WHAT IS ARREST?

WHAT IS ARREST?

While arrest is generally perceived in society as a punitive measure for a crime committed by a person, or for which there is suspicion that they have committed a crime, it is also an important and exceptional protective measure that temporarily restricts the liberty of the accused or suspect during the investigation or prosecution phase of the crime, in order to facilitate and ensure a more reliable application of criminal procedure.

The primary purpose of arrest is to prevent the accused or suspect from escaping or hiding, to preserve evidence, or to prevent the individual from interfering with the case of a witness, victim, or any other person who may be involved in the crime.

Arrest is both a temporary and exceptional protective measure. It is referred to as temporary because it cannot exceed the reasonable time limit stipulated in Article 5 of the ECHR.

Detention should be terminated when the conditions for arrest cease to exist (when a final judgment is rendered or when strong suspicion against the defendant or suspect disappears). Otherwise, it becomes a punitive measure or a deprivation of liberty, rather than a protective measure.

A protective measure is an exceptional measure. As a state governed by the rule of law, the right to liberty and freedom, which falls within the scope of fundamental human rights and freedoms, is guaranteed both in Article 5 of the ECHR and Article 19 of the Constitution. Therefore, detention, a measure restricting liberty, should be the last resort and is a preliminary measure subject to very strict conditions for its application.

When a judge chooses arrest as a protective measure, they must be extremely meticulous and carefully examine whether the circumstances are appropriate. If judicial supervision or bail is sufficient, an arrest warrant cannot be issued. According to Article 100/1 of the Code of Criminal Procedure, an arrest warrant cannot be issued if the importance of the case is not proportionate to the expected punishment or security measure. The aim of the law here is to eliminate arbitrariness in arrests, to prioritize other protective measures whenever possible, and to use arrest as a last resort.

CONDITIONS FOR ARREST

The law has two phases in terms of application: investigation and prosecution. While the prosecutor only needs sufficient suspicion to initiate a public prosecution and move the suspect to the defendant status, the law requires strong suspicion for an arrest warrant during the investigation phase. This is to prevent the restriction of a person's liberty based on mere suspicion, hence the term "strong suspicion," and criteria for this term have been established, requiring concrete evidence.

Even if there is strong suspicion of arrest, a person cannot be arrested if there is no reason or justification. Article 100/1 of the Code of Criminal Procedure requires, in addition to strong suspicion, a reason for arrest and makes it mandatory. Here, the suspect or defendant must have:

• To escape or hide
• Suspicion of fleeing or hiding (for which concrete evidence is required, such as the person having a passport, being seen at airports or terminals, having a ticket reservation, etc.)
• Suspicion of concealing, destroying, or altering evidence and traces (this suspicion also requires concrete evidence, such as the person having previously made secret agreements, some of the things that could be considered evidence being destroyed beforehand, or it being understood that they might destroy all of it, etc.).
• If an attempt is made to pressure a witness, victim, or others, a judge or court may issue an arrest warrant, but this is not mandatory.

As an exception to this, there are certain types of crimes that are listed in the law as catalog crimes. In these cases, the judge is granted specific powers. If there is strong suspicion that a person has committed one of these crimes, the grounds for arrest are based on a legal presumption (suspicion of escape or suspicion of tampering with evidence are directly assumed), eliminating the need to search for a separate reason for arrest. These crimes are those listed in Article 103 of the Code of Criminal Procedure.

26. a) As stipulated in the Turkish Penal Code No. 5237 dated 26.9.2004;
27. Genocide and crimes against humanity (Articles 76, 77, 78),
28. Intentional homicide (Articles 81, 82, 83),
29. (Additional clause: 06/12/2006 – Article 17 of Law No. 5560) Intentional wounding committed with a weapon (Article 86, paragraph 3, clause e) and intentional wounding aggravated by its consequences (Article 87),
30. Torture (Articles 94, 95)
31. Sexual assault (excluding the first paragraph, Article 102),
32. Sexual abuse of children (Article 103),
33. (Additional clause: 06/12/2006 – Law No. 5560, Article 17) Theft (Articles 141, 142) and robbery (Articles 148, 149),
34. Manufacturing and trading of narcotic or stimulant substances (Article 188),
35. Establishing an organization for the purpose of committing crimes (excluding paragraphs two, seven and eight, Article 220),
36. Crimes Against State Security (Articles 302, 303, 304, 307, 308)
37. Crimes Against the Constitutional Order and the Functioning of This Order (Articles 309, 310, 311, 312, 313, 314, 315),
38. b) Crimes of arms smuggling as defined in the Law No. 6136 on Firearms, Knives and Other Instruments, dated July 10, 1953 (Article 12).
39. c) The crime of embezzlement as defined in paragraphs (3) and (4) of Article 22 of the Banking Law No. 4389 dated 18.6.1999.
40. d) Crimes defined in the Anti-Smuggling Law No. 4926 dated 10.7.2003, which are punishable by imprisonment.
41. e) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Heritage No. 2863 dated July 21, 1983.
42. f) Crimes of intentionally setting forests on fire as defined in the fourth and fifth paragraphs of Article 110 of the Forest Law No. 6831 dated August 31, 1956.

In these crimes, grounds for arrest are considered to exist and no additional reason is sought, but the judge or court is still not obliged to issue an arrest warrant

Apart from these, the law also stipulates formal requirements for issuing an arrest warrant against a defendant or suspect. The law prohibits arrest warrants in cases of minor offenses, i.e., offenses punishable by a fine or a maximum sentence of no more than two years. Similarly, the legislation prohibits arrest warrants for children under the age of 15.

The law also prohibits the issuance of arrest warrants against persons who cannot be prosecuted. Judges and courts cannot issue arrest warrants in cases of crimes pardoned or subject to the statute of limitations, or in cases where the person has legislative immunity. As a rule, arrest warrants cannot be issued against persons who are not present, but as an exception, arrest warrants can be issued against fugitives abroad during their journey.

As an exception, a judge cannot arrest a person whose whereabouts are unknown, who is abroad and cannot be brought before the court, who is in hiding to prevent the prosecution from being concluded, or who is abroad, if that person provides a document guaranteeing that they will not be arrested when they appear in court.

Furthermore, if the judge deems arrest appropriate even though the trial could continue with judicial supervision or bail, he or she is absolutely obliged to state the reasons for the decision

MAXIMUM DETENTION PERIODS

The law, when determining the time limits, uses the criterion of whether the case falls within the jurisdiction of the High Criminal Court. Accordingly, in cases that do not fall within the jurisdiction of the High Criminal Court, the maximum detention period is 1 year. This period can be extended by another 6 months in exceptional circumstances, provided that the reasons are stated. Therefore, in this case, the maximum detention period for crimes outside the jurisdiction of the High Criminal Courts will be 18 months. (Article 102/1)

In cases involving offenses falling under the jurisdiction of the High Criminal Court, the maximum period of detention is 2 years. This period may be extended in exceptional circumstances, provided justification is given, but the extension period cannot exceed 3 years. In this case, if the maximum sentence prescribed by law for the offense exceeds 10 years, and for offenses such as robbery (Article 148), forgery of official documents (Article 204/2), aggravated fraud (Article 158), and fraudulent bankruptcy (Article 161) as defined in the Turkish Penal Code, the total period of detention can be a maximum of 5 years.