Security Deposit (Release on Bail)

What is a Security Deposit (Release on Bail)?

The legislator has provided for security under Article 113 of the Criminal Procedure Code (CPC), titled ‘Security.’ According to the relevant legal provision:

(1) The security to be provided by the suspect or the accused shall ensure the fulfillment of the following obligations:

a) The presence of the suspect or the accused at all procedural steps, for the execution of the judgment, or for the fulfillment of any other obligations that may be imposed.
b) Payments to be made in the following order:

1. Expenses incurred by the complainant, compensation for damages caused by the offense, and restitution; if the suspect or accused is being prosecuted for failing to pay alimony, their alimony debts.
2. Public expenses.
3. Monetary fines.

(2) In the decision requiring the suspect or the accused to provide security, the parts covered by the security shall be specified separately.

Essentially, a security deposit — in other words, release on bail — aims to enable the conduct of proceedings by deciding to keep the suspect under supervision outside of prison, instead of detaining and imprisoning them.
Procedurally, the security deposit is a form of judicial control measure imposed upon the suspect or accused (regardless of whether they are in detention), determined by the judge at the request of the public prosecutor and based on an amount set by the judge.
This judicial control measure has been regulated separately by the legislator under Articles 109/3 (f), (h), and (i) of the Criminal Procedure Code (CPC) as follows:

“Judicial control involves subjecting the suspect to one or more of the obligations listed below:

f) Depositing a security amount, to be determined by the judge upon the request of the public prosecutor, taking into account the suspect’s financial situation, along with setting whether it will be paid in a lump sum or in multiple installments.

h) Providing a real or personal guarantee, in an amount and payment period to be determined by the judge upon the request of the public prosecutor, in order to secure the rights of the victim of the offense.

i) Providing a guarantee to fulfill family obligations and to regularly pay alimony as ordered by judicial decisions.”

Conditions Required for the Application of a Security Deposit

During the investigation and prosecution stages of an offense, if the grounds for arrest specified in Article 100 of the Criminal Procedure Code (CPC) are present, the judge may decide on a security deposit. In addition, certain conditions have been made mandatory for the issuance of a decision regarding the security deposit:

1. Strong Suspicion of a Crime
   Strong suspicion of a crime is the first condition required for the judge or court to decide on a security deposit. Accordingly, there must be a high probability that the suspect or accused has committed the offense.
2. Grounds for Arrest
   In the decision regarding the application of a security deposit, the judge or court will evaluate the existence of strong suspicion of a crime as mentioned in the previous section. If this is found to be present, the next step is to assess whether there are grounds for arrest. If grounds for arrest are also present, the judge or court will issue a judicial measure in the form of a security deposit.
3. Request of the Public Prosecutor
   As mentioned, for the judge or court to decide on the application of a security deposit for the suspect or accused, there must be a request from the public prosecutor. Additionally, the public prosecutor, based on their request for judicial control, may decide on the application of a security deposit. The public prosecutor may also, upon a request for arrest, decide on a judicial control measure instead of arrest if they deem it proportional and sufficient.

Refund (Return) of the Security Deposit

Since the security deposit is kept until the conclusion of the trial, the return of the security or its recording as income for the treasury is determined according to the relevant decision. If the accused is sentenced at the end of the prosecution stage, in this case, if the accused has been present during all procedural steps, this portion of the security deposit is refunded to them. However, if the accused was not present during these proceedings and failed to fulfill their obligations, this portion of the security is transferred to the treasury as income, and its return to the accused is not possible.

Is Release on Bail Allowed in Turkish Law?

A security deposit is the legal equivalent of what is commonly known as release on bail in public discourse. Essentially, while the application of a security deposit and judicial control for a non-custodial trial (i.e., release on bail) exists in the Turkish legal system, it is not a frequently used judicial control measure in practice and is applied only in exceptional cases.

Frequently Asked Questions

1.Which Court Decides on the Security Deposit?

The responsibility for deciding on the payment of the security deposit varies depending on the stage of the trial in which the accused or suspect is involved. Accordingly, during the trial,

a. If the case is at the investigation stage, the court that decides on the security deposit is the Magistrate Court. At this stage, the court may decide to impose a security deposit on the suspect at the request of the public prosecutor. (CPC Article 110/1)

b. If the case is at the prosecution stage, the court handling the criminal case is also responsible for deciding on the security deposit. It should be noted that if there is an appeal against the decision of the court handling the criminal case, the criminal court reviewing the appeal may also issue a judicial control decision regarding the security deposit.

In this regard, the party or parties involved may need the assistance of a criminal lawyer, such as a criminal lawyer in Antalya, to follow up on the relevant decision.

2.How is the Amount of the Security Deposit Determined?

In the decision regarding the security deposit, the amount is not subject to any specific legal regulation and is left to the discretion of the judge. The judge or court determines the amount of the deposit by considering the personal and financial situation of the suspect or accused, their ability to be present during procedural steps, and other factors related to the offense. Additionally, according to Article 109/3-f of the Criminal Procedure Code (CPC), it is mandatory to first consider the financial capacity of the suspect or accused when determining the amount of the security deposit.

3.Can the Decision on the Security Deposit Be Appealed?

The accused or suspect has the right to appeal the decision regarding the security deposit, for reasons such as the amount of the deposit or the method of payment. The deadline for this appeal is two weeks from the notification of the judge’s or court’s decision regarding the payment of the security deposit.

4.In Which Crimes Is a Security Deposit Decision Made?

A security deposit decision is a judicial measure that can be issued for all offenses, provided the conditions are met. A security deposit can also be requested in cases where there is a prohibition of detention for the suspect or accused (CPC Article 109/2).
Although a decision on a security deposit can be made for all offenses, it is generally easier for the judge to issue this decision in certain crimes. These are the offenses that are categorized as crimes subject to detention, as listed below:

1. Genocide and crimes against humanity (TPC Articles 76, 77, 78),
2. Human smuggling and trafficking (Articles 79, 80),
3. Intentional manslaughter (TPC Articles 81, 82, 83),
4. Intentional bodily harm (Article 86, paragraph 3, subparagraphs b, e, and f),
5. Intentional bodily harm resulting in aggravated consequences (TPC Article 87),
6. Intentional bodily harm against women,
7. Intentional bodily harm committed against personnel working in health institutions during or due to their duties,
8. Torture (TPC Articles 94, 95),
9. Sexual assault (TPC Article 102, excluding the first paragraph),
10. Sexual abuse of children (TPC Article 103),
11. Theft (TPC Articles 141, 142),
12. Robbery (TPC Articles 148, 149),
13. Manufacturing and trafficking of narcotic or stimulant substances (TPC Article 188),
14. Organizing a criminal organization (TPC Article 220, excluding paragraphs two, seven, and eight),
15. Crimes against state security (TPC Articles 302, 303, 304, 307, 308),
16. Crimes against the constitutional order and its functioning (TPC Articles 309, 310, 311, 312, 313, 314, 315),
17. Firearms, Knives, and Other Tools Law No. 6136 – Smuggling of weapons (Article 12),
18. Banking Law No. 4389 – Embezzlement (Article 22/3-4),
19. Smuggling Law No. 4926 – Crimes defined that require imprisonment,
20. Protection of Cultural and Natural Heritage Law No. 2863 (Articles 68, 74),
21. Forest Law No. 6831 – Intentional forest fire (Article 110/4-5),
22. Meetings and Demonstrations Law No. 2911 – Crimes listed in Article 33,
23. Anti-Terrorism Law No. 3713 – Crimes specified in Article 7/3.

Some Court of Cassation Decisions Regarding the Security Deposit

1. “The security deposit paid by the defendant should first be applied to the attorney’s fee, court expenses, and the duration of detention, in accordance with the order specified in Article 113/1-b of the Criminal Procedure Code. The remaining amount, if any, should be allocated for the collection of the judicial fine, and any excess should be refunded to the defendant in accordance with Article 115/3 of the Criminal Procedure Code. However, the decision to prioritize the collection of only the fine and court expenses is contrary to the law…”
   (Court of Cassation, 12th Criminal Chamber, Decision dated 30.11.2021, Case No. 2019/13938, Decision No. 2021/8393)
2. “The decision to return the 3000 TL security deposit paid by the defendant under Article 113/1(b) and Article 115 of the Criminal Procedure Code (CPC) should have been made. However, the ruling that it will be refunded upon request is contrary to the law. Therefore, in accordance with Article 321 of the abolished Criminal Procedure Code No. 1412, as still applicable under Article 8 of Law No. 5320, the ruling must be overturned. However, since this does not require a retrial, a decision can be made in accordance with Article 322 of the same Law. Based on the authority provided by this article, the judgment’s 6th paragraph should be amended to: ‘The 3000 TL security deposit paid by the defendant will be refunded under Article 113/1(b) and related provisions of the CPC,’ and the rest of the ruling, which is in accordance with procedure and law, should be CORRECTED AND APPROVED…”
   (Court of Cassation, 2nd Criminal Chamber, Decision dated 26.05.2016, Case No. 2021/14100, Decision No. 2021/17104)
3. “During the defendant’s interrogation, a judicial control decision was made requiring the payment of a 2000 TL security deposit. However, it was not decided which obligations the defendant would fail to fulfill that would result in the amount being transferred to the treasury if the security deposit was paid. Additionally, despite the defendant complying with the summons for defense and being acquitted, the security deposit was not refunded to the defendant, which is contrary to the law. In this regard, the appeal objections of the local Public Prosecutor are found to be valid, and therefore, the judgment, which was not examined in other aspects, is overturned in accordance with Article 321 of the abolished Criminal Procedure Code (CMUK) and Article 8/1 of Law No. 5320.”
   (Court of Cassation, 14th Criminal Chamber, Decision dated 11.04.2013, Case No. 2012/11444, Decision No. 2013/4389)
4. “The decision should have been made to pay the legal interest amount accruing during the period between the date the cash bail (security deposit) was paid and the date it was refunded as material compensation to the plaintiff. However, by additionally ruling interest from the date of the lawsuit on this amount, applying interest on the accrued interest is contrary to the law…”
   (Court of Cassation, 12th Criminal Chamber, Decision dated 05.06.2017, Case No. 2015/16605, Decision No.
5. “Due to the mandatory appointment of a defense attorney in the investigation phase under Article 101/3 of the Criminal Procedure Code No. 5271, the decision to impose the attorney’s fee as a litigation cost on the defendant and to deduct it from the security deposit previously paid by the defendant, without considering the violation of the provision under Article 6/3-c of the European Convention on Human Rights, required an overturning…”
   (Court of Cassation, 4th Criminal Chamber, Decision dated 14.01.2019, Case No. 2014/39312, Decision No. 2019/116)
6. “Since the defendant did not request to be exempted from the hearings, and it was understood that the defendant’s defense attorney was present at all sessions, the decision to use the 5000 TL security deposit paid by the defendant in accordance with Article 113/1-b of the Criminal Procedure Code No. 5271, as referred by Article 115/3, and to register the excess amount as treasury revenue instead of refunding it to the defendant, is contrary to the law…”
   (Court of Cassation, 12th Criminal Chamber, Decision dated 18.09.2019, Case No. 2018/985, Decision No. 2019/8973)

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