DETENTION IN TURKEY: RIGHTS AND LEGAL PRODCEDURES FOR FOREIGNERS
The fact that foreigners in Turkey can be the perpetrators or victims of an offence makes it necessary to make some explanations about the application of Turkish criminal law in terms of protection measures regulated under Criminal Procedure Law No. 5271 such as seizure, detention, and arrest.
Jurisdictional issues surrounding foreign individuals engaged in criminal acts within Turkey require a thorough understanding of Turkish penal and procedural laws. If you are a foreigner who has been detained or has a relative who has been detained in Turkey, you may benefit from this article in which we explain the detention process and the rights of the detained person.
What is Detention in Turkey?
Detention in Turkey can be defined as a protection measure that has an important place in criminal procedure law and temporarily restricts the freedom of a person. This measure refers to the legal situation in which the suspect is held in the process before being delivered to the judicial authorities by restricting the suspect’s freedom by order of the competent authorities on suspicion of committing a crime or in the case of a suspected crime.
Detention serves the purposes such as the effective conduct of the criminal investigation, the collection of evidence, the prevention of obscuration and the prevention of the possibility of the suspect’s escape. In this process, it is essential that the suspect’s fundamental rights and freedoms are respected and that s/he is not subjected to torture and ill-treatment.
The detention process covers the period starting from the moment of seizure until the suspect is taken to the prosecutor’s office or court. During this period, the suspect is kept under the supervision of law enforcement officers and her/his statement is taken about the charges against her/him.
Detention must be carried out within the framework of the rule of law and in accordance with the conditions and periods specified in the law. Since this practice is directly related to fundamental human rights such as the right to liberty and security of a person and the right to a fair trial, it is regulated and implemented within the framework of international conventions and constitutional guarantees.
Who Is Authorised to Issue a Detention Order In Turkey?
In Turkey, the authority to issue a detention order primarily belongs to the Public Prosecutor. Within the scope of a criminal investigation, if the Public Prosecutor is convinced that it is necessary to detain the suspect, s/he may issue a detention order in line with the requirements of the investigation. This decision is within the discretionary authority of the public prosecutor and is taken by taking into account factors such as the characteristics of the specific case, the state of evidence, the position of the suspect and the nature of the offense. In some exceptional cases, law enforcement chiefs are also authorised to issue detention orders. In particular, in cases where there is a danger of delay, i.e. in cases that require urgent intervention and the Public Prosecutor cannot be reached, the chief of law enforcement may issue a detention order. However, this authority is not unlimited. The detention order issued by the police chief is of a temporary nature and the Public Prosecutor must be informed as soon as possible. Based on this information, the public prosecutor may decide to continue the detention or release the suspect immediately.
What are the Reasons for a Detention Order In Turkey?
In Turkey, the first requirement for the issuance of a detention order is that the application of this measure is mandatory for the conduct of the investigation. The second condition is that there is concrete evidence that the suspect has committed a crime. It should be noted here that detaining a person to take a statement is not a necessity for the conduct of the investigation. The person may be summoned to testify by invitation, or if he/she does not appear upon being summoned, a compulsory summons may be issued against him/her. On the other hand, for example, if the identity of the person cannot be identified upon arrest, it can be said that detention constitutes a necessity.
What is the Duration of Detention In Turkey?
In the calculation of the duration of detention in Turkey, the general rule is that the detention period cannot exceed 24 hours from the moment of arrest. (Article 91/1 of the Criminal Procedure Code) There are two exceptions to this rule. The first of these is the widespread outbreak of violence and serious disruption of public order, and the second is the exclusion of the time that will pass for the detained person to be brought before a judge. In the event of widespread violence and serious deterioration of public order, the normal detention period may be extended up to 48 hours. (Article 91/4 of the Criminal Procedure Code) The detention period is calculated excluding the mandatory time for the person to be sent to the nearest judge or court to the place of arrest. The mandatory period for being sent to the judge or court closest to the place of arrest may not exceed twelve hours. (Article 91/1-last)
In the case of collective crimes, if this period is insufficient due to the difficulty in collecting evidence or the large number of suspects, it may be extended by order of the Public Prosecutor for three days, not exceeding one day at a time, i.e. up to a total of four days (Article 91/3 of the Criminal Procedure Code).
In special cases such as terrorist offenses, this period may be extended up to seven days upon the request of the Public Prosecutor and the decision of the Criminal Magistrate.
For minors under 18 years of age, the detention period may not exceed 24 hours, and in mandatory cases, upon the written order of the Public Prosecutor, not more than 48 hours.
The detention period starts from the moment the person is arrested and within this period the suspect must either be released or referred to the court with a request for arrest. These periods are maximum periods and it is essential to take action as soon as possible in accordance with the right to personal liberty and security.
Can Children Be Detained In Turkey?
Although it is foreseen in the Turkish legal system that children can be taken into custody, this practice is regulated as a practice that should be applied as a last resort. Again, a number of regulations have been introduced in this regard.
The question of whether the child can be taken into custody is primarily related to the question of whether the child can be a suspect, in other words, whether the child has criminal capacity. According to the Turkish Penal Code, children under the age of 12 are not criminally responsible. Therefore, a child under the age of 12 cannot be a perpetrator, suspect or accused of any crime and therefore cannot be detained. For children between the ages of 12-15, it is necessary to determine whether the child has the ability to perceive the legal meaning and consequences of the act committed and to direct her/his behaviour.
Furthermore, the detention period for children is shorter than for adults. When a child is detained, her/his parent or guardian should be immediately informed.
What are the Rights of a Detained Person In Turkey?
The rights of detained persons are guaranteed by Turkish national law and international law. The basic rights of detained persons in the Turkish legal system are as follows:
The Right to Remain Silent:
The right to remain silent is a fundamental right that is an extension of the presumption of innocence and the right to a fair trial, which is based on the principle that the suspect or defendant cannot be forced to make incriminating statements in criminal proceedings. This right is guaranteed by the Turkish Constitution and the Code of Criminal Procedure and includes the right to refuse to answer questions, make statements and present evidence against oneself during the investigation and prosecution process. During arrest, detention and interrogation, law enforcement officers, the prosecutor or the judge must inform the suspect of this right. The person may exercise this right fully or partially, i.e. s/he may answer some questions and not others. However, s/he must answer the questions about her/his identity information and answer these questions correctly. The exercise of the right to remain silent cannot be used as evidence against the person or interpreted as a sign of guilt. The person may waive this right at any time. Legal assistance can be obtained from a lawyer regarding the exercise of the right to remain silent and no pressure, threat or deception can be used to force the person to speak.
Right to the Assistance of Legal Counsel
The right to the assistance of counsel refers to the right of the suspect or defendant to receive legal assistance during criminal proceedings and is an important element of the right to a fair trial and ensures the effective exercise of the right to defense. This right is guaranteed by the Constitution and the Code of Criminal Procedure. The suspect may benefit from the assistance of one or more defense counsels at every stage of the investigation. If the detained person is not in a position to choose a defense counsel or if his/her economic situation is insufficient and s/he wishes to benefit from the assistance of a defense counsel, a defense counsel shall be assigned to him/her by the bar association. The defender fulfills various duties as the suspect’s lawyer, such as protecting the rights of the suspect or the accused, providing legal assistance, examining evidence, and being present during interrogation and interrogation.
By the way, it would be useful to explain the mandatory defense counsel system. According to the Code of Criminal Procedure, the presence of a defense counsel is mandatory in certain serious crimes and in special cases. This obligation is imposed without the request of the suspect or the accused. The main purpose is to ensure that the person can effectively exercise his/her right to legal assistance:
- If the suspect or defendant is a child, i.e. if s/he is under 18 years of age
- If the suspect or accused is deaf and dumb
- If the suspect or defendant is disabled to the extent that s/he cannot defend himself/herself
- If the lower limit of the imputed offense requires a prison sentence of 5 years or more
- Arrest has been requested or referred for arrest
In these cases, even if the suspect or defendant has not chosen a defense counsel, a defense counsel shall be assigned to him/her by the bar association. Even if the suspect or defendant states that s/he does not want a defense counsel, this request is not taken into account and a mandatory defense counsel is appointed.
In some serious crimes, the presence of a defense counsel is mandatory and a defense counsel is appointed even if the suspect or defendant does not want one. The right to consultation with a defense counsel is confidential and cannot be recorded.
Translator Right
The right to an interpreter is an important right that guarantees the right to a fair trial for suspects, defendants or victims who do not speak Turkish, are deaf or mute. Within the scope of this right, an interpreter shall be provided free of charge at every stage of the investigation and prosecution to persons who do not speak Turkish or who are disabled. The interpreter must be sworn and impartial and, where necessary, sign language interpreters are also appointed. This right covers not only oral communication but also written translation of important documents. If necessary, an interpreter shall also be provided when the suspect or accused communicates with his or her lawyer. The interpreter must be competent to enable the person to effectively exercise his or her right to defense and the suspect or accused has the right to reject the appointed interpreter and request a new interpreter. The Court may appoint an interpreter ex officio when deemed necessary.
Right to Inform Relatives
A detained person has the right to request that his/her relatives be informed of his/her detention. The right to inform relatives is an important part of the right to liberty and security of person. The exercise of this right depends on the person’s will; however, this notification is mandatory for persons under the age of 18. This right begins at the moment of deprivation of liberty and must be exercised immediately. The person may request that a relative or a person of their choice be notified. This notification is usually made by law enforcement officials or the Public Prosecutor’s Office. Notification may be made by telephone, telegram or other means of communication. If the detained person is a foreigner, the consulate of his or her country shall also be notified. This right is important to ensure that the detainee is not cut off from the outside world, that his/her family is not worried and that s/he receives the necessary legal assistance.
Right to Nutrition and Health
The right to nutrition and health during detention is of great importance within the framework of respect for the human rights of individuals. In this context, Article 11 of the “Regulation on Seizure, Detention and Statement Taking” provides clear provisions for the protection of the fundamental rights of detainees and sets out the state’s responsibilities in this regard.
The right to adequate nutrition is one of the basic human needs of detainees. It is essential that necessary arrangements are made to ensure that these individuals receive adequate and healthy food during their detention. In this context, detainees should be provided with appropriate, hygienic and nutritious food at regular intervals. It is also imperative to take necessary measures for persons with special dietary requirements (e.g. based on their religious beliefs or health status). Article 11 of the “Regulation on Arrest, Detention and Statement Taking” makes clear provisions for the protection of the fundamental rights of detainees and sets out the state’s responsibilities in this regard.
According to the aforementioned article of the Regulation, it is the responsibility of the law enforcement unit and the Ministry to which it is affiliated to take all necessary measures to protect the right to life of detainees, to take all necessary measures regarding nutrition, transportation, provision of health services and necessary treatment.
Appeal Against Detention Order In Turkey
In Turkey, decisions on arrest, detention and extension of detention can be appealed. As stated above, these decisions are taken by the Public Prosecutor. The objection authority, in other words, the authority to be appealed is the Criminal Magistrate. The answer to the question of who can object to the detention decision is clearly given in the law, and the people who can object to the detention decision are; the suspect himself; his defense counsel or legal representative (if the suspect is a child, his parent or guardian if he is restricted), his spouse or his mother, father, child, sibling, grandfather, grandmother and grandchildren who are first or second-degree blood relatives.
What Happens After Detention In Turkey?
A person who is released from detention upon the expiration of the detention period or upon the decision of the criminal magistrate cannot be detained for the same reason again unless new and sufficient evidence is obtained regarding the act that caused the arrest and unless the public prosecutor decides. In other words, a person released from detention cannot be detained again.
The suspect who has not been released from custody even though the detention period has expired shall be brought before the Criminal Magistrate and interrogated in the presence of her/his lawyer.
How We Can Assist You
As Viridis Legal Partners, we specialize in providing criminal law services to foreigners in Turkey. If you or a relative is detained, as your English speaking Turkish criminal lawyers, we will offer immediate and comprehensive legal assistance. We ensure your rights are protected and guide you through every step of the legal process, from initial detention to potential appeals. As your criminal lawyers in Istanbul, our goal is to minimize the stress and confusion associated with detention and provide you with the best possible legal support.
Our services include:
- Immediate Legal Representation: We ensure that you have legal representation from the moment of detention, safeguarding your rights and providing necessary guidance.
- Appeals and Legal Challenges: We handle appeals against detention orders and any legal challenges that may arise during the detention period.
- Communication and Advocacy: We facilitate communication with your family and consulate, ensuring that your situation is well-understood and supported.
- Protection of Rights: We ensure that you are treated humanely and that your rights, including the right to remain silent and the right to an interpreter, are respected.
- Post-Detention Support: After detention, we assist with the legal proceedings that follow, providing continuous support and representation.
If you or a loved one is facing detention in Turkey, do not hesitate to contact Viridis Legal Partners. Our dedicated team is here to provide the support and legal expertise you need. Visit our website to learn more and reach out for assistance today.
Frequently Asked Question About Detention in Turkey
I have been detained in Turkey, what should I do?
- Stay calm and exercise your right to remain silent. Request to contact a lawyer immediately.
How long is the detention period in Turkey?
- The detention period usually cannot exceed 24 hours from the moment of arrest. However, in some cases, this period may be extended.
What rights does a detained person have in Turkey?
- Detained persons have basic rights such as the right to remain silent, the right to a lawyer, the right to an interpreter, and the right to have their relatives notified. Foreigners also have the right to have their detention reported to their country’s consulates.
How can I appeal the detention order in Turkey?
- You can appeal to the Criminal Judgeship of Peace against the detention decision and the decision to extend the detention period. It is beneficial to make this appeal through your lawyer.
What should I do for my detained relative?
- Contact a criminal lawyer immediately to protect the rights of your detained relative. The lawyer will ensure that the detention process is conducted lawfully.
I am being ill-treated in detention, what can I do?
- If you are being mistreated in detention, report it to your lawyer immediately. Through your lawyer, you can make the necessary complaints and initiate legal proceedings.
Can the detention period be extended in Turkey?
- Yes, in some cases, detention can be extended. In special cases such as collective crimes or terrorism offenses, this period can be extended up to 7 days.
Do I have the right to see a lawyer in detention in Turkey?
- Yes, you have the right to see a lawyer from the moment you are detained. If your economic situation is insufficient, a lawyer can be assigned by the bar association.
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