Objection to the Detention Order

What is Detention?

Detention is a temporary preventive measure imposed to prevent the suspect or the accused from fleeing and to ensure the preservation of evidence. A detention order does not constitute a final judgment against the person who is detained; it only entails the restriction of their liberty. Accordingly, the authority empowered to issue a detention order is the judge, both during the investigation and prosecution phases. The prosecution does not have the authority to issue a detention order.

Detention Order

a. The Legal Nature of the Detention Order

By its nature, a detention order carries various characteristics. Among these are: its temporary nature, compliance with the principle of individuality of crime and punishment, existence as a means rather than an end, inclusion of apparent justification, and being proportionate and balanced with respect to the legal status of the suspect or the accused.

b. Conditions for a Detention Order

The issuance of a detention order by the court is subject to certain conditions. The first of these is the presence of evidence indicating strong suspicion of a crime against the suspect or the accused, and the second is the existence of a specific ground for detention (Article 100, paragraph 1 of the Code of Criminal Procedure).

c. Purpose of a Detention Order

As mentioned above, the detention order essentially serves two purposes: preventing the suspect or accused from fleeing, and ensuring the preservation of evidence.
“Preventing the suspect or accused from fleeing” refers to an objective and concrete assessment of the likelihood of escape, along with the aim of preventing such an act.
The purpose of “ensuring the preservation of evidence” covers documents, statements, and indications as evidence, and serves as a safeguard against the suspect or accused tampering with or destroying such evidence.

d. Circumstances in Which a Detention Order Cannot Be Issued

The situations in which a detention order cannot be issued, that is, the prohibitions on detention, are addressed in the Code of Criminal Procedure as follows:

1. “If the importance of the case is not proportionate to the expected penalty or security measure, a detention order cannot be issued.” (CCP Article 100/1)
2. “A detention order cannot be issued for offenses punishable only by judicial fines, or for crimes with a maximum prison sentence of no more than two years, except for those intentionally committed against bodily integrity.” (CCP Article 100/4)

Objection to a Detention Order

Objection to a detention order is one of the fundamental rights of a suspect or defendant subject to detention. The period for filing this objection is two weeks from the moment the detention order is learned, as regulated by the Criminal Procedure Code (CPC Article 268).

Additionally, the period to object to a decision regarding the continuation of detention is also set at two weeks from the date the decision is learned. In the petition for objection to the continuation of detention, the reasons for the decision, its illegality, the evidence, and any deficiencies in the specific case must be clearly stated.

Competent and Authorized Court for Objection to a Detention Order

In the procedure for objecting to a detention order, the competent court is the Criminal Court of First Instance. The authorized court, however, is the court that has jurisdiction over the court which issued the detention order. In this context, the parties may require a criminal lawyer, such as an Antalya criminal lawyer, to file and follow up on the objection.

Arrest Warrant for Detention and Objection

The arrest warrant for detention is regulated under Article 98 of the Criminal Procedure Code (CMK) as follows:

“During the investigation phase, an arrest warrant may be issued by a magistrate at the request of the public prosecutor for a suspect who does not appear upon summons or cannot be summoned. Additionally, in the event of an objection to a decision rejecting a detention request, the appellate authority may also issue an arrest warrant.

(2) For a suspect or defendant who escapes from the custody of law enforcement officers, or a detainee or convict who escapes from a detention or penal institution, public prosecutors and law enforcement authorities may also issue an arrest warrant.

(3) During the prosecution phase, an arrest warrant may be issued ex officio or at the request of the public prosecutor by a judge or court for a fugitive defendant.

(4) The arrest warrant must specify the person’s physical description, identity (if known), the alleged crime, and the place where they will be taken upon arrest.”

Additionally, the right to object to an arrest warrant for detention exists. Even if this right is not explicitly stated in the law, the suspect or defendant may exercise it in accordance with the general principles of legal remedies.

Frequently Asked Questions

1.What Are the Catalog Crimes Considered as Grounds for Detention?

The catalog crimes considered as grounds for detention are explained in Article 100 of the Criminal Procedure Code (CMK) as follows:
“If there are strong reasons based on concrete evidence to believe that the following crimes have been committed, a ground for detention may be assumed:”
a) As stated in the Turkish Penal Code No. 5237, dated 26.09.2004;

1. Genocide and crimes against humanity (Articles 76, 77, 78),
2. Human smuggling and human trafficking (Articles 79, 80)
3. Intentional killing (Articles 81, 82, 83)
4. Intentional bodily harm (Article 86, paragraph 3, subparagraphs b, e, and f) and aggravated intentional bodily harm as a result (Article 87)
5. Torture (Articles 94, 95)
6. Sexual assault (except for the first paragraph, Article 102)
7. Sexual abuse of children (Article 103)
8. Theft (Articles 141, 142) and robbery (Articles 148, 149)
9. Manufacture and trafficking of narcotic or stimulant substances (Article 188)
10. Establishing an organization to commit a crime (excluding paragraphs 2, 7, and 8, Article 220)
11. Crimes against the security of the state (Articles 302, 303, 304, 307, 308)
12. Crimes against the constitutional order and the functioning of this order (Articles 309, 310, 311, 312, 313, 314, 315)
    b) Crimes of arms smuggling as defined in the Law on Firearms, Knives, and Other Instruments No. 6136, dated 10.07.1953 (Article 12)
    c) Embezzlement crimes as defined in Articles 22(3) and 22(4) of the Banking Law No. 4389, dated 18.06.1999
    d) Crimes defined in the Anti-Smuggling Law No. 4926, dated 10.07.2003, which require imprisonment
    e) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets No. 2863, dated 21.07.1983
    f) Intentional forest arson crimes defined in paragraphs 4 and 5 of Article 110 of the Forest Law No. 6831, dated 31.08.1956
    g) Crimes listed in Article 33 of the Law on Meetings and Demonstrations No. 2911, dated 06.10.1983
    h) Crimes specified in paragraph 3 of Article 7 of the Anti-Terror Law No. 3713, dated 12.04.1991
    i) Intentional bodily harm committed against a woman
    j) Intentional bodily harm committed against personnel in healthcare institutions during or because of their duties
    k) Intentional bodily harm committed during or because of duties against administrators, teachers, master instructors, or guidance counselors in official educational institutions under the Ministry of National Education, teachers or instructors in projects conducted by the Ministry for foreign students’ education, administrators, teachers, expert instructors, and master instructors in private educational institutions, instructors paid per lesson in official and private educational institutions, and teachers working in other public institutions and organizations.

2. Who Can Appeal a Detention Decision?

The individuals entitled to appeal a detention decision are explained in Article 261/1 of the Criminal Procedure Code (CMK) as follows:

“The legal representative and spouse of the suspect or defendant may independently apply to the legal remedies available to the suspect or defendant within the prescribed period. The provisions regarding the application of the suspect or defendant also apply to applications made by these persons and to the subsequent proceedings.”

3. How Is the Detention Period Calculated?

The detention period, in other words the time spent in detention, is as follows: for cases not under the jurisdiction of the High Criminal Court, the maximum period is 1 year; for cases under the jurisdiction of the High Criminal Court (Article 12 of Law No. 5235), the maximum period is 2 years.

It should be noted that in cases not under the jurisdiction of the High Criminal Court, the prescribed 1-year period can be extended by an additional 6 months in mandatory situations, provided that the reasons are justified.

4. What Does the Review of Detention Mean?

The review of detention essentially means the examination of the detention status. Therefore, the terms “review of detention” and “examination of detention” are legal terms used in court records to express the same concept.

5. What Are the Suspect’s Rights During a Detention Interrogation?

During a detention interrogation, the suspect has certain rights that they can exercise. These include: the right to benefit from legal assistance provided by a lawyer, the right to remain silent, the right to request the collection of evidence, and the right to defend themselves.

6. How Are Decisions on Detention and Release Made?

During the investigation phase, the Criminal Court of Peace issues decisions regarding detention or release upon the request of the prosecutor. In the prosecution phase, that is, after the case has been filed, the court responsible for the file can decide on detention or release. In the event of an appeal against a decision made during the investigation phase, the competent court is the Criminal Court of First Instance. For appeals against a decision made during the prosecution phase, the competent court is the next-level court following the relevant court (for example, for the 2nd Criminal Court of First Instance, it would be the 3rd Criminal Court of First Instance).

Some Supreme Court Decisions Regarding Detention Orders

1. “In the concrete case; the plaintiff was detained during the investigation phase as a suspect, and immediately thereafter the health issues detailed above arose. The medical board reports explicitly state that the plaintiff was ‘at risk of sudden death.’ It is understood that the plaintiff’s health problems occurred during the period starting from the detention and continuing through the custody, and at the very least, this period adversely affected any pre-existing conditions and reached a life-threatening level. In this situation, a conflict has arisen between the protective measures pursued in criminal proceedings and the right to life. This situation must be carefully assessed by the judicial authorities, and a balance must be established based on prioritization among the conflicting interests. Clearly, it cannot be accepted that the plaintiff should wait for the completion of an unforeseeable trial process despite the threat to their right to life. The right to life is the most sacred and fundamental right. If the plaintiff’s right to life is endangered or taken away, all other fundamental rights and freedoms would lose their value. From the case file, it is understood that other defendants accused of similar charges, citing either health or other reasons, are still being tried without detention. This indicates a disregard for the principle of equality.” (Supreme Court General Assembly of Civil Chambers, Decision dated 05.11.2010, File No: 2010/4-551, Decision No: 2010/598)
2. “In the concrete case, the defendant was taken into custody on 31.12.2008, and their deprivation of liberty began on that date. From that date until 30.09.2009, when the first-instance court issued the conviction (inclusive), the defendant remained in detention for 9 months and 1 day. From 30.09.2009, the date of the appeal review, until 18.01.2011, the date when the reversal decision was issued (inclusive), the defendant remained in detention for an additional 1 year, 3 months, and 18 days. As of the date of the reversal decision, the total duration of detention was 2 years and 18 days, reaching the maximum detention period specified in Article 102/1 of the Law.” (Supreme Court Criminal General Assembly, Decision dated 29.03.2011, File No: 2011/3-49, Decision No: 2011/28)
3. “Chamber Members …; ‘The plaintiff has been in detention since 24.05.2005. The trial is still ongoing and has not been concluded. Another individual detained in the same case file as the plaintiff also filed an individual application to the Constitutional Court. In its decision regarding this application and in similar decisions, the Supreme Court stated that Article 5271 of the Law regulates the maximum legal periods during which individuals can be held in the investigation and prosecution phases. The article distinguishes between cases that fall under the jurisdiction of the heavy criminal court and those that do not. Considering that investigations and prosecutions for multiple offenses against an individual may be conducted through a single file or combined into one file, it is clear that the application of a detention measure will have consequences for the entire investigation and prosecution process. Therefore, it is understood that the maximum detention period should be no more than five years for all offenses within the scope of the file in which the person is being tried. Since detention is not a sanction, it is not acceptable to calculate the maximum detention period separately for each offense within the same case file.’” (Supreme Court Criminal General Assembly, Decision dated 22.12.2022, File No: 2017/862, Decision No: 2022/829)
4. “Regarding certain compensation claims specified in Article 141 of the Criminal Procedure Code (CMK), it is explicitly understood from the legal regulation that the conclusion of the underlying case forming the basis of the compensation claim is not required. In this context, the plaintiff’s claim for compensation under Article 141, paragraph 1, subparagraph (d) of the CMK—alleging that although he was lawfully detained, he was not brought before the judicial authority within a reasonable time and no judgment was rendered against him during this period—does not affect the outcome of the main case nor is it dependent on it. Therefore, there is no obligation to wait for a court ruling or for the finalization of such a ruling to proceed with the compensation claim. Considering that the periods spent in custody or detention would not change this result even if the plaintiff were later convicted, it is clear that rejecting the case on the grounds that no judgment has yet been rendered in the main case and that protective measures cannot form the basis of a lawsuit in pending cases is incorrect. Accordingly, the local court’s decision to reject the case on inappropriate grounds, without acknowledging that the finalization of the court ruling forming the basis of the compensation claim is not required for compensation lawsuits filed under Article 141, paragraph 1, subparagraph (d) of the CMK, should be overturned.” (Supreme Court Criminal General Assembly, Decision dated 24.02.2022, File No: 2017/544, Decision No: 2022/123)

Things to Know About Appealing a Detention Decision – Protect Your Rights with the Support of an Antalya Lawyer

“Appealing a detention decision is an extremely important legal recourse for individuals whose freedom is restricted. According to Articles 101 and following of the Criminal Procedure Code, a person or their lawyer can file an appeal within the legal time frame to request the annulment of a detention decision. Obtaining legal support during this process is crucial to prevent the loss of rights.

Working with an experienced Antalya lawyer during the appeal process against detention decisions ensures that the procedure is properly managed and contributes to the effective exercise of your defense rights. It is essential that the appeal petition is prepared accurately and effectively, and that the legal arguments presented to the court issuing the decision or to a higher court are strong.”