What Are Unlawful Arrest, Detention, and Seizure?
Arrest, detention, and seizure are regulated in the fourth section of the Turkish Criminal Procedure Code No. 5271, titled “Protective Measures.” These measures can be applied during the investigation or prosecution phases and must be implemented in a proportionate and reasonable manner. Otherwise, they would be considered unlawful and could result in a significant violation of rights. In such cases, a compensation lawsuit may be filed.
Right to Compensation Against Unlawful Arrest, Detention, and Seizure
The legal system constitutionally guarantees individual freedom and security. Nevertheless, in certain situations, individuals may be detained, arrested, or have their property seized. However, these actions must be carried out within the legal framework and in accordance with proper procedures. Otherwise, the individual has the right to file a compensation lawsuit against the state for unlawful detention, arrest, or seizure. This right is explicitly regulated in the Turkish Criminal Procedure Code (CMK), and the circumstances under which it can be claimed are explained in Article 141. Accordingly:
During a criminal investigation or prosecution;
- Those who are apprehended, arrested, or whose detention is continued outside the conditions specified in the law,
- Those who are not brought before a judge within the legal detention period,
- Those who are arrested without having their legal rights explained, or without having their request to benefit from those rights fulfilled,
- Those who, although lawfully arrested, are not brought before a judicial authority within a reasonable time and no judgment is issued against them during this period,
- Those who, after being lawfully apprehended or arrested, are subsequently decided to have no grounds for prosecution or are acquitted,
- Those who have been convicted but whose time spent in detention or arrest exceeds their sentence, or who are compelled to serve a fine-only penalty as prescribed by law for the committed offense,
- Those who are not informed in writing, or verbally if written communication is not immediately possible, about the reasons for their apprehension or arrest and the charges against them,
- Those whose apprehension or arrest is not notified to their relatives,
- Those whose search warrants are executed excessively or without proper grounds,
- Those whose property or other assets are seized without proper justification, not protected as required, used for purposes other than intended, or not returned in a timely manner,
- Those who are not granted the legal remedies provided by law against apprehension, judicial control, or arrest,
- Those who, after being subjected to judicial control obligations such as remaining in their residence or undergoing treatment or medical supervision, including hospitalization for rehabilitation from substance, stimulant, or alcohol addiction, are subsequently decided to have no grounds for prosecution or are acquitted—
- may claim all material and moral damages from the state.
Outside of these situations, during a criminal investigation or prosecution, compensation lawsuits arising from personal fault, unlawful acts, or other forms of liability—including decisions or actions taken by judges and public prosecutors—can only be filed against the State.
Statute of Limitations
In compensation lawsuits filed due to unlawful arrest, detention, or seizure, pursuant to Article 142 of the Criminal Procedure Code (CMK), the right to claim compensation must be exercised within 3 months from the date the decision is notified to the concerned party, and in any case, within 1 year from the date of the decision. These periods are forfeiture periods, meaning that if the application is not made within the prescribed time, the right to file a lawsuit is lost.
Competent and Authorized Court
Pursuant to Article 142/2 of the Criminal Procedure Code (CMK), a compensation claim shall be adjudicated in the heavy penal court of the place where the injured party resides. If the heavy penal court in that location is related to the matter of the compensation claim and there is no other chamber of the heavy penal court in the same location, the claim shall be adjudicated in the nearest heavy penal court.
Compensation Commission
For the following claims, the provisions of Law No. 6384 on the Duties and Working Procedures of the Compensation Commission shall apply. Nevertheless, claims submitted to the heavy penal court are forwarded to the Commission. If claims both within and outside the jurisdiction of the heavy penal court are submitted together, the heavy penal court separates the claims that are outside its jurisdiction and forwards them to the Commission. In such cases, the date of the claim submitted to the heavy penal court is taken as the reference date. These claims correspond to the situations specified in Article 141 of the Criminal Procedure Code (CMK) as follows:
- Those who, after being lawfully apprehended or arrested, are subsequently decided to have no grounds for prosecution or are acquitted,
- Those who have been convicted but whose time spent in detention or arrest exceeds their sentence, or who are compelled to serve a penalty in the form of a fine only as prescribed by law for the committed offense,
- Those who, after being subjected to judicial control obligations—such as remaining in their residence or undergoing treatment or medical supervision, including hospitalization for rehabilitation from substance, stimulant, or alcohol addiction, and accepting these measures—are subsequently decided to have no grounds for prosecution or are acquitted.
Information and Documents Required in the Petition
The following information and documents must be included in the lawsuit or application filed for a compensation claim:
- Full identity information,
- Address,
- The action causing the damage and the nature and extent of the damage,
- Other related documents.
If the information and documents in the petition are insufficient, the court notifies the concerned party to remedy the deficiencies within one month; otherwise, the claim will be rejected. A petition whose deficiencies are not corrected within the given period is rejected by the court, with the right to appeal remaining open.
Enforcement of Compensation
Court decisions regarding compensation cannot be enforced before they become final and before the administrative application process is completed. The compensation and attorney’s fees awarded in the final court decision are paid to the bank account number notified in writing by the plaintiff or their attorney to the defendant administration, within thirty days from the date of such notification. If payment is not made within this period, the decision is enforced and executed in accordance with the general provisions.
Amount of Compensation
The amount of compensation will be determined by the judicial authorities based on the circumstances of the specific case. However, the awarded compensation must not be significantly lower than the amounts granted by the Constitutional Court in similar cases. For claims regarding the legality of detention, the Constitutional Court has ruled that the compensation for one day of detention is at least 3,330 TRY for the year 2025, which is the date of the judicial authority’s decision.
Recovery of Compensation
If a decision of no grounds for prosecution is later overturned and a public lawsuit is filed resulting in conviction, or if an acquittal is overturned upon retrial leading to conviction, the portion of compensation already paid corresponding to the period of conviction is recovered through a decision by the same court upon the written request of the public prosecutor, in accordance with the legislation on the collection of public receivables. This decision can be appealed. In cases of detention or arrest arising from a false accusation or perjury, the State may also seek recourse from the person who made the false accusation or gave false testimony.
Persons Not Entitled to Claim Compensation
Individuals who cannot claim compensation in cases of unlawful arrest, detention, or seizure are explicitly listed in Article 144 of the Criminal Procedure Code (CMK). Accordingly:
Among those lawfully apprehended, placed under judicial control, or arrested, the following persons cannot request compensation:
- Those who, although not originally entitled to compensation, become eligible for it due to subsequently enacted laws providing favorable provisions.
- Those for whom it is decided that there are no grounds for prosecution, or whose cases are dismissed, temporarily suspended, postponed, or dropped due to general or special amnesty, withdrawal of complaint, settlement, or similar reasons.
- Those who are deemed not punishable due to lack of criminal capacity.
- Those who, by providing false statements before judicial authorities, caused their own detention, placement under judicial control, or arrest by falsely claiming involvement in a crime.
Precedent Decisions
“In the criminal file numbered 2018/84 of the 37th Heavy Penal Court, which forms the basis of the compensation claim, it has been determined that the plaintiff was taken into custody and arrested again on 12.09.2017 – 14.09.2018 and on 15.09.2018 for the crime of being a member of an armed terrorist organization, and that the detention continued. It has been understood that, as of the dates of detention and arrest, the case was subject to Law No. 5271 in force.
Regarding the plaintiff’s attorney’s request for the acceptance of the case;
According to a review conducted through the UYAP system, in the criminal file numbered 2018/84 – 2019/125 of the 37th Heavy Penal Court, which forms the basis of the plaintiff’s compensation claim, and in file number 2018/459 – 2019/51 of the 1st Heavy Penal Court, dated 18.10.2018, the plaintiff submitted a petition requesting compensation pursuant to Articles 141 and following of Law No. 5237, due to unlawful and illegal detention, prolonged detention, and not being brought before a judge within a reasonable time. In the case under review, the plaintiff requested compensation due to unlawful and illegal apprehension and detention pursuant to the same articles of Law No. 5237, and the file is pending. Since the grounds for compensation in the two cases are different, it cannot be considered a duplicate case.
According to the last paragraph of Article 141 of the Constitution, which imposes a duty on the judiciary to conclude cases with minimal costs and as promptly as possible, it is necessary to consolidate both case files into the 1st Heavy Penal Court’s file numbered 2018/459 and issue a decision on the merits.”
According to Acceptance and Practice:
It has been understood that the plaintiff submitted a compensation claim pursuant to Article 141, first paragraph (a) of Law No. 5271, which regulates: “Those who are apprehended, arrested, or whose detention is extended outside the conditions specified in the laws.”
The relevant part of Article 142 of Law No. 5271, titled “Compensation Claim,” is as follows:
“(1) A compensation claim may be filed within three months from the date of notification to the concerned party that the decision or judgment has become final, and in any case, within one year from the date the decision or judgment became final. …”
“However, for claims that are not dependent on the outcome of the main case and do not affect the decisions to be made in the main case, it is not mandatory for the decision or judgment on the merits of the main case to become final. Article 141, first paragraph (a) of Law No. 5271 states that persons “who are apprehended, arrested, or whose detention is extended outside the conditions specified in the laws” may submit a compensation claim. In the case file forming the basis of the compensation claim, since the claim is based on the plaintiff being unlawfully apprehended and detained, it is not necessary to wait for a decision or the finalization of the judgment in the main case. Consequently, dismissing the case with a written justification without examining whether the plaintiff’s claim falls within the scope of Article 141, first paragraph (a) of Law No. 5271 was found to be unlawful, and the opinion requesting dismissal on the merits in the notification was not endorsed.” (Supreme Court 12th Criminal Chamber, Case No. 2021/7989 E., Decision No. 2023/759 K., 13.03.2023)
“The trial proceedings, the evidence presented and shown at the decision stage, the court’s opinion and discretion formed in accordance with the results of the prosecution, and the dismissal of other appeal grounds of the plaintiff’s attorney have been duly considered; however:
Although there is no objective criterion, the moral compensation to be awarded in favor of the plaintiff should have been determined and assessed as a reasonable amount, taking into account the plaintiff’s social and economic status, the nature of the alleged crime, the manner in which the incident leading to the arrest occurred, the duration of detention, and similar factors, as well as the monetary value it would have by the date the compensation case becomes final including interest. Instead, awarding an insufficient moral compensation that does not conform to these criteria is unlawful.
For the reasons explained, the appeal by the plaintiff’s attorney is well-founded, and therefore, in accordance with Article 302/2 of the Code of Criminal Procedure No. 5271, the decision of the 9th Criminal Chamber of Diyarbakır Regional Court of Justice is unanimously REVERSED in accordance with the Notification.” (Supreme Court 12th Criminal Chamber, Case No. 2025/664 E., Decision No. 2025/5551 K., 23.06.2025)
“According to the investigation authorities, within the scope of calls made by the PKK/KCK terrorist organization to boycott state schools, weaken their functioning, and establish democratic autonomy in the ongoing process, the Diyarbakır EĞİTİMSEN Branch Presidency sent an SMS to the applicant on 20/10/2012 stating, ‘In response to the right to mother tongue and our financial losses, we will not go to schools on Monday-Tuesday, taking medical leave.’ The applicant followed this call and did not attend school on 22/10/2012 and 23/10/2012 by obtaining medical leave. It was alleged that, in this context, the applicant participated in school and class boycott actions in response to the calls made by the PKK, thereby committing a crime on behalf of the terrorist organization by obstructing students’ right to education.
In their defense, the applicant stated that they did not accept the charges, that on 22/10/2012-23/10/2012 they took medical leave not due to the call but because they were genuinely unwell, that on the days they took leave they had high fever and cough and underwent a chest X-ray, and therefore they did not participate in any actions. The applicant also stated that they were a member of EĞİTİMSEN and that the SMS received on 20/10/2012 could have been sent for that reason.”
No administrative investigation was conducted regarding the medical report the applicant obtained for the dates 22/10/2012-23/10/2012. Although a criminal investigation was initiated in 2014, it has been observed that, during the period until the applicant was taken into custody, there was no evidence showing that this report was false or linking the applicant to the PKK terrorist organization. Accordingly, it was concluded that there were no facts corroborating the suspicion of a crime necessary for the implementation of the custody measure.
Finally, it is also necessary to determine whether the custody measure applied to the applicant was proportionate. In this context, the existence of a long period between the date of the alleged crime and the date of detention is significant for assessing the proportionality and, consequently, the necessity of the custody.
In the concrete case, the main act attributed to the applicant was not attending school on 22/10/2012-23/10/2012 by obtaining a medical report. Regarding this act, an investigation was initiated against the applicant in 2014. During this investigation, the applicant’s statement was not previously taken, nor were any custody measures or other measures applied against the applicant. Although the investigation authorities had information and findings regarding the act attributed to the applicant, the applicant was taken into custody on 21/09/2016, more than two years after the initial investigation. The necessity of taking the applicant into custody after more than two years from the alleged act cannot be understood from the specifics of the case. Therefore, it was concluded that the detention procedure was unlawful.
In the concrete case, it was concluded that the applicant was subjected to a procedure contrary to the principles set out in the third paragraph of Article 19 of the Constitution; therefore, the ninth paragraph of Article 19 of the Constitution is applicable in this case.
However, the lower court did not award the applicant compensation on the grounds that they had been subjected to a procedure contrary to the principles specified in the third paragraph of Article 19 of the Constitution, and as a remedy for this unlawful procedure. It is observed that the compensation awarded by the lower court was given based on the applicant’s acquittal and did not include any finding regarding the unlawfulness of the applicant’s detention. Consequently, in the concrete case, no compensation opportunity was provided to the applicant for the violation of the right to personal liberty and security.
For the reasons explained, it is necessary to decide that the ninth paragraph of Article 19 of the Constitution, in connection with its third paragraph, has been violated.
(Constitutional Court Individual Application, Application Number: 2018/36169, Decision Date: 10.05.2022)
Lawyer Gökhan AKGÜL & Lawyer Züleyha APAYDIN
ANTALYA CRIMINAL LAW ATTORNEY – ANTALYA CRIMINAL DEFENSE LAWYER
Unlawful detention and wrongful arrest mean that a person’s freedom is restricted in violation of the law, which constitutes a serious rights violation. Under the Turkish Penal Code and related legislation, individuals who are wrongfully detained or arrested have the right to claim both material and moral compensation. In such cases, it is crucial to work with an experienced lawyer to ensure the process is conducted meticulously, to prevent loss of rights, and to uphold justice.
At our law firm in Antalya, our team of lawyers specializes in cases of unlawful detention and arrest. We protect our clients’ legal rights, file necessary applications, and manage the compensation process effectively. You can contact us for legal consultancy and representation services.
