This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Tutukluluk Nedir? Tutuklu Hakları ve Tahliye Yolları.
Detention is not a punishment but a protective measure, and it may be ordered only where a strong suspicion of an offence and one of the statutory grounds for detention are present together (Article 100 of the Criminal Procedure Code). Where judicial control would suffice, detention may not be ordered. An objection and an application for release are possible at every stage; the period for objecting is seven days from learning of the decision.
Detention deprives a person suspected of an offence of their liberty before the case is decided. Because it touches the essence of the right to liberty and security, the Constitution and the Criminal Procedure Code subject it to strict conditions.
On What Conditions May Detention Be Ordered?
Two conditions must be present together:
- A strong suspicion of an offence: concrete evidence and indications that the person committed it. Abstract suspicion is not enough.
- A ground for detention: at least one of the grounds below, present concretely.
“Where there is concrete evidence showing a strong suspicion of an offence and a ground for detention exists, a detention order may be made in respect of the suspect or accused.” — Criminal Procedure Code (Law no. 5271), Article 100/1
What Are the Grounds for Detention?
Article 100 provides three basic grounds:
- Risk of flight: concrete facts indicating that the person will leave the country or their address to prevent the proceedings from concluding.
- Risk of tampering with evidence: the possibility of destroying, concealing or altering evidence, or putting pressure on witnesses.
- Risk of reoffending: in certain serious offences (terrorism, organised crime, sexual offences and the like), concrete facts indicating that the accused will offend again.
For the serious offences known as “listed” or catalogue offences (homicide, drug trafficking, sexual abuse and others), a strong suspicion may itself be treated as a ground for detention.
What Are the Maximum Periods?
Detention cannot continue indefinitely. Article 102 sets maximum periods that differ by offence and by stage of the proceedings:
- Matters outside the jurisdiction of the assize court: at most 6 months during the investigation; at most 1 year during the prosecution, extendable by 6 months with reasons (1 year 6 months in total).
- Matters within the jurisdiction of the assize court: at most 1 year during the investigation; at most 2 years during the prosecution, with extensions not exceeding 3 years in total (5 years in all).
- Terrorism offences, offences committed in the course of an organisation's activities, and offences against the security of the State: at most 1 year 6 months during the investigation, extendable by a further 6 months with reasons (2 years in total); during the prosecution the extensions may not exceed 5 years in total (7 years in all).
When the maximum is reached the detained person must be released, even if the case is still running.
What Rights Does a Detained Person Have?
- Access to a lawyer. From the moment of custody the person may speak with their lawyer. If they cannot appoint one, the bar association assigns defence counsel.
- An interpreter. Those who do not speak Turkish, and those who are deaf or unable to speak, are provided with an interpreter free of charge.
- Contact with family. The person may have a relative informed and, on defined conditions, receive visits.
- The right to silence. A person in custody or detention may decline to answer questions, and exercising that right may not be treated as evidence against them.
- Access to healthcare.
- The right to challenge the detention order.
What Is Judicial Control?
The court may order the lighter measures of judicial control instead of detention. Article 109 lists them:
- an obligation not to leave a defined area (a city or the country)
- an obligation to sign on at defined intervals
- surrender of a passport or driving licence
- a ban on contact with defined persons
- electronic tagging
- the provision of security (bail)
A defence strategy may be built around asking for judicial control instead of detention, supported by the argument that detention is contrary to the principle of proportionality.
| Measure | Content |
|---|---|
| Ban on leaving the country | Noted against the passport and at border crossings |
| Obligation to sign on | Signing at a police station at set intervals |
| Not leaving one's residence | At set hours or entirely |
| Electronic tagging | Location monitored by technical means |
| Provision of security | Payment of a defined sum |
| Not going to defined places | Staying away from the victim's home or workplace |
| Treatment or examination | In cases of addiction and the like |
Failure to comply with judicial control measures may lead to a detention order.
Applying for Release and Objecting (Articles 104 and 108)
A detained person or their counsel may apply for release at any stage, to the magistrate's court that ordered detention or to the court hearing the case. Two routes exist:
- Article 104 — application for release: the detained person or their counsel may apply at every stage of the investigation and the prosecution.
- Article 108 — periodic review: the judge must review the detention of their own motion at intervals of thirty days. If continued detention is found not to be necessary, release is ordered.
Where an application is refused, the decision of the magistrate's court may be objected to. An individual application to the Constitutional Court is also possible.
How Does Detention End?
- the court orders release
- the maximum period expires
- an acquittal or a decision discontinuing the case is given
- the judgment becomes final and the sentence begins to be served
The law states expressly that detention may not be ordered where judicial control would suffice. A defence should therefore always put forward a concrete alternative — signing on, a ban on leaving the country, electronic tagging — rather than simply opposing detention.