What is the Ban on Traveling Abroad?
Lifting the ban on traveling abroad is one of the most frequently expressed demands of people facing criminal investigation or prosecution. The ban on traveling abroad is one of the judicial control obligations applied to the place of arrest and is regulated in Article 109 of the Code of Criminal Procedure (CMK) No. 5271. In cases where complete deprivation of a person’s freedom would be excessive despite the existence of grounds for detention, the judge or court may resort to a lighter measure and ban the person from leaving the country.
This measure is a protection measure directly related to criminal procedure, rather than an administrative note recorded in the person’s passport or identity records. In practice, the restriction record is processed in the systems of security units and border gates; When a person encounters this record at the airport or land border gate, he is not allowed to exit. The fact that the record is recorded in an administrative system does not change the nature of the measure: the authority that makes the decision is the judicial authority and the authority to remove it belongs to the same authority.
Legal Basis and Purpose of the Measure
Judicial control measures are listed in CMK article 109. The ban on traveling abroad serves to eliminate suspicion of escape and to prevent the trial from being interrupted in the person’s absence. When deciding on the measure, two basic criteria are sought: on the one hand, there are reasons for arrest, and on the other hand, whether a lighter obligation in the concrete case is sufficient to achieve the goal.
In some cases, exit restrictions can also be applied based on the provisions of the Passport Law No. 5682. However, the text in which the basis is found does not eliminate the measure’s qualification as a protective measure in terms of criminal procedure law. In its decision E.2023/5005 K.2023/7173 of the 1st Criminal Chamber of the Supreme Court of Appeals, it was clearly stated that regardless of the source of the exit restriction, if the prosecution ends with a decision such as acquittal, conviction or dismissal, the measure automatically disappears and there is no legal benefit in continuing it. This determination provides a directly applicable justification for people whose restriction record has not been deleted even though their files have been closed.
Maximum Duration of Travel Ban
Judicial control measures cannot be applied indefinitely. In Article 110 of the CMK, the maximum duration of the measures is clearly determined:
- In matters that do not fall within the jurisdiction of the high criminal court: judicial control period is maximum two years. In cases of necessity, it can be extended for another year by showing justification.
- In matters falling within the jurisdiction of the high criminal court: period is maximum three years. This period may be extended in cases of necessity by showing justification; However, it cannot exceed three years in total, including extension periods.
- With respect to certain criminal groups: The total period cannot exceed four years for the crimes included in the Fourth, Fifth, Sixth and Seventh Chapters of the Second Book, Fourth Part of the Turkish Penal Code and the crimes falling within the scope of the Anti-Terrorism Law.
- Regarding children: all the above periods are applied at half rate.
These time limits were introduced to prevent the measure from turning into a de facto “indefinite travel ban”. In cases where the maximum period has expired, the continuation of the measure becomes unlawful and the request for removal may be based on this justification.
Quadrennial Mandatory Evaluation
The legislator also prevented the measure from remaining uncontrolled for a long time. According to the regulation added to the CMK article 110, whether the judicial control needs to be continued or not is determined at the latest.four month intervals is evaluated. In the investigation phase, this evaluation is made by the criminal judgeship of peace upon the request of the public prosecutor, and in the prosecution phase, it is made ex officio by the court.
This provision is an important control tool for the defense. If there is no reasoned evaluation in the file regarding the continuation of the measure for a period exceeding four months, this deficiency must be put forward separately in the request for removal and in the objection.
How and Where to Request Removal?
In order for the measure to be lifted, a petition must be submitted by the suspect, defendant or defense attorney. The authority to apply to is determined by the stage at which the file is:
- During the investigation phase: To the criminal judgeship of peace through the chief public prosecutor’s office,
- During the prosecution phase: to the court where the file is heard,
- If the file is at the appeal or appeal stage: to the relevant regional court of justice or the authority holding the file.
According to CMK Article 111, the public prosecutor’s opinion is taken before making a decision on the removal request and a decision can be made on the request within five days. Against decisions regarding judicial control appeal method is on. The objection period is seven days from the date of learning of the decision, and the objection is directed to a higher authority through the authority that made the decision.
Points to be Highlighted in the Petition
The most common mistake in practice is that the removal petition remains a template. An effective petition should embody the following elements:
- Facts that eliminate the suspicion of escape: fixed residence, regular employment, family ties, presence of assets in Turkey.
- Gathering of evidence: If the measure serves the suspicion of escape, this suspicion is weakened after the evidence is collected and statements are taken.
- Participation in hearings: It should be emphasized that no avoidance behavior was exhibited despite the notification.
- Duration of the measure: elapsed time and whether four-monthly evaluations have been carried out.
- Concrete victimization: obstacle to working abroad, treatment, education or access to a first-degree relative must be documented.
- Lighter measure proposal: It should be argued that alternatives such as signature obligation or assurance would be sufficient.
Proportionality Audit and Individual Evaluation of Measure
Judicial control measures are evaluated separately, not as a whole. If both a signature obligation and a travel ban are imposed on a person, it is possible for one to be lifted while the other continues; On the other hand, the continuation of one measure does not automatically require the continuation of the other.
The principle of proportionality in Article 13 of the Constitution is decisive at this point. The benefit to be gained by implementing the measure must be balanced with the severity of the interference with the person’s freedom of movement. Sustaining an exit ban that extends beyond years, in a case where evidence has already been collected and the defendant has attended all hearings, disrupts this balance. The decision of the 12th Criminal Chamber of the Supreme Court of Appeals E.2022/28 K.2023/5507 reveals that judicial control is a temporary protection measure and cannot be sustained when the conditions that form its basis disappear.
Compensation in Case of Unfair Practice
Compensation due to protection measures is regulated in CMK article 141. Although judicial control is not clearly included among the situations listed in the first paragraph of the article, with the paragraph added later, compensation has been opened for protection measures applied outside the conditions stipulated in the law. Accordingly:
- An exit ban that continues beyond the maximum period,
- Limitation record that is not deleted even though the file ends in acquittal or dismissal,
- The mandatory four-month evaluation was not carried out at all,
- Years of restriction without proportionality control,
may form the basis for a claim for compensation. The claim can be made for both material (lost employment contract, canceled tickets and reservations, visa expenses paid) and moral damage. The lawsuit must be filed within three months after the finalization of the decision is notified to the relevant party, and in any case within one year after the decision becomes final. The competent court is the high criminal court where the injured party resides.
Actual Deletion of Restriction Record
Taking a removal decision alone may not be enough. The decision must be notified to the police units and border gate systems, and the record must be actually deleted. Although a decision has been made in practice, problems may occur at the airport due to the record in the system not being updated. Therefore, after the removal decision is finalized:
- The date and number of the warrant stating that the decision was written to the relevant units should be learned from the file,
- A certified copy of the decision must be kept with you during the journey,
- If the record has not been deleted, an additional warrant request must be submitted to the authority.
Frequently Asked Questions
How many years can the ban on traveling abroad last?
For matters that do not fall within the jurisdiction of the high criminal court, a maximum of two years, and in cases of necessity, three years with a one-year extension; A total of three years, with extensions, for works that fall within the scope of heavy criminal duty; and four years in certain criminal groups. For children, these periods are applied at half the rate.
What can I do if my removal request is rejected?
The right to appeal against decisions regarding judicial control is open. An objection can be made against the rejection decision within seven days. If the objection is rejected, it is possible to submit a new request with new facts showing that the conditions have changed.
My case was acquitted but the record is still there, what should I do?
When the prosecution ends with a decision, the measure automatically terminates. You can apply to the authority that made the decision and request that a memorandum be written to the relevant units to remove the restriction record. Unnecessary maintenance of recording may also constitute a basis for a claim for compensation.
Can I get a one-time exit permit for medical reasons?
Yes. Exceptional permission may be requested for a specific date range and for a specific country, without requesting the complete removal of the measure. In such requests, documents such as treatment plan, hospital invitation letter and return commitment must be submitted.
Does the measure only affect my passport?
No. Since the restriction registration is processed based on identity information, exits to countries that can be traveled with an identity card are also blocked.
Conclusion
Lifting the ban on going abroad yields results by presenting concrete facts specific to the file, not by general statements added to the petition. The maximum duration of the measure prescribed by law, the mandatory evaluation obligation of four months and the rule that each measure must be considered separately provide strong bases for the defence. In cases where the prosecution ends, the measure automatically disappears; restrictions that remain despite this can be addressed through both appeal and compensation. Obtaining legal support from a criminal lawyer at every stage of the process is decisive in preventing loss of rights.
Disclaimer: This article is for general information purposes only and does not constitute legal advice. Since each file has its own unique conditions, you should definitely consult a lawyer before taking any steps regarding your concrete case. The evaluations in the article have been prepared based on the legislation and judicial decisions at the date of publication.
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