What is the difference between apprehension, detention, and arrest?

The terms "arrest," "detention," and "imprisonment" are often used interchangeably in everyday language. However, in criminal procedural law, the conditions, durations, decision-making authorities, and legal consequences of these processes differ. A person being arrested by the police does not necessarily mean they will be detained or imprisoned. Similarly, not every suspect detained is subject to an arrest warrant.

All of these procedures are protective measures aimed at ensuring the proper conduct of a criminal investigation or prosecution. The application of protective measures does not imply guilt. Guilt can only be determined by a final conviction. Therefore, the presumption of innocence and the right to liberty and security of person must be observed at every stage of arrest, detention, and imprisonment procedures.

What is capture?

Arrest is the temporary restriction of a person suspected of a crime, placing them under the control of competent authorities. The primary purpose of arrest is to prevent the individual from escaping, to prevent their identity from being compromised, or to prevent investigative procedures from being carried out.

According to Article 90 of the Code of Criminal Procedure, anyone may make a provisional arrest if a person is caught in the act of committing a crime, or if there is a possibility that the person being pursued for a crime committed in flagrante delicto may escape, or if their identity cannot be immediately determined. Law enforcement officers may arrest a person in cases where an arrest warrant or order is required and there is a risk of delay, and if they do not have the immediate opportunity to contact the public prosecutor or their superiors.

Here, a distinction should be made between "arrest" and "arrest warrant." Arrest is the actual restriction of a person's freedom. An arrest warrant, on the other hand, is a written decision issued by investigative or prosecutorial authorities under specific conditions, which ensures that a person is arrested wherever they are found and brought before the competent authority. For example, in the investigation phase, an arrest warrant may be issued by a magistrate judge upon the request of the public prosecutor against a suspect who does not appear despite being summoned or who cannot be summoned.

After taking measures to prevent the arrested person from escaping or harming themselves or others, their legal rights must be immediately communicated. The arrest must be documented; this report must clearly indicate the crime for which the person was arrested, where, when, and under what circumstances. The arrest made by law enforcement must also be reported to the public prosecutor without delay, and action must be taken in accordance with the prosecutor's instructions.

Arrest, by its nature, is the initial and provisional stage. The public prosecutor, after evaluating the situation, may decide to release the individual, or, if the legal conditions permit, may order their detention.

What is detention?

Detention is the holding of an arrested person at a law enforcement unit for a specific period of time while investigation procedures are completed. While arrest is a temporary intervention, detention is, as a rule, a separate protective measure that continues upon the decision of the public prosecutor.

According to Article 91 of the Code of Criminal Procedure, if a person apprehended is not released by the public prosecutor's office, they may be detained for the purpose of completing the investigation. However, detention is only permissible if the measure is necessary for the investigation and there is concrete evidence indicating that the person has committed a crime. Therefore, merely being reported or having an abstract allegation against a person is not sufficient grounds for detention.

As a general rule, the detention period cannot exceed 24 hours from the moment of arrest. The travel time required to send the detainee to the nearest judge or court may not exceed 12 hours. It should be remembered that these are maximum periods. If the detention procedures are completed earlier or the reason for detention ceases to exist, the person should be released or referred to the competent judicial authority without waiting until the end of the period.

In cases of crimes committed collectively, the public prosecutor may decide to extend the detention period due to difficulties in gathering evidence or the large number of suspects. Extensions may be granted for a maximum of three days, each extension not exceeding one day. Each extension order must be in writing, justified, and communicated to the person in custody. Article 91/4 of the Code of Criminal Procedure also contains a special provision granting law enforcement officers the authority to issue detention orders for certain flagrant offenses; however, this exceptional authority is limited only to the crimes and time periods specified in the article.

The arrested person, their lawyer, legal representative, spouse, or first or second-degree blood relative may appeal to the magistrate's court against the arrest, detention, or extension of the detention period. The magistrate's court shall conclude the appeal immediately and within a maximum of 24 hours.

What is arrest?

Arrest is the act of sending a suspect or defendant, who is strongly suspected of committing a crime, to a correctional institution by order of a judge or court. Since it is a more stringent protective measure than apprehension or detention, arrest can only be applied if all the strict conditions stipulated in the law are met simultaneously.

According to Article 100 of the Code of Criminal Procedure, in order for an arrest warrant to be issued, there must first be concrete evidence demonstrating a strong suspicion of guilt. In addition, there must be a justifiable reason for arrest, such as the possibility of escape, concealment, destruction or alteration of evidence, or the possibility of exerting pressure on witnesses, victims, or other persons. Arrest cannot be applied if it is not proportionate to the seriousness of the alleged crime and the expected penalty.

The law states that arrest may be deemed a valid reason for certain crimes. However, being accused of one of the cataloged crimes does not automatically necessitate arrest. The existence of concrete evidence demonstrating strong suspicion of guilt, the proportionality of the arrest, and an explanation as to why judicial supervision would be insufficient are still required. The Constitutional Court also emphasizes that the prerequisite for arrest is strong indication that a crime has been committed, and that the measure must be based on legitimate aims such as preventing escape or the destruction of evidence.

During the investigation phase, an arrest warrant is issued by a magistrate judge upon the request of the public prosecutor. During the prosecution phase, the decision is made by the court handling the case. The public prosecutor cannot directly order an arrest; they can only request an arrest warrant, with the final decision resting with the judge or court.

The arrest warrant must contain concrete and personalized grounds. The warrant should explain the evidence supporting the strong suspicion of guilt, how the grounds for arrest arose, why the measure is proportionate, and why judicial supervision would be insufficient. Legal assistance is mandatory for the individual when the arrest request is being considered. If the suspect or defendant does not have a lawyer of their own choosing, the bar association will appoint one.

Arrest is not a punishment. Since it is a temporary protective measure, the person should be released when the conditions for arrest cease to exist. The suspect or defendant may request release at any stage of the investigation and prosecution. Furthermore, the necessity of continuing detention is reviewed at intervals of no more than thirty days during the investigation phase.

Key Differences Between Apprehension, Detention, and Arrest

The most significant difference between the three measures is the authority that issues the decision and the duration of the restriction of liberty. Arrest can be carried out by law enforcement officers in specific circumstances, such as in flagrante delicto, or even by any person under the conditions specified in the law. The decision for detention is generally made by the public prosecutor. Arrest, on the other hand, can only be implemented by a judge or court order.

Arrest is a short-term intervention aimed at bringing a person to the competent authorities. Detention is a measure limited to the hours or days specified by law for the completion of investigative procedures. Imprisonment, on the other hand, is an exceptional measure that can last longer, results in the person being sent to a detention center, and is subject to regular judicial review.

Another important difference lies in the severity of the conditions for its application. While flagrant offenses or situations where delay would be detrimental may suffice for arrest, detention requires necessity and concrete evidence for investigation purposes. In addition to concrete evidence demonstrating strong suspicion of guilt, detention requires a reason for arrest and a proportionality requirement.

Rights of a Person Arrested or Detained

The person arrested or detained must be informed of the charges against them; their right to remain silent, their right to legal assistance, and their opportunity to present evidence in their favor must be disclosed. Notifying their relatives, ensuring necessary health checks, and documenting the arrest and detention procedures are also fundamental guarantees. The right of a lawyer to meet with the suspect, to be present during questioning or interrogation, and to provide legal assistance cannot, as a rule, be obstructed.

Statements must be based on free will. Statements cannot be obtained through torture, ill-treatment, threats, deception, coercion, or other methods that impair free will. Statements obtained through prohibited methods cannot be used as evidence, even if the person later admits to them.

Unlawful Arrest, Detention or Imprisonment

Individuals who are apprehended or detained without meeting the conditions stipulated in the law, who are not brought before a judge within the legally prescribed detention period, or who, despite being lawfully detained, are not brought before a judicial authority within a reasonable time, may claim material and moral compensation from the state when the conditions are met. Articles 141 and subsequent articles of the Code of Criminal Procedure regulate the conditions for this claim.

Conclusion

Arrest, detention, and imprisonment are all different stages of the same process. Arrest refers to the temporary placement of a person under control, detention to a specific period for investigative procedures, and imprisonment to a correctional facility by a judge's decision.

The application of any of these measures does not imply guilt. Each action must be based on a lawful reason, be necessary and proportionate, be applied by a competent authority, and be subject to effective judicial review. Timely access to legal assistance is of paramount importance, especially since statements given, records drawn up, and evidence collected in the initial hours of arrest and detention can directly affect later stages of the investigation.

Elif Sukutli