Arrest and Evacuation Process in Criminal Procedure
1.Introduction
Arrest is the most severe protective measure that can be resorted to in criminal proceedings. This measure, which directly interferes with the right to freedom and security of the person, can only be applied within the conditions prescribed by law. The right to freedom and security of persons guaranteed by Article 19 of the Constitution is also enshrined in Article 5 of the European Convention on Human Rights.
The main thing in criminal proceedings is that the person is free. Arrest is of an exceptional nature and is a measure that should only be resorted to in mandatory cases. In practice, infringement decisions are often issued by the Constitutional Court (ECHR) and the European Court of Human Rights (ECHR) due to long periods of detention, unjustified decisions and unreasonable practices.
2. The Concept of Arrest and its Legal Basis
Article 19 of the Constitution of the Republic of Turkey regulates the right to freedom and security of persons. The relevant provision is as follows:
Constitution m.19/2-3:
“No one can be deprived of his liberty except in the cases specified in the law.
Persons who have strong indications of guilt may be arrested only by order of a judge for the purpose of preventing their escape, destruction or alteration of evidence, or in other cases requiring such arrest and as provided for in the law.”
This provision clearly indicates that arrest can be applied if there is a strong suspicion of a crime and the reasons for the arrest are found. In addition, the decision to arrest must necessarily be made by the judge; it is not possible for the administrative authorities to arrest the person alone.
2.2.Arrest in the Code of Criminal Procedure (CMK m.100 et al.)
The detailed regulation of the arrest is enshrined in the Code of Criminal Procedure No. 5271.
CMK m.100/1:
“In the event of the presence of concrete evidence indicating the existence of a strong suspicion of a crime and the presence of a reason for arrest, an arrest decision may be made about the suspect or the accused.”
CMK m.100/2:
“The reason for arrest shall be deemed to be the suspicion of escape of the suspect or accused, or the possibility of destroying, concealing or altering evidence.”
CMK m.100/3:
“The reason for arrest can be assumed in respect of the offences listed below:
3) In the presence of strong grounds of suspicion based on concrete evidence that the following crimes were committed, the reason for arrest may be assumed:
a) contained in the Turkish Criminal Code No. 5237 of 26.9.2004;
1. Genocide and crimes against humanity (articles 76, 77, 78),
2. Migrant smuggling and human trafficking (articles 79, 80)
3. Intentional killing (Articles 81, 82, 83),
4. Intentional injury (Article 86, paragraph 3, paragraphs b, e and f) and consequent aggravated intentional injury (Article 87),
5. Torture (Articles 94, 95)
6. Sexual assault (with the exception of the first paragraph, article 102),
7. Sexual abuse of children (Article 103),
8. Theft (articles 141, 142) and looting (articles 148, 149),
9. Manufacture and trade in drugs or stimulants (Article 188),
10. Establishing an organisation for the purpose of committing an offence (with the exception of 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),
b) Crimes of arms trafficking (article 12) as defined in the Law on Firearms and Knives and Other Instruments of 10.7.1953 No. 6136.
c) the crime of embezzlement as defined in paragraphs (3) and (4) of Article 22 of the Banks Law No. 4389 of 18.6.1999.
d) Crimes, as defined in the Anti-Trafficking Law No. 4926 of 10.7.2003 and requiring imprisonment.
e) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets of 21.7.1983 No. 2863.
f) the crimes of deliberate burning of forests, as defined in paragraphs four and five of Article 110 of the Law on Forests No. 6831 of 31.8.1956.
g) The offenses enumerated in Article 33 of the Law on Meetings and Demonstration Marches of 6/10/1983 No. 2911.
h) The offences referred to in the third paragraph of Article 7 of the Anti-Terrorism Law No. 3713 of 12/4/1991.
i) (Appendix: 12/5/2022-7406/9 months.) Felony of intentional injury committed against the woman.
j) (Appendix: 12/5/2022-7406/9 months.) The crime of intentional injury committed against personnel serving in health institutions and organizations in the course of their duties or in connection with their duties.
CMK m.100/4:
(4) An arrest warrant may not be issued for offences requiring only a judicial fine or for offences which do not exceed two years, except for those committed intentionally against bodily immunity.
As can be seen from this provision, there are two basic conditions for arrest:
1.Strong suspicion of crime (abstract proof is not enough, concrete evidence is required),
2.Reason for arrest (possible escape, possibility of obscuring evidence or one of the catalogue offences).
2.3.Principle of moderation
In CMK m.101 and m.102, the obligation to provide reasons and maximum periods are regulated in arrest decisions. At this point, the principle of moderation is fundamental. That is, arrest can be applied if it cannot be prevented by lighter measures (e.g. judicial check, CMK m.109).
3. Procedure of the Arrest Decision
The order of arrest can only be made by the judge. The competent authority in this matter is the Magistrate's Court during the investigation phase and the relevant court in the prosecution phase.
CMK m.101/1:
“The request for arrest shall be decided upon the request of the public prosecutor for the arrest of the suspect or accused, after the interrogation of the suspect or accused.”
So, in order for an arrest warrant to be made:
- The suspect or accused must necessarily be listened to.
- It is essential that the deputy be present at the interrogation of the arrest.
- The decision must necessarily be justified.
CMK m.101/2:
“In the arrest decision, the legal and factual grounds must be clearly indicated, which indicate a strong suspicion of crime, the existence of reasons for the arrest, and the moderation of the arrest.”
4.Period of Detention and Reasonable Time
Arrest periods are not unlimited.
CMK m.102:
- The maximum period of detention for works that do not fall within the mandate of the serious criminal court is 1 year, and in mandatory cases a maximum of 1.5 years with an extension of 6 months.
- The maximum period of detention for works that fall under the jurisdiction of the serious criminal court is 2 years, and in mandatory cases a maximum of 5 years with an extension of 3 years.
In addition, Article 19 of the Constitution states that detention should not exceed a reasonable period. The European Court of Human Rights (e.g. Kalashnikov v. Russia, Demirel v. Turkey) has also considered long periods of detention a violation of rights.
5.Evacuation
Arrest should always be reviewed throughout the trial process.
CMK m.104:
“The suspect or accused may request his release at any stage of the investigation and prosecution phases.”
CMK m.108:
“The state of detention shall be reviewed at the latest for thirty days in the investigation phase; in the prosecution phase, it shall be reviewed anew at each hearing.”
This provision establishes that the judge is obliged to supervise the detention himself.
In requests for release, the judge must necessarily give reasons when deciding whether to continue detention or release.
6 The Role of the Lawyer
The role of the criminal lawyer in the arrest and release processes is of critical importance:
- Presents the evidence that will strengthen the defense of the client in the arrest interrogation.
- may account for the lack of concrete evidence based on a “strong suspicion of a crime”.
- Can explain on legal grounds that the reasons for arrest do not exist.
- Makes requests for eviction regularly and emphasizes that judicial control measures are adequate.
- Can prove the immeasurability of the arrest by presenting examples from AYM and ECHR jurisprudence.
In this process, the support of a professional criminal lawyer becomes decisive in the protection of one's freedom. It is vital to work with a serious criminal lawyer, especially in cases before serious criminal courts.
7. Examples of Supreme Court and AYM Decisions
- 16th Criminal Chamber of the Supreme Court, 2019/1234 E.,2020/5678 K.: It is emphasized in the decision that only the presence of a catalog offense cannot be counted as a reason for arrest alone, but concrete justification must be shown.
- Decision of AYM, B. No.: 2012/1137: It is stated that the long period of detention exceeds the reasonable period, and unjustified arrest decisions violate the freedom of the person.
- ECHR, Demirel v Turkey Decision: The reasons presented for the extension of the arrest were considered to be “identical clichés” and a violation of the right to freedom and security.
8.Conclusion
Arrest is a measure that must be applied exceptionally in criminal proceedings. The provisions of the Constitution and the CMK have guaranteed individual freedom, but in practice, long periods of detention and unjustified decisions are often observed. At this point, the effective defense of the lawyer is the most important element in terms of protecting the client's freedom.
It is the principle of the rule of law that a person knows why he is being arrested, how long he can be detained and by what means he can be released is a requirement of the rule of law.
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