An arrest is a temporary protective measure intended to preserve evidence and prevent the suspect or defendant from escaping. The courts are the competent authority for issuing arrest warrants. An arrest warrant is issued by the Criminal Court of Peace during the investigation phase, and by the court where the criminal case was filed during the prosecution phase. It should be noted that the Prosecutor’s Office does not have the authority to issue an arrest warrant. Furthermore, if applying for a judicial control measure is sufficient for the safety of the investigation and prosecution, a detention measure cannot be applied. Even if there are grounds for arrest in the specific case, if it is possible to conduct the trial by obtaining a judicial control order instead of issuing an arrest warrant for the suspect or defendant, a detention measure cannot be applied.
According to Article 100 of the Code of Criminal Procedure, the first requirement for an arrest warrant is the existence of concrete evidence demonstrating a strong suspicion of a crime against the suspect or defendant. A strong suspicion of a crime is the creation of a strong impression that the suspect or defendant committed the crime. In the presence of a strong suspicion of a crime, the judge must also assess whether a ground for arrest exists. Some situations are regulated by the presumption that there is a ground for arrest. Accordingly, • If the suspect or defendant flees, hides, or has concrete facts that raise suspicion that they will flee, a ground for arrest is presumed.
• If the suspect or defendant’s behavior creates strong suspicion that they are destroying, concealing, or altering evidence, or attempting to exert pressure on witnesses, victims, or others, a ground for arrest is presumed.
• If there is strong suspicion, based on concrete evidence, that the catalog of crimes explicitly regulated by law as grounds for arrest have been committed, a ground for arrest is also presumed.
It should be noted that the fact that evidence has not yet been collected is not yet regulated as a ground for arrest in the law. Therefore, resorting to an arrest measure on the grounds that evidence has not yet been collected is unlawful. If an objection to an arrest decision issued on this ground is unsuccessful, an individual application must be made to the Constitutional Court. The Constitutional Court Decision, Dated 08.01.2025, Application No. 2021/28682, regarding the matter is as follows:
“The Criminal Court of Peace’s decision regarding the measure of judicial control does not contain any justification for the arrest warrants, which include the suspect or defendant’s flight, hiding, or the existence of concrete facts that raise the suspicion that they will flee, the suspect or defendant’s destruction, concealment, or alteration of evidence, or their attempts to pressure witnesses, victims, or others. The decision merely mentions the failure to fully collect evidence. However, this is not a ground for detention.”[1]
If an arrest warrant is issued, legal action may be taken against it. According to the Code of Criminal Procedure, the period for objecting to arrest and continued detention orders is two weeks from the date of learning of the arrest warrant. This period is calculated regardless of the day the suspect or defendant was arrested. While objecting to a detention warrant is primarily a right granted to the arrested suspect or defendant, the suspect/defendant’s lawyer, legal representative (mother, father, or other legal representative), and spouse may also object.
Objections to a detention warrant can be made by submitting a petition to object to the detention or by submitting a statement to the court that issued the detention warrant, which the clerk will then record in the minutes. The review of objections to decisions issued by a criminal court of peace regarding detention and judicial control rests with the judge of the criminal court of first instance within whose jurisdiction it is located. In cases where the competent authorities to review objections differ, the criminal court of peace whose decision is being challenged shall take the necessary measures to ensure that objections are reviewed without delay. If the cases of a criminal court of peace are handled by a criminal judge of first instance, the authority to review the objections rests with the presiding judge of the high criminal court. The review of objections to decisions made by a criminal court of first instance judges rests with the high criminal court within whose jurisdiction they are located, and the review of objections to decisions made by that court and its presiding judge rests with the presiding judge, if there is more than one chamber of a high criminal court in that location, with the chamber following the chamber in number; if there is a chamber with the last number, with the first chamber; and if there is only one chamber of a high criminal court in that location, with the nearest high criminal court.
The period of detention during the investigation phase cannot exceed six months for matters not falling within the jurisdiction of the high criminal court, and one year for matters falling within the jurisdiction of the high criminal court. However, for crimes defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Fourth Part of the Second Book of the Turkish Penal Code, crimes falling within the scope of the Anti-Terror Law and crimes committed collectively, this period is a maximum of one year and six months, and may be extended for another six months by providing justification.
For crimes not falling within the jurisdiction of the high criminal court, in other words, crimes falling within the jurisdiction of the criminal court of first instance, the maximum detention period is one year. This period may be extended by six months in cases of necessity. Therefore, if the crime under investigation or prosecution falls within the jurisdiction of the criminal court of first instance, the maximum detention period is one and a half years.
For crimes falling within the jurisdiction of the high criminal court, the maximum detention period is two years. This period may be extended by a maximum of three years in cases of necessity. When this period is added to the basic two-year detention period, the maximum detention period for crimes falling within the jurisdiction of the high criminal court is five years.
The extension period cannot exceed five years for crimes defined in the Fourth, Fifth, Sixth, and Seventh Sections of the Fourth Part of Book Two of the Turkish Penal Code No. 5237, or crimes falling within the scope of the Anti-Terror Law No. 3713. Therefore, the total detention period for these crimes is seven years.
These detention periods are applied at a rate of half (1/2) for children under 15 years of age at the time of the act, and at a rate of three-quarters (3/4) for children under 18 years of age.
The catalog crimes for which detention is presumed are as follows:
• Genocide and crimes against humanity (TCK Articles 76, 77, and 78),
• Migrant smuggling and human trafficking (Articles 79, 80),
• Intentional homicide (TCK Articles 81, 82, and 83),
• Intentional wounding ((Article 86, paragraph 3, subparagraphs b, e, and f)),
• Intentional wounding aggravated by its consequences (TCK Article 87),
• Intentional wounding committed against a woman.
• Crimes of intentional injury committed against personnel working in health institutions and organizations during or in connection with their duties
• Crime of torture (TCK Articles 94 and 95),
• Crime of sexual assault (TCK Article 102 – excluding the first paragraph),
• Sexual abuse of children (TCK Article 103),
• Crime of theft (TCK Articles 141 and 142),
• Crime of extortion (TCK Articles 148 and 149),
• Manufacturing and trafficking of narcotic or stimulant substances (TCK Article 188),
• Establishing an organization for the purpose of perpetrating a crime (TCK Article 220 – excluding paragraphs two, seven, and eight),
• Crimes against the Security of the State (TCK Articles 302, 303, 304, 307, and 308),
• Crimes against the Constitutional Order and the Functioning of This Order (TCK Articles 309, 310, 311, 312, 313, 314, 315),
• Arms smuggling (Article 12) in Law No. 6136 on Firearms, Knives, and Other Implements,
• Embezzlement (Article 22/3-4) in Banking Law No. 4389,
• Crimes defined in Law No. 4926 on Combating Smuggling and punishable by imprisonment,
• Crimes defined in Law No. 2863 on the Protection of Cultural and Natural Heritage (Articles 68, 74),
• Crimes of deliberately burning forests (Articles 110/4-5) in Forest Law No. 6831,
• Crimes listed in Article 33 of Law No. 2911 on Meetings and Demonstrations,
• Crimes specified in Article 7/3 of Law No. 3713 on Combating Terrorism.
[1] The Constitutional Court Decision, Dated 08.01.2025, Application No. 2021/28682.