicial control is a legal measure in which a suspect or defendant is kept under supervision with certain conditions instead of being detained. This practice is defined in Article 109 of the Criminal Procedure Code (CMK) as follows:
“In an investigation conducted due to a crime, if the reasons for detention specified in Article 100 exist, the suspect may be placed under judicial control instead of being detained.”
The reasons for detention stated in Article 100 of the CMK are as follows:
- If there are concrete facts indicating that the suspect or defendant may flee, hide, or that there is a suspicion of escape.
- The behaviors of the suspect or defendant;
1. Destroying, concealing, or altering evidence,
2. Creating a strong suspicion of attempting to exert pressure on witnesses, the victim, or others.
- If there are strong grounds for suspicion, based on concrete evidence, that the following crimes have been committed, a reason for detention may be presumed:
- Under the Turkish Penal Code No. 5237:
- Genocide and crimes against humanity (Articles 76, 77, 78),
- Migrant smuggling and human trafficking (Articles 79, 80),
- Intentional killing (Articles 81, 82, 83),
- Intentional injury (Article 86, paragraph 3, subparagraphs b, e, and f) and aggravated intentional injury due to its consequences (Article 87),
- Torture (Articles 94, 95),
- Sexual assault (except for the first paragraph, Article 102),
- Sexual abuse of children (Article 103),
- Theft (Articles 141, 142) and robbery (Articles 148, 149),
- Production and trafficking of narcotic or stimulant substances (Article 188),
- Establishing an organization with the purpose of committing crimes (except for paragraphs 2, 7, and 8, Article 220),
- Crimes against the Security of the State (Articles 302, 303, 304, 307, 308),
- Crimes against the Constitutional Order and the Functioning of This Order (Articles 309, 310, 311, 312, 313, 314, 315),
- Under the Law No. 6136 on Firearms, Knives and Other Tools:
- Firearms smuggling (Article 12).
- Under the Banks Law No. 4389, dated 18.6.1999:
- Embezzlement as defined in Article 22, paragraphs (3) and (4).
- Under the Anti-Smuggling Law No. 4926:
- Crimes requiring imprisonment.
- Under the Law No. 2863 on the Protection of Cultural and Natural Assets:
- Crimes defined in Articles 68 and 74.
- Under the Forest Law No. 6831:
- Crimes of intentional forest burning defined in Article 110, paragraphs 4 and 5.
- Under the Law No. 2911 on Meetings and Demonstrations:
- Crimes listed in Article 33.
- Under the Anti-Terror Law No. 3713:
- Crimes specified in Article 7, paragraph 3.
- Intentional injury committed against women.
- Intentional injury committed against healthcare personnel during or because of their duties.
- Intentional injury committed against principals, teachers, master instructors, foreign national educators, or guidance counselors working in official educational institutions affiliated with the Ministry of National Education; against managers, teachers, expert instructors, and master instructors working in private educational institutions; against individuals teaching on an hourly basis in official or private educational institutions under the Ministry of National Education; and against teachers working in other public institutions and organizations, during or because of their duties.
However, in cases where the law prescribes a prohibition on detention, the provisions regarding judicial control may still be applied.
What Are the Types of Judicial Control?
Judicial control involves subjecting the suspect to one or more of the following obligations:
- Prohibition from leaving the country.
- Regularly reporting to places designated by the judge within specified periods.
- Complying with the control measures related to responding to the summons of authorities or persons designated by the judge, and, when necessary, those concerning professional activities or continuing education.
- Prohibition from using any or certain types of vehicles, and, when required, surrendering the driver’s license to the court office in exchange for a receipt.
- Undergoing and accepting treatment or examination measures, including hospitalization if necessary, particularly for the purpose of overcoming addiction to drugs, stimulants, volatile substances, or alcohol.
- Depositing a security amount determined by the judge, upon the request of the public prosecutor, taking into account the suspect’s financial situation, with the amount and payment schedule set as a lump sum or in multiple installments.
- Prohibition from possessing or carrying firearms, and, when required, surrendering owned firearms to judicial custody in exchange for a receipt.
- Providing security, either in kind or personal, in an amount and within a period determined by the judge upon the request of the public prosecutor, to guarantee the rights of the victim of the crime.
- Giving assurance to fulfill family obligations and to regularly pay alimony as ordered by judicial decisions.
- Prohibition from leaving one’s residence.
- Prohibition from leaving a designated residential area.
- Prohibition from going to certain specified places or regions.
Illness, Disability, and Pregnancy
In accordance with Article 16, paragraph 3 of the Law No. 5275 on the Execution of Sentences and Security Measures, if it is determined that a suspect, due to a serious illness or disability, cannot sustain his or her life alone under the conditions of a penal institution, or if the suspect is a pregnant woman or a woman who has given birth within the past six months, a decision may be made to place the suspect under judicial control instead of detention.
If a conviction has been rendered against the suspect and an appeal or cassation has been filed regarding this judgment, the first instance court that issued the conviction may also issue a judicial control order by examining the UYAP (National Judiciary Informatics System) records.
Duration of Judicial Control
In cases that do not fall under the jurisdiction of the high criminal court, the maximum duration of judicial control is two years. However, this period may be extended by an additional year if necessary, provided that justification is given.
In cases under the jurisdiction of the high criminal court, the maximum duration of judicial control is three years. This period may also be extended if necessary, with justification; however, the total extension period cannot exceed three years, and in crimes defined in Book Two, Part Four, Chapters Four, Five, Six, and Seven of the Turkish Penal Code, as well as crimes falling under the scope of the Anti-Terror Law, it cannot exceed four years.
For children, these durations are applied at half the length.
How to Appeal a Judicial Control Decision
A judicial control decision can be appealed in accordance with Article 111/2 of the Criminal Procedure Code (CMK). The appeal period is two weeks from the date the judicial control decision is learned.
Upon the request of the suspect or defendant, after obtaining the opinion of the public prosecutor, the judge or court may, within five days, decide in accordance with the provision:
“The judge, upon the request of the public prosecutor, may subject the suspect to one or more new obligations under judicial control; may wholly or partially remove or modify the obligations constituting the control measures, or may temporarily exempt the suspect from complying with some of them.”
Who Can Appeal a Judicial Control Decision?
The suspect or defendant’s legal representative, spouse, and lawyer can appeal the judicial control decision on behalf of the suspect or defendant.
Which Authority to Appeal a Judicial Control Decision?
During the investigation phase, appeals against decisions on detention and judicial control issued by the magistrate criminal court are made to the penal court of first instance within the same judicial district.
During the prosecution phase, appeals against decisions issued by the judge of the penal court of first instance are made to the high criminal court within the same judicial district. For decisions issued by this court or its president, if there are multiple chambers of the high criminal court in that location, the appeal is made to the chamber with the next consecutive number; for the chamber with the highest number, the appeal is made to the first chamber. If there is only one chamber of the high criminal court in that location, the appeal is made to the nearest high criminal court.
Duration to Be Spent Under Judicial Control
The duration to be spent under judicial control is explicitly specified in the Criminal Procedure Code (CMK). Accordingly;
- In cases that do not fall under the jurisdiction of the high criminal court, the maximum duration of judicial control is two years. However, this period may be extended by an additional year in mandatory situations, provided that justification is given.
- In cases under the jurisdiction of the high criminal court, the maximum duration of judicial control is three years. This period may also be extended in mandatory situations with justification; however, the total extension period cannot exceed three years, and in crimes defined in Book Two, Part Four, Chapters Four, Five, Six, and Seven of the Turkish Penal Code, as well as crimes falling under the scope of the Anti-Terror Law, it cannot exceed four years.
- The judicial control durations provided in this article are applied at half length for children.
Additionally, whether the suspect’s or defendant’s judicial control obligations need to continue is evaluated at intervals of no more than four months; during the investigation phase, this evaluation is conducted by the magistrate criminal judge upon the request of the public prosecutor, and during the prosecution phase, it is conducted by the court ex officio.
Non-Compliance with a Judicial Control Decision
The situation of non-compliance with judicial control measures is addressed in Article 112 of the Criminal Procedure Code (CMK). Accordingly;
- If a suspect or defendant willfully fails to comply with judicial control measures, the competent judicial authority may immediately issue a detention order, regardless of the length of the potential prison sentence.
- If a conviction has been rendered against the individual and an appeal or cassation has been filed regarding this judgment, the first instance court that issued the conviction may also issue a detention order by reviewing the UYAP (National Judiciary Informatics System) records.
- A detention order may also be issued if the suspect or defendant violates judicial control measures imposed due to the expiration of the maximum detention period. However, in such cases, the detention period cannot exceed nine months for cases under the jurisdiction of the high criminal court, and two months for other cases.
What is a Security (Guarantee)?
Within the scope of judicial control decisions, the suspect or defendant may be required to deposit a specific security amount (bail). This security is one of the judicial control measures regulated in Article 109 of the Criminal Procedure Code (CMK).
The security provided by the suspect or defendant ensures the fulfillment of the following obligations:
a) The presence of the suspect or defendant in all procedural actions, during the execution of the judgment, or to fulfill other obligations that may be imposed.
b) Making payments in the order specified below:
1. Expenses incurred by the victim, compensation for damages caused by the crime, and restoration to the previous state; if the suspect or defendant is being prosecuted for failure to pay alimony, their alimony obligations.
2. Public expenses.
3. Fines
In the decision requiring the suspect or defendant to provide a security, the portions covered by the security are specified separately.
Is the Duration of Judicial Control Deducted from the Sentence?
The time spent under judicial control is considered a restriction of personal freedom and cannot be deducted from the sentence. However, this provision does not apply in the following cases:
- Undergoing and accepting treatment or examination measures, including hospitalization if necessary, particularly for the purpose of overcoming addiction to drugs, stimulants, volatile substances, or alcohol.
- Not leaving one’s residence.
However, each two days spent under the obligation of not leaving one’s residence is counted as one day when deducting from the sentence.
Is a Judicial Control Decision Recorded in the Criminal Record?
Since judicial control decisions do not constitute a final judgment or a criminal penalty, they are merely a precautionary measure and are not recorded in the criminal record.
Can Compensation Be Claimed Due to Judicial Control?
In accordance with Article 141 of the Criminal Procedure Code No. 5271;
- Not leaving one’s residence,
- Individuals who, after being subjected to judicial control obligations such as undergoing and accepting treatment or examination measures, including hospitalization if necessary, for overcoming addiction to drugs, stimulants, volatile substances, or alcohol, are subsequently acquitted or for whom prosecution is dismissed, may claim compensation from the State for all their material and moral damages.
Precedent Decisions
In the case concerning the claim for compensation due to the unlawful continuation of the judicial control measure restricting the plaintiff from leaving their residence—despite this measure having been lifted on 06.10.2016, but remaining in effect until 10.03.2017 without notice—the local court ruled that the defendant pay the plaintiff 6,945.25 TL in material damages and 10,000 TL in moral damages, along with the statutory interest accruing from the date of the lawsuit. Upon appeal by both the plaintiff and the defendant’s attorneys, the Regional Court of Justice reviewed the case and ultimately rejected the appeal on the merits.
The case history shows that the Gebze Public Prosecutor’s Office opened an investigation against the plaintiff on 18.07.2016 under Investigation No. 2016/13003 for the crimes of attempting to overthrow the constitutional order, attempting to overthrow the Government of the Republic of Turkey or preventing it from performing its duties, and being a member of an armed terrorist organization. In this context, the plaintiff was sent to the Gebze 2nd Magistrate Criminal Court with a request for detention. During the interrogation dated 19.07.2016, Case No. 2016/255, the Gebze 2nd Magistrate Criminal Court rejected the prosecutor’s detention request and placed the plaintiff under judicial control, prohibiting travel abroad, pursuant to Article 109/3-a of the Criminal Procedure Code (CMK).
The Gebze Public Prosecutor’s Office objected to this decision and requested the issuance of an arrest warrant for detention. As a result of this objection, the Gebze 1st Magistrate Criminal Court, in its decision dated 21.07.2016, Case No. 2016/2641, rejected the detention request and decided that the plaintiff be placed under judicial control prohibiting travel abroad, as well as a judicial control obligation under Article 109/3-j of the CMK requiring the plaintiff not to leave their residence.
As understood from the response of the İzmir Probation Directorate dated 25.12.2017, the enforcement of the plaintiff’s judicial control files, which included the obligation not to leave their residence, began in the institution on 19.08.2016 with the application of an electronic bracelet.
Regarding the judicial control measure imposed on the plaintiff, based on the decision of the Ankara 3rd Magistrate Criminal Court dated 06.10.2016, Case No. 2016/5174, and the decisions of the Gebze 1st Magistrate Criminal Court dated 21.07.2016, Case No. 2016/2641, and the Gebze 2nd Magistrate Criminal Court dated 19.07.2016, Case No. 2016/255, as well as the request of the Ankara Public Prosecutor’s Office in its letter dated 04.10.2016, Case No. 2016/104109, it was decided by the Gebze 1st Magistrate Criminal Court, in its decision dated 21.07.2016, Case No. 2016/2641, to lift the judicial control measure prohibiting the plaintiff from leaving their residence under Article 109/3-j of the Criminal Procedure Code (CMK). However, this decision was not communicated to the relevant institutions.
Upon the plaintiff’s petition dated 16.02.2017 requesting the removal of the judicial control measure prohibiting them from leaving their residence, the Samsun Public Prosecutor’s Office, with Investigation File No. 2017/6298 dated 10.03.2017, requested the lifting of this judicial control measure. Upon review of the request, the Samsun 2nd Magistrate Criminal Court, by its decision dated 10.03.2017, Case No. 2017/1740, determined that the judicial control measure prohibiting the plaintiff from leaving their residence had already been lifted by the Ankara 3rd Magistrate Criminal Court on 06.10.2016, Case No. 2016/5174, and therefore ruled that no decision was necessary regarding the request.
It was established that, upon realizing that the judicial control measure prohibiting the plaintiff from leaving their residence had already been lifted, the enforcement of the measure was terminated on the same day by probation authorities through the removal of the electronic bracelet.
Accordingly, although the damage caused to the plaintiff due to the judicial control measure cannot be explicitly found in the literal text of Article 141/1 of the Criminal Procedure Code (CMK), when taking into account the provision added to the third paragraph of Article 141 by Article 70 of Law No. 6546 dated 18.06.2014, which states:
“Except for the cases listed in the first paragraph, compensation claims arising from personal fault, tort, or other liability situations during the investigation or prosecution, including decisions or actions taken by judges and public prosecutors, can only be filed against the State,”
it was concluded that there was no error in awarding the plaintiff a reasonable amount of material and moral compensation (in accordance with principles of rights and fairness) due to the judicial control measure that continued to be enforced despite being lifted. Additionally, since the plaintiff’s petition did not specify the starting date for the statutory interest to be applied to the awarded compensation, there was no error in starting the interest calculation from the date of the lawsuit. Therefore, the opinion in the report requesting correction and approval regarding this matter was not concurred with.
(Court of Cassation, 12th Criminal Chamber, Case No. 2019/13827 E., 2021/1802 K., 22.02.2021)
“The suspect was referred for detention on charges of ‘forgery of official documents.’ The Sincan 2nd Magistrate Criminal Court decided that the suspect be placed under judicial control pursuant to Article 109/1 of the Criminal Procedure Code (CMK) and, in accordance with Article 109/3-b of the CMK, required the suspect to report once daily at 20:00 to the nearest police station to register their signature. The objection of the Sincan Public Prosecutor’s Office to this decision was rejected by the Sincan 1st High Criminal Court Presidency, which is authorized to review such matters under Article 268/3-b of the CMK.
In light of Article 109, paragraph 1 of the CMK No. 5271, which states: “If the detention reasons specified in Article 100 exist, in an investigation concerning an offense requiring a maximum imprisonment of three years or less, the suspect may be placed under judicial control instead of detention,” and paragraph 4, which provides: “In terms of subjecting the suspect to the obligations listed in subparagraphs (a) and (f) of the third paragraph, the time limit specified in the first paragraph shall not apply,” the judicial control decision in question is contrary to the law because the offense subject to the detention request carries a maximum sentence exceeding three years. Therefore, the rejection of the objection on this basis was incorrect.
(Court of Cassation, 11th Criminal Chamber, Case No. 2008/13063 E., 2009/6948 K., 05.06.2009)
Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
ANTALYA CRIMINAL LAWYER – ANTALYA LAWYER
A judicial control order is an important measure that allows a suspect or defendant to be released under certain obligations instead of being detained. This order may include conditions such as a reporting requirement, a travel ban, or regular appearances at specific locations. For individuals facing a judicial control order in Antalya, an experienced Antalya lawyer plays a crucial role in properly managing the process. Obtaining professional support from a specialized lawyer can positively influence the course of the case by ensuring the legality of freedom restrictions and preventing potential grievances.
