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Arrest and Detention

December 2, 2025
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RESTRICTION OF PERSONAL LIBERTY IN CRIMINAL PROCEEDINGS: THE LEGAL REGIME OF ARREST AND DETENTION MEASURES

 

The most fundamental characteristic of a state governed by the rule of law is its guarantee of the rights and freedoms of individuals. Foremost among these freedoms is the "Right to Personal Liberty and Security," enshrined in Article 19 of the Constitution. As a rule, everyone has the freedom to travel and move from one place to another. However, in cases where public order is disrupted or suspicion of crime arises, the state has the authority to intervene in this freedom in order to investigate the material truth and establish justice.

In Criminal Procedure Law, these intervention tools are called "Protective Measures." Protective measures are not punishments, but temporary tools used to ensure the healthy conduct of the trial. The most common and frequently applied of these measures are arrest and detention .

In this study, we will examine the arrest process, which is the first moment a person's freedom is actually restricted, the detention process, which gives this process a legal status, its durations, the competent authorities, and the strict formal requirements to which these measures are subject, in light of the provisions of the Code of Criminal Procedure No. 5271.

I. ARREST MEASURE (CMK art. 90)

 

Arrest is the de facto and temporary restriction of a person's liberty, without a court order, until a detention or arrest warrant is issued, in order to eliminate an existing danger to public safety, public order, or the person's body or life, or against whom there are strong indications, evidence, or signs that they have committed a crime.

Arrest refers to the de facto situation on the ground before a formal "detention" order or "arrest warrant" has been issued. In our legal system, arrest occurs in two ways:

A. Arrest That Can Be Made By Anyone (Caught Red-Handed)

 

The legislator has granted the authority to make arrests to ordinary citizens who are not law enforcement officers in certain emergency situations. According to Article 90/1 of the Code of Criminal Procedure, temporary arrests can be made by anyone in the following cases:

  1. The Existence of Being Caught in the Act (Crime in Flagrante Delicto): This refers to the situation where a person is caught in the act of committing a crime.

  2. Escape Occurrence or Uncertainty of Identity: Situations where a person being pursued for a crime committed in flagrante delicto has a possibility of escaping or where their identity cannot be immediately determined.

Legal Nature: This action by the citizen is not an "arrest." It is merely a "temporary detention" measure aimed at preventing the perpetrator from escaping the scene and handing them over to law enforcement as soon as possible. The citizen cannot search, interrogate, or imprison the person they apprehend; they must immediately notify the police.

B. Arrest by Law Enforcement Officers (Police/Gendarmerie)

 

Law enforcement officers have broader powers of arrest. According to Article 90/2 of the Code of Criminal Procedure, law enforcement officers can make arrests in the following cases:

  1. Arrest Warrant or Apprehension Order: Individuals for whom an arrest warrant has been issued by a judge or an apprehension order by the prosecutor's office are apprehended wherever they are found (Judicial Apprehension).

  2. Arrest in Flagrante Delicto: Just as anyone can make an arrest in flagrante delicto, law enforcement can also make an arrest without needing a warrant.

  3. Circumstances Where Delay Would Be Detrimental: Even if there is no flagrant offense, if there is strong suspicion that a person for whom an arrest warrant or detention order should be issued will flee or destroy evidence while awaiting these decisions, law enforcement may take the initiative to apprehend the person if the prosecutor or their superiors cannot be reached immediately.

Execution of the Arrest Procedure and the Recording

 

At the time of arrest, the individual is informed that they are suspected of a crime and have been apprehended. If they resist, proportionate force may be used to apply handcuffs. A "Report of Arrest" prepared at the end of the process. This report includes:

  • Where, when, and by whom the arrest was made,

  • What was the reason for the arrest?

  • Whether force was used during the arrest,

  • The document, which clearly states and signs the individual's rights, is a cornerstone of all criminal proceedings.

II. DETENTION MEASURE (CMK art. 91)

 

While arrest is a factual act, detention is a legal status. Detention refers to the period during which an arrested person is held under supervision in a law enforcement (Police/Gendarmerie) facility, by order of the public prosecutor, for the purpose of completing the legal proceedings against them, provided that the legal time limits are not exceeded.

A. Who issues the detention order?

 

In our legal system, as a rule, the authority to order detention belongs exclusively to the Public Prosecutor . Law enforcement officers (police) cannot unilaterally detain a person they have apprehended.

  • Procedure: The police apprehend the individual and immediately contact the on-duty prosecutor. They explain the situation. The prosecutor may order, "Take their statement and release them," or they may instruct, "Detain them and bring them to me." However, detention cannot be carried out without this written (or in urgent cases, verbal, with the condition that it is later converted to writing) order from the prosecutor.

  • Exception: Although the legislation allows law enforcement officers designated by the local authorities to detain suspects for short periods (up to 24 hours) in certain cases, such as violent crimes, the primary and general authority restswith the public prosecutor's office.

B. Detention Periods

 

The detention period is the most critical phase in which personal liberty is restricted. These periods are defined as "maximum" periods in Article 91 of the Code of Criminal Procedure.

1. Time Limits in Individual Crimes

 

In cases of crimes committed individually (by a single person or, even if committed jointly, not falling under the category of collective crime), the detention period 24 hours .

  • Travel Time: The time required to transport the suspect from the place of arrest to the nearest judge or court is not included in the 24-hour period. However, travel time 12 hours .

  • Conclusion: In individual crimes, a person can be detained for a maximum of 24 hours + 12 hours travel = 36 hours without being brought before a prosecutor.

2. Time Limits in Mass Crimes

 

Crimes committed by three or more people are called "collective crimes." In collective crimes, the prosecutor may extend the 24-hour period due to the difficulty in gathering evidence or the large number of suspects.

  • Extension Procedure: The detention period can be extended by up to 3 days , each extension not exceeding 1 day .

  • Total duration: Initial 24 hours + 3-day extension = A total of 4 days of detention may be applied.

Important Note: The extension order is not automatic. The prosecutor must issue a separate written order for each day. Furthermore, the extension order must be served to the suspect.

3. Prohibition of Re-arrest (CMK Article 91/6)

 

Unless new and sufficient evidence is obtained and the public prosecutor orders it, a person released after the expiration of their detention period cannot be arrested again for the same offense. This rule was introduced to prevent abuses such as law enforcement "releasing a person and then arresting them again as they exit through the door" (to prevent the use of revolving doors).

III. COMMON PROVISIONS AND RIGHTS REGARDING ARREST AND DETENTION

 

Since both measures involve deprivation of liberty, international conventions and our domestic law grant the suspect extensive rights during this process.

1. Notification of Rights (Obligation to Inform)

 

The person arrested or detained is immediately informed of the situation and their rights (Code of Criminal Procedure, Article 90/4). These rights are as follows:

  • Knowing the Charges: The right to know why you were arrested and what you are accused of.

  • Right to remain silent: The right not to speak about the crime attributed to oneself.

  • Right to Legal Representation: The right to have legal representation, and if one does not have a lawyer, the right to request a lawyer from the Bar Association.

  • Right to Inform Family Members: The right to request that a family member be notified of your arrest.

  • The Right to Request the Collection of Evidence.

This notification is given not only verbally, but also in writing by having the "Suspect Rights Form" signed.

2. Notifying Relatives (CMK Article 95)

 

The suspect was apprehended and taken into custody on the orders of the public prosecutor;

  • To a relative designated by the suspect,

  • To a person he/she designates,

  • If the suspect is a foreigner, the consulate of their country of citizenship is notified without delay. This notification is a vital safeguard against enforced disappearances.

3. Health Check

 

It is mandatory for a person to obtain a health report both when they are taken into custody and when they are released from detention (when being transferred to the courthouse or being set free) .

  • These reports are the most important evidence of whether a person was subjected to torture or ill-treatment during their detention.

  • The medical report must be prepared in accordance with patient-physician confidentiality, without law enforcement officers present.

4. Detention Records (Detention Register)

 

All details regarding a detained person, such as entry and exit times from the detention facility, health reports, meal times, and lawyer visits, are recorded in a "Detention Facility Register." These registers are regularly reviewed by prosecutors.

IV. OBJECTIONS TO ARREST AND DETENTION PROCEDURES (REVIEW)

 

In a state governed by the rule of law, no administrative or judicial action can go unchecked. A swift and effective remedy is provided against such actions that restrict individual liberty.

Those Eligible to Apply (CMK Article 91/5)

 

Against arrest, detention, or extension of the detention period;

  • The arrested person (suspect),

  • Defense counsel (lawyer),

  • Legal representative (guardian/custodian),

  • His wife,

  • A first or second-degree blood relative (mother, father, child, sibling, grandfather, grandchild) can apply for immediate release.

Application Authority: Magistrates' Court

 

The application is made to the Magistrate Court Judge within the judicial district .

  • Review: The magistrate conducts the review based on the documents.

  • Timeframe: The application 24 hours .

  • Decision: If the court determines that the arrest or detention was unlawful or that the time limit has expired, it orders the immediate release of the person. If the procedure was lawful, it rejects the application.

This mechanism is the Turkish legal equivalent of the "Habeas Corpus" principle. In other words, it's a demand: "Why are you detaining me? Bring me before a judge.".

V. OUTCOME OF THE PROCEDURES: RELEASE OR REFERRAL FOR INTERROGATION

 

When the detention period expires, the prosecutor has two options:

  1. Release: If the evidence gathered does not create sufficient suspicion that the person committed a crime, or if there is no situation that would warrant arrest, the prosecutor releases the suspect (either with a request for judicial supervision or directly).

  2. Referral for Arrest: If there is strong suspicion of a crime and grounds for arrest, the prosecutor refers the suspect to the Magistrates' Court with a request for arrest. From this moment, detention ends and the court process (interrogation) begins.

VI. COMPENSATION FOR UNLAWFUL ARREST AND DETENTION (CMK art. 141)

 

If a person;

  • If caught or arrested under conditions other than those specified by law,

  • If he/she has not been brought before a judge within the legally mandated detention period,

  • If the reasons for the arrest or detention have not been communicated to him,

  • If his capture has not been reported to his relatives,

  • If a decision of no prosecution (dismissal) or acquittal has been issued (i.e., if the person's innocence has been established),

The injured party has the right to claim material and moral compensation from the state . This lawsuit is filed against the state (Treasury) in the High Criminal Court located in the place where the injured party resides.

VII. CONCLUSION AND EVALUATION

 

Arrest and detention measures, while indispensable tools of the criminal justice system, are procedures that carry the most delicate balance in terms of human rights. On the one hand, there is the security of society and the investigation of crime, and on the other hand, there is the individual's most fundamental right: freedom.

To ensure this balance, the Code of Criminal Procedure No. 5271 has not granted unlimited authority to law enforcement and prosecutors; it has defined time limits with precise boundaries, made notification mandatory at every stage, and opened the entire process to judicial review (Magistrate Court).

The presumption of innocence, which states that the suspect is an "innocent" individual whose guilt has not yet been proven, must govern the entire procedure from the moment of arrest. Any arrest/detention that is not carried out properly, where rights are not explained, relatives are not notified, or the time limit is exceeded, not only constitutes a violation of the law but also leads to the evidence obtained being considered "illegally obtained evidence" and therefore unusable in court (the fruit of the poisonous tree).

Therefore, it is a requirement of the right to a fair trial and the principle of the rule of law that both law enforcement and legal authorities comply with the formal requirements of the Code of Criminal Procedure when implementing these measures.

Legal Notice: This text has been prepared for general informational purposes within the framework of the Criminal Procedure Code No. 5271 and related legislation. To avoid loss of rights in your specific legal processes, it is recommended to seek professional legal assistance.

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