In which cases is an arrest warrant issued? Comprehensive Guide to Objection to Detention and Your Rights
Arrest is one of the most severe protection measures applied in criminal procedure law. This measure, which restricts the freedom of the person, is not a punishment, but a temporary measure to ensure the healthy conduct of the proceedings. However, since it directly affects the right to personal liberty and security, which is among the fundamental rights and freedoms, the decision to arrest is subject to strict conditions. In this article, we will discuss in detail the legal nature of arrest, the conditions under which it can be applied, the duration of detention, the ways of objecting to detention and the rights you have in this process.
Definition and Legal Nature of Arrest: Arrest is the deprivation of liberty of a person under suspicion of a crime in order to prevent him/her from fleeing during the trial, obscuring the evidence or exerting pressure on the victim/witness, as regulated in Article 100 et seq. of the Code of Criminal Procedure (CPC). Arrest is not a punishment but a “protection measure”. This distinction is extremely important, as a person under arrest is a suspect or accused person who has not yet been proven guilty and is under the presumption of innocence.
Conditions for the issuance of an arrest warrant (Article 100 of the Code of Criminal Procedure): In order to issue an arrest warrant, three basic conditions must be present together:
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Strong Suspicion of Offence: In order to issue an arrest warrant, there must be a “strong criminal suspicion” that the person has committed the offence. This suspicion must be based on concrete evidence and must not be merely an abstract possibility. The quality and quantity of the evidence plays a critical role in determining whether the suspicion is strong. The case law of the Court of Cassation also requires the existence of reasonable and sufficient suspicion based on concrete facts.
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Existence of a Reason for Arrest: In addition to strong criminal suspicion, at least one of the grounds for arrest listed in Article 100 of the Code of Criminal Procedure must also exist. These reasons are as follows:
- Fleeing or Suspicion of Fleeing: An arrest warrant may be issued in cases where there is a strong suspicion that the suspect or defendant will flee, has fled or is likely to flee. This suspicion must be based on concrete facts such as the person’s past behaviour, connections abroad, economic situation.
- Suspicion of Destruction, Concealment or Alteration of Evidence: An arrest warrant may be issued if there is a strong suspicion that the suspect or defendant is likely to destroy, conceal or alter the evidence. This situation gains importance especially in the period immediately after the commission of the offence or in cases where the evidence has not yet been fully collected.
- Suspicion of Exerting Pressure on Witnesses, Victims or Others: Arrest may be ordered if there is a strong suspicion that the suspect or defendant will attempt to put pressure on witnesses, victims or others. This is a situation that has the potential to prevent the fair and healthy conduct of the proceedings.
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Principle of proportionality: The “principle of proportionality” must be observed when issuing an arrest warrant (Article 100/1 of the Criminal Procedure Code). This principle states that arrest is mandatory, i.e. it can be applied if it is understood that judicial control measures (prohibition of leaving the country, signing, not leaving the residence, etc.) will be insufficient. Arrest must be proportionate to the importance of the offence and the expected punishment or security measure. For example, issuing an arrest warrant for a simple offence may be contrary to the principle of proportionality.
Catalogue Crimes: In certain crimes listed in Article 100/3 of the Code of Criminal Procedure (e.g. intentional homicide, drug trafficking, sexual assault, looting, terrorism crimes), a reason for arrest may be considered to exist in the presence of strong criminal suspicion. These crimes are called “catalogue crimes”. This does not mean that an arrest warrant can be issued more easily in these offences; nevertheless, the principle of proportionality and other conditions are sought.
Cases where arrest is prohibited: According to Article 100/4 of the Code of Criminal Procedure, an arrest warrant cannot be issued for offences that require only a judicial fine or an upper limit of imprisonment of less than two years. This is the legislator’s aim to prevent restriction of liberty in less serious offences. However, there are some exceptions to this rule.
Making the Arrest Decision: The arrest warrant is issued by the criminal judge of peace during the investigation phase and by the competent and authorised criminal court during the prosecution phase. The decision must be reasoned and must explain the reasons for arrest with concrete facts.
Duration of Detention: Since detention is a temporary measure, it is subject to certain maximum periods. These periods vary according to the nature of the offence and the stage of the proceedings (Article 102 of the Code of Criminal Procedure):
- Investigation Phase:
- Maximum six months in cases not falling under the jurisdiction of the heavy criminal court.
- Maximum one year in cases falling under the jurisdiction of the heavy criminal court.
- Prosecution Phase:
- Maximum one year for matters not falling under the jurisdiction of the heavy criminal court.
- Maximum two years for offences falling within the jurisdiction of the heavy criminal court.
- These periods may be longer for offences within the scope of the Anti-Terror Law.
- These periods may be extended in cases of necessity and with a reasoned decision. However, the extension periods cannot exceed the maximum limits specified in the law.
Review of Detention: Decisions on the continuation of detention or release are reviewed every thirty days ex officio (spontaneously) or upon request (Article 108 of the Code of Criminal Procedure). This review is carried out in order to assess whether the conditions for the continuation of detention still exist.
Objection to Detention: An objection can be lodged against the arrest warrant or decisions on the continuation of detention (Articles 101/5, 267 et seq. of the Criminal Procedure Code).
- Persons with the Right to Appeal: Suspect, defendant, defence counsel, legal representative, spouse and the detainee’s descendants or superior may object.
- Duration of Appeal and Where to File an Appeal: The objection shall be made with a petition to the authority that rendered the decision within seven days following the announcement (reading to the face) or notification of the decision. The authority that will examine the objection is the court with a higher number or a higher degree than the authority that made the decision. For example, the criminal court of first instance shall review the decision of the criminal court of peace.
- Examination of the Appeal and Decision: The authority examining the objection may accept or reject the objection by examining the file. In case of acceptance, the arrest warrant may be lifted or converted into a judicial control measure.
Judicial Control Measures: These are measures that are applied as an alternative to arrest and restrict the freedom of the person less (Article 109 of the Criminal Procedure Code). These include measures such as ban on travelling abroad, not going to certain places, signing, not leaving the residence, monitoring with electronic handcuffs. Even if the conditions for arrest are met, the court should first evaluate judicial control measures in accordance with the principle of proportionality.
Arrest is a very serious protection measure that directly affects the right to liberty and security of individuals. Therefore, it is of great importance that the conditions specified in the law are strictly complied with, the principle of proportionality is observed and the decisions are reasoned. It is indispensable for a fair trial process that detainees and their relatives know their rights and receive legal support. The right to object to detention is one of the most important of these rights and must be exercised effectively. In accordance with the rule of law, it is essential that the detention measure is carried out in accordance with the law and respectful of human rights, free from arbitrary practices.