Challenging Arrest and Pretrial Detention

Pretrial detention (tutuklama) means restricting the liberty of a person who has not yet been convicted for the duration of the proceedings. The Constitution and the Code of Criminal Procedure (CMK) permit this measure only under strict conditions, because a detained person continues to benefit from the presumption of innocence. An objection to detention is the main legal remedy that allows a court to re-examine whether these conditions are genuinely met in the specific case.

Below, we explain step by step the conditions for detention, the time limit and the authority for objections, the review of detention, release requests, and judicial control measures as alternatives to detention.

What Are the Conditions for Detention?

Under CMK Art. 100, a detention order may be issued only if concrete evidence indicating strong suspicion of a crime and a ground for detention exist together. The grounds for detention listed in the law are:

• The existence of concrete facts indicating that the suspect or defendant has fled or is hiding, or raising suspicion that they will flee
• Conduct that gives rise to strong suspicion of destroying, concealing or altering evidence, or of pressuring witnesses, victims or others

The law also provides that a ground for detention may be presumed for certain serious crimes; however, even in that case strong suspicion of a crime is required and detention is not automatic. In addition, detention must be proportionate to the importance of the case and the expected penalty or security measure. Under CMK Art. 100/4, a detention order cannot be issued for crimes that require only a judicial fine, nor for crimes whose upper limit of imprisonment does not exceed two years, except for intentional offenses against bodily integrity.

How Is a Detention Order Issued?

During the investigation phase, a criminal judgeship of peace issues the detention order upon the request of the public prosecutor; during the prosecution phase, the court hearing the case issues it. At the detention hearing, the suspect receives the assistance of defense counsel and makes statements regarding the evidence against them and the grounds for detention. Under CMK Art. 101, the detention order must provide reasoning supported by concrete facts showing the evidence of strong suspicion of a crime, the existence of grounds for detention, and the proportionality of detention. The decision must also explain why judicial control measures would be insufficient.

For this reason, the most frequently addressed issue in an objection petition is the reasoning of the decision. Reasoning that merely repeats the classification of the offense and the wording of the law, and is not specific to the individual, is discussed in detail in the objection.

Objection to Detention: Time Limit and Authority

Under CMK Art. 268, an objection to a detention order must be filed within two weeks from the day the decision is learned; this period was extended from seven days to two weeks in 2024 by Law No. 7499. The objection may be made by petition to the criminal judgeship of peace or court that issued the decision, or by a statement to the court clerk to be recorded in the minutes. A detained person may also submit an objection petition through the administration of the penal institution where they are held.

If the judge who issued the decision finds the objection well-founded, they correct their decision; otherwise, they send the file to the competent authority to examine the objection. Since the amendment made by Law No. 7331, objections to decisions of the criminal judgeship of peace on detention and judicial control are examined by the judge of the criminal court of first instance in the same judicial district; for objections to court decisions in the prosecution phase, the higher authority designated by law is competent. Even if the two-week period for objection is missed, the avenues of detention review and release requests remain open.

An effective objection petition generally addresses the following points:

• Whether the evidence in the file is sufficient to constitute strong suspicion of a crime
• Whether there is a concrete fact supporting suspicion of flight or evidence tampering
• The person's fixed residence, employment, family situation and health conditions
• The elimination of the possibility of tampering because the evidence has largely been collected
• Why judicial control measures would be sufficient

Review of Detention and Release Requests

Once a detention order has been issued, it does not continue indefinitely on its own. Under CMK Art. 108, during the investigation phase the detention status of a detained suspect is reviewed by the criminal judge of peace at intervals of no more than thirty days. During the prosecution phase, the court evaluates the detention status at every hearing, or between hearings when circumstances require, or at intervals of no more than thirty days.

In addition, under CMK Art. 104, the suspect or defendant may request release at any stage of the investigation and prosecution. For a release request to be effective, it is important to present a new development:

• The hearing of witnesses or the completion of evidence collection
• An expert or forensic medicine report with a favorable outcome
• The time spent in detention becoming lengthy in relation to the expected penalty
• Documentation of health condition, family obligations, or fixed residence and employment status

Judicial Control: Alternative Measures to Detention

Under CMK Art. 109, judicial control measures may be ordered instead of detention. A travel ban, signing in at a police station at regular intervals, not leaving the residence, depositing a guarantee, not going to certain places, and electronic monitoring are some of these measures. In objections to detention and in release requests, demonstrating with concrete reasoning that the purpose can be achieved through judicial control is often decisive. The avenue of objection is also open against judicial control decisions.

Maximum Detention Period and Other Avenues of Appeal

Under CMK Art. 102, for cases that do not fall within the jurisdiction of the high criminal court (ağır ceza mahkemesi), the detention period is at most one year and may be extended by six more months in cases of necessity. For cases within the jurisdiction of the high criminal court, this period is at most two years; it may be extended in cases of necessity with stated reasons, and the law separately sets the limits of this extension. In addition, under CMK Art. 102/4, detention during the investigation phase may, as a rule, not exceed six months for cases that do not fall within the jurisdiction of the high criminal court and one year for those that do; longer periods are provided for certain types of crimes. For the general course of high criminal court files, you can see our page on high criminal court cases.

After ordinary avenues of objection have been exhausted, an individual application may be made to the Constitutional Court alleging a violation of the right to personal liberty and security. Persons who are detained unlawfully or who are later acquitted may claim compensation under the conditions set out in the law. For the other rights of a detained person in the proceedings, our article on defendant rights may also serve as a guide.

Our Firm's Support

We provide support in defense counsel at detention hearings, preparation of objection petitions, follow-up of detention reviews, and substantiating release requests. Every file is unique; the grounds for detention and the evidence in the file must be assessed concretely.