Arrest decision

The arrest warrant, which is included in the legislation as the most severe protection measure because it removes personal freedom, is very prone to abuse and arbitrariness. For this reason, the issuance of a national and international arrest warrant is subject to a number of strict conditions. Since international convention articles must be taken into consideration when evaluating the arrest decision (Article 90 of the Constitution), examples from ECHR articles and ECHR decisions will be frequently given in our review.

Personal freedom is guaranteed by many international agreements. According to the United Nations Declaration of Human Rights; "No one may be arbitrarily detained, detained or exiled."

Article 5 of the European Convention on Human Rights states; It has introduced regulations regarding the protection of personal freedom against arbitrary restrictions and has included arrest among the situations in which personal freedom can only be restricted in accordance with the law.

Article 19 of the Constitution brings regulations parallel to international agreements and adopts the principle that everyone has personal freedom. The relevant article states: "Persons for whom there are strong indications of guilt can only be arrested by a judge's decision in order to prevent their escape, destruction or alteration of evidence, or in other cases that require arrest and are prescribed by law. Arrest without a judge's decision can only be made in flagrante delicto or in cases where delay is harmful; the conditions for this are determined by the law." It is shaped like. Based on this, the main principles of detention are determined by the Constitution, but the conditions of detention are regulated in the Code of Criminal Procedure in accordance with the Constitution and ECHR. If an arrest warrant is ordered without complying with these conditions (which is frequently the case), a violation of Article 5 of the ECHR will come to the fore. This situation would also mean a violation of Article 19 of the Constitution. In such cases, liability for compensation will arise in accordance with Article 141 of the CMK.

It is possible to define detention as restricting the freedom of a person by a judge's decision, in the presence of the conditions specified in the constitution, international agreements and laws, before his guilt is determined. In order for the arrest measure to be implemented, the law requires the presence of evidence showing strong suspicion of crime as well as the existence of a reason for arrest. As we mentioned above, due to the severity of this protection measure, it has been regulated that only judges can make arrest decisions.

Arrest is an exceptional protective measure that can be applied for certain compelling reasons and does not carry the feature of punishment. As a matter of fact, the principle of proportionality must be observed in arrest. The legal purpose of the arrest warrant is based on the idea that the criminal trial is carried out in a sound manner and helps reveal the material truth. Detention measures are used to prevent the defendant from escaping, to obscure evidence, or to prevent pressure on witnesses. In addition, the existence of arbitrary arrests in every period is an indication that this protection measure is used as a means of punishment and intimidation. At this point, compliance with the conditions of arrest set out in the law contributes to the prevention of arbitrariness and serves to protect personal freedom.

CONDITIONS OF ARREST

In order for a person to be arrested, the conditions required by the ECHR, the Constitution and the CMK must be met in the incident for which detention is requested. These conditions;

1- Existence of concrete evidence indicating strong suspicion of crime,

2- There is a reason for arrest,

3- Proportionality of the arrest,

4- Decision to arrest by the judge,

5- Arrest can only be made about the defendant or suspect,

6- No arrest ban,

7- It can be considered as the understanding that the judicial control decision will be insufficient.

7. The condition listed in the article is a new regulation introduced to the Code of Criminal Procedure by Law No. 7331 dated 08.7.2021. Before this law, such a condition was not required in Article 101 of the CMK.

All conditions will be examined separately under headings below.

REASONS FOR ARREST

According to Article 100 of the Criminal Procedure Code, "If there is "concrete evidence" showing the existence of a strong suspicion of crime and a reason for arrest, an arrest warrant may be issued for the suspect or defendant." With this provision, the legislator stated that in addition to the existence of concrete evidence showing strong suspicion of crime, there must also be a reason for arrest. An arrest warrant can only be ordered if these conditions coexist.

STRONG CRIME SUSPICION AND PRESENCE OF CONCRETE EVIDENCE DURING THE ARREST

According to Article 100 of the Criminal Procedure Code, "If there is "concrete evidence" showing the existence of a strong suspicion of crime and a reason for arrest, an arrest warrant may be issued for the suspect or defendant." The existence of strong suspicion of crime is the first condition for arrest. While making this evaluation, completely objective principles should be observed and each incident should be evaluated on its own merits. What is meant by strong suspicion of crime means that there must be enough information and evidence to convince an objective third party that the suspect or defendant has committed a crime. At this point, refuting the information based on suspicion will prevent the arrest decision.

As we have stated many times, in order for the arrest measure to be implemented, there must be a reason for arrest as well as the existence of concrete evidence showing strong suspicion of crime. The concept of "concrete evidence" was introduced into the law on 21/02/2014. In the old version of the law, the phrase "concrete facts" was used instead of concrete evidence. Such a change was made in order to eliminate the bad faith in the arrest decisions. Since criminal procedure investigates material truth, there is no limitation on evidence. Therefore, any means of proof obtained in accordance with the law and that will help reveal the material truth can be used as evidence. However, the law specifically includes the phrase concrete evidence. The concept of concrete evidence refers to evidence whose existence can be perceived by the senses, touched and seen with the eye. Evidence such as complainant and witness statements, tools used in the crime, video recordings, forensic reports, and expert reports can be cited as examples of concrete evidence. The existence of a strong suspicion of crime will only be mentioned after the evidence is evaluated and concretized.

DEFAULT CONDITIONS REASON FOR ARREST

CMK's 100/2. In the cases listed in the article, it is accepted that there is a reason for arrest. However, the existence of these circumstances does not create the obligation to arrest. The judge must make an evaluation according to the concrete case and act in accordance with his/her conscientious opinion. In cases where the reasons for arrest are assumed, this measure may not be applied depending on the characteristics of the incident. In addition, 100/3. There is a reason for arrest in terms of the catalog crimes listed in the article. The cases in which the reason for arrest is considered to be present in the law are regulated as follows:

CMK 100/2

"There may be grounds for arrest in the following cases:

a) If there are concrete facts that raise suspicion that the suspect or defendant will escape, hide or escape.

b) Behavior of the suspect or defendant;

1. Destroying, concealing or altering evidence,

2. Attempting to put pressure on the witness, victim or others, if it creates strong suspicion about them."

REASON FOR ARREST DEFAULT CATALOG CRIMES

As we mentioned above, CMK 100/3. It is accepted that there is a reason for arrest in terms of some crimes in the article. In these types of crimes, the presumption is that there is a possibility of destroying or altering evidence or putting pressure on witnesses or victims. However, it should not be forgotten that in these types of crimes, there must be concrete evidence that the suspect or defendant has committed a crime in order to be arrested. Even in this case, it is at the discretion of the judge to issue an arrest warrant; There is no obligation to arrest. In the law, the principle of optionality of arrest is expressed by saying "it can be assumed".

The catalog of crimes that are considered to be grounds for arrest in the law are listed as follows:

1- Genocide and crimes against humanity (articles 76, 77, 78),

2- Immigrant smuggling and human trafficking (articles 79, 80)

3- Crime of deliberate murder (article 81, 82, 83),

4- Intentional wounding committed with a weapon (Article 86, paragraph 3, clause e) and intentional wounding aggravated due to its consequences (Article 87),

5- The crime of torture (articles 94, 95)

6- Sexual assault (except for the first paragraph, article 102),

7- Sexual abuse of children (article 103),

8- The crime of theft (article 141, 142) and plunder (article 148, 149),

9- Manufacture and trade of narcotic or stimulant substances (article 188),

10- Establishing an organization for the purpose of committing a crime (except for paragraphs two, seven and eight, article 220),

11- Crimes Against the Security of the State (articles 302, 303, 304, 307, 308),

12- Crimes Against the Constitutional Order and the Functioning of This Order (articles 309, 310, 311, 312, 313, 314, 315),

13- Arms smuggling (article 12) crimes defined in the Law No. 6136 on Firearms, Knives and Other Tools.

14- The crime of embezzlement defined in paragraphs (3) and (4) of Article 22 of the Banking Law No. 4389 dated 18.6.1999.

15- Crimes defined in the Anti-Smuggling Law No. 4926 dated 10.7.2003 and requiring imprisonment.

16- Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets No. 2863 dated 21.7.1983.

17- Crimes of intentional forest burning defined in the fourth and fifth paragraphs of Article 110 of the Forest Law No. 6831 dated 31.8.1956.

18- Crimes listed in Article 33 of the Law on Meetings and Demonstrations No. 2911 dated 6/10/1983.

19- Crimes specified in the third paragraph of Article 7 of the Anti-Terror Law No. 3713 dated 12/4/1991.

In addition to these crime types listed in the Criminal Procedure Code, in accordance with the additional Article 12 of the Health Services Basic Law; "The crime of intentional injury committed against personnel working in healthcare institutions and organizations during or because of their duties is one of the crimes deemed to be grounds for arrest within the scope of the third paragraph of Article 100 of the Criminal Procedure Code No. 5271 dated 4/12/2004.

PROHIBITION OF ARREST

CMK's 100/4. According to the article;

1- Only in crimes requiring judicial fines,

2- An arrest warrant cannot be issued for crimes for which the upper limit of imprisonment is not more than two years.

But there is an exception here. Regardless of the upper limit of imprisonment, there is no prohibition of arrest for crimes committed intentionally against physical immunity.

Another situation subject to the prohibition of arrest is introduced by the Child Protection Law. Accordingly, an arrest warrant cannot be issued for children under the age of fifteen for crimes that require a prison sentence not exceeding five years.

PRINCIPLE OF PROMOTION IN ARREST

While listing the conditions of arrest above, we stated that the arrest decision should be proportionate. The principle of proportionality is clearly stated in Article 100 of the CMK. According to the relevant article; "If the importance of the matter is not proportionate to the expected punishment or security measure, an arrest warrant cannot be issued."

The principle of proportionality expresses whether the expected benefit can be achieved by a security measure other than the arrest measure. For example, if the suspect or defendant can be kept under control with a judicial control decision, in such a case, applying the arrest measure will mean a violation of the principle of proportionality. It should not be forgotten that the arrest measure is optional. As a matter of fact, in the justification of the article, "According to the bill, arrest is now exceptional and the first thing to consider is whether judicial control is necessary. This article, which shows the reasons and conditions of arrest, emphasizes in its first paragraph that priority should be given to judicial control and that arrest constitutes an exception." His statements are included. Therefore, before resorting to this measure, lighter security measures should be taken into consideration and the requirements of the rule of law should be acted upon. It is also clear that in cases where the duration of detention is longer than the punishment to be imposed, the detention measure will be disproportionate.

WHO MAKE THE DECISION TO ARREST?

The decision to arrest can only be made by a judge. During the investigation phase, the arrest warrant is given by the criminal judge of peace. The judge may issue an arrest warrant during the investigation phase only upon the request of the public prosecutor. If the Public Prosecutor does not request arrest, this measure cannot be ordered. If a request for arrest is made by the prosecutor, this request must be justified.

During the prosecution phase, the arrest warrant is decided by the competent court. This decision can be made by the court ex officio or upon the request of the Public Prosecutor.

THE DECISION TO ARREST SHOULD BE JUSTIFIED

According to Article 101 of the CMK;

"In decisions regarding arrest, continuation of arrest, or rejection of a request for release in this regard;

a) Strong suspicion of crime,

b) Existence of reasons for arrest,

c) Evidence showing that the detention measure is proportionate is clearly shown by justifying it with concrete facts. "The content of the decision is notified to the suspect or defendant verbally, and a copy is given to them in writing, and this issue is stated in the decision."

The reason for the arrest decision is a criterion adopted by the ECHR. Making decisions with abstract expressions without justifying the evidence showing the existence of the reasons for detention will be considered a violation of human rights. Again, as we will explain below, decisions to reject detention reviews must be justified and not identical.

ARREST HEARING

CMK's 101/2. It is regulated in the article that the arrest decision will be notified verbally to the defendant. Again, article 101/3 of the law. According to the article, "when arrest is requested, the suspect or defendant benefits from the assistance of a defense attorney of his own choosing or assigned by the bar association." When the two provisions are evaluated together, it is concluded that the arrest decision must be made at the hearing. The judge will not be able to issue an arrest warrant in the absence of the defendant or suspect. CMK abolished arrest in absentia. But article 248/5 of the law. In the article, "An arrest warrant may be issued for the fugitive in his absence by the criminal judge of peace or the court, in accordance with Article 100 and subsequent articles." There is a provision in the form. This provision can only be applied to fugitives abroad.

In addition, as we mentioned above, it is mandatory for a person brought before a judge with a request for arrest to benefit from the assistance of a lawyer. Otherwise, the right to a fair trial will be violated due to violation of the principle of equality of arms. As a matter of fact, in a decision of the 16th Criminal Chamber of the Supreme Court of Appeals dated 2019, it was stated that "In the concrete case, the defendant, who was referred to arrest and tried in detention in accordance with Article 101/3 of the CMK for the crime of membership in an armed terrorist organization, did not have a defense counsel of his own choosing during the trial phase, nor was he assigned an ex officio defense attorney in accordance with Article 156 of the CMK, and due to his situation, he did not comply with the principle of "equality of weapons", which is a requirement of the adversarial trial, in terms of the possibilities of accessing evidence and preparing a defense. and Violation of CMK articles 101/3, 188/1 and 289/1-a-e in a way that would result in a violation of the right to a fair trial guaranteed by Article 36 of the Constitution and Article 6 of the European Convention on Human Rights, and restricting the right to defense by conducting a trial, determining the interrogation and passing a verdict without benefiting from the legal assistance of a lawyer, which is necessary for the sake of justice, is a reason for annulment." The provision was made as follows.

OBJECTION TO DETENTION

An objection may be filed against the arrest decisions made by the judge. The period for objecting to detention is 7 days. When calculating this period, the day the decision is made is not taken into account. Objection to detention is made by submitting a petition to the authority that made the decision or by making a statement to the court clerk, provided that it is recorded in the minutes. CMK 268/2. According to the article; "If the judge or court whose decision is objected to finds the objection appropriate, it corrects its decision; if it does not find it appropriate, it sends it to the authority authorized to examine the objection within three days at most."

The right to object to the arrest decision is a right granted primarily to the suspect or defendant. Apart from these, according to Article 262 of the CMK; The suspect or defendant's legal representative and spouse may, on their own, apply for legal remedies available to the suspect or defendant within the time limit. The provisions regarding the application of the suspect or the defendant are also valid for the application made by them and the subsequent procedures.

Detailed regulations are included in Article 268 of the Criminal Procedure Code regarding the place of review of decisions to object to arrest. A separate clause has been added to this article with the Law on Amendments to the Code of Criminal Procedure and Certain Laws dated 08.07.2021. As of 01.01.2022, it has been regulated that the decisions of the criminal courts of peace regarding detention will be subject to the vertical review procedure. After the last regulations, according to the relevant article;

• The review of objections to the arrest and judicial control decisions of the criminal judgeship of peace is carried out by the criminal judge of first instance in the judicial district.
• 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 work of the criminal judge of peace is carried out by the criminal courts of first instance, this time the objection will be examined by the high criminal court.
• Examination of the objections to the decisions made by the criminal court judge of first instance, examination of 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.
• Examination of objections to the decisions of the regent judge belongs to the president of the high criminal court to which they belong, and to the court decisions referred to rogatory, according to the principles specified in the above paragraphs, the president of the court or the court in their location.
• In objections to the decisions of the criminal chambers of the regional court of justice and the decisions of the criminal chambers of the Supreme Court of Appeals in cases handled as the main court; The member's decision is followed by the head of the chamber to whom he/she is responsible, the head of the chamber, and the criminal chamber that monitors the criminal chamber's decision by number; If the last numbered chamber is in question, the first criminal chamber examines it.

Decisions regarding objections to detention are made based on the file, without a hearing. But 271/1. According to the article, when deemed necessary, the public prosecutor and then the defense attorney or attorney are heard. It was stated that decisions should be made as soon as possible, but there was no day limit.

CMK 271/4. According to the article, "The decisions taken by the authority upon objection are final; however, an objection can be filed against the arrest decisions made by the authority for the first time." Here, it will be necessary to explain the expression of decisions made by the authority for the first time. This situation arises when the defendant or suspect is not arrested despite the request of the Public Prosecutor. If, as a result of the prosecutor's objection, the competent authority decides to arrest the suspect or defendant, an objection may be taken against this decision.

PERIENCE TO BE PASSED IN DETENTION

CMK has determined maximum detention periods. The legislator has made such a regulation as a requirement of the right to be tried within a reasonable time. It will be necessary to examine the periods spent in detention by dividing them into two. As a matter of fact, different periods have been adopted for crimes falling within the jurisdiction of the criminal and high criminal courts of first instance. In addition, with the amendment made to the Criminal Procedure Code in 2019, maximum detention periods were determined in terms of the investigation phase. If the deadlines are exceeded, the detainee must be released.

Maximum Detention Period in Cases That Do Not Fall Within the Jurisdiction of the High Criminal Court

CMK 102/1. According to the article, "The maximum period of detention for matters that do not fall within the jurisdiction of the high criminal court is one year. However, in cases of necessity, this period can be extended for another six months by showing the reasons." As clearly stated in the text of the law, the maximum detention period will be 18 months.

Maximum Detention Period in Cases Falling Within the Jurisdiction of the High Criminal Court

In this case, the legislator has determined the detention period as a maximum of 2 years. However, in cases of necessity, it has been regulated that the 2-year period can be extended and the extension period will be 3 years at most. Since the law does not clearly state whether the total period is 3 or 5 years, this situation has caused controversy in the doctrine. However, in practice, the extension period is accepted as a maximum of 3 years and it is accepted that the maximum period of detention in cases falling within the jurisdiction of the high criminal court will be 5 years.

102. According to the 2nd paragraph of the mine; "It cannot exceed five years for the crimes defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Second Book Four Part of the Turkish Penal Code No. 5237 and the crimes falling within the scope of the Anti-Terrorism Law No. 3713 dated 12/4/1991."

Maximum Detention Period During Investigation Stage

CMK 102/4. According to the article; "The period of detention during the investigation phase cannot exceed six months for matters that do not fall within the jurisdiction of the high criminal court, and cannot exceed one year for matters that fall within the jurisdiction of the high criminal court. However, for the crimes defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Fourth Part of the Second Book of the Turkish Penal Code, crimes within the scope of the Anti-Terrorism Law and crimes committed collectively, this period is maximum one year and six months and can be extended for another six months by showing justification.

Period of Detention for Children

Paragraph 5 of the article regulates the maximum detention periods for children. Accordingly; The periods of detention stipulated in Article 102 shall be applied at half the rate for children who were under the age of fifteen at the time of committing the act, and at three quarters for the children under the age of eighteen.

How Are Extension Decisions Made?

Extension decisions regarding all extension periods are made after taking the opinions of the public prosecutor, the suspect or defendant and his defense counsel. Extension decisions must be justified with an appropriate justification. As a matter of fact, the ECHR accepted the extension decision for the same reasons as a violation of Article 5.

WHAT IS MAJOR DETENTION?

This concept, which has no basis in the CMK but is adopted in practice and is also known as "sovereignty"; It refers to the interim period when the detainee is sentenced by the first instance court but his sentence is not finalized.

While the defendant should be released after the expiry of the periods mentioned above, the release of the defendants during long trial periods is prevented by the concept of detention by default. With the concept of conviction, which is also accepted by the Supreme Court, the person arrested is exempt from the maximum periods of detention. It is accepted that the periods will not run for detainees whose conviction has been decided by the first instance court. Therefore, the periods of detention mentioned above will not be applied to detainees by default.

As a matter of fact, according to the decision of the Supreme Court of Appeals Criminal General Assembly No. 2011/42 K.;

"However, in calculating the detention periods specified in the said article, the time elapsed until the verdict is given by the local court should be taken into account, however, the time elapsed in the appeal due to the detention of the detained defendant after the verdict is given by the local court should not be taken into account. Because, by establishing a conviction, the local court proves that the defendant has committed the six-fold crime, and after this stage, the basis of detention becomes the sentence of conviction. As a matter of fact, the European Court of Human Rights also gave its decision regarding the application of Article 5 of the ECHR. "The decisions do not take into account the time elapsed after the first instance court's conviction in calculating the reasonable period of detention."

WITHDRAWAL OF THE DECISION OF ARREST AND REMAINING INVOLVED

CMK 103/1. According to the article; "The public prosecutor may request the criminal judge of peace to place the suspect under judicial control and release him. The suspect and his defense counsel, for whom an arrest warrant has been issued, may also make the same request."

As can be understood from the article, the request for revocation of the arrest decision comes to the agenda only at the investigation stage. The decision regarding detention during the prosecution phase is made by the competent court. In paragraph 1 of the article, the right to request the revocation of the detention decision is granted to the Public Prosecutor, the suspect and his defense counsel.

While exercising the right granted to them, these persons may request that the suspect be released under judicial control. In other words, in order for the suspect to be released, judicial control measures must be implemented.

As a matter of fact, the justification of Article 103 is as follows.

"In its first paragraph, the article provides the opportunity to convert this decision into a judicial control measure for the suspect, for whom an arrest warrant has been issued upon the request of the public prosecutor during the investigation phase. The public prosecutor or the suspect and his lawyer may request the criminal judge of peace to convert the arrest into judicial control. It should be noted that this procedure will be applied in converting the arrest into judicial control. Otherwise, according to the second paragraph of the article, the public prosecutor may request judicial control or judicial control during the investigation phase. "If he decides that there is no need for arrest, he can release the suspect himself; there is no need for a judge's decision in this regard. When the public prosecutor decides that there is no need for prosecution, the suspect will be automatically released."

CMK 103/2. The article states that the Public Prosecutor may release the suspect ex officio. According to the relevant article; If, during the investigation phase, the public prosecutor decides that judicial control or arrest is no longer necessary, he/she releases the suspect ex officio. When a decision is made not to prosecute, the suspect is released.

This provision finds its application only in the investigation phase. Although this provision, which gives the prosecutor the authority to revoke the arrest warrant, is very important, it can be said that prosecutors do not use this authority much in practice.

REQUEST FOR RELEASE OF THE DETAINED

The detainee has the right to request release at every stage of the investigation and prosecution. The prisoner's request for release is regulated in Article 104 of the Criminal Procedure Code.

104/2. According to the article; "The judge or the court decides whether the suspect or defendant will continue to be detained or released. These decisions may be objected to."

"When the file arrives at the regional court of justice or the Supreme Court, the decision on the request for release is made after the review of the file by the regional court of justice or the relevant chamber of the Supreme Court of Appeals or the General Criminal Assembly of the Supreme Court of Appeals; this decision may also be given ex officio." 104/3

The procedure specified in Article 105 of the Criminal Procedure Code shall be applied in requests for withdrawal of the arrest decision, removal of the arrest decision, or release of the detainee. Accordingly; "Upon the request made in accordance with Articles 103 and 104, the authority decides to accept, reject or apply judicial control within three days, after taking the opinion of the public prosecutor, suspect, defendant or defense attorney. "This period is applied as seven days for crimes committed within the framework of organizational activities, except for requests made in accordance with the first sentence of the first paragraph of Article 103." "The opinion of the public prosecutor, suspect, defendant or defense attorney is not taken when making this decision outside the hearing." These decisions may be appealed."

INFORMING THE PRISONER'S CONDITION TO THEIR RELATIVES

It is not possible to limit the rights of the detainee only by informing his/her situation to his/her relatives. However, the lawmaker also stipulates that the detainee's situation must be notified to his relatives.

According to Article 107 of the Criminal Procedure Code; "A relative of the detainee or a person determined by the judge is notified without delay of any decision regarding the arrest and the extension of detention. In addition, the detainee is allowed to personally inform a relative or a person determined of the arrest, provided that it does not endanger the purpose of the investigation. When the suspect or defendant is a foreigner, the situation of arrest is notified to the consulate of the state of which he is a citizen, unless he objects in writing."

REVIEW OF DETENTION

Provisions regarding the review of detention, also known as detention review, are regulated in Article 108 of the CMK. According to the justification of the article; "The article obliges the authority to examine at regular intervals whether the detention will need to be continued, both during the investigation and prosecution phases, and thus aims to prevent the unnecessary prolongation of a measure that temporarily destroys personal freedom, such as arrest."

Review of Detention During the Investigation Phase

During the investigation phase, the request to review the detention is made by the Public Prosecutor. This request is examined by the criminal judgeship of peace. Review of detention should be done every thirty days at the latest. Article 108 states that the suspect or his defense counsel must be heard during the detention review. Therefore, during the investigation phase, the detention review is carried out with a hearing. According to the 2nd paragraph of the article; Examination of the detention status may also be requested by the suspect within the period specified in the above paragraph.

Review of Detention During the Prosecution Phase

CMK 108/3. According to the article; "The judge or the court decides ex officio whether the detention of the defendant in the detention center should continue or not, at each session or, when the conditions require, between sessions or within the period stipulated in the first paragraph."

As can be understood from the article, a decision on this issue will be made ex officio at each hearing. A decision on this issue may also be made during the hearings.

When deciding whether the detention should continue, the judge or the court will make the necessary examinations as to whether the conditions in Article 100 do not continue and explain their decision on this matter with reasons.

Unlike the investigation phase, it is possible to review the detention through the file during the prosecution phase.

If the judge decides to continue detention during the detention review, both during the investigation and prosecution phases, he must justify this decision. The ECHR has deemed long periods of detention as a violation, with unjustified or duplicate decisions.

COMMENSATION DUE TO UNFAIR ARREST

If the detention measure is applied excessively and without complying with legal conditions, the situation of unjust detention will come to the fore. Under these circumstances, the unjustly detained person will have the right to file a lawsuit for compensation. The details of the subject are included in our review titled Compensation Case Due to Protection Measures.