The detention of a relative is a difficult process for a family, both legally and emotionally. Pre-trial detention (tutuklama) is not a punishment but an exceptional protective measure used so that proceedings can run properly, and it cannot be applied if the statutory conditions are absent or if a lighter measure is sufficient. An objection to the detention order is the first route available for securing the person’s release. In this article we explain the time limit for the objection, the authority to which it is made, what to look out for in the petition, and the other routes to release.
Conditions for pre-trial detention #
Under Article 100 of the Code of Criminal Procedure (CMK), the following conditions must exist together for a detention order to be issued:
- Strong suspicion of an offence: Strong suspicion, supported by concrete evidence, that the suspect committed the offence
- Ground for detention: Facts indicating that the suspect has fled, is hiding or strengthening the suspicion of flight, or suspicion of tampering with evidence or putting pressure on witnesses or victims. For certain serious offences listed in the law (catalogue offences), this ground may be presumed to exist.
- Proportionality: Detention must be proportionate to the importance of the case and the expected penalty
A detention order cannot be issued for offences punishable only by a judicial fine or for intentional offences whose maximum prison sentence does not exceed 2 years. If judicial control (adli kontrol) would be sufficient instead of detention, detention should not be ordered.
Time limit for objecting to a detention order: 2 weeks #
Following the amendment made by Law No. 7499, for decisions issued on or after 1 June 2024 the time limit for objecting to a detention order is two weeks from learning of the decision (previously it was seven days). If the decision is given in the person’s presence, the period runs from the day it is announced; if it is given in their absence, from service. The time limit is strict; however, even after it has expired a request for release may be made at any time.
Where is the objection made and who examines it? #
| Authority that ordered detention | Authority examining the objection |
|---|---|
| Criminal judgeship of peace (sulh ceza hâkimliği) (investigation stage) | The next-numbered criminal judgeship of peace in the same place; if there is only one judgeship, the authority designated by law |
| General criminal court of first instance (asliye ceza mahkemesi) (prosecution stage) | The serious crimes court (ağır ceza mahkemesi) in that judicial district |
| Serious crimes court (prosecution stage) | The next-numbered serious crimes court; if there is only one chamber, the nearest serious crimes court |
The objection is made by a petition submitted to the judgeship or court that issued the decision, or by a statement made to the court clerk. If the authority that issued the decision finds the objection justified, it corrects its own decision; if not, it sends the objection within 3 days at the latest to the authority competent to examine it. A detained person may also submit the objection petition through the prison administration.
What should the objection petition contain? #
- Absence of strong suspicion: Why the evidence does not point to the suspect, contradictory witness statements, incomplete examinations
- No risk of flight: A permanent residence, family and work ties, not holding a passport, voluntarily attending when summoned
- No remaining risk of tampering with evidence: The evidence has been collected and the witnesses have been heard
- Lack of proportionality: The minimum of the expected penalty, the time already spent in detention, the nature of the offence
- Request for judicial control: That a ban on travelling abroad, an obligation to report and sign, an order not to leave the residence or an electronic tag would be sufficient
- Personal circumstances: Health problems, dependants the person is obliged to care for, student status
Instead of abstract phrases such as “I request my release”, responding concretely, one by one, to the reasons given in the detention order markedly increases the effect of the objection. If the reasoning of the decision is insufficient, this should also be raised separately.
Routes to release other than an objection #
- Request for release: May be made at every stage of the investigation and prosecution, without any time limit.
- Detention review: During the investigation stage, continued detention is reviewed by the criminal judgeship of peace at intervals of 30 days at most; during the prosecution stage, by the court at every hearing or at least once every 30 days.
- Judicial control: Instead of detention, a request may be made for the measures, where their conditions are found to be too onerous, to be replaced by lighter ones.
- Individual application to the Constitutional Court: If it is considered that the right to liberty and security of person has been violated, an application may be made within 30 days after ordinary remedies have been exhausted.
How long can pre-trial detention last? #
The time spent in detention is limited by law: in cases outside the jurisdiction of the serious crimes court, at most 1 year (which may be extended by 6 months with stated reasons where necessary); in cases within the jurisdiction of the serious crimes court, at most 2 years (a total of 3 years with extensions where necessary). For certain offences the extension period is longer. These periods are upper limits; continued detention must be based on an assessment at every review of whether the conditions still exist.
Compensation for unjustified detention #
A person who was detained unlawfully, who received a decision not to prosecute or an acquittal after being detained, or who remained in detention beyond the statutory periods may claim pecuniary and non-pecuniary damages from the state. The claim must be made within 3 months of service of notice that the decision has become final, and in any event within 1 year of its becoming final. From 1 June 2024, in cases of a decision not to prosecute or an acquittal following lawful detention, of time spent in detention exceeding the sentence imposed, and of an acquittal or decision not to prosecute following judicial control obligations, the application is made to the Ministry of Justice Compensation Commission; in other cases, such as unlawful detention or failure to be tried within a reasonable time, the competent authority is the serious crimes court of the place where the person resides (CMK 141–142).
Visits, letters and telephone rights in prison #
A detainee is not a convict; they benefit from the presumption of innocence and the regime is arranged accordingly. The matters families ask about most are these:
- Meeting the lawyer: The detainee may meet their defence counsel without a power of attorney being required, on every weekday, in a setting that is not closed and without the content of the meeting being listened to. As a rule no limit is placed on the number or length of meetings.
- Family visits: There are rights to closed and open visits each month with the spouse, descendants, ascendants, siblings and guardian. Visits require identity and proof of kinship and compliance with the appointment system set by the institution.
- Telephone: Calls may be made on the designated day and within the designated time to numbers notified in advance; calls may be recorded.
- Letters and money: Letters are inspected by the institution; where a restriction order exists they are not delivered unread. Money may be deposited into the trust account.
If the judge has issued a restriction order for the confidentiality and purpose of the investigation, counsel’s power to examine the file may be limited; however, the arrest record, the statement record, expert reports and records of proceedings at which the suspect was present may be examined in any event.
The period of detention review and scrutiny of the reasoning #
Detention is reviewed automatically at regular intervals even if no objection is lodged. At the investigation stage the judge assesses whether the continuation of detention is necessary at intervals of no more than thirty days; during the prosecution the court carries out the same review at every hearing and, where necessary, between hearings.
The problem of “stock reasoning” #
In its individual application judgments the Constitutional Court has stated that stock reasons repeated in every file, such as “the nature and character of the offence, the evidence not yet having been collected”, are not sufficient as regards personal liberty. Reasoning that does not rest on concrete facts is the strongest heading to be brought to the fore in an objection petition.
The evidence having been collected #
In detentions based on suspicion of tampering with evidence, it may be argued that the suspicion has weakened once the evidence has been collected and the witnesses heard. In the same way, the suspect having a settled residence, regular employment and no previous arrest warrant are concrete facts that weaken the suspicion of flight.
Judicial control: measures applied instead of detention #
The Code of Criminal Procedure treats detention as a last resort and provides for judicial control where the same aim can be achieved. Judicial control may be applied where detention is prohibited and in place of detention.
| Measure | How it works |
|---|---|
| Ban on leaving the country | An annotation is entered in the passport |
| Reporting to designated places | Signing in at the police station at regular intervals |
| Not leaving the residence | Staying at home at certain hours or entirely |
| Electronic monitoring | Location tracking with a tag |
| Depositing security | Paying the determined amount into the file |
| Being subject to treatment or examination | For suspects with an addiction or a health condition |
An objection may also be lodged against a judicial control order; if the measure is not complied with, a detention order may be issued. Time spent under judicial control is not deducted from the sentence in the event of conviction; deduction arises only for measures that clearly restrict liberty, such as not leaving the residence and electronic monitoring.
What should a family do if a relative has been detained? #
- Find out the date of the detention order and the judgeship that issued it; the objection period runs from this date.
- Give a power of attorney to a lawyer so that they can meet the detained person in prison and inspect the file; the detained person can have the power of attorney drawn up in prison.
- Gather documents that weaken the suspicion of flight (proof of residence, employment, health and family situation).
- Find out whether there is a restriction order on the file; if there is, even the lawyer may be unable to access certain documents.
For rights at the statement and custody stage, see our article on giving a statement at the police station and the right to defence; for all stages of criminal proceedings and the current objection periods, see our Istanbul criminal lawyer page.
