FOREIGNERS ARRESTED IN TURKEY: LEGAL PROCESS, RIGHTS, AND SUPPORT

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.

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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 arrested or have a relative who has been arrested in Turkey, you may benefit from this article in which we explain the arrest process and the rights of the arrested person.

What is Arrest in Turkey?

Arrest can be defined as an important protection measure regulated in the Criminal Procedure Law No. 5271 and frequently used in Turkey. It refers to the temporary restriction of the freedom of the suspect or defendant by keeping them in jail in order to prevent him/her from escaping during the investigation or prosecution process, to prevent him/her from obscuring evidence or influencing witnesses. This measure is applied to persons who have not yet been convicted and is an exceptional measure that should be applied only in cases of necessity and within the conditions specified in the law, taking into account the presumption of innocence. Since arrest is a direct interference with the right to personal liberty and security, it is expected to be applied within the framework of the principle of proportionality and with respect for fundamental rights and freedoms.

Who is Authorised to Make An Arrest Decision In Turkey?

Arrest decisions are made by judicial authorities in Turkey and this authority is limited by law. In the investigation phase, a criminal magistrate may issue an arrest warrant upon the request of the public prosecutor. In the prosecution phase, the court conducting the trial is authorized to issue an arrest decision. This regulation is of great importance in terms of protecting the right to personal liberty and security from arbitrary interference and ensuring judicial supervision.

What are the Conditions and Reasons for Arrest?

The conditions and reasons for arrest in Turkish criminal proceedings are regulated in Article 100 of the Code of Criminal Procedure. First of all, there must be concrete evidence showing the existence of a strong suspicion of a crime. This is the basic condition for arrest and requires the existence of material evidence that raises serious suspicion that the person has committed the offense. Secondly, there must be a reason for arrest.

In Turkish Law, the grounds for arrest are as follows: The facts giving rise to the suspicion that the suspect or accused is fleeing, hiding or likely to flee; the possibility that the suspect or accused is likely to destroy, conceal or alter evidence; the possibility that there is an attempt to put pressure on witnesses, victims or others. Moreover, for some crimes (catalog crimes), the existence of these grounds may be presumed.

What are Catalog Crimes In Turkey?

Catalog crimes are the crimes listed in paragraph 3 of Article 100 of the Criminal Procedure Code for which grounds for arrest may be presumed. These crimes include serious crimes such as genocide and crimes against humanity, intentional killing, torture, sexual assault, sexual abuse of children, manufacture and trafficking of drugs or stimulants, establishing an organization for the purpose of committing crimes, crimes against the security of the state, crimes against the constitutional order and the functioning of the constitutional order.

The list of catalog crimes is given below:

1. Genocide and crimes against humanity (Articles 76, 77, 78 of the TPC),
2. Smuggling of migrants and trafficking in human beings (TPC Articles 79, 80)
3. Intentional killing (Article 81, 82, 83 of the Penal Code),
4. intentional wounding (Article 86/3- b, e and f subparagraphs of the TPC) and intentional wounding aggravated by its consequences (Article 87 of the TPC),[15]
5. Torture (Article 94, 95 TPC)
6. Sexual assault (Article 102/2,3 of the TPC),
7. Sexual abuse of children (Article 103 of the TPC),
8. Theft (Articles 141, 142 TPC) and plunder (Articles 148, 149 TPC),
9. Manufacture and trafficking in narcotics or stimulants (Article 188 of the TPC),
10. Establishing an organization to commit a crime (Article 220/1,3,4,5,6 of the TPC),
11. Crimes against the Security of the State (Articles 302, 303, 304, 307, 308 of the TPC),
12. Crimes against the Constitutional Order and its Functioning (Articles 309, 310, 311, 312, 313, 314, 315),
13. b) The offenses of arms smuggling (Article 12) defined in the Law on Firearms, Knives and Other Instruments dated 10.7.1953 and numbered 6136.
14. c) Embezzlement offense defined in paragraphs (3) and (4) of Article 22 of the Banking Law dated 18.6.1999 and numbered 4389.
15. d) Crimes defined in the Anti-Smuggling Law dated 10.7.2003 and numbered 4926, which require imprisonment.
16. e) Offenses defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Heritage dated 21.7.1983 and numbered 2863.
17. f) Offenses of intentional forest burning as defined in the fourth and fifth paragraphs of Article 110 of the Forestry Law dated 31.8.1956 and numbered 6831.
18. g) Offenses listed in Article 33 of the Law on Meetings and Demonstrations dated 6/10/1983 and numbered 2911.
19. h) Offenses specified in the third paragraph of Article 7 of the Anti-Terrorism Law dated 12/4/1991 and numbered 3713.
20. i) The offense of intentional injury committed against a woman.
21. j) The crime of intentional injury committed against personnel working in health institutions and organizations during or because of their duties.

Can Children Be Arrested in Turkey?

The arrest of children is an area that requires special sensitivity in the criminal justice system in Turkey. Although it is possible to arrest children in the Turkish legal system, this practice is subject to strict conditions and is considered as a last resort. First of all, it should be noted that since children under the age of 12 do not have criminal capacity, they cannot be arrested. For children between the ages of 12 and 15, arrest is only possible for crimes with an upper limit of 5 years or more imprisonment. For children between the ages of 15 and 18, the general conditions for arrest apply, but even in this case, the best interests of the child should be taken into consideration when making an arrest decision and alternative measures should be considered first. In accordance with the Child Protection Law and international conventions, the arrest of children should be an exceptional practice and should be limited to the shortest possible period of time.

What is the Limit of Arrest Duration In Turkey?

Arrest periods in Turkey vary according to the nature of the crime and the phase of the judicial proceedings. In cases that do not fall under the jurisdiction of the heavy criminal court, the maximum period of arrest is 1 year. In mandatory cases, it can be extended for another 6 months by showing justification. In other words, the maximum period of arrest in the Criminal Court of Small Claims proceedings is one and a half years.

In cases falling under the jurisdiction of the Assize Court, the maximum period of arrest is 2 years. In cases of necessity, this period may be extended with justification; the extension period may not exceed 3 years in total, and may not exceed 5 years in terms of the crimes defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Fourth, Fifth, Sixth and Seventh Parts of the Fourth Section of the Second Book of the Fourth Part of the Second Book of the Turkish Criminal Code No. 5237 and terrorist crimes. In other words, the maximum period of pre-trial arrest is five years in the trials of the High Criminal Court and seven years in terrorism offenses.

These periods are valid for the sum of the investigation and prosecution phases. However, the duration of arrest during the investigation phase is regulated separately. The period of arrest during the investigation phase may not exceed six months for offenses not falling under the jurisdiction of the heavy criminal court and one year for offenses falling under the jurisdiction of the heavy criminal court. However, in terms of terrorist offenses and crimes committed collectively, this period is a maximum one year and six months, and may be extended for another six months by showing justification. Accordingly, the maximum period to be spent in arrest during the investigation phase is six months if the Criminal Court of First Instance is in charge of the crime under investigation, one year if the Assize Court is in charge, and two years for terrorist offenses and collective crimes.

With the opening of the individual application procedure to the Constitutional Court, decisions on violation of rights can be issued if these periods are exceeded.

Can The Arrest Decisions Be Appealed In Turkey?

Arrest decisions can be appealed. The right to appeal an arrest decision prevents arbitrary arrests by ensuring that the lawfulness of the arrest decision is monitored. It also helps to prevent the unnecessary restriction of personal freedom, which is one of the fundamental human rights, while at the same time expanding the possibility of self-defense as part of the right to a fair trial. The appeal process provides an opportunity to correct possible errors in the first instance court’s decision and to reassess whether the measure of arrest is necessary and proportionate. It contributes to ensuring that arrest, which is a measure applied to persons who have not yet been proven guilty, is applied without undermining the presumption of innocence. It supports the application of the principle of interpretation in favour of liberty, one of the fundamental principles of law, and functions as a reflection of the rule of law.

Who Can Appeal an Arrest Decision In Turkey?

The right to object to an arrest decision is granted to the suspect or defendant, his/her defense counsel, legal representative and spouse (Articles 261, 262 of the Criminal Procedure Code).

Where to Appeal an Arrest Decision In Turkey?

First of all, the petition of objection to the arrest decision is submitted to the authority that made the decision. (CPC 268/1) The authority that will evaluate the objection and examine the objection is the authority with a higher degree than the authority that made the decision.(268/3)

For example, the objection against the arrest decision of the criminal judge of peace is examined by the criminal court of first instance (Article 268/3-b of the Code of Criminal Procedure); the examination of the objections to the decisions of the criminal court of first instance is examined by the heavy criminal court, and the examination of the objections to the decisions issued by the heavy criminal court and its president is examined by the next numbered heavy criminal court. With the 2021 amendment to the law, the authority to review the objections to the arrest and judicial control decisions of the criminal judge of peace was taken from the next numbered criminal judge of peace and given to the criminal court of first instance.

What Is The Time Limit For Appealing An Arrest Decision In Turkey?

The objection deadline for an arrest decision is two weeks (Article 268/1 of the Code of Criminal Procedure). The period indicated in the aforementioned article was changed from “seven days” to “two weeks” by Article 37 of the Law dated 2/3/2024 and numbered 7499. It is stipulated that the mentioned amendment will enter into force on 1/6/2024. In other words, the objection period, which was seven days before 1/6/2024, has been increased to two weeks after this date.

What Are The Circumstances In Which An Arrest Decision Cannot be Made In Turkey?

The circumstances in which an arrest decision cannot be issued are generally related to the nature of the offense and the severity of the prescribed penalty. First of all, an arrest decision cannot be issued for crimes that require only a judicial fine. In addition, an arrest decision cannot be issued for crimes with an upper limit of imprisonment of no more than two years, except for those committed deliberately against bodily inviolability. In addition, an arrest decision should not be issued in cases where there are no grounds for arrest such as suspicion of flight, tampering with evidence or influencing witnesses. Furthermore, arrest should not be ordered in cases where judicial control measures would be sufficient instead of arrest.

Review of Arrest In Turkey

The review of arrest, also known as review of arrest, is regulated in Article 108 of the Code of Criminal Procedure. The aim is to determine whether the arrest should be continued, whether the reasons for arrest still exist and whether the arrest complies with the principle of proportionality.

During the investigation phase, upon the request of the public prosecutor, the criminal judge of peace shall review the arrest status for periods of 30 days at the latest. This examination shall be made on the file after the opinion of the public prosecutor is received. However, the judge may decide after hearing the suspect or his/her defense counsel if deemed necessary.

In the prosecution phase, the status of the arrested defendant shall be evaluated at each hearing and between hearings for a period of 30 days. In this evaluation, the court may decide on the continuation or termination of arrest or the application of judicial control measures.

Furthermore, the arrested defendant may request his/her release at any stage of the investigation and prosecution phases. Upon this request, the judge or court shall decide within 3 days.

During the review of the arrest, factors such as whether the reasons for arrest have disappeared, the new evidence, the personal and family situation of the defendant, the nature and importance of the crime committed are taken into consideration.

Decisions rendered as a result of the arrest review may also be appealed. This objection shall be lodged within two weeks from the notification of the decision.

What are the Rights of the Arrested Person? 

In criminal proceedings, every suspect or defendant has many rights that make a fair trial possible, such as the presumption of innocence, the right to remain silent, the right to the assistance of a lawyer, the right to be tried within a reasonable time. The arrested suspect or defendant also enjoys all of these rights. On the other hand, the arrested suspect or defendant also has rights specific to arrest.

These are;

The right to object to the arrest decision: Pursuant to Article 101/5 of the Code of Criminal Procedure (CPC), an objection can be lodged against the arrest warrant within two weeks at the latest.

Right to Review of Arrest: Pursuant to Article 108 of the Code of Criminal Procedure (CPC), during the period in which the suspect is in detention during the investigation phase, and at the latest every thirty days, whether the detention should be continued or not is examined.

Right to Request the Application of a Judicial Control Measure: Pursuant to Article 109 of the Criminal Procedure Code, there is a right to request judicial control instead of arrest. These judicial controls may be house arrest, the obligation to sign in certain places at certain times, ban on leaving Turkey.

Right to Be Brought Before a Judge: Pursuant to Article 101/1 of the Criminal Procedure Code, arrest can only be authorized by a judge’s decision.

Right to be informed of the reasons for arrest: Pursuant to Article 101/3 of the Code of Criminal Procedure, the arrest warrant shall clearly indicate the strong suspicion of a crime, the reasons for arrest, and the evidence showing that the application of judicial control instead of arrest would be insufficient, justified by concrete facts. In other words, the arrest warrant must be justified.

Right to Inform Relatives of the Arrest: Pursuant to Article 107 of the Criminal Procedure Code, arrest and extension of detention decisions shall be notified without delay to a relative of the detainee or a person designated by the detainee.

If the arrested person is a foreign national, the arrest shall be notified to the consulate of the state of which he/she is a citizen. However, if the arrested does not wish it to be notified, s/he can express this in writing and the consulate will not be notified.

How Can We Assist You?

As Viridis Legal Partners, we are with you at every stage of the arrest process. As your criminal lawyers in Turkey, we are here to provide legal support to you and your relatives. You can contact us to appeal the arrest warrant, to request a review of the detention or to inquire about judicial control measures.

You can contact us via our website or call our office directly to make an appointment.

Our services include:

• Immediate Legal Representation: We ensure that you have legal representation from the moment of seizure to detention and arrest, safeguarding your rights and providing necessary guidance.
• Appeals and Legal Challenges: We handle appeals against arrest decisions and any legal challenges that may arise during the arrest 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 have an interpreter, are respected.
• Post-Arrest Support: After detention, we assist with the legal proceedings that follow, providing continuous support and representation.

If you or a loved one is facing arrest in Turkey, do not hesitate to contact Viridis Legal Partners. We are here to provide the support and legal expertise you need. Visit our website to learn more and reach out for assistance today.

FAQ

• I have been arrested in Turkey, what should I do?

The first thing to do when you are arrested is to understand your rights and the process. At this stage, it is critical to contact a lawyer. Your lawyer will provide you with detailed information about the arrest process and ensure that you act in a way that protects your rights.

• What is the duration of arrest in Turkey?

The duration of arrest varies depending on the nature of the offense and the stage of the proceedings. For crimes that do not fall under the jurisdiction of the heavy criminal court, the maximum period of detention is 1 year and this period can be extended by 6 months in mandatory cases. For crimes that fall within the jurisdiction of a heavy criminal court, the maximum period is 2 years and can be extended up to 3 years in certain cases. In special cases, such as terrorism offenses and mass crimes, the period of detention can be up to 5 years. In the investigation phase, the periods are shorter; 6 months for crimes that do not fall under the jurisdiction of the heavy criminal court and 1 year for crimes that fall under the jurisdiction of the heavy criminal court.

• What Rights Does the Arrested Person Have?

The arrested person in Turkey has various rights. These include the right to object to the arrest warrant, the right to request a review of the detention and the right to request judicial control measures. He or she also has the right to consult a lawyer. During detention, the detainee’s rights also include the right to be treated well in prison and the right to inform family members. It is important that the detainee receives legal assistance and is able to present a fair defense within the framework of the right to a fair trial.

• How can I appeal against an arrest warrant in Turkey?

To appeal against an arrest warrant, you need to apply to the court where the warrant was issued. The objection aims to check whether the arrest warrant is in accordance with the law. You usually have two weeks to file this application. Your appeal will be forwarded to a higher court of the court that issued the decision, where the decision will be reconsidered.

• What should I do if my relative has been arrested?

When a relative is arrested, you should first contact a lawyer to understand the reason for the arrest and the process. The lawyer will provide you with information on how the process will work and help you take the necessary legal steps. It is also important to stay in contact with the lawyer to ensure that the detention process is carried out fairly, protecting the rights of the detainee. You can contact the prison to get information and support about your relative’s situation and try to obtain the necessary information through his/her lawyer.

• I have been arrested, I am being mistreated in prison in Turkey, what can I do?

If you believe that you are being mistreated in prison, you should immediately inform your lawyer. Your lawyer can contact the prison administration and take the necessary legal steps to resolve the situation. You also have the right to lodge a complaint about mistreatment. You can file a formal complaint, supporting the ill-treatment you have experienced in prison with documentation. You can also apply to national and international human rights organizations for assistance.

• Can the arrest period be extended?

Yes, the detention period can be extended under certain conditions. For crimes that fall under the jurisdiction of the criminal court, the maximum period of detention is usually set at 2 years. However, this period can be extended in special cases and in cases of necessity. For certain crimes, such as terrorism offenses and mass crimes, the period of detention may be extended to 5 or even 7 years.

• Do I have the right to see a lawyer when I am arrested in Turkey?

Yes, you have the right to see a lawyer when you are arrested in Turkey. This right aims to provide you with legal assistance and the opportunity to present your defense during the criminal proceedings. The right to see your lawyer applies at all times during your detention. Your lawyer will help you to determine your legal strategies and will defend your rights in the best possible way during the detention process. Meetings will usually take place according to the arrangements made with the prison and the guidance of your lawyer plays a critical role in this process.