According to Article 109 of the Code of Criminal Procedure (CMK), the conditions for arrest must exist before a decision on judicial control can be made. These conditions are regulated in Article 100 of the Law, which governs the grounds for arrest, as “the existence of concrete evidence showing a strong suspicion of guilt and a ground for arrest.” Furthermore, the second paragraph of the article specifies the circumstances under which a ground for arrest may be deemed to exist, and the third paragraph lists a catalog of offenses, stipulating that if there are strong grounds for suspicion that one of these offenses has been committed, a ground for arrest is deemed to exist. According to Article 109/2 of the Law, the provisions regarding judicial control may also be applied in cases where arrest is prohibited. These cases are regulated in CMK Article 100/4 as follows: “An arrest warrant cannot be issued for offenses that only require a fine or where the upper limit of the prison sentence is not more than two years.” Article 21 of the Child Protection Law stipulates that arrest warrants cannot be issued for children under the age of fifteen for acts punishable by imprisonment not exceeding five years. Therefore, while an arrest warrant cannot be issued in these cases, judicial supervision can be ordered.
Article 109/3 of the Code of Criminal Procedure regulates the judicial supervision obligations to which the suspect may be subject. The obligations, one or more of which the judge may decide upon, are as follows:
- Prohibition from leaving the country.
- Regularly reporting to the places determined by the judge within the specified periods.
- Complying with the summons of the authorities or persons specified by the judge and, if necessary, with control measures regarding their professional activities or continuing their education.
- Prohibition from using any or some types of vehicles and, if necessary, surrendering their driver’s license to the clerk in exchange for a receipt.
- Undergoing and accepting treatment or examination measures, including hospitalization, especially for the purpose of overcoming addiction to drugs, stimulants, volatile substances, and alcohol.
- Depositing a security deposit, the amount and payment terms (either in one lump sum or multiple installments) of which will be determined by the judge upon the request of the public prosecutor, taking into account the suspect’s financial situation.
- Refusing to possess or carry weapons, and surrendering any weapons in possession to the judicial authorities against a receipt if necessary.
- Providing a security deposit, the amount and payment terms of which will be determined by the judge upon the request of the public prosecutor, in kind or in person, to safeguard the rights of the victim of the crime.
- Providing assurance that they will fulfill their family responsibilities and regularly pay the alimony they have been ordered to pay according to judicial decisions.
- Not leaving their residence.
- Not leaving a specific residential area.
- Not going to designated places or areas.
One of the obligations of judicial control, namely the guarantee, is regulated in detail in the Code of Criminal Procedure (CMK). According to CMK Article 113, the obligations that may be provided as a guarantee by the suspect or defendant may be:
- The suspect or defendant’s presence at all procedural events, the execution of the judgment, or to fulfill other obligations to which they may be subject.
- Expenses incurred by the plaintiff, compensation for damages caused by the crime and restoration to the previous state; if the suspect or defendant is being prosecuted for non-payment of alimony, alimony debts.
- Public expenses.
- Fines.
The suspect may be placed under judicial control at any stage of the investigation phase upon the request of the public prosecutor and the decision of the magistrate. Upon the request of the public prosecutor, the judge may impose one or more new obligations on the suspect in the application of judicial control; may remove, change, or temporarily exempt the suspect from complying with some of the obligations that constitute the content of the control, either wholly or partially. The decision on whether the suspect or defendant should continue to be subject to judicial supervision is made at intervals of no more than four months; during the investigation phase, upon the request of the public prosecutor, by the magistrate judge, and during the prosecution phase, by the court ex officio. In cases not falling under the jurisdiction of the High Criminal Court, the judicial supervision period is a maximum of two years. However, this period may be extended by one more year in exceptional circumstances, provided that the reasons are stated. In cases falling under the jurisdiction of the High Criminal Court, the judicial supervision period is a maximum of three years. This period may be extended in exceptional circumstances, provided that the reasons are stated; the total extension period cannot exceed three years, and four years for crimes defined in the Fourth, Fifth, Sixth, and Seventh Chapters of the Second Book, Fourth Part of the Turkish Penal Code and crimes falling under the scope of the Anti-Terrorism Law. These periods are applied at half the rate for children.
According to Article 111/2 of the Code of Criminal Procedure (CMK), objections can be raised against judicial control decisions made during the investigation or prosecution phase, against changes made to these decisions, and against the lifting of this measure. According to Articles 260-263 of the CMK, the public prosecutor, the suspect, the defendant, the legal representative of the suspect/defendant, their spouse, and the plaintiff can object to decisions made by magistrates’ courts or courts regarding judicial control. The public prosecutor can also object in favor of the defendant during the prosecution phase. Objections to decisions regarding judicial control issued by magistrates’ courts or courts can be made within 7 days of learning of the decision, either by submitting a petition to the issuing authority or by making a statement to the court clerk, provided it is recorded in the minutes.
If a judicial control decision issued by a judge is not complied with, regardless of the duration of the imprisonment that may be imposed, the competent judicial authority may immediately issue an arrest warrant against the suspect or defendant.
Court of Cassation, 12th Criminal Chamber, Merits No: 2021/4879, Decision No: 2022/9807;
“In light of all the explanations, when the specific case is examined, it is understood that the damage caused by the judicial control measure applied to the plaintiff is not explicitly stated in the text of Article 141/1 of the Code of Criminal Procedure. However, considering the provision in the third paragraph added to Article 141 of the Code of Criminal Procedure by Article 70 of Law No. 6546 dated June 18, 2014, which states, “Except for the cases written in the first paragraph, compensation claims due to decisions or actions taken by judges and public prosecutors during criminal investigations or prosecutions, including personal fault, wrongful act, or other liability cases, can only be filed against the State,” it is understood that the judicial control measure applied to the plaintiff (defendant) for a long period of time, which is considered a balance between arrest and release and is applied to remedy the damages that release may cause, restricts freedom of travel after a certain stage. There is a difference in degree and intensity between this restriction and arrest, which is a restriction of personal liberty. The measure applied to the plaintiff exceeds the measure of restricting freedom of travel and affects the plaintiff.” Given that the plaintiff was deprived of his liberty, the principle of proportionality was violated, the purpose defined by law was exceeded, and the applied measure became disproportionate, it is necessary to award the plaintiff a reasonable amount of moral damages (in accordance with the principles of fairness and equity) due to the judicial control measure that continued to be applied after the date of the first decision on February 23, 2006. However, the written justification for awarding the plaintiff an insufficient amount of moral damages constitutes grounds for reversal.”[2]
Constitutional Court, Merits No: 2008/70, Decision No: 2010/21;
“In a state governed by the rule of law, rules regarding protective measures that restrict personal liberty, such as arrest and judicial control, are determined according to the criminal justice policy, which is established by taking into account the main principles of criminal procedural law and the relevant provisions of the Constitution, as well as the social and cultural structure and ethical values of the country. The legislator has discretionary power in determining in which cases and for what amount of punishment an arrest warrant will be issued or a lighter form of judicial control will be applied, and the obligations included in judicial control, in relation to protective measures in criminal procedural law. Therefore, the regulation does not have any aspect that is contrary to the principle of the rule of law.”[3]
Supreme Court of Appeals, 3rd Criminal Chamber, Merits No: 2021/1775, Decision No: 2022/2218;
“…while determining the basic sentence for the defendant based on the entire case file; in accordance with Article 138/1 of the Constitution, the criteria for determining and individualizing the sentence regulated in Article 61 of the Turkish Penal Code, and the principle of proportionality regulated in Article 3/1 of the Turkish Penal Code, the manner in which the crime was committed, the means used in its commission, the time and place of its commission, the importance and value of the subject matter of the crime, the danger that occurred, and the severity of the defendant’s intentional fault, the purpose and motive pursued should be taken into consideration; while a sentence should be imposed that deviates reasonably from the lower limit in accordance with the law, conscience, and the case file, the imposition of an excessive sentence due to an error in the degree of aggravation necessitates reversal, and since the appeals of the defendant’s counsel are deemed justified in this respect, the judgment is REVERSED in accordance with Article 302/2 of the Code of Criminal Procedure No. 5271, and the sentence is adjusted according to the time spent in detention in accordance with the Code of Criminal Procedure No. 5271…” In accordance with Article 109/3-a, it was decided to RELEASE the defendant by applying the judicial control measure of “not being able to leave the country,” and to send a memorandum to the relevant Chief Public Prosecutor’s Office to ensure his IMMEDIATE RELEASE if he is not convicted or detained for another crime.”[4]
[1] This study utilized the following academic articles:
- Korkmaz, F. (2016). Adli Kontrol. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 6(3), 521-542. https://doi.org/10.21492/inuhfd.239911
- Tekin, A. (2017). Adli Kontrol Tedbirleri. Türkiye Adalet Akademisi Dergisi (32), 283-313.
[2] Court of Cassation, 12th Criminal Chamber, Merits No: 2021/4879, Decision No: 2022/9807.
[3] Constitutional Court, Merits No: 2008/70, Decision No: 2010/21.
[4] Supreme Court of Appeals, 3rd Criminal Chamber, Merits No: 2021/1775, Decision No: 2022/2218.