Challenging pre-trial detention and judicial control in Türkiye: the rights of suspects and defendants

For families who learn that someone close to them has been taken into custody, the hardest hours are spent waiting for that person to be brought before a judge. A detention order at this early stage of an investigation is often the start of a process that lasts months. Yet detention is not a punishment; it is an exceptional protective measure subject to strict statutory conditions, and there are effective remedies against it. This article explains the conditions for detention, how to object to a detention order and the judicial control measures that can be used instead.

What detention is - and what it is not

Detention is the restriction of a suspect's liberty by a judge's order before the case is decided. Its purpose is not to punish but to make sure the proceedings can be conducted properly, by preventing the suspect from fleeing or tampering with evidence. The presumption of innocence guaranteed by the Constitution applies to detainees too: a person is presumed innocent until proven guilty by a final judgment.

Detention is therefore a last resort. If the same aim can be achieved through a lighter measure - judicial control - detention should not be ordered.

The statutory conditions

For certain serious offences (catalogue offences), the law accepts that a ground for detention may be presumed where there is strong suspicion. Even then, the order must be reasoned and proportionate: the evidence showing strong suspicion, the grounds for detention and the proportionality of the measure must be explained with concrete facts.

Where detention is barred

Detention may not be ordered for offences punishable only by a judicial fine or for offences with a maximum prison sentence of two years or less. The exception is intentional offences against bodily integrity (for example intentional injury). Judicial control may still be applied where detention is barred.

From custody to the judge's decision

A person referred to the criminal judgeship of peace with a request for detention is assigned a defence lawyer without needing to ask. This stage is critical for the defence: what is said before the judge, the documents provided (residence, work, family and health) and the arguments on why detention would be disproportionate can determine the outcome.

Objecting to a detention order

The suspect or defendant, their lawyer or the public prosecutor may object to a detention order.

Where is it filed? The objection is filed with the criminal judgeship of peace that made the decision. If the judge finds the objection justified, they correct the decision themselves; if not, they forward the file within three days at the latest to the reviewing authority - the next-numbered criminal judgeship of peace in that location.

What makes an effective objection?

A good objection is built on the concrete facts of the file rather than general statements. The points that tend to matter are:

• No strong suspicion: why the evidence does not amount to strong suspicion, and any contradictions or gaps.
• No ground for detention: a fixed address, regular work and family ties; and no risk of tampering because the evidence has already been collected.
• Proportionality: the nature of the offence, the expected sentence, the suspect's health and personal circumstances.
• Judicial control is sufficient: why a travel ban, reporting duty or house arrest would achieve the aim.
• Lack of reasoning: whether the decision is supported by concrete facts.

Release requests and periodic review

A detainee may request release at every stage of the investigation and trial. During the investigation, whether continued detention is necessary is reviewed at intervals of no more than thirty days. At trial, the court reviews detention at every hearing or whenever circumstances require. Decisions to continue detention can also be challenged by objection.

Judicial control: the alternative to detention

Judicial control measures can be applied instead of detention and restrict liberty to a lesser degree. The main ones are:

Judicial control orders can also be challenged by objection. Failure to comply with judicial control obligations may lead to a detention order. Time spent under house arrest is deducted from any prison sentence, in the same way as time spent in detention.

Maximum periods of detention

The law also limits how long detention may last. In cases not within the jurisdiction of the high criminal court, detention may last at most one year, extendable by six months in compelling cases with reasons. In cases within the high criminal court's jurisdiction the limit is two years, which may be extended in compelling cases with reasons, but the extensions may not exceed three years in total, or five years for certain offences. Shorter limits apply during the investigation stage. Expiry of these periods is a strong basis for a release request.

Compensation for unlawful detention and individual applications

People who were unlawfully arrested or detained, who were not tried within a reasonable time, or who were detained and then not prosecuted or acquitted, may claim material and moral damages from the State. The claim must be filed with the high criminal court within three months of being notified that the decision has become final, and in any event within one year of it becoming final.

Where the right to liberty has been violated, an individual application can be made to the Constitutional Court within thirty days after ordinary remedies have been exhausted.

Legislation and sources

• Constitution of the Republic of Türkiye, Art. 19 (liberty and security)
• Code of Criminal Procedure No. 5271: Arts. 100-108 (detention), 109-115 (judicial control), 141-144 (compensation), 267-271 (objection)
• Turkish Criminal Code No. 5237: Art. 63 (deduction from sentence)
• Law No. 6216 on the Constitutional Court: Arts. 45-47 (individual application)
• European Convention on Human Rights, Art. 5

The current texts of Turkish laws and regulations are available on the official Legislation Information System, and decisions and amendments in the Official Gazette.

For defence and victim representation in investigations and trials, please contact us. Details of our services are on our Criminal Law page.