In Turkey, criminal law is frequently wielded as a tool to silence dissent, reflecting a broader pattern of suppressing free expression. Journalists and human rights defenders are routinely targeted for their work, ordinary citizens voicing their opinions on social media or other public forums can face criminal charges. These charges entangle them in lengthy and exhausting legal processes, creating a climate of fear and self-censorship. The chilling effect on society is profound, stifling diverse viewpoints and discouraging civic engagement, which are essential for a functioning democracy.
International trial monitors, journalists, and human rights defenders play a crucial role in reporting on the misuse of criminal law to suppress freedom of expression in Turkey. However, as criminal procedure is a complex discipline that can vary across jurisdictions, it may be difficult for international observers to comprehend the intricacies of the Turkish criminal law system, and to report and comment on it accurately.
This webpage is designed to serve as a comprehensive manual of Turkish criminal procedure for international observers. It covers each stage of a criminal case, starting from the discovery of the suspicion that a crime has been committed; explaining the competence and authority of law enforcement, Public Prosecutors and Criminal Peace Judgeships during the investigation stage, the competence and authority of the Criminal Court of First Instance and Assize Court during the trial stage, appeal procedures at Regional Courts of Justice and the Court of Cassation, and ending with individual applications to the Constitutional Court. Explaining each step in clear wording and referencing relevant articles of relevant laws, the webpage aims to guide the audience correctly where further research is needed. Special attention is paid to the rights of suspects and defendants, making it easier for observers to identify unlawful proceedings. Emphasis is placed on “protection measures” such as arrest, custody, detention, judicial control, search and seizure, and surveillance of telecommunications, which are often abused in cases relating to the freedom of expression.
Investigation stage
At the end of this stage, the prosecutor will take one of the following actions:
If the report of crime or the criminal complaint are ‘general and abstract’, or if it is evident that the act in question does not constitute an offence, the prosecutor will make a “decision not to investigate’. In such cases, the individual said to have committed the act will not be considered a “suspect” as the investigation phase will not have been initiated. The complainant (the victim or others harmed by the act who filed a criminal complaint) retains the right to object to this decision (Art. 158/6 CCP).
► Lack of evidence with sufficient gravity to initiate public prosecution
At the end of the investigation stage, if the evidence collected does not allow to substantiate sufficient suspicion for prosecution, the prosecutor will make a decision of ‘no ground for prosecution’ (Art. 172 CCP). Even when enough evidence has been collected, the prosecutor retains the discretion to make a decision of no ‘ground for prosecution’.
After a decision of ‘no ground for prosecution’ has been made, the victim and others harmed by the act may object to the decision at the Criminal Judgeship of Peace within 15 days (from 1 June 2024, this timeframe will be ‘two weeks’) (Art. 173 CCP).
► Effective remorse / personal exemption from punishment
The prosecutor may also render a decision of ‘no ground for prosecution’ in instances where reasons for the implementation of effective remorse or grounds of personal exemption from punishment are present (Art. 171/1 CCP).
► Mediation
The prosecutor may also render a decision of ‘no ground for prosecution’ in instances where reasons for the implementation of effective remorse or grounds of personal exemption from punishment are present (Art. 171/1 CCP).
Subject to exceptions, if the sentence designated for the offence in question necessitates a prison sentence of less than three years, and provided that the suspect fulfils certain conditions such as never having previously been sentenced to prison for a crime of intent, and compensating the victim for the damages caused, the prosecutor may postpone the initiation of public prosecution for five years.
When the initiation of prosecution is postponed, if the person does not commit another crime within the subsequent five years, the prosecutor will make a decision of ‘no ground for prosecution’ (Art. 171/2 CCP).
At the end of the investigation stage, if the evidence collected substantiates sufficient suspicion that a crime has been committed, the prosecutor will prepare an indictment, and submit it to the relevant court (Art. 170 CCP).
The court may accept the indictment within 15 days of its submission. If the indictment is not returned by the court within this timeframe, it will be deemed accepted (Art. 174/3 CCP).
The trial stage begins with the acceptance of the indictment by the court (Art .175 CCP).
Within 15 days after the prosecutor has submit the indictment to the court, the court may return the indictment to the prosecutor. Examples of situations necessitating the indictment to be returned include instances where the indictment was prepared without the collection of evidence directly affecting the substantiation of the offence, where the act in question is one that can only be investigated where the victim or others harmed by the act file a criminal complaint and such a complaint has not been filed, where mediation, prepayment or the accelerated trial procedure were supposed to be applied and they weren’t, among others (Art. 174 CCP).
When the court returns the indictment to the prosecutor, the prosecutor will either make a decision of ‘no ground for prosecution’,or complete the indictment addressing gaps or deficiencies indicated by the court and resubmit it (Art. 173 CCP).
During the investigation stage
Law enforcement plays a crucial role in the criminal justice system. It comprises two main branches: administrative law enforcement, and judicial law enforcement. Administrative law enforcement focuses on crime prevention, while judicial law enforcement intervenes after an offence has been committed. Judicial law enforcement officers are tasked with apprehending suspects, gathering evidence, and building a case for prosecution. They operate under the orders and instructions of the prosecutor (Art. 164 CCP).
The prosecutor leads the investigation stage, with their primary responsibility in criminal procedure being to conduct investigations.When faced with an allegation suggesting that an offence has been committed, whether through a report of crime or other means, the prosecutor will promptly start investigating the factual truth in order to determine whether to file public charges. For a fair trial, the prosecutor will collect and secure evidence both in favour and against the suspect with the help of the judicial law enforcement under their command (Art. 160 CCP).
The prosecutor monitors judicial activity on behalf of the public, participates in trials and applies for legal remedies when necessary. They also carry out and monitor the execution of final judgments.During both the investigation and trial stages, the prosecutor has the authority to request protection measures (such as detention, search and judicial control) from the judge or court.
The prosecutor monitors judicial activity on behalf of the public, participates in trials and applies for legal remedies when necessary. They also carry out and monitor the execution of final judgments.During both the investigation and trial stages, the prosecutor has the authority to request protection measures (such as detention, search and judicial control) from the judge or court.
Criminal Judgeships of Peace are not courts; they are judgeships that operate during the investigation stage. The prosecutor is responsible for conducting the investigation, but some measures may be needed during this stage that risk interference with fundamental rights and freedoms. It is a requirement of the rule of law that such measures be taken by judges and not prosecutors. The primary responsibility of Criminal Judgeships of Peace is therefore to make the decisions during the investigation stage that may only be made by a judge (such as detention and judicial control) upon request by the prosecutor.
Decisions of Criminal Judgeships of Peace can be objected to, within seven days of their announcement (Art. 267 CCP). These objections are examined by the next Criminal Judgeship of Peace in line in the same judicial area, except for decisions of detention and judicial control which are examined by a judge at the Court of First Instance (Art. 268/3 CCP).
International bodies including the Venice Commission and the Council of Europe Commissioner for Human Rights have expressed concern that such a closed-circuit system of horizontal objections -where decisions made by a Criminal Judgeship of Peace are examined by another Criminal Judgeship of Peace at the same level- may not provide sufficient assurance of impartial and meaningful examinations.
Decisions of Criminal Judgeships of Peace can be objected to, within seven days of their announcement (Art. 267 CCP). These objections are examined by the next Criminal Judgeship of Peace in line in the same judicial area, except for decisions of detention and judicial control which are examined by a judge at the Court of First Instance (Art. 268/3 CCP).
International bodies including the Venice Commission and the Council of Europe Commissioner for Human Rights have expressed concern that such a closed-circuit system of horizontal objections -where decisions made by a Criminal Judgeship of Peace are examined by another Criminal Judgeship of Peace at the same level- may not provide sufficient assurance of impartial and meaningful examinations.
Interview is the questioning of the suspect by law enforcement or by the prosecutor about the offence for which they are under investigation (Art. 2/g CCP).
Interrogation is the questioning of the suspect is by a judge about the offence for which they are under investigation (Art. 2/h CCP). During the investigation stage, interrogation is carried out by the Criminal Judgeship of Peace.During the investigation stage, the suspect is invited to be interviewed/ interrogated with a letter stating that if they do not present themselves, they will be brought in for the interview/interrogation by force (Art. 145 CCP).
During interview/ interrogation, authorities must:
- explain to the suspect the charges against them, and remind them of their right to remain silent
- inform the suspect of their right to the assistance of a defence counsel, including the right to request that an attorney be present during the interview
- inform the suspect that if they so require the Bar Association will appoint an attorney for them (Art. 147 CCP).
The suspect’s statements during their interview/interrogation must be based on their free will. Any circumstances undermining free will such as physical or mental intervention through abusive behaviour, torture, drug administration, exhaustion, deception, coercion or threats, or the offering of unlawful benefits are prohibited.Statements obtained through such prohibited methods are inadmissible as evidence in court (Art. 148 CCP).
Proceeds of an interview conducted by judicial law enforcement officers in the absence of a defence attorney cannot be used as the basis for a judgment unless confirmed by the defendant before a judge or court at a later time (Art. 148 CCP).
Protection measures limit the fundamental rights of the suspect or defendant for the sake of a healthy criminal procedural process. Protection measures, as they constitute an interference with a fundamental right, must be provided by law, be proportionate to the legitimate aim they pursue, and they must be temporary.
Arrest is the act of seizing someone.
Any individual can arrest another temporarily without a warrant where the person was caught while committing an offence and where there is the risk that the person caught committing an offence could escape and it would not be possible to determine their identity if they were let go (Art. 90/1 CCP).
Law enforcement officers can arrest an individual without a warrant where requirements for arrest or detention are met, but there is peril in delay and no immediate possibility to obtain a warrant from the prosecutor (Art. 90/2 CCP).
Law enforcement officers remind the individual of their rights immediately after taking the measures to prevent them from escaping and harming themselves or others (Art. 90/4 CCP).
From the moment of arrest and custody, the person has the following rights:
- to benefit from the legal assistance of an attorney,
- to remain silent,
- to object to arrest and custody,
- to undergo a medical check,
- to have their relatives informed,
- to be informed of their rights and the accusations against them.
The individual must undergo a medical check against possible ill-treatment or torture while in custody, where
- their medical condition deteriorates for any reason,
- the custody period is extended,
- they are relocated (such as being taken to different police stations, being taken from the police station to the courthouse or another change in their location)
- before their release (Regulation on Arrest, Custody and Interview Arts. 8&9).
During the investigation stage, where the suspect fails to appear upon a summons, or if it is not possible to serve a summons on them, the Criminal Judgeship of Peace may issue an arrest warrant upon the motion of the prosecutor (Art. 98/1 CCP).
Where an individual who was arrested without an arrest warrant is not released by the prosecutor, they may be held in custody for 24 hours, beginning at the time of the arrest. For an individual to be taken into custody, the measure must be necessary for the investigation and there must be concrete evidence indicating that they have committed the offence (Art. 91/1 CCP).
Subject to the individual having been discovered while committing the offence, for a limited number of offences listed in the law, designated senior law enforcement officers can decide for the individual to be held in custody for 24 hours, and up to 48 hours where the offence is committed collectively during events of civil disobedience where the violence may escalate and disrupt public peace (Art. 91/4 CCP).
A motion can be filed for the immediate release of the individual under custody, upon which the Criminal Judgeship of Peace makes a decision within 24 hours (Art. 91/5 CCP).
When the individual under custody is released, either because the custody period has expired or upon the decision of the Criminal Judgeship of Peace, the individual cannot be arrested again for the same offence unless there is new and sufficient evidence for their arrest and an arrest warrant is issued by the Criminal Judgeship of Peace (Art. 91/6 CCP).
If the person under arrest is not released, they will be brought before the Judgeship of Peace and interrogated at latest before the expiry of the custody period. The defence counsel must be present at the interrogation(Art. 91/7 CCP).
Detention is the most severe measure against the right to freedom and security. It is therefore a temporary measure employed as a last resort, and is limited to certain maximum periods as stipulated by law.
Where grounds for detention are present along with concrete evidence to substantiate a strong suspicion that the offence has been committed, the suspect or defendant may be detained (Art. 100/1 CCP). No one can be detained if detention is disproportionate to the gravity of the case or the anticipated sentence (Art. 100/1 CCP).
During the investigation stage, the Criminal Judgeship of Peace can decide for the suspect to be detained upon a motion by the prosecutor (Art. 101 CCP). Said motion must include the grounds and reasons for detention, including why judicial control would be insufficient in the case, based on legal and factual grounds (Art. 101/1 CCP). When a motion for detention is submitted, the suspect must have the legal assistance of a defence counsel chosen by them, or appointed by the Bar Association (Art. 101/ 3 CCP).
The prosecutor may terminate the detention of the suspect during the investigation stage. The prosecutor may also file a motion at the Criminal Judgeship of Peace to decide on other protection measures instead of detention. The suspect and their defence counsel may also make the same request (Art. 103 CCP).
Where the suspect is detained during the investigation stage, the Criminal Judgeship of Peace reviews the decision of detention every 30 days at the latest upon a request by the defendant or their attorney. During this review the defendant or their attorney are heard (Art. 108 CCP).
The suspect may at any time during the investigation stage file a motion to be released from detention. The Criminal Judgeship of Peace (during the investigation stage) may decide to release the suspect from detention, continue detention, or terminate detention but instead decide to apply other protection measures. This decision is made within three days after the motion has been filed. It is possible to object to the decision denying the motion for release (Art. 104, 105 CCP).
The presence of grounds for detention may be assumed when there is reason to suspect that the suspect may flee or hide, or when the suspect’s conducts suggest that they might attempt to destroy, hide or change evidence or put pressure on witnesses, victims or other individuals (Art. 100/2 CCP).
Grounds for detention can be assumed in cases involving specific offences listed in Art. 100 CCP, provided there is evidence substantiating a strong suspicion that the offence has been committed. The offences listed in the article include:
– Forming an Organisation with the Purpose of Committing Crime (Art. 220 of the Turkish Penal Code TPC, except 220/2-7&8)
– Crimes against state security, namely Disrupting the Unity and Integrity of the State (Art. 302 TPC), Alliance with the Enemy (Art. 303 TPC), Incitement to War against the State (Art. 304 TPC), Destruction of Military Facilities and Conspiracy which Benefits Enemy Military Movements (Art. 307 TPC), Material and Financial Aid to Enemy States (Art. 308 TPC).
– Crimes against the Constitutional Order and its Functioning, namely Violation of the Constitution (attempting to abolish, replace or prevent the implementation of the constitutional order by force and violence, Art. 309 TPC), Assasination of or Physical Attack towards the President (Art. 310 TPC), Crime Against the Legislative Body (Art. 311 TPC), Crime Against the Government (Art. 312 TPC), Armed Revolt against the Government of the Republic of Turkey (Art. 313 TPC), Armed Organisation (Art. 314 TPC), Supplying Arms (Art. 315)
– Joining demonstrations armed, or participating in demonstrations carrying emblems and symbols belonging to illegal organisations or groups or wearing clothes or carrying illegal banners and posters, or uttering slogans of such nature or broadcasting them with sound devices (Art. 33, Law no. 6021 on Meetings and Demonstrations)
– Covering one’s face partly or completely in order to hide one’s identity in meetings and demonstrations that have turned into propaganda for a terrorist organisation (Art. 7/3, Anti-Terror Law No. 7215)
The suspect or defendant cannot be detained if the upper limit for the designated punishment for the offence they are accused of is less than two years in prison unless the offence constitutes a crime of intent against the bodily integrity of others (Art. 100/4 CCP).
The maximum detention period in the investigation stage is six months for offences not falling under the jurisdiction of Assize Courts. For offences falling under the jurisdiction of Assize Courts, the maximum detention period is one year. This period is one year and six months for offencess as defined by the Second Book / Fourth Part, Chapter 4, 5, 6 and 7 of the TPC, in offences listed in the Anti-Terrorism Law No. 3713, and in collectively committed offences; and may be extended by an additional six months (Art. 102/4 CCP).
During the investigation stage, the suspect may be subjected to judicial control, a legal measure imposed by the court. Judicial control may be applied in lieu of detention where the requirements for detention are met, and they may also be applied where the law does not allow for the suspect to be detained. When the maximum period of detention for a suspect has been reached, measures of judicial control can still be applied. “Judicial control” entails various restrictions tailored to the circumstances; such as prohibitions on international travel, regular check-ins at specified locations, suspension of driving privileges with the surrender of one’s license to authorities, and many others. Multiple measures of judicial control may be imposed concurrently (Art. 109, 110 CCP).
During the investigation stage, the Criminal Judgeship of Peace may decide on judicial control with a motion from the prosecutor at any time. Once judicial control is in place, the Criminal Judgeship of Peace reviews the necessity to continue the measures at least once every four months. (Art. 110 CCP).
The period spent under judicial control is at most one year for offences not falling under the jurisdiction of Assize Courts. This can be extended by one more year where necessary. For offences falling under the jurisdiction of Assize Courts, the period spent under judicial control is at most three years, subject to an extension of another three years where necessary. For certain offences specified in the law, including all that fall under the Anti-Terrorism Law, this extension period can be four years instead of three. It is possible to object to decisions regarding judicial control (Art. 110/A, 111 CCP).
Where a suspect does not fulfil the requirements of their judicial control, they may be detained with no regard to the maximum sentence requirements of the crime they are suspected of having committed, that are sought for detention (Art. 112 CCP).
Where there is reasonable suspicion that the suspect will be found or that evidence of the offence be obtained; the body, belongings, dwelling, workplace, and other property of the suspect may be searched. If there is reason to assume the suspect may be present at another individual’s property, or with the aim of obtaining evidence, the body, belongings, dwelling, workplace and other property of another person may be searched as well (Art. 117 CCP). Subject to exceptions, no search and seizure measures can be conducted in a dwelling, workplace or other contained space closed to the public during the night (Art. 118 CCP).
An order by a judge is required for search and seizure. During the investigation stage, where there is peril in delay, a written order by the prosecutor shall suffice. Where the prosecutor is unavailable, designated senior law enforcement personnel may also issue such written order; however, orders made by said law enforcement personnel do not give permission to conduct search in a dwelling, workplace or other property closed to the public (Art. 119 CCP). Only the prosecutor and the judge may inspect the documents and papers of the suspect (Art. 122 CCP). Letters and documents between the suspect and those who may refrain from testifying against them in court are immune to seizure (Art. 126 CCP).
During the investigation stage, if there is a strong suspicion based on concrete evidence that an offence has been committed and there are no other available means of obtaining evidence, a decision can be made by the judge or, where there is peril in delay, by the prosecutor, to search the suspect’s computer, computer programs, and computer logs, to make copies of computer records, and to convert these records into text form. Decisions made by the prosecutor for this must be approved by a judge within 24 hours at the latest. If the time limit expires or a decision to the contrary is made by the judge, the copies made and the texts converted shall be immediately destroyed (Art. 134 CCP).
During the investigation stage, where there is strong suspicion based on concrete evidence that an offence has been committed and there are no other available means of obtaining evidence, the judge, or where there is peril in delay the prosecutor may decide for the suspect’s telecommunications to be intercepted, recorded, and signal information to be evaluated if the offence in question is one of the offences listed in Art 135/8 of the CCP. Such decisions made by the prosecutor must be approved by a judge, within 24 hours at the latest. If the time limit expires or a decision to the contrary is made by the judge, the measure shall immediately be lifted by the prosecutor, and the recordings destroyed. Telecommunications of the suspect or defendant with those who may refrain from testifying against them in court cannot be recorded and must be destroyed immediately if they were (Art. 135 CCP).
The location of the suspect’s mobile device may be determined for the suspect to be found and arrested. The decision for this measure must be made by a judge, but it can be made by the prosecutor where there is peril in delay. Determining the location of a mobile device can continue for a maximum of two months, subject to a one-time extension of one month (Art. 135/5 CCP).
During the investigation stage, where there is strong suspicion based on concrete evidence that an offence has been committed and there are no alternative means of obtaining evidence, the actions of the suspect in public venues and workplaces may undergo surveillance via technical methods, including voice and image recording, where the offence is one that falls under those listed in Art. 140/1 of the CCP. These include “disrupting the unity and integrity of the State” (Art. 302 TPC), offences against the constitutional order and its functioning, (Art. 309, 311, 312, 313, 314, 315, 316 TPC), and offences against state secrets and international espionage (Art. 328, 329, 330, 331, 333, 334, 335, 336, 337 TPC).
An order by a judge is required for surveillance via technical devices. During the investigation stage, where there is peril in delay, a written order by the prosecutor shall suffice (Art. 140/2 CCP).
This surveillance may continue for a maximum of three weeks, subject to a one-time extension of one week. This period may be extended several times for no longer than a week each time and not exceeding a total of four weeks, where the offence is suspected to be committed as part of organised crime (Art. 140/3 CCP).
Trial stage
While hearings are typically conducted in public, the court retains the discretion to convene closed sessions when strictly necessary to uphold general morality or public security (Art. 182 CCP).
Subject to exceptions, hearings cannot be held in the absence of the defendant. If the defendant does not present a valid reason for their absence, a decision can be made for them to be brought in by force (Art. 193 CCP).
A defendant whose whereabouts are unknown or who is abroad and cannot be brought before the court is considered a “defaulter”. No hearing can be held in the case of a defaulter, the court can only carry out the necessary procedures for the acquisition and protection of evidence (Art. 244 CCP). In order to convince them to attend a hearing, the court can give the defaulter an assurance document stating that they will not be detained if they attend, subject to certain conditions (Art. 246 CCP).
A defendant hiding in Turkey or abroad with the purpose of evading prosecution is classified as a “fugitive”. Hearings can be held in the case of fugitives, but judgments of conviction cannot be rendered where the fugitive was never interrogated (Art. 247 CCP). From 1 June 2024, judgments of “no need to impose punishment” will not be able to be rendered where the fugitive was never interrogated either. During the trial stage, an arrest warrant for a fugitive may be issued either by the court’s own motion, or by the court upon motion by the prosecutor (Art. 98/3 CCP).
Criminal Courts of First Instance handle cases that do not fall under the jurisdiction of Assize Courts. These cases usually involve offences punishable by a judicial fine or a maximum prison term of 10 years.
Examples of offences falling under the jurisdiction of Criminal Courts of First Instance which concern the freedom of expression include insult (including insulting a public officer in relation to their duty which is an aggravating circumstance for the same – Art. 125/3 TPC), provoking the public to hatred or hostility (Art. 216 TPC), insulting the President (Art. 299 TPC), and degrading the Turkish nation, Republic of Turkey or the organs and institutions of the State (Art. 301 TPC).
It is possible to object to interim decisions of Criminal Courts of First Instance and to their proceedings that do not directly affect the outcome of a case within seven days. These objections are examined by the Assize Court in the judicial area of which the Criminal Court of First Instance resides (Art. 268, 268/3-c CCP).
Judgments of Criminal Courts of First Instance can be appealed at the Regional Court of Justice within seven days of their announcement (from 1 June 2024, this “appeal window” period will be extended to two weeks).
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Assize courts are also courts of first instance, they are differentiated from “Criminal Courts of First Instance” because more severe offences fall under their jurisdiction. Offences that fall under the jurisdiction of the Assize Courts are typically those that are punishable by 10 years or more in prison, including life imprisonment and aggravated life imprisonment. There are other offences which have been placed under the jurisdiction of Assize Courts even though they do not fulfil the mentioned criteria, such as all offences in the Anti-Terrorism Law No. 3713 (Art. 12 Law No. 5235 on the Establishment and Duties of Courts of First Instance and Regional Courts of Justice). The board of an Assize Court consists of three judges, one chief judge and two others.
Decisions of Assize Courts such as detention, continuation of detention, interim decisions, and deferment of the announcement of the verdict can be objected to within seven days. Objections are made to the Assize Court that issued the decision and are examined by the next Assize Court in line in the judicial area or by an Assize Court in a different judicial area where there is no other Assize Court in the same judicial area.
Judgments of the Assize Court can be appealed at the Regional Court of Justice within seven days of their announcement (from 1 June 2024, this “appeal window” period will be extended to two weeks).
Detention is the most severe measure against the right to freedom and security. It is therefore a temporary measure employed as the last resort, and is limited to certain maximum periods as stipulated by law.
Where grounds for detention are present along with evidence to substantiate a strong suspicion that the offence has been committed, the suspect or defendant may be detained (Art. 100/1 CCP). No one can be detained if detention is disproportionate to the gravity of the case or the anticipated sentence (Art. 100/1 CCP).
During the trial stage, the court can detain the defendant by their own motion, or upon a motion by the prosecutor (Art. 101 CCP). Said motion must include the grounds and reasons for detention, including why judicial control would be insufficient in the case, based on legal and factual grounds (Art. 101/1 CCP). When a motion for detention is filed, the defendant must have the legal assistance of a defence counsel chosen by them, or appointed by the Bar Association (Art. 101/3 CCP).
Once the defendant is detained, the court reevaluates whether detention should persist or if the defendant should be released from detention at each hearing, and as required between hearings, with a mandatory review every 30 days (Art. 108 CCP).
During the trial stage, the defendant may file a motion of release from detention at any time. The trial court or judge will either make a decision to release the defendant from detention, to continue detention, or to terminate detention but instead decide to apply protection measures, This decision is made within three days after the motion has been filed. A decision denying the motion for release may be objected to (Art. 104, 105 CCP). Where a motion for release from detention is filed while the case is at the appeal stage or at the Court of Cassation, it will be the Regional Court of Justice or the relevant Chamber of the Court of Cassation or the General Assembly of Criminal Law at the Court of Cassation that makes this decision (Art. 104 CCP).
Grounds for detention can be assumed in cases involving specific offences listed in Art. 100 CCP, provided there is evidence substantiating a strong suspicion that the offence has been committed. Said offences include:
– Forming an Organisation with the Purpose of Committing Crime (Art. 220 TPC, except 220/2-7&8)
– Crimes against state security, namely Disrupting the Unity and Integrity of the State (Art. 302 TPC), Alliance with the Enemy (Art. 303 TPC), Incitement to War against the State (Art. 304 TPC), Destruction of Military Facilities and Conspiracy which Benefits Enemy Military Movements (Art. 307 TPC), Material and Financial Aid to Enemy States (Art. 308 TPC).
– Crimes against the Constitutional Order and its Functioning, namely Violation of the Constitution (attempting to abolish, replace or prevent the implementation of the constitutional order by force and violence, Art. 309 TPC), Assassination of or Physical Attack towards the President (Art. 310 TPC), Crime Against the Legislative Body (Art. 311 TPC), Crime Against the Government (Art. 312 TPC), Armed Revolt against the Government of the Turkish Republic (Art. 313 TPC), Armed Organisation (Art. 314 TPC), Supplying Arms (Art. 315)
– Joining demonstrations armed, or participating in demonstrations carrying emblems and symbols belonging to illegal organisations or groups or wearing clothes or carrying illegal banners and posters, or uttering slogans of such nature or broadcasting them with sound devices (Art. 33, Law no. 6021 on Meetings and Demonstrations)
– Covering one’s face partly or completely in order to hide one’s identity in meetings and demonstrations that have turned into propaganda for a terrorist organisation (Art. 7/3, Anti-Terror Law No. 7215)
If the maximum prescribed sentence for the alleged offence does not exceed two years in prison, the defendant cannot be detained except in cases of crimes of intent against the bodily integrity of others (Art. 100/4 CCP).
For offences falling outside the jurisdiction of Assize Courts, the maximum duration of detention is one year. At the conclusion of this period, detention may be prolonged once for an additional six months if deemed necessary. In cases within the jurisdiction of Assize Courts, the maximum detention period is two years, which can be extended yet cannot exceed three years in total, with certain exceptions (Art. 102 CCP).
During the trial stage, the court holds the authority to impose judicial control on the defendant at any point. The court may enact one or multiple measures of judicial control as deemed necessary, with the flexibility to alter these measures as circumstances evolve. It is mandatory for the court to reassess the need for continued judicial control at least once every four months (Art. 110 CCP).
Judicial control may be applied in lieu of detention where the requirements for detention are met, and they may also be applied where the law does not allow for detention. When the maximum period of detention has been reached, measures of judicial control can still be applied. “Judicial control” entails various restrictions tailored to the circumstances; such as prohibitions on international travel, regular check-ins at specified locations, suspension of driving privileges with the surrender of one’s license to authorities, and many others (Art. 109 CCP).
The period spent under judicial control is at most one year for offences not falling under the jurisdiction of the Assize Courts. This can be extended for one more year where necessary. For offences falling under the jurisdiction of Assize Courts, the period spent under judicial control is at most three years, subject to an extension of another three years where necessary. For certain offences specified in the law, including all that fall under the Anti-Terror Law, this extension period can be four years instead of three. Decisions regarding judicial control can be opposed to (Art. 110/A, 111 CCP).
Where the defendant fails to fulfil the requirements of their judicial control, they may be detained regardless of the maximum sentence requirements for the offence they are on trial for, that are sought for detention (Art. 112 CCP).
Where there is reasonable suspicion that the defendant will be found or that evidence of the offence be obtained; the body, belongings, dwelling, workplace, and other property of the defendant may be searched. If there is reason to assume the defendant may be present at another individual’s property, or with the aim of obtaining evidence, the body, belongings, dwelling, workplace and other property of another person may be searched as well (Art. 117 CCP). Subject to exceptions, no search and seizure measures can be conducted in a dwelling, workplace or other contained space closed to the public during the night (Art. 118 CCP).
Search and seizure is conducted upon a search order by the judge. Only the judge may inspect the documents and papers of the defendant. (Art. 122 CCP) Letters and documents between the defendant with those who may refrain from testifying against them in court are immune to seizure. (Art. 126 CCP)
During the trial stage, if there is strong suspicion based on concrete evidence that an offence has been committed and there are no other available means of obtaining evidence, a search warrant may be issued by the judge to search the defendant’s computer, computer programs, and computer logs, to make copies of computer records, and to convert these records into text form. Although there is no consensus in the literature regarding the application of this measure during the trial stage, the Court of Cassation holds the view that it can be applied.
Judicial control may be applied in lieu of detention where the requirements for detention are met, and they may also be applied where the law does not allow for detention. When the maximum period of detention has been reached, measures of judicial control can still be applied. “Judicial control” entails various restrictions tailored to the circumstances; such as prohibitions on international travel, regular check-ins at specified locations, suspension of driving privileges with the surrender of one’s license to authorities, and many others (Art. 109 CCP).
The period spent under judicial control is at most one year for offences not falling under the jurisdiction of the Assize Courts. This can be extended for one more year where necessary. For offences falling under the jurisdiction of Assize Courts, the period spent under judicial control is at most three years, subject to an extension of another three years where necessary. For certain offences specified in the law, including all that fall under the Anti-Terror Law, this extension period can be four years instead of three. Decisions regarding judicial control can be opposed to (Art. 110/A, 111 CCP).
Where the defendant fails to fulfil the requirements of their judicial control, they may be detained regardless of the maximum sentence requirements for the offence they are on trial for, that are sought for detention (Art. 112 CCP).
During the trial stage, where there is strong suspicion based on concrete evidence that an offence has been committed and there are no other available means of obtaining evidence, the court may decide for the defendant’s telecommunications to be intercepted, recorded, and signal information to be evaluated if the offence in question is one of the offences listed in Art 135/8 of the CCP. Telecommunications of the defendant with those who may refrain from testifying against them in court cannot be recorded and must be destroyed immediately if they were (Art. 135 CCP).
The location of the defendant’s mobile device may be determined with an order by the court, with the aim that the defendant be found and arrested. Determining the location of a mobile device can continue for a maximum of two months, subject to a one-time extension of one month (Art. 135/5 CCP).
During the trial stage, where there is strong suspicion based on concrete evidence that an offence has been committed and there are no alternative means of obtaining evidence, the court may order that the actions of the defendant in public venues and workplaces undergo surveillance via technical methods, including voice and image recording, where the offence falls under those listed in Art. 140/1 of the CCP. These include “disrupting the unity and integrity of the State” (Art. 302 TPC), offences against the constitutional order and its functioning, (Art. 309, 311, 312, 313, 314, 315, 316 TPC), and offences against state secrets and international espionage (Art. 328, 329, 330, 331, 333, 334, 335, 336, 337 TPC).
This surveillance may continue for a maximum of three weeks, subject to a one-time extension of one week. This period may be extended several times, for no longer than a week each time and not exceeding a total of four weeks, where the offence is suspected to be committed as part of organised crime (Art. 140/3 CCP).
Judgements and decisions
The defendant will be acquitted in cases where:
- the act they are accused of does not constitute a criminal offence
- it is established that it was not the defendant who committed the act
- the defendant had no intent or negligence regarding the act that was committed
- even though it was the defendant who committed the act, there are grounds that make the act legal
- it is not without a doubt that it was the defendant who committed the act (Art. 223/2 CCP).
Judgement of ‘no need to impose punishment’ for lack of culpability. This judgment will be rendered:
- where the defendant was a minor at the time of the act, the defendant was mentally ill or deaf and mute at the time of the act or under the influence of other circumstances lifting their culpability
- where the act constituted the execution of an illegal but binding order, or when the act was committed under force or threat or in cases of necessity
- where the act exceeded the threshold of legitimate self-defence because of emotional stress, fear or agitation
- where the defendant made a mistake of judgment that lifts their culpability (Art. 223/3 CCP).
In cases of effective remorse and reciprocal insult, or where grounds of personal exemption from punishment are present or the injustice caused by the crime is a minor injustice, the judgment of ‘no need to impose punishment’ will be rendered even though the act constitutes an offence and culpability is present (Art. 223/4 CCP).
If, at the end of the trial stage, it is proven that the defendant has committed the offence, the defendant will be convicted (Art. 223/5 CCP).
If there exists a prior judgment against the same defendant for the same act, or if such a case is currently pending, the case will be declared inadmissible (Art. 223/7 CCP).
The case will be dismissed where grounds for ‘dismissal of the case’ in the Penal Code are present, and where it becomes evident that a requirement, without which investigation and trial stages cannot begin, was not met and will not be met. If there is reason to believe said requirements could be met, the court may order a stay of proceedings to await the fulfilment of said requirements (Art. 223/8 CCP).
Where the defendant is sentenced to imprisonment for two years or less or a judicial fine, the court may decide to delay the pronouncement of the judgment under specific conditions:
- The defendant must not have a prior conviction for a crime of intent
- The court, taking into account the defendant’s personality traits and behaviour during the trial, must be convinced that the defendant will not engage in further criminal activities
- The damage caused to the victim or the public as a result of the committed offence has to have been remedied
During the five year period following the delayed pronouncement of the judgment, the defendant is placed on probation. If the defendant refrains from committing another crime of intent during this period, the judgment will be annulled, and the case dismissed. However, if the defendant commits a crime of intent or breaches the conditions of probation during this period, the judgment may be pronounced. In such cases the judge may also form a new judgment, reassessing the circumstances of the defendant and consider mitigating the sentence by half, converting the sentence to alternative sanctions, or suspending the sentence (Art. 231 CCP).
The delay of the pronouncement of the judgment can be appealed at the Regional Court of Justice. If it was the Regional Court of Justice or the Court of Cassation acting as the court of first instance that delayed the pronouncement of the judgment, then the appeal will be directed to the Court of Cassation (Art. 231/12 CCP).
Appeal procedures/ legal remedies
Objections are made to the authority which made the decision that is being objected to. Typically, decisions of the Criminal Judgeship of Peace during the investigation stage and interim decisions of the court during the trial stage can be objected to. All interim decisions of courts can be objected to, unless explicitly stated otherwise by law (Art. 267 CCP). Objections can be on substantive and procedural grounds.
Upon receipt of an objection, the judge or court whose decision is being contested will take one of two actions: either revise their initial decision or forward the objection to the authority responsible for overseeing objections within three days (Art. 268/2 CCP). If this overseeing authority deems the objection valid, they will annul the previous decision and issue a new one (Art. 271/2,4 CCP). For instance, if the contested decision pertains to detention and it is found that the requirements for detention were not met, the overseeing authority will declare the decision for detention unlawful and order the release of the suspect/defendant from detention.
The overseeing authority varies depending on the decision being objected to and the entity whose decision is contested. If an objection is lodged against a decision made by the Criminal Judgeship of Peace and said Judgeship does not uphold the objection, they will transfer the objection to the subsequent Criminal Judgeship of Peace within the same judicial area. However, if the objection concerns detention or judicial control, then the Court of First Instance within the judicial area where the Criminal Judgeship of Peace operates, will oversee the objection.
Objections to decisions made by Criminal Courts of First Instance are reviewed by the Assize Court in the same judicial area. Similarly, objections to decisions made by Assize Courts are reviewed by the subsequent Assize Court within the same judicial area.
Decisions of the overseeing authority following an objection are final, except where the overseeing authority makes the decision to detain the suspect/ defendant for the first time (Art. 271/4 CCP). This scenario may occur for example during the investigation stage where the prosecutor requests detention, the Criminal Judgeship of Peace declines to detain the suspect, the prosecutor objects to this decision and the Criminal Court of First Instance, as the authority overseeing the objection, makes the decision to detain the suspect.
Regional Courts of Justice are the courts of appeal that examine the appealed judgments of Criminal Courts of First Instance and Assize Courts.
The Regional Court of Justice can reject an appeal for procedural reasons immediately such as when the appeal was lodged more than seven days after the announcement of the judgment (from 1 June 2024, the appeal window period will be extended to two weeks ‘from the serving of the written judgment along with the reasoning’).The Regional Court of Justice can also reject an appeal on its merits, after examining the case file and evidence and determining there has been no procedural or substantive violation of the law in the judgment that has been appealed. In some cases, the Court will correct a violation of the law, and then reject the appeal on its merits (Art. 280/1 CCP). The Regional Court of Justice can also reverse the judgment made by the court of first instance, and send the case back to the court that made the judgment or another court of first instance, so they can re-examine the case and make a new judgment (Art. 280/1-e,f CCP).
In other cases, the Regional Court of Justice will hold a new trial at the conclusion of which it will either reject the appeal on its merits or make a new judgment on the case (Art. 280/2 CCP). If the appeal was made for the benefit of the defendant, the new verdict determined by the Regional Court of Justice cannot impose a heavier sentence than the one previously determined by the court of first instance (Art. 283 CCP).
Subject to exceptions, judgments of the Regional Court of Justice (except where the judgment is a reversal of the judgment of the court of first instance) can be taken to the Court of Cassation (Art. 286 CCP) within 15 days of their announcement (from 1 June 2024, this period will be “two weeks”) (Art. 291 CCP). The Court of Cassation examines whether the Regional Court of Justice observed proper application of the law; the facts of the case as established by the lower court are no longer subject to discussion at this stage (Art. 288 CCP).
The Court of Cassation is the body authorised to examine appeals as the final-degree legal remedy. In principle, examinations at the Court of Cassation are carried out “over the file”, which means that the Court of Cassation does not, in general, hold hearings. Where the judgment subject to appeal includes a prison sentence of ten years or longer, the Court of Cassation may hold a hearing (Art. 299 CCP).
The Court of Cassation may reject the appeal for procedural reasons straight away (Art. 298 CCP). The court can also reject the appeal on its merits, reject the appeal on its merits with a correction, or reverse the judgment. Both rejection of the appeal on its merits and rejection of the appeal on its merits with a correction (corrections at this stage will be of simple errors which do not affect the outcome of the trial) mean that the appealed judgment was upheld by the Court of Cassation, and since appeal at the Court of Cassation is the final legal remedy, the judgment becomes final. Once a judgment is final, it is ready to be executed. If the Court reverses the appealed judgment, the judgment is sent back to the court of first instance or the court of appeal which issued the judgment for re-examination.
After reversal of a judgment by the Court of Cassation, the court to which the judgment was sent back may take a decision of insistence against the reversal (which means they insist on their original judgment),or decide to rehear the case. Where the court takes the decision of insistence, the decision of insistence is sent to the Court of Cassation; and if the Court of Cassation approves the decision of insistence, it corrects its decision of reversal. If the Court of Cassation does not approve the decision of insistence, it sends the judgment to the Assembly of Criminal Chambers of the Court of Cassation. It is not possible to insist against the final decision of the Assembly of Criminal Chambers (Art. 306, 307 CCP).
Where the court to which the judgment was sent for re-examination after a decision of reversal by the Court of Cassation does not take a decision of insistence, it will hold a new trial on the case. The verdict given at the end of this trial cannot impose a heavier penalty than the verdict given in the first judgment that has been reversed, if said judgment was appealed by the defendant, prosecutor or others for the benefit of the defendant (Art. 307/5 CCP). Once a new judgment is made at the end of this re-trial, this new judgment can only be appealed at the Court of Cassation (Art. 307/3 CCP).
Once a judgment or decision becomes final, either because all ordinary legal remedies have been exhausted or were never pursued, ‘extraordinary legal remedies’ may be employed in exceptional circumstances.
The Chief Public Prosecutor of the Court of Cassation may oppose judgments made by one of the Criminal Chambers at the Court of Cassation, before the Court of Cassation General Assembly in Criminal Matters, ex officio or upon request, within thirty days (from 1 June 2024, this period will be ‘one month’) from the date of the notification of the judgment. There is no time limit for this where the opposition is in favour of the defendant. The file is then sent to the chamber whose decision is opposed. The chamber promptly examines the opposition and either corrects its decision if the opposition is deemed justified or forwards the file to the Criminal General Assembly of the Court of Cassation. (Art. 308 CCP). This opposition does not impede the judgment or decision from becoming final. The execution of the judgment or decision will continue as usual until the Criminal General Assembly of the Court of Cassation reaches its decision.
The Public Prosecutor’s Office at the Regional Court of Justice has the authority, either ex officio or upon request, to oppose to the final judgments of the criminal chambers of the Regional Court of Justice within thirty days (from 1 June 2024, this period will be ‘one month’) from the date of the judgment. There is no time limit if the opposition is in favour of the defendant.
A valid opposition against the defendant must address a substantial error that could impact the judgment. Subsequently, the chamber serves the opposition to the defendant or their defence counsel, who then have seven days to provide a reply.
The chamber that made the judgment promptly reviews the objection, and if it finds the opposition justified, corrects its judgment accordingly; if not, it forwards the file to the Panel of Presidents of the Criminal Chambers to examine the objection. The decisions of the Panel regarding the acceptance of the objection are sent to the respective chamber for implementation. The decisions made by the Panel are final (Art. 308/A CCP).
The Office of the Ministry of Justice can seek the reversal of a decision or judgment by the Court of Cassation if it becomes aware of violations of the law in a decision or judgment that has become final without having been appealed at the Regional Court of Justice (appeal on fact and law) or a judgment that became final after an appeal at the Regional Court of Justice but was not appealed at the Court of Cassation (appeal on law). This request for reversal is submitted to the Chief Public Prosecutor’s Office at the Court of Cassation, accompanied by the relevant legal grounds.
The Chief Public Prosecutor at the Court of Cassation will document this request along with its grounds without making any alterations, and present this written document to the relevant criminal chamber at the Court of Cassation. Subsequently, the chamber will reverse the decision or judgment in favour of the administration of justice if it determines that the request is justified (Art. 309/1, 2 CCP).
Errors in a judgment may still come to light even after it has become final or has been executed. The renewal of trial serves the purpose of correcting such erroneous final judgments. The renewal of a trial is permitted under limited circumstances listed in the CCP. The convicted may request renewal of trial, and the prosecutor may also request renewal of trial in favour or against the convicted. This request is lodged at the court that made the judgment that will be renewed, the court cannot renew the trial without a request (Art. 311, 314 CCP).
Where the case goes to the European Court of Human Rights and the ECtHR finds a violation in the judgment, it is this extraordinary remedy that will be applied.
There is no time limit to request the renewal of a trial, except for where the renewal of trial is requested after the European Court of Human Rights has found a violation in the judgment, in which case the motion for the renewal of trial must be filed within one year from the date the ECtHR judgment has become final (Art. 311/1/f CCP).
After exhausting ordinary legal remedies such as objection, appeal at the Regional Court of Justice, and appeal at the Court of Cassation, individuals have the option to make an individual application to the Constitutional Court. Individual applications to the Constitutional Court were included in the Turkish legal system with an amendment made in 2010. According to the Law No. 6216 on the Establishment of the Constitutional Court and its Internal Regulation, individual applications to the Constitutional Court against judgments that became final after 23 September 2012 can be made within 30 days after the exhaustion of ordinary legal remedies, with the allegation of a violation of the fundamental rights and freedoms guaranteed in the Constitution, the European Convention on Human Rights (ECHR) and additional protocols to the ECHR (Art. 148 of the Constitution of the Republic of Turkey).
The Constitutional Court may find the individual application inadmissible if it does not fulfil the requirements in Articles 45 to 47 of the Law No. 6216. The Court may also find the application inadmissible where the application does not hold any significance in terms of the interpretation of the Constitution or the determining of the scope and limits of fundamental rights; if the applicant has not suffered a significant disadvantage, or if the application is manifestly ill-founded. Decisions of inadmissibility are final (Art. 48 Law No. 6216).
Once an individual application has been found admissible, it will be subject to substantive analysis. Analysis at the Constitutional Court is limited to whether there has been a violation of a fundamental right, and the ways in which said violation can be remedied (Art. 49 Law No. 6216).
Where the Court finds a violation that stems from a court judgment, the Court may order a retrial. Where the violation is one that can be remedied without need for retrial, the Court may order compensation for the applicant, or lead the applicant to file a lawsuit for compensation before general courts (Art. 50 Law No. 6216).
According to Article 153 of the Constitution, judgments of the Constitutional Court are binding for all, including the legislative, executive, and judicial organs.
If the individual application is dismissed, found inadmissible or the Court finds no violation, or where the applicant is not satisfied with the judgment or the compensation even where a violation was found, the applicant may take their claim to the European Court of Human Rights (ECtHR).Individual application before the Constitutional Court is a domestic remedy that must be exhausted before making an individual application to the ECtHR.
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