Arrest is the most severe measure of criminal procedure: it means the deprivation of freedom of a person who has not yet been sentenced. Precisely because of this gravity, the law imposes strict conditions on the issuance of an arrest warrant. The judge’s discretion is not unlimited — certain facts must be in the file, otherwise the decision is unlawful.
In this article
We discuss arrest conditions in order: strong criminal suspicion, reason for arrest, proportionality and arrest prohibitions. We also explain who can make the decision, what must be written in the decision, and the maximum periods of detention.
What is arrest, is it punishment?
No — arrest is not a punishment. Punishment is imposed upon conviction at the end of the trial. Arrest is an action taken while the trial is ongoing.is a protection measure. Its purpose is not to punish, but to ensure that the trial proceeds smoothly: to prevent the suspect from escaping, obscuring evidence, or putting pressure on witnesses.
This distinction is not theoretical; It produces direct practical results. Since arrest is not a punishment, the justification “the person already looks guilty” does not legitimize arrest on its own. The measure has its own conditions and these must be shown separately.
First condition: strong suspicion of crime
Article 100 of the Code of Criminal Procedure, prior to arrest
Searches for concrete evidence indicating the existence of a strong suspicion of crime to be found. Two words here are critical:
- Strong: Simple or reasonable suspicion is not enough. While “reasonable suspicion” is sufficient for arrest and “reasonable suspicion” is sufficient for search, the degree of suspicion increases for arrest. The probability of conviction must be significantly higher than the probability of acquittal.
- Concrete evidence: With the amendment made in 2014, the law changed the expression “facts” to “concrete evidence”. In other words, it is intended that abstract evaluation, assumption or notice alone should not be considered sufficient. There must be tangible evidence in the file: witness statement, camera recording, expert report, communication detection, etc.
If there is no strong suspicion of crime, other conditions are not taken into consideration; An arrest warrant cannot be issued.
Second condition: there is a reason for arrest
Strong suspicion alone is not enough. Also listed in the law
At least one of reasons for arrest must be present. The law regulates these in two groups.
General reasons for arrest
There is a reason for arrest in the following two cases can be assumed:
- Suspicion of escape: Arousing suspicion that the suspect or the accused will flee, hide or escape
If concrete facts exists. It should be noted: concrete facts are sought here too. The abstract evaluation of “the punishment is heavy, he can escape” does not meet the criteria sought by the law. - Evidence obfuscation or suppression suspicion: If the behavior of the suspect or the accused creates strong suspicion of an attempt to destroy, conceal or alter evidence or to put pressure on witnesses, victims or others.
The law says “may be assumed” here, not “presumed”. In other words, the judge still uses his discretion and justifies it.
Catalog crimes
The law also provides for a list of offences. If there are strong grounds for suspicion based on concrete evidence that the crimes in this list have been committed, the reason for arrest can be assumed. The main ones in the catalogue:
- Genocide and crimes against humanity, migrant smuggling and human trafficking
- Intentional murder; qualified intentional injury and aggravated injury due to its consequences
- Torture, sexual assault (except first paragraph), sexual abuse of children
- Theft and looting
- Manufacturing and trading of narcotic or stimulant substances
- Establishing an organization for the purpose of committing a crime
- Crimes against the security of the State and the constitutional order
- Arms smuggling, crimes requiring imprisonment in anti-smuggling legislation, intentional forest burning
- Intentional injury committed against a woman
- Intentional injury committed against medical personnel during or because of their duty
- Intentional injury committed against teachers and education personnel during or because of their duties
There is a major misunderstanding about catalog crimes: the list does not lead to arrest.automatic does not. The Supreme Court of Appeals clearly emphasized this point – the 12th Criminal Chamber stated that the regulation that the reasons for arrest can be “assumed” is not an obligation binding on the judge, but a discretionary possibility, and that proportionality control should be carried out in any case.
Third condition: moderation
The law clearly states that an arrest warrant cannot be issued if it is not commensurate with the importance of the work, the expected punishment or the security measure.
Moderation includes three subcriteria:
- Availability: The measure must be suitable for achieving the purpose.
- Requirement: The same aim with a milder measure — esp.
With judicial control— if reachable, arrest cannot be made. Judicial control is a set of measures ranging from a ban on traveling abroad to the obligation to sign, from an electronic handcuff to the obligation not to leave the house. - Proportionality: There must be a reasonable balance between the expected sentence and the time spent in detention.
With an amendment made in 2021, arrest warrants why judicial control will be insufficient has been made mandatory to be displayed separately. This turned the proportionality audit into a written obligation.
Arrest prohibitions: in what cases arrest cannot be made?
There are situations where the law prohibits arrest even if the conditions are met:
- Only in crimes requiring judicial fines arrest warrant cannot be issued.
- For crimes where the maximum prison sentence is not more than two years arrest warrant cannot be issued. However, crimes committed intentionally against physical immunity are excluded from this exception.
This limit aims to prevent deprivation of liberty from becoming more severe than the punishment for minor crimes.
Who makes the decision to arrest?
The decision making authority varies depending on which stage of the judgment is taken:
- During the investigation phase: The suspect was arrested upon the request of the public prosecutor.criminal judge of peace decides. The prosecutor cannot arrest on his own; The judge’s decision is required.
- During the prosecution phase: The arrest of the defendant, upon the request of the prosecutor or ex officio court decides.
In the prosecutor’s request for arrest, it is mandatory to give justification and include legal and factual reasons why the judicial control exercise will be insufficient.
When arrest is requested, the suspect or defendant benefits from the assistance of a defense attorney of his own choosing or assigned by the bar association. This is an indispensable assurance.
What should be written in the decision?
In decisions regarding arrest, continuation of detention or rejection of the request for release, the following four elements are considered:justified by concrete facts must be shown clearly:
- Strong suspicion of crime,
- Existence of reasons for arrest,
- The measure is proportionate,
- Judicial control practice will be insufficient.
The content of the decision is notified verbally to the suspect or defendant; In addition, a copy is given to him in writing and this issue is stated in the decision.
The absence of one of these elements is one of the strongest arguments at the objection stage. Decisions that are limited to printed statements – such as “there is suspicion of escape” – and are not based on concrete facts do not meet the obligation of justification.
Maximum period of detention
Detention cannot be indefinite. The limits stipulated by the law are as follows:
- In matters that do not fall within the jurisdiction of the high criminal court: one year at most. In cases of necessity, it can be extended for another six months by showing justification.
- In matters falling within the jurisdiction of the high criminal court: two years at most. In cases of necessity, it can be extended by giving justification; The extension period cannot exceed three years in total. This upper limit is five years for crimes against the security of the state and constitutional order and crimes within the scope of anti-terrorism legislation.
- During the investigation phase: cannot exceed six months for matters that do not fall within the jurisdiction of the high criminal court, and one year for matters that do. For crimes committed collectively with certain crime groups, this period is a maximum of one year and six months, and can be extended for another six months with justification.
- In children: the periods are applied at half the rate for children who have not completed the age of fifteen at the time of committing the act, and at the rate of three quarters for children who have not completed the age of eighteen.
Extension decisions are made after taking the opinions of the public prosecutor, the suspect or defendant and his defense counsel.
What can be done if the conditions are not met?
If an arrest warrant is not issued, the suspect or defendant is immediately released. If a decision has been made, it is open to appeal against decisions regarding arrest and the reasons for arrest. The objection is submitted to the decision-making authority and is subject to a two-week period.
In addition, if the detention is later found to be unjust – such as acquittal, decision not to prosecute – compensation may be requested from the state. As emphasized in a decision of the 9th Criminal Chamber of the Supreme Court of Appeals, the criterion of strong suspicion of crime required for arrest and the criterion sought for judicial control are different from each other; This distinction is decisive both in the choice of the measure and in the subsequent compensation assessment.
Frequently Asked Questions
What conditions are required for arrest?
Three conditions must be present: concrete evidence showing strong suspicion of crime, a reason for arrest listed in the law and the measure must be proportionate. In addition, it must be shown that judicial control will be insufficient.
Is arrest mandatory for catalog crimes?
No. The catalog indicates the circumstances in which cause for arrest may be “presumed”; It does not bind the judge. Proportionality control is carried out and justified in any case.
For which crimes an arrest warrant cannot be issued?
Arrest is prohibited only in crimes that require judicial fines and in crimes for which the upper limit of imprisonment is not more than two years. Crimes committed intentionally against physical immunity are excluded from this exception.
Can the prosecutor issue an arrest warrant?
No. The prosecutor only makes a request; The decision is made by the criminal judge of peace during the investigation phase, and by the court during the prosecution phase.
What is the maximum period of detention?
One year (maximum one and a half years with a six-month extension) for matters that do not fall within the jurisdiction of the high criminal court; It cannot exceed three years in total for certain crimes and five years for certain crimes.
What happens if there is no justification in the decision?
Lack of justification constitutes unlawfulness and is one of the strongest arguments that can be put forward in an objection. Printed statements do not replace concrete justification.
What is the difference between judicial control and arrest?
Judicial control is a set of milder measures applied without putting the person in prison. If the same purpose can be achieved through judicial control, arrest cannot be applied.
Disclaimer: This article has been prepared to provide general information about Turkish law and does not constitute legal advice. Whether the conditions of arrest are present in a concrete file is evaluated according to the specific conditions of the file. Be sure to consult a lawyer for your particular situation.
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