WHAT IS A PRE-TRIAL DETENTION MEASURE?
1. Definition and Provisional Nature of Pre-trial Detention
Pre-trial detention, within the Turkish legal system, is a protective measure that involves the restriction of a person's liberty by a judge or court order, prior to a definitive judgment, when there are strong suspicions that the person has committed a crime. This measure is not a punishment or a means of enforcing a sentence; rather, it is a provisional measure resorted to in order to ensure the healthy conduct of the judicial proceedings. This situation reflects the principle of the presumption of innocence, which is one of the fundamental tenets of criminal procedure law. The presumption of innocence states that a person cannot be considered guilty until their guilt has been legally established. Therefore, pre-trial detention is not based on the assumption that the person is guilty; it arises from a necessity deemed essential to preserve the integrity of the judicial process. When the reasons leading to pre-trial detention cease to exist, this liberty-restricting measure must be terminated immediately.
2. Purpose and Fundamental Principles of Pre-trial Detention
The primary purpose of pre-trial detention is to ensure the effectiveness of the judicial process and the realization of justice. In this context, the aim is to protect evidence and enable the healthy conduct of the trial. While achieving this purpose, it is imperative to strictly adhere to certain fundamental principles within the framework of the rule of law.
- Principle of Legality (Lawfulness): For a pre-trial detention order to be lawful, there must be full compliance with domestic legal norms pertaining to both substantive law (elements of the crime) and procedural law (detention procedures). In accordance with Article 19 of the Constitution, no one shall be deprived of their liberty without due process of law. This guarantees that pre-trial detention occurs on a transparent and predictable legal basis, free from arbitrary practices.
- Principle of Proportionality: This principle requires that when resorting to liberty-restricting protective measures, they should be applied in a sequence, starting from the least restrictive to the most restrictive. If the purpose of the trial can be achieved through a less restrictive measure, such as judicial control, pre-trial detention should not be imposed. This principle is explicitly emphasized in Article 19 of the Constitution and Article 100/1 of the Code of Criminal Procedure ("CCP"), playing a protective role for the individual against the state. This emphasis indicates that the principle of proportionality is more than just a procedural step; it is a constitutional guarantee against arbitrary liberty restrictions. It places an obligation on judges, even if detention conditions are met, to prioritize less restrictive measures and to provide concrete, convincing justifications for a detention order. This approach ensures that pre-trial detention remains an "exceptional" and "last resort" measure; otherwise, a situation contrary to the spirit of the law could arise.
- Principle of Individuality (Personal Liability): The principle of individual responsibility for crime and punishment, which forms the basis of criminal law, means that the pre-trial detention measure can only be applied to the suspect or defendant against whom there is strong suspicion. This principle guarantees that individuals who are not in the position of suspect or defendant, even if related to the crime, cannot be subjected to pre-trial detention.
- Principle of Apparent Justification (Prima Facie Case): A pre-trial detention order may be issued if there is a concrete appearance that certain harms could occur immediately, such as a danger in delay or the necessity of immediate action. This emphasizes the urgency and necessity of the decision.
3. Conditions for a Pre-trial Detention Order
For a person to be placed in pre-trial detention, two fundamental and closely linked conditions determined by the CCP must exist concurrently. These conditions reinforce the principle that such a severe measure, which deprives a person of their liberty, can only be applied in exceptional circumstances.
- 3.1. Existence of Strong Suspicion of Crime
- 3.2. Existence of a Ground for Detention
- Suspicion of Flight: The existence of concrete facts giving rise to the suspicion that the suspect or defendant will flee, hide, or escape. This refers to the possibility that the person might obstruct the administration of justice by evading trial.
- Suspicion of Tampering with Evidence: Strong suspicion that the suspect's or defendant's conduct aims to destroy, conceal, or alter evidence, or to exert pressure on witnesses, victims, or others. This refers to a situation that threatens the objectivity of the trial and the ascertainment of the truth.
- Suspicion of Committing "Catalogue Crimes": If there is strong suspicion that certain crimes listed in Article 100/3 of the CCP (catalogue crimes) have been committed, this alone is accepted as a ground for pre-trial detention. These crimes, due to their nature (e.g., high risk of flight or tampering with evidence), indicate that the legislator has adopted a stricter stance regarding them and has presumed the existence of general grounds for detention in these offenses. This categorization aims to expedite the judicial process and ensure public safety for certain serious crimes.
For a pre-trial detention order, there must be "concrete evidence indicating the existence of strong suspicion of crime" that the person has committed an offense. This is a much higher degree of suspicion than "simple or sufficient suspicion" which is adequate for initiating a public prosecution. Strong suspicion requires a high probability that the person committed the crime. In the CCP, the highest degree of suspicion required after a conviction decision is sought for the pre-trial detention measure. The European Convention on Human Rights (“ECHR”) also requires "reasonable suspicion" of having committed a crime. This high threshold of suspicion demonstrates how exceptional and serious an intervention pre-trial detention is; strong and concrete justifications are sought for interfering with a fundamental right such as deprivation of liberty.
In addition to strong suspicion of crime, there must also be a ground that necessitates pre-trial detention. Article 100/2 of the CCP recognizes three main grounds for pre-trial detention:
| Condition / Ground Category | Description | Legal Basis (CCP) |
|---|---|---|
| Fundamental Conditions | Existence of concrete evidence indicating strong suspicion of crime. | m.100/1 |
| Existence of a ground for detention. | m.100/1 | |
| Grounds for Detention (m.100/2) | Concrete facts giving rise to the suspicion that the suspect or defendant will flee, hide, or escape. | m.100/2-a |
| Suspect's or defendant's conduct creating suspicion of destroying, concealing, or altering evidence. | m.100/2-b/1 | |
| Suspect's or defendant's conduct creating suspicion of attempting to exert pressure on witnesses, victims, or others. | m.100/2-b/2 | |
| Catalogue Crimes (m.100/3) | If there is strong suspicion that one of the crimes listed below has been committed, a ground for detention is presumed to exist. | m.100/3 |
| Prohibited Detention Cases (m.100/4) | Crimes requiring only a judicial fine. | m.100/4 |
| Crimes for which the upper limit of the prison sentence is not more than two years (excluding those intentionally committed against bodily integrity). | m.100/4 |
| Crime Category | Example Crimes (CCP m.100/3 and relevant TCK/Law Articles) |
|---|---|
| Genocide and Crimes Against Humanity | Genocide, Crimes Against Humanity |
| Smuggling of Migrants and Human Trafficking | Smuggling of Migrants, Human Trafficking |
| Intentional Homicide | Intentional Homicide |
| Intentional Injury and Aggravated Intentional Injury due to Result | Intentional Injury (including those committed against healthcare personnel), Aggravated Intentional Injury due to Result |
| Torture | Torture |
| Sexual Assault and Sexual Abuse of Children | Sexual Assault, Sexual Abuse of Children |
| Theft and Robbery | Theft, Robbery |
| Manufacturing and Trafficking of Narcotics or Stimulants | Manufacturing and Trafficking of Narcotics |
| Establishing an Organization for the Purpose of Committing a Crime | Establishing an Organization for the Purpose of Committing a Crime |
| Crimes Against State Security | Crimes Against State Security, Collaborating with the Enemy, Incitement to War Against the State, Material and Financial Aid to an Enemy State |
| Crimes Against the Constitutional Order and Its Functioning | Crimes Against the Constitutional Order and Its Functioning, Assassination Attempt and Physical Attack on the President |
| Arms Smuggling Crimes | Arms Smuggling |
| Economy and Finance Crimes | Embezzlement committed by Chairmen and Members of Bank Boards of Directors and Other Bank Officials |
| Environmental Crimes | Intentional Forest Arson |
| Crimes within the Scope of the Law on Protection of Cultural and Natural Assets | Illegally Exporting Cultural and Natural Assets |
| Smuggling Crimes | All Smuggling Crimes |
4. Authorities Authorized to Issue Pre-trial Detention Orders
In Turkish law, the authority to issue a pre-trial detention order belongs exclusively to judges or courts. Public prosecutors, police chiefs, or other administrative authorities do not have the authority to issue detention orders, even in urgent situations. This strict rule aims to prevent arbitrary interventions by the executive branch and to ensure that the decision is subject to independent judicial review.
- During the Investigation Phase: During the investigation phase, which is initiated upon suspicion that a crime has been committed, the pre-trial detention order is issued by the Magistrate Criminal Judge. The Magistrate Criminal Judge can issue a detention order ex officio even at the very beginning of the investigation, in cases of flagrante delicto (caught in the act) or urgent situations.
- During the Prosecution Phase: In the prosecution phase, which is the stage after a public lawsuit has been filed, the pre-trial detention order is issued by the criminal court trying the case (Assize Criminal Court or Heavy Penal Court). The court may issue this order upon the request of the Public Prosecutor, or, unlike the investigation phase, it may also ex officio detain the defendant for the sake of the case. This indicates that once the case is referred to the court, the responsibility for ensuring the integrity of the trial and the realization of justice fully shifts to the court.
- Exceptional Circumstances: As a rule, a pre-trial detention order is issued against a suspect or defendant who has been brought before the judicial authority. However, there are two exceptions: an absentia arrest warrant may be issued for fugitives located in foreign countries, and a detention order may be issued on the file following an objection to a decision rejecting a detention request.
5. Cases Where Pre-trial Detention is Prohibited
The Turkish Code of Criminal Procedure prohibits the issuance of pre-trial detention orders for certain crimes and situations to ensure compliance with the principle of proportionality. These prohibitions reflect the value that the law places on individual liberty, particularly concerning the most severe liberty-restricting measure: pre-trial detention.
- Crimes Punishable Only by Judicial Fine: Pre-trial detention cannot be ordered for crimes that are punishable only by a judicial fine. This is based on the acceptance that deprivation of liberty would be disproportionate for minor offenses.
- Crimes Punishable by Short-Term Imprisonment: Pre-trial detention cannot be ordered for crimes where the upper limit of the prison sentence is not more than two years. This provision aims to prevent unnecessary deprivation of liberty through detention for crimes requiring short-term imprisonment.
- Important Exception: There is an important exception to the second prohibition above: for crimes intentionally committed against bodily integrity (e.g., intentional or negligent injury, negligent homicide), regardless of the sentence limit, the court may issue a detention order if the conditions are met. Even if these crimes are not among the catalogue crimes in Article 100/3 of the CCP, they are not subject to the detention prohibition. This exception highlights the special importance the legislator attaches to crimes against an individual's physical integrity and its sensitivity to public safety and the protection of an individual's physical integrity.
- Cases Where a Guarantee Document Has Been Issued: If a guarantee document has been issued to the defendant, they cannot be detained upon appearing for trial. This is a guarantee that encourages the defendant's participation in the judicial proceedings.
6. Length of Pre-trial Detention
The lengths of pre-trial detention are applied within the maximum limits set by the CCP. However, it must be remembered that these periods are maximums and do not mean that a person can be held until these periods expire in any circumstances. According to the jurisprudence of the European Court of Human Rights ("ECHR") and the Constitutional Court ("AYM"), if the pre-trial detention in concrete cases has exceeded a "reasonable period," it may be concluded that a constitutional right has been violated. This emphasizes the judiciary's duty to prevent arbitrary or unnecessarily long detentions by evaluating each case based on its specific characteristics.
- For Cases Not Falling Under the Jurisdiction of the Heavy Penal Court: The maximum pre-trial detention period during the investigation phase is 6 months, and during the prosecution phase, it is a maximum of 1 year. In mandatory circumstances, this period can be extended by an additional 6 months with clearly stated justifications.
- For Cases Falling Under the Jurisdiction of the Heavy Penal Court: The maximum pre-trial detention period during the investigation phase is 1 year, and during the prosecution phase, it is a maximum of 2 years. With extensions, the total maximum is 5 years.
- Catalogue Crimes and Crimes Under the Anti-Terror Law: Pursuant to Article 102/4 of the CCP, for crimes defined in certain sections of the Turkish Penal Code, crimes within the scope of the Anti-Terror Law, and crimes committed collectively, the maximum period during the investigation phase is 1 year and 6 months, and it can be extended by an additional 6 months with justifications. For crimes within the scope of the Anti-Terror Law, the maximum pre-trial detention period is 7 years. The gradual determination of pre-trial detention periods based on the nature and severity of the crime reflects the legislator's effort to balance individual liberty and public safety.
- Age Factor: The age of the suspect or defendant is also taken into account when determining the length of pre-trial detention. Shorter detention periods may be prescribed for children and young adults, which demonstrates that the criminal justice system adopts an age-sensitive approach.
7. Conclusion
In Turkish law, the pre-trial detention measure represents a delicate balance between individual liberty and public safety and the integrity of the judicial process. This report has comprehensively addressed the pre-trial detention order, starting from its definition, to the conditions for its issuance, the fundamental rights of the detained person, the objection procedures against detention orders, and compensation mechanisms in cases of unlawful detention.
It has been emphasized that pre-trial detention is not a punishment but a provisional protective measure aimed at ensuring the healthy progress of the trial. This nature is directly related to the principle of the presumption of innocence and indicates that pre-trial detention can only be applied in the presence of strong suspicion of crime and concrete grounds for detention (flight risk, tampering with evidence, catalogue crimes), in accordance with the principle of proportionality. The fact that the authority to issue a pre-trial detention order belongs exclusively to judges and courts is a vital guarantee for preventing arbitrary practices and preserving judicial independence.