Arrest is no longer the only option in criminal investigations. Instead of completely restricting the freedom of the suspect or defendant until the end of the trial, it is possible to provide the same assurance with lighter measures.House arrest is one of the most preferred of these measures in practice and is generally applied together with an electronic clamp. In this article, we explain step by step the legal nature of house arrest, how long it can last, what happens in case of violation, and how to lift the decision.
What is House Arrest? Legal Nature
House arrest is a form of confinement called “not leaving the house” in legal language.is a judicial control measure. Article 109 of the Code of Criminal Procedure No. 5271 lists the measures that can be taken instead of detention despite the existence of reasons for detention. This catalog includes options such as a ban on traveling abroad, signing at the police station at regular intervals, not going to certain places, and providing security. One of the measures listed in the same article of the Law is that the person should not leave his home.
The most critical point here is this:house arrest is not a punishment, it is a protection measure. There is no final conviction about the person yet; The aim is to prevent the risk of escape, obstruction of evidence or pressure on witnesses. For this reason, when deciding on house arrest, it is necessary to provide a concrete justification, comply with the principle of proportionality, and explain why the measure is necessary, as in the case of arrest.
However, the Supreme Court also accepts that the measure actually creates a severe restriction of freedom. We examined through Judiciary PROIn the decision of the 12th Criminal Chamber of the Supreme Court of Appeals E.2023/6400 K.2023/5416, it was emphasized that the person under the obligation not to leave the house is actually “imprisoned in the house”; It has been shown that this situation has an effect approaching detention in terms of personal freedom. This determination is the legal basis that the measure cannot be sustained indefinitely.
How Does the Electronic Clamp Application Work?
Supervision of house arrest is done through electronic monitoring in most cases. The electronic device attached to the person’s ankle constantly transmits the location to the monitoring center of the probation directorate. Probation Services Law No. 5402 constitutes the institutional framework of this supervision; Electronic monitoring centers are also operated by the units within the scope of this law.
Supreme Court of Appeals Criminal General Assembly decision E.2018/81 K.2023/159the operation of the system is described in detail: in case the device goes out of the defined area, the belt is cut or the signal is interrupted, an automatic alarm occurs in the monitoring center, the alarm is transferred to probation personnel and law enforcement, immediate communication is attempted with the person and the situation is recorded in the report and reported to the decision-maker.
Leave and Excuse Situations
House arrest is not an absolute confinement. In the presence of mandatory health check, treatment, funeral, exam or similar justified reasons, the decision-making authority prior permission. The procedural rule here is crucial: permission must be obtained in advance. Although the excuse document submitted later is accepted in some cases, in practice unauthorized exits are recorded as violations and may lead to aggravated measures. In cases where it is practically impossible to obtain permission in advance, such as health emergencies, the probation directorate must be informed immediately after release and the documents must be submitted immediately.
Which Authority Makes the Decision on House Arrest?
The competent authority in judicial control decisions varies depending on the stage of the investigation. Upon the request of the public prosecutor during the investigation phase criminal judgeship of peace, who hears the case during the prosecution phase court decides. Article 110 of the Code of Criminal Procedure grants these authorities the authority to decide on the implementation, amendment or removal of one or more of the measures.
Situations Where House Arrest Is Mandatory
The law highlights house arrest as a preferable option to detention in some cases. For those who are unable to survive alone in prison conditions due to serious illness or disability, and for women who are pregnant or for whom a certain period of time has not passed since birth, it is envisaged that the measure of not leaving the house will be implemented instead of arrest. The criteria regarding the postponement of execution in Article 16 of the Law No. 5275 on the Execution of Penalties and Security Measures are guiding in this evaluation. On the defense side, the existence of these conditions must be claimed, supported by full-fledged hospital reports.
How Long Does House Arrest Last? Time Limits and Audit
Judicial control measures cannot be applied indefinitely. The Code of Criminal Procedure stipulates upper time limits for judicial control measures, including not leaving the house. The period to be applied during the investigation phase was kept shorter, and a separate upper limit was determined for the total period, including the prosecution phase. For children, these periods are at half the rate applies; In other words, the upper limit for child suspects or defendants is halved compared to adults.
Besides the time limit, there is also
There is mandatory periodic inspection. Whether the measure will continue or not must be evaluated ex officio at four-month intervals at the latest. This evaluation is not dependent on demand; The authority must investigate on its own and justify whether the measure is still necessary. The fact that the four-month audit was not carried out is a strong procedural argument that can be used in a request to revoke the decision.
Can the Time Spent in House Arrest Be Deducted from the Punishment?
This is one of the most frequently asked questions in practice and the answer is positive. As a rule, judicial control measures are not reduced from the sentence; However, the Law provides a clear exception to this rule.Not leaving the residence and in terms of obligations to provide assurance, the time spent under caution is deducted from the sentence in case of conviction. Therefore, the months spent under house arrest are not wasted; is deducted from the imposed prison sentence. It is important to document the time spent with electronic bracelet in minutes and directorate records in order to meet the offset request properly.
What Happens in Case of House Arrest Violation?
Article 112 of the Code of Criminal Procedure clearly regulates the consequences of the violation. Judicial control obligations deliberately An arrest warrant may be issued for the suspect or defendant who does not comply, regardless of the type and amount of the penalty expected to be imposed. This is the most severe sanction of the measure: in fact, even for a crime below the arrest limit, arrest is opened for violation.
The decisive thing here is is an element of intent. Signal interruptions caused by reasons beyond the person’s will, such as device failure, power or communication outage, emergency hospitalization, natural disaster, are not considered intentional violations. Therefore, when an alarm report is prepared, the first job of the defense should be to document the cause of the interruption: hospital records, malfunction record, technical service report or witness statements are decisive at this stage.
The law also stipulates limited periods for detention to be applied in case of violations in cases that are subject to judicial control after the maximum detention period has been completed; In these cases, detention cannot exceed the short upper limits determined according to the nature of the file. This regulation aims to prevent the violation sanction from turning into indefinite detention.
How to Lift the House Arrest Order?
The removal of house arrest can be requested in two different ways and these methods should not be confused.
1. Removal Request
The suspect, defendant or defense attorney may request the removal of the measure at any time from the relevant authority. About this request in accordance with Article 111 of the Code of Criminal Procedure within five days decision needs to be made. The decision is made by taking the opinion of the public prosecutor and in case the request is rejected,objection is open. Removal requests are not limited to a specific number; It can be re-applied as circumstances change.
2. Objection
The house arrest decision itself can also be appealed against. The objection is submitted to the authority that made the decision; If the authority does not change its decision, the file is sent to a higher review authority. In the objection petition, it is necessary to avoid abstract expressions and to reveal the deficiency in the justification of the decision and the concrete factual situation.
Effective Defense Arguments
- Absence of justification: If it is not shown in the decision on which concrete fact the risk of escape or the danger of obscuring evidence is based, this deficiency should be clearly stated.
- Changed conditions: The fact that the evidence has been completely collected, the witnesses have been heard, and the indictment has been prepared may eliminate the necessity of the measure.
- Fixed residence and social ties: Long-term residence at the same address, regular work, family ties and the need to care for children, if any, are concrete data that weaken the risk of escape.
- Moderation: It must be shown that a less severe measure (e.g. travel ban or periodic signature obligation) will achieve the same purpose.
- Health and education needs: An illness requiring ongoing treatment or continuing education constitutes serious grounds for easing the measure.
- No duration control: Neglecting the mandatory four-month evaluation may be alleged as an irregularity.
Frequently Asked Questions
Can house arrest replace a prison sentence?
House arrest is not a punishment, but a protective measure applied while the trial is ongoing. However, in case of conviction, the time spent under house arrest is deducted from the sentence.
Is it mandatory to wear an electronic handcuff?
Not mandatory. Inspection can also be done through methods such as law enforcement control or periodic notification; However, in practice, electronic monitoring is widely preferred.
Can I work while under house arrest?
As a rule, it is forbidden to leave the residence. The need to work can be brought to the agenda by requesting permission from the decision-making authority or by requesting that the measure be converted into a lighter obligation.
There was a signal outage, will I be arrested?
You will not be automatically arrested. For an arrest to be made, the violation must be intentional. When a technical malfunction or compelling reason is documented, the arrest condition does not arise.
How many times can I apply against the house arrest decision?
There is no limit on the number of removal requests. A new request can be made at any stage when there is a change in conditions; Objections can also be made against rejection decisions.
Result
Although house arrest may seem less severe than arrest, it is a serious interference with personal freedom and the Supreme Court clearly accepts this nature. Legality of the decision; It is measured by being based on concrete justification, complying with time limits and four-month mandatory supervision, and observing the principle of proportionality. When faced with an allegation of violation, discussing the element of intent and using the removal request and objection methods in a timely and justified manner directly affects the outcome. For this reason, working with a criminal lawyer from the beginning of the process is decisive in terms of both narrowing the scope of the measure and protecting the rights of offset and compensation.
Legal Notice: This article has been prepared for general information purposes and does not constitute legal advice. Since each file has its own unique conditions, you should definitely consult a lawyer about your concrete situation.
Applicable work area
If you need legal support on this matter
You can review our pageCriminal Law
You can contactto evaluate your file..
