Judicial control decision

The main purpose of criminal law is to reach the material truth. However, due to the principle of the rule of law, no means can be used for this purpose. The principle of proportionality must be respected during the investigation and prosecution phase. As a result of this approach, some measures had to be regulated in criminal law.

These measures, also called by different names, are located between Articles 90 and 144 of the CMK. Although the most severe protection measure is arrest, other measures include judicial control, capture, detention, search and seizure. Protection measures aim to prevent suspects or defendants from escaping or destroying evidence. In addition, these measures are expected to establish a balance between the two situations, taking care not to violate the foundations of individual rights and freedoms. In order for all protection measures regulated in the CMK to be implemented, some common conditions must exist. Based on this, it should be noted that; In order for a protective measure to be ordered, the existence of suspicion of crime, apparent justification, compliance with the principle of proportionality, legality and the existence of danger in delay are required.

Again, all of the protection measures in the CMK are instrumental and temporary. In addition, it requires strict application of the principle of proportionality. What should be understood from the fact that protective measures are tools is this:

The aim of the protection measure is to ensure that the criminal trial can be carried out in accordance with the procedure and the verdict can be given. For example, situations such as preventing the obfuscation of evidence or preventing the defendant from escaping abroad will affect the soundness of the trial.

Temporality is an indication that protective measures are not a sanction.

Protection measures end when the goal is achieved. In our opinion, the principle of legality constitutes the most important feature of protection measures. For this reason, in our review, we will try to touch upon the application of this principle and the problems in practice as much as possible.

What is Judicial Control?

Judicial control is defined as "putting the suspect or defendant under the supervision and control of judicial authorities and authorities by taking them under certain obligations in order to ensure that the suspect or defendant is present during the court proceedings and execution phase, and that the trial expenses are covered by him, due to a crime allegedly committed, in the presence of reasons for arrest, which can be applied in both the investigation and prosecution phases." (Özbek, Doğan, Bacaksız Criminal Procedure Law 13th Edition p.299)

As we mentioned above, a judicial control decision is a protection measure. Like other protection measures, judicial control measures are instrumental and temporary. Once the purpose is achieved, the judicial control measure ends.

In Article 109 of the CMK; "In an investigation carried out due to a crime, if the reasons for arrest specified in Article 100 exist, it may be decided to place the suspect under judicial control instead of arresting him." provision is included. It can be inferred from here that judicial control is an alternative institution to the arrest warrant. In the justification of Article 109, it is stated that "the institution does not deprive the person concerned of his freedom, but subjects him to measures that enable observation and control; it can be said that this new institution is both liberal and protective of public order; after this institution, the practice of detention will become exceptional."

Although it can be concluded from here that judicial control is a protection measure that makes detention exceptional, the changes made in the law should be taken into consideration. Because, in the final version of the article, it has been regulated that the provisions regarding judicial control can be applied in cases where a ban on arrest is foreseen. When considered from this perspective, it should be said that the judicial control institution is not only an alternative to detention, but also a complement. According to the Constitutional Court's decision numbered 2013/63 K., judicial control is defined as an institution that is effective between release and detention. The relevant parts of the decision are as follows:

"In the decision of the Constitutional Court, which it examined under a different request, the judicial control institution (Constitutional Court decision dated 28.01.2010 and numbered 2008/70 E., 2010/21 K.) is defined as a modern institution that is a protective measure that is effective between release and arrest, introduced into the Turkish Criminal Procedure system by the Code of Criminal Procedure. In the decision, this institution is also It was also emphasized that the criminal trial was carried out in a healthy manner by the legislator by establishing a balance between the protection of social order and respect for the fundamental rights and freedoms of the individual.

As a result, it should be noted that judicial control measure; It is a type of protection measure that is sometimes applied instead of the arrest measure, sometimes following it or completely independently of it.

Judicial control measure is not clearly defined and stated in the Constitution. However, since the implementation of the measure affects many fundamental rights and freedoms, an interpretation that the measure lacks a constitutional basis would be extremely erroneous.

WHAT ARE THE CONDITIONS OF FORENSIC CONTROL?

According to Article 109 of the Code of Criminal Procedure; In an investigation carried out due to a crime, if the reasons for arrest specified in Article 100 exist, it may be decided to place the suspect under judicial control instead of arresting him.

As can be clearly understood from the article of the law, the first condition for issuing a judicial control decision is the existence of a reason for arrest. Our explanations regarding the reasons for arrest are detailed in our article titled Arrest Decision. Here, we will touch upon the conditions required for a judicial control decision to be made. The conditions for a judicial control decision to be made are as follows:

1-Existence of concrete evidence showing strong suspicion of crime.
2- Presence of one of the reasons for arrest listed below:

• There are concrete facts that raise suspicion that the suspect or the accused will escape, hide, or escape,
• The behavior of the suspect or the accused
• Destroying, concealing or altering evidence,
• Creates strong suspicion of attempting to put pressure on witnesses, victims or others.

3-CMK's 100/3. There is a strong suspicion that one of the catalog crimes listed in the article has been committed.

4-Compliance with the principle of proportionality.

One more point needs to be mentioned here. As it is known, CMK 100/4. According to the article, there is a ban on arrest in the following cases:

a.Only in crimes requiring judicial fines,

b.In crimes for which the upper limit of imprisonment is not more than two years, except for those committed intentionally against physical immunity,

c. For crimes that require a prison sentence not exceeding five years for children under the age of fifteen.

The existence of these circumstances does not prevent a judicial control decision from being given. Again, CMK 109/7. According to the regulation in the article; Provisions regarding judicial control may be applied to those who are released due to the expiration of their detention periods stipulated in the law.

Finally, CMK's 109/4. It is necessary to mention the regulation stated in the article. The final version of this regulation was brought by law number 7240 on 14.04.2020. Accordingly:

The suspect who is determined in accordance with the third paragraph of Article 16 of the Law No. 5275 on the Execution of Penal and Security Measures dated 13/12/2004 and who is unable to survive alone in the conditions of the penal institution due to a serious illness or disability, and the female suspect who is pregnant or has not passed six months since the date of giving birth, may be placed under judicial control instead of being arrested. If a conviction has been given against you and an appeal or appeal has been filed regarding this verdict, the first instance court that gave the verdict by examining the UYAP records may also give a judicial control decision.

WHAT ARE THE JUDICIAL CONTROL OBLIGATIONS?

In Article 109 of the CMK, judicial control obligations are determined by enumerating them one by one. In Article 56 of the Probation Regulation, the details of these obligations are stated as follows.

a) Not being able to go abroad: Not being able to go outside the country's borders,

b) To apply regularly to the places determined by the judge, within the specified periods: The suspect or the defendant to regularly apply to the places determined in the decision, at the specified intervals,

c) To comply with the calls of the authorities or persons specified by the judge and, when necessary, with the control measures regarding their professional pursuits or continuing their education: To call the suspect or defendant to the directorate or another person or authority within the framework of the procedures and principles specified in the decision, and to inform this person or authority, when necessary, about the job or professional occupation he is working on or the education he is continuing, and to supervise him in this regard,

ç) Not being able to use all kinds of vehicles or some of them and surrendering the driver's license against a receipt when necessary: The suspect or defendant cannot use all kinds of vehicles or some of them within the framework of the procedures and principles specified in the decision, and if it is stipulated in the decision, the driver's license is taken against a receipt,

d) To comply with treatment or examination measures: To be subject to and accept treatment or examination measures, including hospitalization, especially in order to get rid of addiction to drugs, stimulants or volatile substances and alcohol,

e) Assurance: To deposit a security amount to be determined by the judge upon the request of the public prosecutor, taking into account the suspect's financial situation, the amount and the payment terms at once or in multiple installments,

f) Not being able to possess or carry a weapon: The suspect or defendant is prohibited from carrying or possessing a weapon by the decision of the court or judge, and when necessary, the delivery of the weapons he/she owns to the judicial custody officer affiliated with the Chief Public Prosecutor's Office,

g) To secure the rights of the crime victim: Upon the request of the public prosecutor, to bind the money, the amount and payment period of which will be determined by the judge, to in-kind or personal guarantee in order to secure the rights of the crime victim,

ğ) Giving assurance that he will fulfill his family obligations and regularly pay the alimony he is sentenced to pay in accordance with judicial decisions: Giving assurance that he will fulfill his family obligations and regularly pay the alimony he is sentenced to pay in accordance with judicial decisions,

h) Not leaving the residence: Not leaving the residence of the suspect or the defendant determined by the court without an excuse or permission,

ı) Not to leave a certain residential area: Not to leave the place or residential area of the suspect or defendant determined by the court without an excuse or permission,

i) Not going to the designated place or areas, or being able to go only to some places: The suspect or the accused cannot go to the place or residential area determined by the court without an excuse or permission, or can only go to some places,

j) Not establishing relationships with specified persons and organizations: It refers to the child who is dragged into crime not to establish relationships with specified persons and organizations within the framework of the procedures and principles specified in the court decision.

Only the obligations listed in the law above can be imposed on the suspect or defendant. There is no legal harm in awarding more than one liability. However, the principle of proportionality must be strictly observed here. It is wrong to present or view the judicial control decision as a favor. Because it cannot be said that any of the above obligations do not affect personal rights and freedoms. It is obvious that failure to comply with the principle of proportionality will also damage the principle of the rule of law. For this reason, the principle of proportionality must be strictly observed in every protection measure.

FULFILLMENT OF JUDICIAL CONTROL MEASURES

According to Article 57 of the Regulation:

1) After the judicial control decision is recorded, the decision is sent directly to the case officer to initiate the execution proceedings. In the notification sent to the suspect or defendant for whom a judicial control decision has been made; The type of judicial control measure, how and when the measure will be carried out, the rules to be followed, the consequences of not complying with the measure, and the necessity of fulfilling the requirements of the judicial control measure immediately are explained. If necessary, depending on the nature of the decision, a letter is immediately written to the relevant person, institution or organization and the content of the judicial control measure is explained; Information is requested on whether the suspect or defendant has fulfilled the requirements of the judicial control measure on time and whether the judicial control measure continues.

2) The file is sent to the Chief Public Prosecutor's Office or court to make a decision about the suspect or defendant who does not fulfill the requirements of the judicial control measure without excuse and deliberately despite the notification, who does not continue to fulfill the requirements of the measure after the execution of the measure has started, or who violates the measure, without warning.

3) In case it is necessary to cooperate with the child's family or social environment in the execution of judicial control decisions against children dragged into crime, privacy of private life is taken into consideration at every stage and necessary precautions are taken to prevent the child from being exposed.

4) In carrying out judicial control measures, no risk and need assessment is made for the suspect or defendant, and no inspection plan is prepared.

WHO MAKES THE JUDICIAL CONTROL DECISION?

Judicial control decision can be given both at the investigation and prosecution stages. During the investigation phase, the decision is made by the criminal judge of peace upon the request of the public prosecutor. A judicial control decision cannot be given without the request of the prosecutor. However, the judge may, ex officio, issue a judicial control order for the suspect who has been referred for arrest.

In the prosecution phase, the authority belongs to the trial court. At this stage, the request of the public prosecutor is not mandatory.

Judicial control decisions may also be made at the appeal or Supreme Court stages.

In case a conviction has been given and an appeal or appeal has been filed regarding this verdict, the first instance court that gave the verdict by examining the UYAP records may also give a judicial control decision. (CMK 109/4 second sentence)

CAN A JUDICIAL CONTROL DECISION BE MADE IN THE ABSENCE OF THE SUSPECT OR DEFENDANT?

As it is known, the arrest warrant must be given to the face of the suspect or defendant. In this respect, it can be thought that the judicial control decision should be made face to face. However, there is no obstacle to making a judicial control decision in the absence of a judge. Considering the purpose of the institution and the desire to make the detention exceptional, it should be said that it is possible for the judicial control decision to be given in absentia.

CHANGING THE JUDICIAL CONTROL OBLIGATION

CMK 110/2. According to the article:

The judge, upon the request of the public prosecutor, may place the suspect under one or more new obligations in the judicial control exercise; It may completely or partially remove or change the obligations that constitute the content of the control, or temporarily exempt the suspect from complying with some of them.

OBJECTION TO JUDICIAL CONTROL DECISION

An objection can be filed against the judicial control decision. If the decision was made in person, it can be objected within 7 days from today, and if the decision was made in the absence, it can be objected within 7 days from the notification. If the judge or court whose decision is objected to finds the objection justified, it corrects its decision; If it does not see the objection in place, it sends it to the authority authorized to examine the objection within three days at most.

According to Article 267/3b of the CMK; Examining the objections made against the decisions of the criminal judgeship of peace regarding arrest and judicial control belongs to the judge of the criminal court of first instance in whose jurisdiction he is located. In cases where the authorities authorized to examine the objection are different, the necessary measures are taken by the criminal judgeship of peace whose decision is objected to in order to examine the objections without delay. If the affairs of the criminal judge of peace are handled by the criminal judge of first instance, the authority to review the objection belongs to the president of the high criminal court. Examining the objections to the decisions made by the criminal court of first instance judge, examining the objections to the high criminal court in whose jurisdiction they are located and the decisions given by this court and its president, if there is more than one chamber of the high criminal court in that place, to the chamber following it in number; for the last numbered flat, to the first flat; If there is only one chamber of the high criminal court in that place, it belongs to the nearest high criminal court.

TERMINATION OF JUDICIAL CONTROL

In our explanations above, we stated that the judicial control measure is a tool and will end with achieving the goal. This feature also expresses the temporality of judicial control. In this respect, once the goal has been achieved, the judicial control decision must end. For example, a judicial control decision not to suppress evidence ends with the collection of evidence.

Giving the verdict causes the judicial control to end. The decision not to prosecute is another situation that ends judicial control at the investigation stage.

Here, we would like to mention a mistake made in practice. This mistake is the continuation of the judicial control obligation despite the acquittal decision. There is no legal explanation for the continuation of the judicial control obligation of a defendant who has been acquitted. It is natural that this situation can be interpreted as the authority making the decision not trusting its own decision. Moreover, as we mentioned above, arrest conditions must be met in order for a judicial control decision to be made. Considering this aspect, it would be clearly absurd to say that a defendant who has been acquitted meets the conditions for arrest. The consequences of the acquittal decision and what it means should be reconsidered and this mistake should be reversed.

Finally, the issues we criticize here were also discussed in a Constitutional Court decision. The issue we criticized was partially, but not completely, criticized by the Constitutional Court, and it was ruled that this practice was a violation of rights. The relevant parts of the decision dated 03.12.2025 are as follows:

"In the concrete case, it was decided to release the applicant, who was tried as a detainee, upon his acquittal on the charge of being a member of an armed terrorist organization, and a judicial control measure in the form of a ban on traveling abroad was imposed on him. During the ongoing trial, it is established that the applicant requested the lifting of the measure, stating that he resided abroad on different dates and that his family lived there. Moreover, in these requests, the applicant specifically stated that he had serious health problems and that his treatment continued in Germany, and that he obtained the medications he was using there. (see § 5).

The court rejected these requests of the applicant. However, in these rejection decisions - considering that the applicant's statements regarding the actions subject to the trial were taken and that he was acquitted as a result of the trial - it was not explained what other evidence should be collected and what benefit the measure would have for the prosecution. In addition, it was observed that the applicant's objections regarding his personal and family ties in Germany were not discussed properly in the injunction decision and the decisions regarding the continuation of the measure, and his requests were rejected on general, abstract and repetitive grounds (see § 6).

The applicant took his objections to the judicial authorities; However, the judicial authorities rejected the applicant's requests without making relevant and sufficient evaluations regarding the allegations made by the applicant regarding his private and family life and the necessity of the measure. When the entire process is evaluated together, it cannot be said that a fair balance has been established between the interests of the applicant and the public interest expected from the measure - implemented for the purpose of the healthy conduct of the trial and the applicant's exercise of his right to defense by participating in the trial - by taking into consideration the ties of the applicant and his family in the country where the applicant and his family live, the nature of the crime charged, the state of evidence and the severity of the possible resulting punishment. It should also be emphasized that measures that could be alternative to the measure subject to intervention were not discussed in any way. As a result, it has been concluded that the intervention in the form of an international travel ban is not in accordance with the requirements of the democratic social order and the principle of proportionality (for a similar evaluation, see Hasan Hüseyin Güney, § 21)." 2022/63522 Application No.

Finally, it should be noted that if a decision is not made in the memorandum regarding the judicial control decision given during the investigation phase, the judicial control decision does not automatically become invalid. This idea is also wrong and has not been adopted in practice. If the judge has not made a decision regarding the judicial control decision in the memorandum of procedure, he should be requested to make a decision on this issue. If the judge finds the request justified, he will remove the obligation and notify the relevant authorities about the situation. Acting with the idea that the judicial control order is automatically lifted can have serious consequences. For example, it is possible that a person who states in the memorandum of conduct that "a decision has not been made on this issue and I will not go to the police station to sign any more" may be referred to arrest.

REMOVING THE JUDICIAL CONTROL DECISION

Upon the request of the suspect or defendant, and after taking the opinion of the public prosecutor, the judge or court may decide to lift judicial control within five days in accordance with the second paragraph of Article 110.

At four-month intervals at the latest, whether the suspect or defendant's judicial control obligation will need to be continued; In the investigation phase, the decision is made by the criminal judge of peace upon the request of the public prosecutor, and in the prosecution phase, by the court ex officio, taking into account the provisions of Article 109. (CMK 110/4)

Can the Prosecutor Spontaneously Lift the Judicial Control Decision?

According to Article 103 of the CMK; If, during the investigation phase, the public prosecutor decides that judicial control or detention is no longer necessary, he/she releases the suspect ex officio. When a decision is made not to prosecute, the suspect is released.

It is understood from the above provision that the arrest warrant, which is an exceptional protection measure, can be revoked by the prosecutor. In this case, the same authority can be used to remove the judicial control obligation.

JUDICIAL CONTROL PERIOD

For cases that do not fall within the jurisdiction of the high criminal court, the judicial control period is a maximum of two years. However, in cases of necessity, this period can be extended for another year by showing justification.

In matters falling within the jurisdiction of the high criminal court, the judicial control period is a maximum of three years. This period may be extended, in cases of necessity, by showing justification; The extension period cannot exceed three years in total and four years for the crimes defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Second Book, Fourth Part of the Turkish Penal Code and the crimes falling within the scope of the Anti-Terrorism Law.

The judicial control periods stipulated in this article are applied at half the rate for children.

FAILURE TO COMPLY WITH JUDICIAL CONTROL MEASURES

The consequences of the suspect or defendant's failure to comply with judicial control obligations are included in Article 111 of the CMK. Accordingly:

The competent judicial authority may immediately issue an arrest warrant for the suspect or defendant who does not voluntarily comply with the provisions of judicial control, regardless of the duration of the prison sentence that may be imposed. If a conviction has been given against you and an appeal or appeal has been filed regarding this verdict, the first instance court that gave the verdict may also issue an arrest warrant by reviewing the UYAP records.

The provision of the first paragraph can also be applied in case of violation of the judicial control measure given due to the expiration of the maximum detention period. However, in this case, the detention period cannot exceed nine months in matters falling within the jurisdiction of the high criminal court, and two months in other matters.

As can be seen, an arrest warrant is issued for the person who does not comply with the obligations. Whether there is a ban on arrest or not is not required here. If the suspect or defendant violates the judicial control obligation, an arrest warrant may be issued for him, regardless of the amount of the penalty. An arrest warrant cannot be issued only for crimes that require a judicial fine.

It should also be noted here that the suspect or defendant's violation of the obligation does not necessarily require arrest. Or it does not mean not rechecking the existence of arrest conditions. It must be taken into consideration that arrest is a last resort and the circumstances must be carefully re-examined. Practices to the contrary constitute a violation of the law.

In order for an arrest warrant to be issued, the obligation must be knowingly (intentionally) violated.

CAN THE TIME Spent IN JUDICIAL CONTROL BE DEPUTED FROM THE PUNISHMENT?

As a rule, periods subject to judicial control obligation cannot be deducted from prison sentences. However, treatment or examination measures, including hospitalization, and measures not to leave one's home, in order to get rid of drug, stimulant or volatile substances and alcohol addiction, can be deducted from the prison sentence.

In the deduction of the judicial control measure of not leaving the house, also known as house arrest, two days are counted as one day. As a matter of fact, CMK article 109/6. The article is as follows:

"The time spent under judicial control cannot be deducted from the penalty as a reason for limiting personal freedom. This provision does not apply in the cases specified in subparagraphs "(e) and (j)" of the third paragraph of the article. "However, every two days spent under the obligation not to leave the residence specified in subparagraph (j) are taken into account as one day in the deduction of the penalty."

RELEASE WITH GUARANTEE

There are provisions in Article 109/3/f-h-i of the Criminal Code stating that the suspect or defendant will be released by providing security. There is a separate regulation under the title of assurance in Article 113 of the CMK. The relevant regulation is as follows:

"The assurance given by the suspect or the defendant ensures that the following matters are fulfilled:

a) The suspect or defendant must be present in all procedural proceedings, in the execution of the verdict or to fulfill other obligations that may be taken under him.

b) Making payments in the order shown below:

1. Expenses incurred by the participant, compensation for damages caused by the crime and restoration; alimony debts if the suspect or defendant is being prosecuted for failure to pay alimony debts.

2. Public expenses.

3. Fines.

In the decision that obliges the suspect or defendant to provide assurance, the parts covered by the assurance are shown separately.

According to the article justification, this article; It states which issues will be secured by the assurances in Article 109/3. Other explanations made in the justification are as follows:

According to paragraph (1) of the article, the assurance will, first of all, constitute the assurance that the suspect or the defendant is present in all procedural proceedings where his/her presence is required, in the execution of the verdict or to fulfill other obligations that he/she may be under currently or later, that is, in case of violation, revenue will be recorded to the Treasury.

Secondly, the assurance will constitute the provision for some expenses, damages, alimony debts, public expenses and fines, in the order shown in paragraph (2).

The authority that initially applies the relevant paragraphs of Article 109 will also indicate in its decision the parts to be covered by the assurance, according to the order in paragraph (2).

PREPAYMENT

Prepayment regulation is included in Article 114 of the CMK. According to this regulation, it is possible to pay the security received from the defendant to the victim or alimony creditors. According to the relevant article;

The judge, court or public prosecutor, with the consent of the suspect or defendant, may order the parts of the security that cover the rights of the victim or related to the alimony debt to be given to the victim or the alimony creditors, if they wish.

If a judicial decision has been made in favor of the victim or alimony creditor due to the events that constitute the subject of the investigation and prosecution, payment may be ordered even if the suspect or defendant does not consent.

RETURN OF ASSURANCE

If the convict has fulfilled all the obligations written in paragraph (a) of the first paragraph of Article 113 (the presence of the suspect or the accused in all procedural proceedings, in the execution of the sentence or to fulfill other obligations that may be taken under), the part of the assurance that meets the paragraph (a) of the first paragraph of Article 113 and specified in the decision to be made in accordance with the second paragraph of the same article is given back to him. The assurance is given back to the victim of the crime or The second part, which is not given to the alimony creditor, is given back to the suspect or defendant when there is no need for prosecution or when acquittal decisions are made. Otherwise, unless there is a valid excuse, the guarantee will be recorded as income to the State Treasury.

In case of conviction, the assurance is used in accordance with the provisions in subparagraph (b) of the first paragraph of Article 113 (explained above), and the excess is refunded.