Arrest in Turkey

arrest-lawyer

Summary

Arrest is a protection measure regulated by Articles 100 to 108 of the Code of Criminal Procedure, which entails the restriction of the freedom of a person who has a strong suspicion that he has committed a crime in order to prevent him from escaping or deconstructing the evidence. Since it is the greatest restriction of the right to human security and freedom, it is stipulated to very strict conditions.

Arrest is a protection measure regulated by Articles 100 to 108 of the Code of Criminal Procedure, which entails the restriction of the freedom of a person who has a strong suspicion that he has committed a crime in order to prevent him from escaping or deconstructing the evidence. Since it is the greatest restriction of the right to human security and freedom, it is stipulated to very strict conditions.

The Arresting Authority as a Protection Measure

I. The Concept of a Protection Measure

Protection measures are measures that the competent authorities that will make the decision temporarily apply to prevent the conduct of a criminal trial or the decisions that will arise as a result of the trial from remaining on paper, and restrict a number of basic rights and freedoms before the final decision. Protection measures should be regulated by law in accordance with the principle of legality. Protection measures are regulated by articles 90 to 144 of the Code of Criminal Procedure. According to the Code of Criminal Procedure, the protection measures that can be applied for are caption, detention, arrest, judicial control, search, seizure, supervision of communications made through telecommunications, secret investigator assignment and technical deconstruction. Protection measures are a means of achieving material truth and it is temporary. Decisions on protection measures should be made in accordance with the principle of proportionality.

II. The Concept of Arrest

Arrest is the restriction of the freedom of a person who has a strong suspicion that he has committed a crime by a judge’s decision before the final verdict is given in order to prevent him from escaping or obscuring the evidence and make it possible to execute the verdict.” It has not yet been established that the person against whom the arrest measure has been decided has committed the crime. Since the arrest entails the deprivation of a person’s liberty, it has very strict conditions.

The arrest is regulated by articles 100 to 108 of the Code of Criminal Procedure. There have been many different definitions of arrest in teaching. According to KUNTER/YENISEY, arrest is the removal of the freedom of a person without being sentenced to punishment based on the decision of a judge in cases where it is mandatory from the point of view of the law of reasoning, in other words, it is placed in a state of detention. According to GÖLCÜKLÜ, it is a measure applied both for the safety of the investigation and for general safety considerations. According to YURTCAN, arrest is the removal of a person’s freedom before a final decision on his guilt has yet been made by the realization of the conditions specified in the Constitution and the law by the decision of a judge. According to Uzbek, arrest is the restriction of the freedom of a suspect or accused by a judge’s decision and the placement in prison if there are facts indicating the existence of a strong suspicion of a crime and a reason for arrest.

III. The Purpose and Legal Character of the Arrest

The legal character of the arrest is that it is the most severe protection measure in criminal procedure law, which removes the freedom of the person before the final verdict. In the third paragraph of Article 19 of the Constitution; “An arrest measure is a protection measure that can only be applied in mandatory cases.“. Arrest has two purposes. It is the protection of evidence by ensuring that the suspect or accused is present at the trial and guaranteeing the implementation of the decision. The principles of presumption of innocence, arbitrary, proportionality, which are the principles that dominate the Criminal Procedure Law, should be followed when making an arrest decision.

Arrest Warrant

I. Conditions of Arrest

Article 5 of the European Convention on Human Rights states that “a person’s freedom may be restricted if there are reasonable grounds to suspect that he has committed a crime or if there are reasonable grounds to believe that he is obliged to prevent him from committing a crime or escaping after committing the crime.“the conditions necessary for an arrest decision to be made have been considered. In the third paragraph of Article 19 of the Constitution, the conditions of arrest are also; “People who have strong indications of their guilt can only be arrested by a judge’s decision to prevent them from escaping, destroying or changing evidence, or in other cases that require arrest, such as these and are shown in the law. Arrest without a judge’s decision can be made only in the event of a crime or in cases where it is inconvenient to delay; the law shows the conditions for this.”. In Article 101 of the Code of Criminal Procedure, the conditions of arrest are as follows: “In decisions on arrest, continuation of arrest or refusal of a request for release in this regard; the evidence showing that there is a strong suspicion of a crime, the presence of reasons for arrest, that the measure of arrest is measured, that the application of judicial control will be insufficient, is clearly shown by justifying it with concrete facts.

In the teaching, the conditions of arrest are divided into material and formal conditions. The material conditions of the arrest are the presence of concrete evidence indicating the existence of a strong suspicion of a crime and the reason for the arrest. The formal conditions of arrest are the absence of a ban on arrest, the realization of the condition of reasoning, the presence of the suspect or accused in court, the absence of a certificate of assurance and the presence of a judge or court decision. Reasons for arrest are the presence of a suspicion of escape by the suspect, the behavior of the suspect or accused, the possibility of destroying, concealing or altering evidence, and the detainee’s pressure on the witness, victim or others.

II. Making a Decision on Arrest

A decision on arrest can be made only by a judge or a court. There is no exception. Arrest warrant is decided by the competent and on-duty magistrate at the investigation stage. The judge makes the arrest decision upon the request of the Public prosecutor to arrest him at the investigation stage. At the stage of prosecution, he makes a decision on arrest officially or at the request of the Public prosecutor. In terms of children involved in crime, the magistrate, not the juvenile judge, has the authority to make an arrest warrant at the investigation stage.

During the investigation phase, the magistrate is obliged to interrogate the suspect according to Article 147 of the Code of Criminal Procedure before making an arrest warrant. The magistrate or the court must listen to the suspect or accused in person and examine everything related to the arrest before making the arrest warrant. As a rule, an arrest warrant cannot be issued in the absence of the person. But according to Article 248 of the Criminal Procedure Code, it is regulated as an exception that fugitives can be arrested in their absence.

At the investigation stage, an interrogation report is issued on the actions taken in connection with the interrogation of the suspect and the issuance of an arrest warrant. The form of interrogation of the suspect, the arrest decision and the reasons must be contained in the interrogation record. The arrest decision must be reasoned, the defendant or suspect must be the defender when making the decision, and the decision must comply with the form in the Criminal Procedure Code. In addition, according to the fourth paragraph of Article 19 of the Constitution, the reasons for the arrest and the claims attributed to them are notified to the persons who have been given an arrest warrant in writing. However, if it is not possible to make a written notification at that time, it will be notified against the face of the arrested person.

III. Execution of the Arrest Warrant

According to Article 36 of the Code of Criminal Procedure, the execution of the arrest warrant is carried out by the Public Prosecutor’s Offices. There is also no regulation on the execution of an arrest warrant in the Code of Criminal Procedure. The execution of the arrest warrant is regulated in Articles 111 and its continuation of the Law on the Execution of Criminal and Security Measures.

Although there are no time limits for the execution of an arrest warrant, an arrest warrant can be executed at night, during the day, on weekends, on weekdays, on holidays. No search can be made at night at the residence, workplace or other closed places. But in accordance with the second paragraph of Article 118 of the Code of Criminal Procedure, this provision does not apply to searches conducted for the purpose of recapturing a person who has been caught or detained and has escaped, or a detainee or convict who has been caught red-handed or in situations that are inconvenient for his delay. The decision on the arrest is sent by the court together with the detainee to the Prosecutor General’s Office, and by the Prosecutor General’s Office to the penitentiary institution by transfer or superscription. In this way, the execution of the arrest warrant begins. According to Article 111 of the Law on Execution of Penalties and Security Measures, arrested the suspect or the accused are placed in penitentiary institutions is eligible for the physical conditions in prisons, in the event that the portions allocated for other Penitentiary institutions are placed in.

IV. Duration of Arrest

After the arrest warrant, the detention periods can be extended with decisions on the continuation of detention and the rejection of requests for release. Periods of arrest decisions at the investigation stage are defined in Article 102 of the Code of Criminal Procedure; “The period of detention at the investigation stage may not exceed six months in terms of works that do not fall under the duty of the high criminal court, and one year in terms of works that fall under the duty of the high criminal court. However, in terms of crimes defined in the Second, Fourth, Fourth, Fifth, Sixth and Seventh Sections of the Turkish Penal Code, crimes covered by the Anti-Terrorism Code and crimes committed collectively, this period can be extended for a maximum of one year and six months, and can be extended for another six months with justification.” Article 102 of the Code of Criminal Procedure on the period of arrest at the stage of prosecution states: “The period of detention in cases that do not fall within the remit of a serious criminal court is no more than one year. However, this period may be extended for another six months by showing the reasons in case of necessity. In the case of works that fall under the jurisdiction of the criminal court, the period of detention is no more than two years. This period may be extended in case of necessity, with justification; the extension period may not exceed three years in total, five years for crimes defined in the Second, Fourth, Fourth, Fifth, Sixth and Seventh Sections of the Turkish Criminal Code No. 5237 and for crimes covered by the Anti-Terrorism Law No. 3713 dated 12/4/1991.” the provision has been included.

The fact that detention is longer than a reasonable time is contrary to the third paragraph of Article 5 of the European Convention on Human Rights, which guarantees the right of persons to freedom and security. When deciding on the continuation of detention, continuation decisions must be justified.

V. The Rights of the Detainee and the Regime to be Applied

Detainees have the right to transport their own clothes, the help defender to benefit from the rights of visitors, and the right communication, right to work, right to education, right to worship, radio, TV broadcasts and the right to benefit from the internet facilities, letters, faxes and telegrams to send and receive the right nutrition and the right to treatment, the right to benefit from the library, to meet with their relatives the right to accept the gift that was sent from the outside right, has the right to be notified of the status of the relatives of detainees.

According to the Article 114 of the Law on the Execution of Sentences , “Dangerous in case of a threat, destroy the evidence, hide, or in danger of changing, the investigation constitute a risk to the security of the penitentiary or the future that resides on a repetition of the crime investigation phase exhibiting a behavior that likely makes it the judge or the public prosecutor in the prosecution detainees by the tribunal is subject to the implementation of certain measures. These measures; the person in custody under strict rules to remain alone in a room monitored with the camera, the prisoner, the relationship with the outside world, visitors, and the restriction of the right of communication for a specific period, the detainee himself or others if you have to destructive behaviour, this specially crafted to remain alone in a room and monitored with video cameras, the handcuffed prisoner’s showing aggressive behavior and movement if it is the restriction of a certain period of time a prisoner, the other a high-security institution is transferred.

Special Cases of Arrest

I. Special Cases of Arrest in the Code of Criminal Procedure

According to Article 60 of the Code of Criminal Procedure, if there is a withdrawal from testimony and oath without reason; A witness who refuses to testify or swear for no legal reason may be sentenced to disciplinary imprisonment until the costs arising from this are determined, until the case is ruled on for the performance of his oath or testimony, and in any case not exceeding three months. If the person complies with his obligation to testify, he is immediately released.”

As for the possessor, Article 124 of the Code of Criminal Procedure states: “A person who has the goods or other assets written in Article 123 with him is obliged to show and deliver this thing upon request. In case of evasion, the provisions on disciplinary detention contained in Article 60 on the possession of this thing shall apply. However, this provision does not apply to suspects or defendants or those who may abstain from testifying,”it has been arranged as a special case of arrest.

Article 203 of the Code of Criminal Procedure on a person who disrupts the order of the trial states: If a person shows resistance or causes confusion during his removal, he will be arrested and may be immediately placed in disciplinary detention for up to four days with a decision to be made by a judge or court, with the exception of lawyers. However, disciplinary arrest is not applied against children.” with his sentence, there will be a special case of arrest.

If a crime is committed during the trial, according to Article 205 of the Code of Criminal Procedure; “If a person commits a crime during the trial, the court detects the incident and sends the minutes it will issue to the competent authority; if necessary, it can also decide on the arrest of the perpetrator.” a special state of arrest is regulated by its provision.

II. Arrest on Extradition of Criminals

Extradition of criminals is a judicial and political process that a person who is a suspect or accused of a crime committed in the country of one state and is located in the country of another state, conducting an investigation and prosecution of or, if this person is convicted,provides that the person who has been convicted will be handed over to this state upon request for extradition by an authorized state for the purpose of executing the sentence imposed on him. Extradition of criminals is regulated in the Law on International Judicial Cooperation on Criminal Matters No. 6706.

The 10th article of The Law on International Judicial Cooperation in Criminal Matters: “a person commit a crime in another country or if the trial is conducted due to a criminal investigation against a conviction in the trial if it is started or if the decision of the investigation and the completion of the proceedings or conviction about this person to be executed for a refund if requested can be returned to the requesting state.” According to Article 14 of The Law on International Judicial Cooperation in Criminal Matters, which could be subject to an extradition request in case there is a strong suspicion that a crime was committed for the adoption of the refund claim before reaching the central authority, or international treaty provisions to which Turkey is a party in accordance with the principle of reciprocity, and upon the approval of the central authority at the request of the states concerned, the person will be able to be temporarily arrested. In the fourth paragraph of Article 14 of the Law on International Judicial Cooperation in Criminal Matters; According to the provisions of the international treaty, the duration of temporary detention is determined. A person who is subject to extradition in accordance with the reciprocity principle may be temporarily arrested for a maximum of forty days.”

III. Special Cases of Arrest in Accordance with the Code of Misdemeanor

According to Article 40 of the Code of Misdemeanor, the provisions of the Code of Criminal Procedure apply to a person who cannot be identified for not making a statement about his identity to a public official or making a statement contrary to the truth, in terms of the power and procedure of detention by the Public prosecutor and deciding to arrest him as soon as necessary. Since the reason for this particular case of arrest is that the identity cannot be determined, the detention is terminated by identifying the person.

Supervision and Termination of Arrest

I. Remedy Against Arrest

According to the fifth paragraph of Article 101 of the Code of Criminal Procedure, decisions on arrest and continuation of detention can be appealed. The suspect or accused may request to be released at all stages of the investigation or prosecution. In Article 260 of the Code of Criminal Procedure; “The remedies are open for those who have received the title of public prosecutor, suspect, defendant and participant in accordance with this Law against the decisions of judges and courts, as well as those whose request to participate has not been resolved, rejected or has been harmed by a crime in such a way that they can receive the title of participant.” since the provision is included in the article, the people listed in the article may appeal to the remedy. The judge or the court decides on the continuation of the arrest of the suspect or accused. The way of appeal against this decision is also open. In Article 105 of the Code of Criminal Procedure; “The decision on the request for release is made by the district court of justice or the relevant department of the Supreme Court or the Criminal General Assembly of the Supreme Court with an examination to be conducted on the file. This decision can be made on request or sua sponte.” An appeal against a decision of a judge or a court may be filed within seven days from the date of notification of the decision to the relevant authorities in cases where there is no regulation to the contrary, by submitting a petition to the decision-making authority or submitting a statement to the registrar for consideration in the minutes. The exception to this is in Article 263 of the Code of Criminal Procedure; “The detained person may exercise his right to apply for legal remedies by submitting a statement to the registrar of police or the director of the penitentiary institution in which he is located, or by submitting a petition containing his statements.” If the judge or court whose decision is being appealed does not find the appeal to be valid, it notifies the competent authority within a maximum of 3 days. If a decision is not made within a reasonable time, a person may claim compensation for his material and moral damages from the state on the basis of subparagraph d of Article 141 of the Code of Criminal Procedure.

II. Supervision of Arrest by the Competent Authority

Article 108 of the Code of Criminal Procedure states: “Whether it is necessary to continue detention is examined by a magistrate at the request of the suspect or the Public prosecutor for periods of up to thirty days during the period of detention of the suspect during the investigation phase.” In the process of an ongoing investigation or prosecution of a detainee, it is necessary to look at whether the conditions and reasons for the arrest that make it necessary to arrest a suspect or defendant still exist. At the stage of the investigation, if all the evidence has been collected and there is no suspicion of escape, the public prosecutor should be able to release the detainee, although there is sufficient doubt that he committed the crime. Each decision to be made about the continuation of arrest is subject to a new arrest warrant. According to the European Court of Human Rights, the fourth paragraph of Article 5 of the European Convention on Human Rights provides for the right of effective examination of the appeal against jul-ture at hearings before the judicial authority, and the detainee should be able to exercise this right regularly. In the opinion of the Constitutional Court, the suspect or accused who is detained on the basis of Article 19 of the Constitution has the right to request to be tried within a reasonable period of time and to be released on the basis of investigation or prosecution.

III. Termination of Arrest

Since the arrest is a temporary protection measure, which is decided depending on the availability of the conditions and reasons for the arrest, the arrest should be terminated as soon as these conditions and reasons disappear. The authority that authorized to make the arrest decision also has the authority to take away the decision.

The judge or court making the arrest decision may review the state of detention depending on the periods specified in Article 108 of the Code of Criminal Procedure or on appeal. He can also officially examine, if necessary, whether the conditions of arrest remain in place. The main thing in revoking the arrest warrant is not whether there is sufficient reason to lift the arrest, but whether there is sufficient reason to continue the arrest.

A judge or a court authorized to make an arrest decision at the investigation stage cannot officially release a detainee. At the investigation stage, upon appeal or within 30-day review periods, the file comes before the magistrate for a decision on arrest. The magistrate cannot spontaneously make a decision on the detainee. In the second paragraph of Article 103 of the Code of Criminal Procedure on the termination of arrest; “During the investigation phase, the Public prosecutor may request the court to release the detainee by making a judicial control decision, as well as formally release the suspect if he finds that the arrest is no longer necessary. When it is decided that there is no place for prosecution, the suspect is released.” the prosecutor has also been given authority by giving place to the provision. In the third paragraph of Article 104 of the Code of Criminal Procedure; The Supreme Court, the District Court of Justice, the Criminal General Assembly of the Supreme Court can also decide on the request for release on file or decide sua sponte”

According to Article 223 of the Code of Criminal Procedure the arrestterminates on the detained defendant, if an acquittal is made, there is no place for sentencing, one of the decisions to dismiss or drop the case is made. Even if the maximum arrest period stipulated for the offense subject to trial expires, the arrest ends. In addition, the death of the detainee is also one of the reasons that terminated the arrest.

IV. Release of the Detainee

The decision to terminate the arrest is made in writing, and the decision-making authority sends this decision to the relevant Prosecutor General’s Office for sending it to the detention center as soon as possible. The Prosecutor General’s Office also sends this decision to the administration where the detention center is located on UYAP, and the suspect or defendant is immediately released. If the arrest warrant against the person is not released when it is taken away, there will be a violation of the person’s freedom. There are violation decisions issued by the ECHR against Turkey due to the fact that the detainee was not released immediately.

The released person has various obligations. These obligations are; the obligation of the suspect or accused to inform the competent judicial authority or the director of the prison where he is located of any address changes that may occur, as well as the obligation to provide his address and phone number, if any, before his release.

Elimination of Injustice

I. Compensation for False Imprisonment

The arrest, which is an interference with the freedom and security of people, must be carried out in accordance with Article 5 of the European Convention on Human Rights, the provisions of the Constitution and the Code of Criminal Procedure. An arrest made without complying with these provisions is a false imprisonment.

According to Article 141 of the Code of Criminal Procedure, it is possible for a person who has been given an false imprisonment decision to seek compensation from the state. It is possible that he may ask for material and moral compensation. In Article 141 of the Code of Criminal Procedure; “During the investigation or prosecution of a crime; a) except in the cases specified in the laws, captured, arrested, or given to the continuation of his detention decision, B) that are not brought in front of the judge within the legal period of detention (c) legal rights or unfulfilled desire to ensure that you can enjoy their rights without being reminded of recall arrested d) in accordance with the law, even though he was arrested and brought before Authority is not a trial within a reasonable time, and during this time not about judgment granted, e) rights in accordance with law or to prosecute captured after the arrest, whether or acquittal decided to, (f) detention and the time he spent in prison, convicted, and excess of a period of imprisonment or a fine for his crime provided for by the law just because it is punished with the penalty as mandatory in this sentence, g) the reasons for his arrest or the charges against them and Capture themselves in a situation where this is not immediately possible or a word (undisclosed, h) the relatives of unreported caught or arrested, i) performed in a manner disproportionate to search about the decision, j) the values of goods or other assets, persons whose property or other assets are not used for the purpose or are not returned on time, k) are not provided with the application opportunities provided for in the Law against arrest or detention, who have not been confiscated or necessary measures have not been taken to protect themselves, may claim all kinds of material and moral damages from the State.” it has been regulated in which conditions compensation can be requested by giving place to the provision.

If the conditions in Article 141 of the Code of Criminal Procedure are came true, the person who has suffered damage can claim compensation. The period of application for compensation is specified in the first paragraph of Article 142 of the Code of Criminal Procedure; “Compensation may be requested within three months from the notification of the person concerned that the decision or provisions have been finalized, and in any case within one year after the date of finalization of the decision or provisions.” A claim for compensation is made by a petition that will be submitted to the authorized court. The authorized court is established by Article 142 of the Code of Criminal Procedure; “The request is made in the heavy criminal court where the person who suffered the damage lives, and if that place is associated with the transaction subject to compensation in the hight criminal court, and there is no other hight criminal court in the same place, the nearest place is decided in the heavy criminal court. it is designated as “.

People who cannot claim compensation are determined in Article 144 of the Code of Criminal Procedure as; “The persons captured or arrested in accordance with the law ask for compensation as set forth below: they qualify for compensation in cases where the act of entering into force subsequently bringing the regulations, according to the states they turn into monsters become eligible to reest compensation, general or special af, don’t stop complaining, or as a compromise decision about whether to prosecute reasons to drop the case or delayed or temporarily suspended or reduced as a public trial and public trial, the flaw is due to a lack of ability to decide whether to provision given about the criminal, those who caused their detention or arrest by reporting to the judicial authorities that they had committed a crime or participated in a crime with a statement of untruth.”

II. Individual Application to the Constitutional Court

The path of individual application to the Constitutional Court is a unique way of searching for rights that ensure the protection of fundamental rights and freedoms in the European Convention on Human Rights. It is the last of the domestic remedies. According to the Constitutional Court’s Internal Rules, the subject of an individual application to the Constitutional Court are the basic rights and freedoms guaranteed by the Constitution, covered by the European Convention on Human Rights and october protocols to which Turkey is a party. People may apply to the Constitutional Court with an allegation that their rights and freedoms set forth herein have been violated by the state.

The right to freedom and security of the person is regulated In Article 19 of the Constitution and Article 5 of the European Convention on Human Rights. Arrest is the most severe protection measure that interferes with the right to freedom and security of a person, and a person who claims that his freedom has been violated by claiming that he has been unjustly arrested may go down the path of an individual application. If the restriction of the right to freedom and security of the person occurs in violation of the Constitution, the Code of Criminal Procedure and the European Convention on Human Rights, the subject of the individual application is formed. An individual application must be submitted within thirty days from the date of exhaustion of the remedies.

The Constitutional Court evaluates when examining violations of the right to freedom and security of a person as a result of arrest, such aspects as suspicion of a serious crime, presence of reasons for arrest, whether the reasonable time has been exceeded and, in case of an appeal against the arrest decision, procedural actions before the appeal authority. The Constitutional Court considers ,as the first criterion, whether there is a legal basis for arrest. If found, this time in the second criterion, the existence of a strong suspicion of the crime to examine if it determines that there is strong suspicion of guilt, the applicant has been violated because an unlawful arrest arrives at the conclusion that the right to liberty and security of person, and the arrest of the cause of temperance measures the presence or issues to the unlikelihood of the evaluation.

The Constitutional Court states that in Article 13 of the Constitution regarding the moderation of the measure in the supervision of arrest, it is stated that restrictions on fundamental rights and freedoms cannot be contrary to the principle of “moderation”, and in paragraph three of Article 19 of the Constitution, it is also pointed out that the measure should be measured with the phrase “mandatory for arrest”. According to the court, the principle of proportionality consists of three sub-principles: “convenience”, “necessity” and “proportionality”. Availability is projected to be conducive to achieve the desired goal of the intervention; of necessity, the desired goal in terms of the intervention to be mandatory to be able to achieve the same purpose with a lighter intervention; the intervention in proportionality to the work of a reasonable balance between the rights of the individual refers to the necessity of the observance of the desired objective.

According to the Constitutional Court, in order for the arrest measure to be considered proportionate, other protection measures alternative to arrest should not be sufficient. If the judicial control obligations, which have a milder effect on fundamental rights and freedoms than arrest, are sufficient for the legitimate purpose to be achieved, the arrest measure should not be resorted to.

The Constitutional Court’s opinion is that to decide about the person that restricted the freedom of the status of requests that it be given for this request in a short period of time to make a decision that is essential for the decision, and the case law of the European Court of human rights by reference to the need for control of whether a business degree the attention of the courts are made expeditiously, causing a delay in the attitudes of the detained person, whether or not the delay is the responsibility of the authorities of the specific circumstances of the case should be evaluated.

Constitutional Court says that the suspect is under arrest, accused or counsel for the evacuation ended with the rejection of the request made by wiretapping and review on appeal of denial of the request to be made between the control and the reasonable acceptable if you have time, or the prisoner’s counsel’s appeal must be heard of in the control of not listening parties in this process also the review of detention judicial authority in accordance with the principle of equality of arms and contradictory listening you should maintain the trial, and counsel, as well as demand exists for say that it is essential to be in the presence of the prisoner.

III. Individual Application to the European Court of Human Rights

According to Article 5 of the European Convention on Human Rights, everyone has the right to freedom and security. The right to freedom and security is the right of a person not to be arbitrarily arrested, captured, detained and punished, and not to have his freedom of movement restricted in this way.

According to Article 5 of the European Convention on Human Rights, everyone has the right to freedom and security. The right to freedom and security is the right of a person not to be arbitrarily arrested, captured, detained and punished, and not to have his freedom of movement restricted in this way.

In paragraphs two and two of Article 5 of the European Convention on Human Rights and its continuation; “It is mandatory that every person arrested be informed of the reasons for his arrest and any charges against him as soon as possible and in a language that he understands. 1 of this article.everyone promptly captured or held in accordance with the conditions prescribed in paragraph ” C by a judge or judicial law is mandatory removal of a public official authorized to do the task of the poet in front this person has the right to trial within a reasonable time or be released during the trial. The release may be subject to a security condition that will ensure that the person concerned is present at the hearing. Anyone deprived of his liberty by capture or eclipse has the right to apply to a court for a decision on the legality of the eclipse in a short period of time and, if the eclipse is unlawful, to be released. Everyone who is a victim of an act of capture or detention contrary to the provisions of this article is entitled to compensation.”  stated that people whose right to freedom and security has been violated by including the provision have the right to seek compensation.

The European Court of Human Rights, when conducting a legal audit of the arrest, examines the existence of reasonable doubt that a crime has been committed, whether the measure has a legal basis in domestic law, whether the measure is arbitrary and its proportionality.

Due to false imprisonment, an individual application can be filed against the state on the grounds of violation of Article 5 of the European Convention on Human Rights with the European Court of Human Rights within 6 months after the domestic remedies have been exhausted.

The European Court of Human Rights, considering whether there are credible reasons to suspect that the person concerned committed a crime during the applicant’s arrest and detention in a concrete case, concludes that the convention has been violated if there is not enough doubt to convince an objective person.

The European Court of Human Rights, in determining whether detention exceeds a reasonable period of time, has not provided for a maximum period of days, months, years, as in Turkish law, and evaluates whether the detention period is reasonable according to the characteristics of the concrete event. While he decides that the period of detention lasting two years and four months is not reasonable, he can decide that the detention lasting three years and five months is reasonable according to the characteristics of the concrete event. In a case in which the applicant’s pre-trial detention period lasted for five years and three months, the European Court of Human Rights considered such a period to be above a reasonable time and considered it a violation.

The European Court of Human Rights states that the detention supervision should be carried out by bringing the detainee before the competent judicial authority and that the assurance is an element of the principle of equality of arms and the principle of a conflicting trial. The detainee, the defender or the prosecutor will not need to be listened to in the examination of each of the detainee’s objections to the decisions on the rejection of release requests or release requests, but if a reasonable period has elapsed since the last detention examination in which the specified persons were heard, these persons will need to be brought back to peace at the first inspection to be held after that.

Conclusion

The arrest decision must be made in accordance with the Code of Criminal Procedure, the European Convention on Human Rights and the Constitution. Otherwise, violation of the right to personal security and freedom from fundamental rights and freedoms endangers the existence of the rule of law. It is also contrary to the Constitution and the European Convention on Human Rights for the public to make an arbitrary arrest warrant against individuals. As a last resort, an arrest warrant should be issued. In addition, decisions on appealing against detention while a person is under arrest should be made with a good examination and decisions on continuing detention should be made by listening to the accused or suspect. Magistrates and courts should make decisions in accordance with the case law of the European Convention on Human Rights and the European Court of Human Rights, and not interfere with the fundamental rights and freedoms of individuals.

Bibliography

ÖZCAN, Burhan; Ceza Muhakemesi Hukukunda Tutuklama, 2018, İstanbul
GÜMÜŞÖZ, Ece; Tutuklama, 2018, İstanbul
MINGIR, İsmail; Ceza Muhakemesi Hukukunda Tutuklama, 2015, Yalova
BOZTOPRAK, Atilla; Bir Koruma Tedbiri Olarak Ceza Muhakemesi Hukukunda Tutuklama, 2014, Ankara
ÇUBUKLU, Nazlı; Ceza Yargılaması Hukukunda Tutuklama, 2015, Ankara
SAĞLAM, Cihan; Türk Hukukunda Tutuklama, 2015, İstanbul
YETİŞTİRİCİ, Volkan; Ceza Muhakemesi Hukukunda Koruma Tedbiri Olarak Tutuklama, 2013, İzmir
ÖZTÜRK GÜNAY, Selma; Anayasa Mahkemesi’ne Bireysel Başvuru Kararları Işığında Tutuklama, 2019, İstanbul
ADIYAMAN, Hüseyin Ozan; Avrupa İnsan Hakları Mahkemesi Işığında Türk Hukukunda Tutuklama, 2019, Kırıkkale
KAHRAMAN, Recep; Ceza Muhakemesi Hukukunda Tutuklama, 2012, İstanbul
AKCAN, Medet; İnsan Hakları Avrupa Mahkemesi Kararları Çerçevesinde Türkiye’de Tutuklama, 2015, Konya
AKPINAR, Erdem; Tutuklama, 2012, İstanbul
FERMANOĞLU, Mahmut, Koruma Tedbirlerinden Tutuklama, 2013, Gaziantep

Are you looking for a law firm or lawyer in Turkey?

Are you looking for a law firm or lawyer in Turkey? You can contact our law firm to solve your legal problem.

It is not easy to find the English or Arabic speaking Turkish lawyers in Turkey you need to solve your legal problems.

BAL Law Office; provides legal services in all areas of law. Our lawyers, who are experienced in both legal consultancy and litigation processes, provide the legal support you need.

With our legal service in the litigation process; as in every case, we ensure that you are informed about what your risk is in title deed cancellation and registration cases. Click here for detailed information about our legal service in the litigation process. —  Learn More

BAL Law Office’s lawyers provide services to their clients in English. In addition, our office provides services in Arabic and Turkish languages. BAL Law Office’s provides legal services in all geographical regions of Turkey, especially in Istanbul. Lawyers of our office provide legal services in accordance with international law rules, Turkish Laws and working principles established by our office. You can reach our working principles of knowledge, trust and experience, Which are the working principles of our attorneys here. — Learn More

Would you like to learn about our lawyers? Meet the lawyers of BAL Law Office ; — Lawyers and Team

BAL Law Office provides professional services in a wide range of fields in line with the legal needs of its clients. You can find our practice areas here. — Learn More

Contact Us.

Leave a Comment

Your email address will not be published.