Capture order

The law enforcement or the prosecutor must act meticulously when evaluating whether there is a situation that requires arrest. You can find detailed information about the reasons and conditions of arrest in our review titled Arrest Decision. It should also be noted here that when the law enforcement or public prosecutor makes an arrest without an arrest warrant, in terms of arrest:

• The existence of concrete evidence indicating a strong suspicion of crime,
• There must be a reason for arrest,
• The proportionality of the arrest,

They have to observe it.

Situations that require arrest are 98/2 of the CMK. It is regulated in the article. According to the relevant article:

"Public prosecutors and law enforcement officers may also issue an arrest warrant for a suspect or defendant who escapes from a law enforcement officer while being caught, or a detainee or convict who escapes from a detention center or penal institution."

It should not be forgotten that in addition to the situations that require capture or detention, the existence of other conditions is also required. In cases where there is no harm in delay or where the public prosecutor or law enforcement chief can be reached, law enforcement cannot make an arrest on their own.

2- SITUATIONS WHICH CAN BE CAUGHT BY ANYONE

19/3 of the Constitution. According to the article; Arrest without a judge's decision can only be made in flagrante delicto or in cases where delay is harmful; The law specifies the conditions for this.

As can be seen, it is regulated that anyone can be arrested upon the Constitutional conditions being stated in the law. In parallel with the constitutional regulation, CMK 90/1. The article contains the following regulation:

Temporary arrest can be made by anyone in the following cases:

a) The person is encountered while committing the crime.

b) There is a possibility that the person being followed due to a red-handed act will escape or there is no possibility of immediately determining his identity.

CMK's 2/1 j. According to the article; red handed:

1. The crime being committed,

2. The crime committed by the law enforcement, the person who was harmed by the crime or the person who was followed and caught by others immediately after the action was committed,

3. It refers to the crime committed by a person who is caught with objects or evidence showing that the act has just been committed.

In Article 4 of the Regulation on Arrest, Detention and Taking Statements, the state of in flagrante delicto; The crime that is being committed is defined as the crime committed by the person who was caught by law enforcement, the person who was harmed by the crime or was caught by others immediately after the crime was committed, and the crime committed by the person who was caught with objects or evidence showing that the action had just been committed.

In the above cases, arrest can be made by anyone, whether they have official duties or not. It does not matter whether the person is a law enforcement officer or a private citizen or whether he or she is of legal age or not.

The main purpose of granting such a right is to prevent any inconvenience that may occur due to delay.

In order for anyone to be caught, there must first be a crime that has reached at least the stage of attempt. Otherwise, capture cannot be made. Preparatory movements are not sufficient for capturing.

Catching the person being followed after committing a crime is also considered red-handed.

Anyone can be caught red-handed. It is possible to catch even those with certain characteristics here. For example, MPs.

The person making the arrest must hand over the captured person to law enforcement. Algebra can be used during capture, provided that it is not excessive. If conditions for self-defense are met, a separate evaluation is made.

A person caught by third parties may be held for a certain period of time. This period should be limited to the time during which law enforcement officers can be reached. Otherwise, crime of depriving a person of liberty may occur.

ACTIONS TO BE TAKEN AFTER CAPTURE

CMK's 90/5. According to the article; The public prosecutor is immediately informed about the person and the incident caught and handed over to the law enforcement in accordance with the first paragraph, or caught by the officers in accordance with the second paragraph, and action is taken in accordance with his order.

The person caught may be searched. Here, the search must be carried out in a roll call manner and a separate search warrant is not required. An example Supreme Court decision on the subject is as follows:

"Apprehension is a protection measure that restricts the freedom of a person. Due to its nature, it is a more comprehensive process than a body search. In accordance with Article 90/4 of the CMK, which regulates the procedures to be carried out regarding the arrest and the captured person, the law enforcement must take measures to prevent the captured person from escaping or harming himself or others. In this context, a rough body search can be carried out as a precaution after the person is caught. In addition, this search, which does not require a decision, should be carried out as a manual search as soon as possible and carefully. This process is another. In other words, a search is not a search. Therefore, there is no need to follow the search procedure. However, the search should not reach the extent of a search. (Veli Özer Özbek-Koray Doğan-P. Bacaksız-İ. Tepe, Criminal Procedure Law, Seçkin, 9th Edition, 2017, p. 305) It is not possible to completely remove the clothes on the captured person and search his body.

According to Article 6 of the Regulation on Arrest, Detention and Taking Statements:

In order to prevent the captured person from escaping or harming himself or others, a rough body search is carried out and he is cleared of weapons and similar items.

Measures are taken to prevent the traces, signs, artifacts and evidence of the crime from being destroyed or damaged during the arrest.

The arrested person is immediately notified, regardless of crime, of the reason for his arrest and the allegations against him, as well as his rights to remain silent, to benefit from counsel, to object to being caught, and how to exercise his other legal rights and the right to object, probably in writing, and if this is not immediately possible, orally.

In case of an arrest by law enforcement, the action, the person caught and the measures taken are immediately reported to the public prosecutor.

A relative of the arrested person or a person designated by him is notified without delay of the arrest and the order to extend the period of detention, upon the order of the public prosecutor.

The capture process is recorded in a report. In this report, it is clearly written that the person who was caught was caught for what crime, under what circumstances, at what place and time, who made the arrest, which law enforcement officer detected him, and his rights are fully explained, and a copy of this report is given to the caught person. This person is also issued a signed copy of the "Apprehension and Detention Report Suspect and Defendant Rights Form" (Annex-A) annexed to this Regulation, indicating that his/her rights have been notified in writing and that this issue has been understood by him/her.

In cases where the person who is being watched while committing a crime or an act of red-handed crime has the possibility of escaping, or who is caught by others and handed over to law enforcement officers because of not being able to identify him/her immediately, or who is caught by law enforcement officers in these cases, or in cases where an arrest warrant or arrest warrant is required and delay is harmful; Since it is not possible to immediately apply to the public prosecutor or superiors, the public prosecutor is immediately informed about the person and the incident caught by law enforcement officers and action is taken in accordance with his order. The verbal order given by the public prosecutor is converted into written form as soon as possible and, if possible, notified to the relevant law enforcement agency through the fastest communication possible; Otherwise, it is made ready for collection by the relevant law enforcement officers. However, the law enforcement officer carries out the verbal order without waiting for the order to be put in writing.

If the captured person is not released upon the order of the public prosecutor, he is taken into custody to complete the investigation.

After the provision of the second paragraph of this article is applied to persons who are captured for the purpose of being taken into custody, the reason for the arrest, the right to object to the arrest and how to exercise this right are immediately notified. Those who need to be taken to a correctional or treatment institution are delivered to the relevant institutions. In case of non-delivery, the situation is recorded in a report and a copy of the report is sent to the local authority.

SEARCH OF THE CAUGHT PERSON

We have included some explanations about the search for the captured person above. However, due to the importance of the issue, we feel the need to make a more detailed explanation. Because there are various situations related to the search for the caught person and the possibility of different results may arise.

First of all, CMK 90/4. As stated in the article; After taking measures to prevent him from escaping or harming himself or others while he is caught, the law enforcement immediately informs the caught person of his legal rights. A similar regulation is included in Article 8 of the Regulation on Judicial and Preventive Searches. Accordingly; A search warrant is not required for a rough body search to be carried out by a judge's decision or written order of the public prosecutor or directly by the law enforcement to prevent the person arrested from harming himself, others or the law enforcement officers who made the arrest.

It is accepted here that the person caught will be searched in the form of a rough body search. The concept of rough body search has been included in the legislation by regulation. The purpose of the provision is essentially to prevent the law enforcement from detecting weapons, etc., that may be found on the person caught in order to protect himself or others. is to remove substances. However, since the law states that search warrants cannot be given by law enforcement, there is a contradiction between the regulation and the law. Despite these contradictions, it should be accepted that law enforcement can carry out a simple search without aiming to obtain evidence.

8/f of the Regulation. According to the article; There is a provision that a search can be carried out in case of flagrante delicto without the need for a search warrant.

When the Supreme Court decisions are examined, it is seen that it is ruled that anyone caught red-handed can be searched without a search warrant. We will share some Supreme Court decisions regarding this situation, which is generally encountered in drug trafficking crimes. As can be seen from the decisions below, the Supreme Court finds it lawful to search a person caught red-handed without a search warrant and to impose a seizure measure on the items seized as a result of the search. However, in order for this evidence to be considered lawful, the search must not reach the level of a judicial search and remain at the level of a simple examination. For example, a judicial search warrant is required to search the closed compartments of the vehicle, and it is against the law to conduct such a search without a decision. Generally, in almost every arrest, the minutes state that the arrested person delivered the prohibited substance himself or that a prohibited substance was found in visible parts of his vehicle. Such situations should be examined carefully. Some of the decisions of the Supreme Court on the subject are as follows:

"According to the Additional Article 4 of the PVSK No. 2559, when faced with a crime, the officers who are responsible and authorized to seize the crime and detect and preserve the evidence, regardless of their branch of service, based on their professional experience and the impression they have gained from the situation, the behavior of the defendant, who was previously known for the crime of drug trafficking, was a crime that was being committed because the witness waiting on the street got into the vehicle driven by the witness and the vehicle in question moved and entered a nearby street. They suspected the existence of a crime, when the officers went to the street in question and approached the parked vehicle, the witness sitting in the driver's seat was seen to have 20 TL in his hand and the defendant was exhibiting an anxious behavior, which further increased the suspicion of the existence of a crime in progress. Due to this reasonable reason, the officers asked the defendant and the witness to get out of the vehicle, and because there was sufficient suspicion that the defendant and the witness might have a weapon or other dangerous item on them and in the vehicle in question, PVSK 4/A Within the scope of the measures to be taken based on the authority granted by the article, when the parts of the vehicle that are visible from the outside are checked, the incriminating drug found openly and visibly between the driver's seat and the right front seat was seized, the defendant was caught on suspicion of committing the crime of possessing drugs for the purpose of selling them continuously, in this case, there was a "red-crime" situation defined in paragraph (j) of Article 2 of the CMK and Article 4 of the Regulation on Judicial and Preventive Searches, and his duty was to prevent the commission of the crime and to ensure public order and security. During the patrol duty carried out at the crime scene, the law enforcement officer encountered a crime being committed for the first time, in other words, a "red-crime" situation, without any prior notice or intelligence information about the defendant and the crime committed, and based on the authority given by Article 90/4 of the CMK and Article 13/1-A and Annex 6 of the PVSK, the measures taken immediately and after keeping the narcotics under safe custody in order to prevent the loss of criminal evidence. 8 of the Regulation on Judicial and Preventive Searches, which also explains the Additional Article 6 of the PVSK, where he informed the Public Prosecutor about the concrete incident, and subsequently the investigation procedures started in line with his orders.According to the regulation in paragraph (f) of the article; Since it is understood that there is no need to obtain a separate search warrant or decision in case of flagrante delicto, therefore, the seizure and preservation of the drugs, which constitute the evidence and subject of the crime, is lawful and there can be no illegal evidence, the Special Chamber's decision to overturn is inaccurate. The file had to be submitted to the Chief Public Prosecutor's Office of the Supreme Court of Appeals to be sent to the 20th Criminal Chamber of the Supreme Court of Appeals for examination of the merits of the verdict." YCGK 2018/305 K.

"The vehicle, about which no information was obtained during the communication interception and physical follow-up studies, was found to be together and in contact with other vehicles during the follow-up during the operation as a result of the attention of the law enforcement officers, the vehicle in question, which was in motion and in danger of destroying or losing the evidence, was stopped based on the existence of a reasonable reason based on the experience of the police and the impression they gained from the situation in accordance with Article 4/A of the PVSK, and in the search made based on the preventive search decision of the Criminal Court of Peace, there was a closed part of the vehicle. There was no unlawful situation in the seizure of the incriminating drug in his luggage, the fundamental rights and freedoms of the defendants guaranteed by the Constitution and other laws were not violated, the preventive and deterrent measures taken by the law enforcement officers due to the seizure of the incriminating drug, which posed a great danger to public health, were proportionate, the seized drugs were obtained within the scope of the measures that had to be taken immediately to prevent the crime evidence from being lost, in this respect, there can be no evidence obtained illegally within the scope of the file, in this context, a judicial search warrant or written search is required for a search. It should be accepted that it is not necessary to investigate whether there is a warrant or not." YCGK 2019/220 K.

"..because the law enforcement officers who were investigating the intelligence information at the scene encountered a crime in progress, in other words, a state of "red-crime", based on the authority given by Article 90/4 of the CMK and Article 13/1-A and Annex 6 of the PVSK, they immediately took the necessary measures to prevent the crime evidence from being lost, kept the narcotics under safekeeping, and subsequently informed the public prosecutor about the concrete incident with the measures they implemented. Since it is understood that the investigation procedures are continuing in line with the orders, and that according to the regulation in paragraph (f) of Article 8 of the Regulation on Judicial and Preventive Searches, which is also explanatory of the Additional Article 6 of the PVSK, there is no need to obtain a search warrant or decision in case of flagrante delicto, and therefore the seizure and preservation of the drugs, which constitute the evidence and subject of the crime, is lawful and there can be no unlawful evidence, the decision of the Special Chamber is not correct." YCGK 2019/483 K.

"In the decision of the Supreme Court Criminal General Assembly dated 18.10.2016 and numbered 2016/10-57 main decision 2016/374, there is a state of flagrante delicto due to the defendant being stopped on suspicion and in the paragraph (f) of Article 8 of the Regulation on Judicial and Preventive Searches, Annex 6 of the CMK No. 90/4, PVSK No. 2559. When the regulations stating that a search can be carried out without taking a decision in case of "red-handed crime" are evaluated together, it is understood that it is lawful for law enforcement officers to take the necessary measures immediately within the scope of their authority and responsibilities to seize and confiscate the drugs on the defendant due to the fact that they encounter a crime in progress, and that in this case, there is no need to obtain a search warrant and therefore there is no unlawful evidence, it is clear that the procedures carried out by the law enforcement regarding the search of the defendant who was caught while transporting drugs in the concrete case are in accordance with the law.

APPROPRIATION IN CRIMES DUE TO COMPLAINT

CMK 90/3. According to the article; Although the investigation and prosecution depend on the complaint, the arrest of the person in flagrante delictos committed against children, those who are incapable of managing themselves due to physical or mental illness, disability or weakness, is not dependent on the complaint.

The first conclusion from the provision is that in crimes based on complaint, if the complaint requirement is not met, an arrest cannot be made. This provision is open to criticism. Because in cases where anyone can be arrested, it will not be possible for individuals to evaluate whether the crime committed is subject to complaint or not. In a red-handed situation, individuals must make instant decisions and usually do not have the opportunity to think.

Law enforcement officers cannot make an arrest for a crime that is not subject to a complaint. Essentially, this part should be understood as follows. Except for cases of red-handed crime, law enforcement forces and the public prosecutor cannot make an arrest without the complaint requirement being met. In crimes based on a complaint, the issue of an arrest warrant for a crime depends on the complaint. However, if the perpetrator is caught by the law enforcement or citizens in flagrante delicto, the next steps should be taken depending on whether the complaint has been made or not. Because according to Article 96 of the CMK; According to the third paragraph of Article 90 regarding the crime whose investigation and prosecution depends on the complaint, if the suspect is caught before the complaint, the person authorized to make the complaint and if there are more than one, at least one of them is notified of the arrest.

RIGHTS OF THE CAUGHT

1- Informing the Caught Person of Their Rights

The arrested person is immediately notified, regardless of crime, of the reason for his arrest and the allegations against him, as well as his rights to remain silent, to benefit from counsel, to object to being caught, and how to exercise his other legal rights and the right to object, probably in writing, and if this is not immediately possible, orally. (YGİY 6/4)

These rights must be immediately communicated to the person caught. It is seen that the ECHR has made many violation decisions due to the failure to declare these rights. The person who is caught must be informed immediately, especially the reason for the arrest.

2-Informing the Situation of the Captured Person to His Relatives

When the suspect or defendant is caught, taken into custody, or the period of detention is extended, a relative or a person determined by the public prosecutor is notified without delay.

If a foreigner is captured or detained, his situation is reported to the consulate of the state of which he is a citizen, unless he objects in writing. (CMK article 95)

The person caught;

a) If there is a person with him, through this person,

b) If he/she resides in the place where the crime was committed or caught and knows the telephone number of the relative to whom he/she will notify, or if he/she can be identified by law enforcement in any other way, by telephone,

c) If he/she does not know the phone number of the relative he/she will notify, through the relevant local law enforcement,

d) If the person's residence is outside the crime scene, a relative or a designated person is notified without delay by telephone or by contacting the person's address, upon the order of the public prosecutor, that he/she has been caught, detained or the period of detention has been extended.

If the person captured or detained is a foreigner, the embassy or consulate of the country of which he is a citizen is notified, unless he objects in writing.

For the purpose of being taken under protection, the person's arrest is immediately notified to the legal relatives of the person. (YGİY article 8)

3- Notification of the Capture to the Relevant Persons

According to the third paragraph of Article 90, regarding the crime whose investigation and prosecution depends on the complaint, if the suspect is caught before the complaint, the person authorized to file the complaint and if there are more than one, at least one of them is notified of the arrest. (CMK article 96)

4-Taking the Caught for Health Check

In cases where the arrested person is going to be taken into custody or is caught by force, the person's health condition at the time of arrest is determined by being examined by a physician. (YGİY article 9/1)

TIME OF TAKING THE CAUGHT PERSON TO COURT AND RELEASE

Any person caught during the investigation or prosecution phase upon an arrest warrant issued by a judge or court shall be brought before the competent judge or court within twenty-four hours at the latest. (CMK article 94/1).

If the arrested person cannot be brought before the competent judge or court within twenty-four hours at the latest, this person is interrogated or his statement is taken by the competent judge or court within the same period, by using the audio and video communication system established at the courthouse where he was caught, or if not available, at the nearest courthouse. (CMK article 94/2)

The public prosecutor may order the release of a person who is caught outside working hours upon an arrest warrant issued for the purpose of taking a statement and who undertakes to appear before the judicial authority on the specified date. This provision can only be applied once for each arrest warrant. A person who does not fulfill his/her commitment will be given an administrative fine of one thousand Turkish liras by the public prosecutor of the place where the arrest warrant was issued. (CMK article 94/3)

PLACE AND TIME OF CAPTURE

The legislator has not made any regulation regarding the time of arrest. Therefore, capture can be done day or night.

There is no distinction in terms of the location of capture. However, a search warrant is needed to make arrests at people's residences or workplaces.

OBJECTION TO THE APPROPRIATION DECISION

If the arrest was made at the prosecution stage, this decision can be objected to according to general provisions. The objection period is 7 days.

The provision of CMK 91/5 should be checked against the arrest made during the investigation phase. Accordingly:

Against the written order of the public prosecutor regarding the arrest, detention and extension of the detention period, the arrested person, his defense attorney or legal representative, his spouse or his first or second degree blood relative may apply to the criminal judge of peace to ensure immediate release. The criminal judge of peace examines the documents and concludes the application immediately and before the end of twenty-four hours. If it is deemed appropriate to arrest or detain or extend the period of detention, the application is rejected or it is decided that the arrested person is immediately present at the Public Prosecutor's Office with the investigation documents.

PROHIBITION OF RECAPTURE

CMK 91/6. According to the article:

The person who is released after the expiration of the detention period or upon the decision of the criminal judge of peace cannot be arrested again for the same reason unless new and sufficient evidence is obtained regarding the act that caused the arrest and unless the decision of the public prosecutor is made.