What is Arrest (Detention)?
Arrest (detention) is a preventive measure whereby a person, against whom a detention order has been issued by the public prosecutor, is temporarily deprived of their liberty for a legal period until they are either brought before a judge or released. In this context, it should be noted that while a detention order is issued by the prosecutor, a decision for arrest (imprisonment) must be made by a judge.
What is the Detention Period?
The detention period essentially begins at the moment a person’s freedom of movement is restricted by the state. In regard to the detention period, it is necessary to conduct a detailed examination of the criteria set forth by the European Court of Human Rights, the Code of Criminal Procedure, and the Regulation on Apprehension, Detention, and Interrogation.
1.European Court of Human Rights
The European Convention on Human Rights has stated that a suspect must be brought promptly before a judge or another officer authorized by law to exercise judicial power. It should be noted that the term “promptly” is open-ended and does not indicate a specific period of time, but it emphasizes that the suspect should not be kept waiting unnecessarily.
2.Criminal Procedure Code
Article 91 of the Criminal Procedure Code (CMK) regulates the detention period as follows:
“The duration of detention may not exceed twenty-four hours from the moment of arrest, excluding the time required to transfer the suspect to the nearest judge or court. The time required for transfer to the nearest judge or court may not exceed twelve hours.”
3.Regulation on Apprehension, Detention, and Statement Taking
The Regulation on Apprehension, Detention, and Statement Taking sets out the detention period in Article 12 with the following provision (similar to the CMK):
“The duration of detention may not exceed twenty-four hours from the moment of apprehension, excluding the time required to transfer the person to the nearest judge or court. The time required for transfer to the nearest judge or court may not exceed twelve hours.”
Additionally, in cases where the offense is committed collectively, due to difficulties in collecting evidence or the large number of suspects, the public prosecutor is authorized to extend the 24-hour detention period (set for individual offenses) for up to three additional days, provided that each extension does not exceed one day. Therefore, in collective offenses, with three extensions, a suspect may be detained for a maximum total of 4 days.
Reasons for Being Taken into Custody
According to Article 91/2 of the Criminal Procedure Code (CMK), two conditions must be present simultaneously in order for a custody decision to be issued. These are:
- The necessity of the custody measure from the perspective of the investigation
- The existence of concrete evidence indicating suspicion that the person committed a crime
If the two conditions listed above are not both met, the prosecuting authority cannot issue a detention order. Accordingly, the prosecutor may summon the suspect by invitation to give a statement or carry out other procedures. Therefore, if the suspect does not appear voluntarily, a warrant for their forced appearance can be issued.
Detention Orders to Be Issued Concerning Minors (Children)
The procedure for detaining minors, that is, children, is specially regulated. In this regard, a distinction is made based on whether the children are older or younger than 12 years of age.
● Children under 12 years old and deaf-mute individuals under 15 years old at the time the act was committed; as stated in Article 19 of the Regulation on Arrest, Detention, and Taking Statements, “Cannot be arrested due to the crime and cannot be used as evidence of a crime in any way. They may be arrested only for identification and crime verification purposes. They are released immediately after identification. The identified identity and crime are promptly reported to the Chief Public Prosecutor’s Office by the presiding judge or magistrate to serve as the basis for taking precautionary measures.”
● Children who are older than 12 but younger than 18 at the time the act was committed may be arrested due to the crime. These children are immediately referred to the Chief Public Prosecutor’s Office with notification to a lawyer through their relatives; the relevant investigation is personally conducted by the Chief Public Prosecutor or a public prosecutor appointed by them. In this matter, the parties may require the assistance of a criminal lawyer, including criminal lawyers in Antalya.
Objection Procedure to Detention Decision
The detention or extension of detention ordered by the public prosecutor grants the suspect or some of the suspect’s close relatives the right to object due to the restriction of liberty. Pursuant to this objection, Article 91/5 of the Criminal Procedure Code (CMK) states:
“Against the written order of the public prosecutor regarding the arrest, detention, or extension of the detention period, the arrested person, their defense attorney, legal representative, spouse, or first- or second-degree blood relatives may immediately apply to the criminal magistrate judge to secure release. The criminal magistrate judge shall review the application based on the documents and conclude the process immediately, and no later than twenty-four hours. If it is determined that the arrest, detention, or extension of the detention period is justified, the application is rejected, or it is decided that the arrested person be immediately made available at the Public Prosecutor’s Office with the investigation documents.”
Frequently Asked Questions
1.Where is a Detainee Held?
A person who is detained is held in a detention cell at police stations or precincts for the duration of the detention process. The Regulation on Apprehension, Detention, and Taking Statements defines detention cells as places “designed for holding suspects or accused individuals until the completion of procedures against them and their transfer to judicial authorities.”
2.Is Handcuffing Mandatory During Detention?
During detention, it is not mandatory for law enforcement officers to handcuff the detainee. However, if there are indications that the suspect may attempt to escape or if there are signs that the suspect poses a danger to their own or others’ life and physical integrity, handcuffing may be applied (Article 93 of the Criminal Procedure Code).
3.Can a Detained Person Notify Their Relatives?
According to Article 95/1 of the Criminal Procedure Code, the detention decision made against a suspect is promptly communicated to one of the suspect’s relatives or a person designated by them upon the order of the Public Prosecutor. However, if the detained person is a foreigner, the situation is notified to the consulate of the person’s country of citizenship unless the detainee objects in writing.
4.Is the Detention Decision Recorded in the Criminal Record?
Since a detention decision is a protective measure, it is not recorded in the suspect’s criminal record (GBT). This is because the detained person has not yet been tried in court and no judgment has been made against them.
5.Can the Detention Period Be Extended?
As mentioned, the detention period can be extended in addition to the existing detention. The reason for extending the detention period is due to difficulties encountered during the statements of complainants or suspects, the hearing of witnesses, identification procedures, and efforts to obtain elements such as blood or urine tests.
6.What Are the Rights of a Detained Person?
The detained person has the following rights:
a) The right to notify their relatives, (The person’s relatives must be informed immediately when the person is taken into custody or when the detention period is extended.)
b) The right to consult with a lawyer, (The detained person’s communication and meetings with their lawyer cannot be restricted. If the person does not have a lawyer, they may request that a lawyer be appointed to them by the bar association.)
c) The right to remain silent, (The person under detention cannot be forced to make a statement or give testimony against themselves. They may choose to remain silent or, after consulting with their lawyer, may request to give a statement together with their lawyer.)
7.Can a Person Be Detained Again for the Same Crime?
If the detention period expires or the criminal magistrate lifts the detention order and the person is released, the person cannot be re-arrested (detained) for the same crime unless there is sufficient evidence and a decision by the public prosecutor.
8.I Was Wrongfully Detained, Can I Claim Compensation?
Since detention is a protective measure, if this measure is applied unjustly—meaning the person is wrongfully detained—the individual has the right to apply to the compensation commission to claim compensation. The compensation claim is essentially made against the state, specifically the treasury, through the compensation commission. Accordingly, the conditions under which a detained person can receive compensation due to an unlawful protective measure are as follows:
a) There must be an official detention order issued against the person.
b) Regarding the criminal allegation that led to the detention, there must be a final decision of non-prosecution or acquittal.
c) The applicant must apply to the compensation commission within the prescribed period, that is, within three months from the notification of the non-prosecution or acquittal decision, and in any case within one year following that period.
9.How Much Compensation Can I Receive for Unlawful Detention?
A person whose personal rights have been violated due to unlawful detention has the right to claim both material and moral compensation from the Treasury for this reason. Although there is no fixed amount for compensation, in practice, material compensation is calculated based on the person’s daily earnings for each day they were unlawfully detained. If the person is not employed, the calculation is based on the minimum wage, and the daily earnings amount is taken into account. Regarding moral compensation, each case is evaluated individually according to the impact it has on the person, and an appropriate amount is awarded. Accordingly, the amount deemed appropriate by the Constitutional Court for 2025 is 3,330 TRY for each day of unlawful detention. (Constitutional Court Decision No. 2021/51671, dated 22.01.2025.)
10.Can a Compensation Lawsuit Be Filed in Case of Ill-Treatment During Detention?
If law enforcement officers commit ill-treatment or torture against a suspect in detention, the detained person has the right to file a compensation lawsuit. It is known that such compensation claims fall within the jurisdiction of civil courts of first instance.
Some Supreme Court (Yargıtay) Decisions Regarding Detention
- “In the case of a defendant prosecuted for membership in an armed terrorist organization, who neither had a defense counsel of their own choosing during the prosecution phase nor was assigned one ex officio pursuant to Article 156 of the Criminal Procedure Code (CMK), it is a mandatory consequence of the principle of fair trial guaranteed by Article 36 of the Constitution and Article 6 of the European Convention on Human Rights that a defense counsel must be appointed in accordance with paragraphs 2 and 3 of Article 150 of the CMK. Failing to consider this and issuing a conviction without the presence of a defense counsel, thereby restricting the right to defense, constitutes a violation of Articles 150/3, 188/1, 197/1, and 289/1-a-e of the CMK and is unlawful. Since the defendant’s appeals have been found to be justified on this ground, without examining other aspects of the verdict, the decision is primarily to be REVERSED pursuant to Article 302/2 of the CMK. Accordingly, under Article 304/1 of Law No. 5271, as amended by Article 8 of Law No. 7165 dated 20.02.2019, which entered into force on 28.02.2019, the file is to be REFERRED to the Bursa 9th High Criminal Court, with a copy of the decision to be sent to the Bursa Regional Court of Appeal 2nd Criminal Chamber for information, and the case file submitted to the Supreme Court Chief Public Prosecutor’s Office.” (Supreme Court 16th Criminal Chamber, Decision dated 03.03.2020, File No. 2020/118, Decision No. 2020/1649)
- “In the concrete case, since it is necessary to accept that the person for whom an arrest warrant was issued by the Küçükçekmece 2nd Magistrate’s Criminal Court for the purpose of taking their statement and releasing them was held in custody from the time of their arrest until their release after giving a statement, the act of the defendant who, while the person was escaping custody, grabbed the arm of the security officer pursuing the person in order to apprehend them and prevented the pursuit, constitutes the crime of ‘enabling escape by using force’ as regulated in Article 294/1-3 of the Turkish Penal Code (TCK). Failing to consider this and issuing a judgment contrary to law, the defendant’s appeals have been found justified on this ground. Therefore, the judgment is to be REVERSED pursuant to Article 321 of the Code of Criminal Procedure (CMUK), which applies under Article 8/1 of Law No. 5320…” (Supreme Court 8th Criminal Chamber, Decision dated 28.02.2019, File No. 2019/118, Decision No. 2019/2908)
- “In the concrete case, where the defendant, against whom a detention order was issued by the public prosecutor for the crime of theft, escaped while under the supervision of law enforcement officers, considering that the defendant was in the status of a detained suspect, the condition of being a convicted or imprisoned offender stipulated in Article 292/1 of the Turkish Penal Code (TCK) concerning the perpetrator of the crime was not met. Therefore, instead of acquittal, a conviction was wrongly decided. This necessitated reversal… The defendant’s appeals were found justified on this ground, and accordingly, the judgment is REVERSED as requested due to these reasons…” (Supreme Court 2nd Criminal Chamber, Decision dated 13.05.2015, File No. 2014/9305, Decision No. 2015/10387)
- “Even if a conviction has been rendered against the plaintiff in the criminal case file of the Gölbaşı (Ankara) Criminal Court of First Instance, the plaintiff repeatedly suffered the same grievance by being detained multiple times after his release due to the failure to close or correct system records, despite the court’s cancellation of the arrest warrant issued against him. To decide on the plaintiff’s claim, the investigation to be conducted is limited to determining under which arrest warrant the plaintiff was detained or taken into custody, and this has no relation to the outcome of the criminal case underlying the compensation claim or the finalization of the judgment. Therefore, without considering that the plaintiff was detained six times and taken into custody three times between 09.05.2011 and 17.01.2012 unlawfully, and without ruling on the compensation claim accordingly, the case was dismissed with the insufficient reasoning that ‘the file concerning the detention has not yet been finalized, nor has the plaintiff been acquitted, thus compensation conditions have not been met,’ which is contrary to the law. The plaintiff’s attorney’s appeal regarding an incomplete examination leading to the ruling is thus well-founded. For these reasons, pursuant to Article 8 of Law No. 5320 and Article 321 of the currently applicable Code of Criminal Procedure No. 1412 (CMUK), the judgment is REVERSED against the request…” (Supreme Court 12th Criminal Chamber, Decision dated 28.01.2014, File No. 2013/24713, Decision No. 2014/1778)
- “It is understood from the entire case file that the defendants committed the crime of depriving the victims of their liberty by restricting their freedom to go to a place or stay in a place, as regulated as a crime under Article 109 of the Turkish Penal Code. Furthermore, in the response letter No. 666 dated 20.09.2007 from the … District Police Department included in the file, it was stated that the victims were not summoned to the police station in relation to any judicial or administrative investigation on the date of the incident, no investigation was initiated regarding any offense, and no fine was imposed; it was also reported that the victims were not recorded in the detention logbook kept since 11.07.2004. In light of these facts, the opinion requesting reversal in the notice was not accepted. Considering the evidence, claims and defense, and the hearing, the analysis and assessment have been made accordingly; since the proven acts have been properly defined and applied in accordance with their elements, the defendants’ defense counsel’s appeal, which was deemed unfounded, is rejected, and the judgment, which is in accordance with procedural and substantive law, is AFFIRMED…” (Supreme Court 14th Criminal Chamber, Decision dated 15.05.2013, File No. 2011/15412, Decision No. 2013/6043)
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