The right to liberty and security of the person guarantees that a person may be deprived of liberty only on the grounds set out in law and in accordance with the prescribed procedure. Apprehension, police detention and pretrial detention are distinct measures. Each has its own conditions, review mechanisms and time limits. A challenge aimed at ending an unlawful measure and a claim for compensation for an earlier unlawful measure cannot replace one another. [1; 2]
This article is for general information only. The date of the measure, the nature of the offence, the person’s age, whether the detention continues and the authority reviewing the file must all be assessed together.
Scope of the Right and Restriction of Liberty
Article 19 of the Constitution and Article 5 of the European Convention on Human Rights protect physical liberty. Requiring a person to stay in a particular place can engage this safeguard, even where the official measure is described by another name. The assessment depends on the duration and intensity of the measure, the form of supervision, and whether the person is able to leave the place where they are. Any restriction on travel, however, is not a deprivation of liberty. [1; 4]
Serving a prison sentence, being held in custody on suspicion of an offence and administrative detention of foreign nationals are not subject to the same legal regime. In a criminal investigation the Code of Criminal Procedure No. 5271 (CMK) applies, while for administrative detention in a removal centre the special route under Law No. 6458 on Foreigners and International Protection is assessed. An objection petition used in a criminal file does not by itself refute the basis of administrative detention. An application may be made to a criminal judge of peace against an administrative detention decision; such an application, however, does not automatically suspend the administrative detention. [9]
Is a legal basis alone sufficient?
No. A measure permitted by law may still be unnecessary or disproportionate in a particular case. The actual existence of grounds for the measure, an explanation of why the person is subject to it, and effective means of review are considered together. The seriousness of an investigation is not an automatic ground for pretrial detention of every suspect. Even a criminal conviction does not retrospectively make all irregularities in an earlier detention or pretrial detention lawful.
What safeguards apply during apprehension and police detention?
Apprehension is the effective taking of a person under control. Police detention is the holding of an apprehended person under the legal conditions so that an investigation can be completed. Articles 90 and 91 of the CMK set out the power of apprehension and the conditions for a police detention order. Police detention requires concrete evidence showing that an offence has been committed and that the investigation makes detention necessary. [2]
The general period of police detention is twenty-four hours from the moment of apprehension, excluding the mandatory time needed to bring the person before the nearest judge or court. The mandatory time for referral may not exceed twelve hours. Those twelve hours are not an additional waiting period that can be used automatically in every case. For collective offences, subject to the conditions in the law, a further three days may be added by written extension orders, each not exceeding one day. For the caught-in-the-act situations listed in CMK 91/4 there are separate police powers and upper limits; the general rule cannot by itself be applied to all files. [2, Art. 91]
The time of apprehension must be shown in the record as the actual start of the measure. If the time of arrival at the police station differs from the moment when the person’s actual freedom of movement ended, the difference should be documented. Notification of rights, access to defense counsel, informing relatives and medical examination should be traceable in the file. Additional safeguards also apply to children and to persons in cases of mandatory defense. [2, Arts. 95, 147–150]
Where can police detention be challenged?
An application may be made to the criminal judge of peace against apprehension, police detention and extension orders, and against acts of the public prosecutor relating to them. Under CMK 91/5, the apprehended person, their defense counsel, legal representative, spouse and first- or second-degree blood relatives may apply. The judge must conclude the review promptly and within twenty-four hours at the latest. This period should not be confused with the general objection period against pretrial detention. [2]
How are the grounds for pretrial detention reviewed?
Under CMK 100, there must be concrete evidence showing a strong suspicion of an offence and at least one ground for pretrial detention. A pretrial detention order may not be disproportionate to the seriousness of the case and to the penalty or security measure expected. The reasons for a risk of flight or of tampering with evidence must explain which conduct and facts in the file underlie that risk. [2]
A catalogue offence does not remove the requirement for concrete evidence of a strong suspicion and for a proportionality assessment. A reasoning that merely repeats the name of the offence, the severity of the penalty or the scope of the file, and does not discuss the person’s established life, the evidence already collected or the alternatives of judicial control, may raise a constitutional problem.
Why must judicial control be discussed separately?
The reasons why judicial control would be insufficient must be shown in legal and factual terms. The defense counsel should not stop at saying “the person has a fixed residence.” They should connect the person’s employment, dependants, past compliance with summonses, the lack of opportunity to access evidence, and how the proposed measure reduces the risk. An obligation not to leave one’s home is also a severe measure and should not be presented as a light solution in every file. [2, Arts. 101, 109] Judicial control obligations linked to a statement are examined separately in the article on judicial control and freedom of expression.
Over time, the reasoning for continued detention also matters. A ground that was valid at the outset may not carry the same weight months later. Taking evidence from witnesses or changes in the evidential position may alter the risk of tampering. Remaining within the statutory maximum period does not mean that the concrete detention is necessarily reasonable.
Application routes and time-limit table
| Action or request | Route of application | Point to watch |
|---|---|---|
| Apprehension, police detention and extension | Criminal judge of peace under CMK 91/5 | Expedited review is requested while the detention continues. |
| Pretrial detention order or decision to continue detention | Objection under CMK 267–268 | The current general period is two weeks from learning of the decision; transitional provisions remain important for older decisions. |
| Request for release | The competent judicial authority at the investigation or prosecution stage | Can be requested under CMK 104, separately from an objection. |
| Damage arising from an unlawful protective measure | CMK 141–142 and Law No. 6384 | The ground for compensation, the competent authority and transitional provisions are determined together. |
| Constitutional complaint | Individual application to the AYM | The relevant effective remedy must be exhausted; the thirty-day application period is calculated separately. |
An objection is made by petition to the authority that issued the decision, or by a statement recorded in the minutes. The reviewing authority is determined under CMK 268 according to the authority that issued the decision and the type of decision. The same reviewing authority should not be assumed for every decision of a criminal judgeship of peace. [2]
Compensation for unlawful detention
CMK 141 provides for different grounds of compensation. Apprehension or pretrial detention carried out outside the legal conditions is not the same ground as a decision of no prosecution or an acquittal following detention carried out in accordance with the law. In the first case the unlawfulness of the measure is examined; in the second, the special compensation guarantee that the law attaches to that outcome is examined. [2]
Following Law No. 7499, claims falling under subparagraphs (e), (f) and (l) of CMK 141/1 bring the Compensation Commission into play. For other protective-measure grounds of compensation, the route before the heavy penal court (ağır ceza mahkemesi) continues. Claims submitted jointly to the Commission that fall outside its remit are separated and sent to the heavy penal court; Article 5/B of Law No. 6384 regulates the protection of the application date before the Commission in such a case. Transitional provisions should also be checked. The conclusion that “all unlawful pretrial detention cases are now brought before the Commission” is not correct. [2, Art. 142; 10]
The general period under CMK 142 is three months from service of notice that the relevant decision or judgment has become final and, in any case, one year after finality. However, each compensation ground does not arise at the same moment; the requirement of finality, the continuing measure and the type of claim are examined separately. Loss of income, expenses and other pecuniary losses must be supported by documents. For non-pecuniary damages, the duration of the detention and its personal effects must be made concrete.
What distinction do AYM decisions show?
In Mustafa Ali Balbay, Application No. 2012/1272, December 4, 2013, the AYM found the complaint that the initial pretrial detention was unlawful manifestly unfounded, while it found a violation on the grounds that the detention exceeded a reasonable time and affected the right to political representation. This decision shows that different complaints in a single file may have different outcomes. A claim of prolonged detention must be reasoned separately from the claim that the initial pretrial detention order was unlawful. [5, §§ 94–119, 132–134 and operative part]
The decision in Hikmet Kopar and Others, Application No. 2014/14061, April 8, 2015 contains admissibility assessments showing that not every dispute concerning pretrial detention automatically amounts to a constitutional violation. The measure targeted by the application, the date of the decision and the specific deficiency concerned are important. The procedural framework on the date of the event must not be used in place of current objection periods. [6]
How to prepare the application file
The file should arrange the actions and decisions in chronological order. The apprehension record, the police detention order and its extensions, the interrogation record, the pretrial detention and continuation orders, objections, rejection decisions, notification records and loss documents should each be shown separately. Every allegation of violation should be linked to the relevant document.
The opposing party’s strongest reasoning must be specifically addressed. For example, where a risk of flight is raised, the answer should address not only personal ties but also the travel, concealment or failure to attend summonses relied on by the prosecutor. Where a risk of tampering with evidence is raised, it should be discussed which evidence has not yet been collected and how the person could affect it. A concrete answer to a concrete reason is more meaningful than a list of abstract rights.
An AYM application must, as a rule, be made within thirty days after the relevant effective ordinary remedy has been exhausted. The event that starts the period is not always the same as the date when the whole file became final. In a complaint about continuing detention, waiting for the end of the main criminal case may cause a loss of rights. Since October 1, 2025, lawyers may also apply through the UYAP Lawyer Portal (UYAP Avukat Portalı); the completion of submission and registration should be checked. [3; 8]
The application form should explain the violation identified, the continuing consequences to be removed and any compensation claims. An individual application does not by itself secure release. The AYM does not re-examine guilt from the beginning, as a cassation court would. For admissibility conditions and ordinary applications, the Constitutional Court application guide and the article on compensation for unlawful detention can be read together.
The weight of the obligation not to leave one’s home
In legal doctrine, Hüseyin Turan explains that the obligation not to leave one’s home cannot be assessed merely because it is regulated under the heading of judicial control; its practical effect raises the safeguards of personal liberty. This distinction requires the effect of the measure on daily life to be documented. The duration of the prohibition on leaving the home, the conditions for permission and the supervision must be shown; a request to lift the measure and a request for compensation for losses should be set out separately. [11]
Matters counsel must review separately in a pretrial detention file
Suspicion of an offence and grounds for pretrial detention are not interchangeable
The presence of a person’s name in a document, the existence of a communication record or an accusation by someone else must first be assessed for suspicion of an offence. The grounds for a risk of flight, destruction of evidence or pressure on witnesses must then be shown separately. The defense counsel should not merge these two debates into a single sentence saying “there is no evidence.” It should be examined how the document links the person to the act for the purposes of suspicion, and, for the grounds of pretrial detention, which conduct creates which risk. If the court explains two different conditions using the same template phrase, this must be made visible in the objection. [2, Arts. 100–101]
If access to the file is restricted, the defense counsel should record the requests made to learn the basis of the pretrial detention, the documents provided, and the groups of documents to which access was denied. A deficiency that prevents preparation of the objection should be described by the name of the document and its effect on the defense. Immediate access to every document is not the same issue as access to the information needed to effectively contest the lawfulness of deprivation of liberty. Control over concrete restrictions must be built on this distinction. [1; 2, Art. 153; 4, Art. 5]
After release, the subject of the complaint must be redefined
Release does not show that the earlier detention was lawful; however, the subject of a request to end a continuing detention changes. The lawyer should reassess the release date, the outcome of earlier objections, and which complaint the compensation route is effective for. Transferring an old release petition to the AYM form without changing the subject of the application may leave the request for redress unclear. Pre- and post-release steps should be shown in the same chronology; if compensation is requested, the link between the unlawfulness of the detention and the loss must be explained. [2; 3]
The most common mistakes in a pretrial detention objection
Relying only on a presumption of innocence; not explaining why pretrial detention is unnecessary; using the same text for every suspect; not discussing the reasoning of the previous rejection decision; and not showing how a lighter measure would reduce the concrete risk, all weaken the effect of the objection. Work, family and health documents should not simply be added to the file; their link to the claim must be established. Where health is relied on, the current report should explain what it shows, what care is required and how the detention affects that care.
The outcome section of the application should clearly separate the decisions sought: first, release; if that is not accepted, a specified judicial control option; and obtaining the necessary documents and records. At the AYM stage, a finding of the relevant violation and the removal of its consequences are requested. In this way, the function of ordinary judicial authority is not confused with that of constitutional review.
File access and effective defense in reviewing detention
Reviewing a pretrial detention order requires more than the defense counsel learning the operative part of the decision. The defense must be able to understand the essential facts on which the detention rests and to respond to them. For example, if a communication record, witness account or digital examination is the core basis of the pretrial detention, the objection should show which part of that basis is unknown and how its unavailability prevents the defense. Saying that there is confidentiality in the file is not in itself a sufficient constitutional explanation. The link between the inaccessible document and the grounds for pretrial detention must be established. [1, 2, 4]
CMK Article 153 regulates the defense counsel’s right to examine the file and the conditions for restricting it during the investigation phase. Restriction depends on the conditions set out in the law and on a judge’s decision; it is not a prohibition that arises automatically for the whole investigation. For records of the suspect’s statement, expert reports, and records of acts at which the apprehended person or suspect is entitled to be present, the exceptions in the same article must also be considered separately. The lawyer should make visible in the file the date of the access request, which documents were inaccessible, and the reason for rejection. [2, Art. 153]
The request made in this regard must also be clear. Providing a copy of a document, examining a specific report and disclosing information suitable for assessing the substance of the detention are different requests. When describing the access problem in an objection, the defense that can be made with the information at hand should also be presented. Otherwise a concrete objection to an essential piece of evidence may be lost in a general complaint about procedure. This approach allows the rejection of a file review request to be assessed together with, rather than separately from, the claims of unlawful detention.
Why should the reasoning for initial pretrial detention and continuation decisions change?
The assumption that a risk present at the time of initial pretrial detention continues with the same weight months later is not valid. Witnesses may have been heard, searches completed, digital data secured, or the classification of the offence changed. Each of these developments can affect the current assessment of the risk of flight or of interference with evidence. The defense should show the changes since the last review rather than repeat the earlier objection verbatim. The court, likewise, should link its continuation decision to this current picture. [1, Art. 19; 2, Arts. 100–101, 108]
For example, if the risk of interference with evidence continues to be relied on in a file in which all witnesses have been heard, it may be asked what evidence still needs protecting. However, the collection of some evidence does not automatically show that all other grounds for pretrial detention have disappeared. The correct objection considers the favorable and unfavorable elements of the file together and explains concretely why the remaining risk can be managed through judicial control. A fixed residence, a working relationship or family ties are not, on their own, a guarantee of release; they are parts of an individualized assessment.
The limit drawn by the Mustafa Ali Balbay decision
In the Mustafa Ali Balbay decision, the claim that the initial pretrial detention was unlawful was not tied to the same outcome as the length of the detention. This distinction shows that a measure initially considered sufficient may become disproportionate over time. In a defense, it is not enough to write only the total number of days; the stage of the proceedings in which steps were taken, the reason for any delay, and the content of the continuation decisions should be explained. The political representation dimension of the decision cannot be transferred unchanged to all applicants who are not members of parliament; the reasons present in the specific file should be used. [5]
The evidence for a release request and a compensation claim
In a continuing detention, the priority request is the recovery of liberty. Where compensation is sought for detention in the past, the nature of the loss is explained alongside its unlawfulness. For a claim of loss of earnings, employment and income records are important; for necessary expenses, payment documents; and for the personal effects of the detention, a concrete account of the circumstances. The causal link between each loss item and the measure must be established. The compensation amount cannot be fixed by a mechanical charge based solely on the number of days detained. [2, Arts. 141–144; 10]
When preparing the application, the dates of apprehension, police detention, pretrial detention, release and finality should be tracked in separate columns. The day on which a measure ends may start the time limit for another remedy; waiting for the criminal case to conclude is not safe for all complaints. The lawyer should separately assess which ordinary remedy addresses each allegation, and whether that remedy is clearly open on concrete dates. This work prevents the error of leaving a complaint about liberty only to an appeal against a conviction.
For details of this subject, you may also read our article on the prohibition of torture and ill-treatment. For our firm’s work in this area, see the Constitutional Court and European Court of Human Rights applications page.
Conclusion
Protection of liberty requires oversight that begins at the moment of apprehension. A correct application questions the current grounds for the measure, explains the less intrusive alternatives and makes a separate calculation of the time limit for each decision. Separating a request for release from a compensation claim is decisive both for ending a continuing interference and for remedying past harm.
Frequently Asked Questions
Does an acquittal show that pretrial detention was unlawful from the start?
Not by itself. However, the special compensation right that the CMK attaches to an acquittal may be assessed separately.
Is there a seven-day period for an objection to pretrial detention?
Under the current CMK 268, the general period is two weeks. For older decisions and special provisions, the decision date and the transitional rules are checked separately.
Is pretrial detention mandatory for a catalogue offence?
No. Concrete evidence, a ground for pretrial detention and a proportionality assessment must be established, and the reasons why judicial control would be insufficient must be explained.
Will a person be released if they apply to the AYM?
An application does not by itself result in release. The relevant ordinary remedies must be used and the constitutional violation must be specified.
Is administrative detention of foreign nationals subject to the same procedure?
No. The special decision, review and application provisions of Law No. 6458 apply.
Can a lawyer make an AYM application electronically?
Yes. Applications can be made through the UYAP Lawyer Portal. An application saved as a draft and an application that has been completed should be kept distinct from one another.
Sources and legal bases
1 — Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Arts. 13, 19, 36, 148. Current text.
2 — Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), Arts. 90–109, 141–142, 267–268. Current text.
3 — Law No. 6216, Arts. 45–50. Current text.
4 — European Convention on Human Rights (Avrupa İnsan Hakları Sözleşmesi), Arts. 5, 35. Official Turkish text published by the European Court of Human Rights.
5 — Constitutional Court (AYM), Mustafa Ali Balbay, Application No. 2012/1272, December 4, 2013. Decision.
6 — Constitutional Court (AYM), General Assembly, Hikmet Kopar and Others, Application No. 2014/14061, April 8, 2015. Decision.
8 — Constitutional Court (AYM), Guide to Individual Applications through the UYAP Lawyer Portal (UYAP Avukat Portal Üzerinden Bireysel Başvuru Kılavuzu). Guide.
9 — Law No. 6458 on Foreigners and International Protection (Yabancılar ve Uluslararası Koruma Kanunu), Art. 57. Current text.
10 — Law No. 6384 on the Duties and Working Procedures of the Compensation Commission (Tazminat Komisyonunun Görevleri ile Çalışma Usul ve Esasları Hakkında Kanun). Current text.
11 — Hüseyin Turan, “The Obligation Not to Leave One’s Home in the Context of Judicial Control from the Perspective of the Right to Liberty and Security” (“Kişi Hürriyeti ve Güvenliği Hakkı Perspektifinden Adli Kontrol Bağlamında Konutu Terk Etmeme Tedbiri”), Adalet Dergisi (Justice Journal), 2024/73, pp. 165–197. Study.