The real problem lies not in the name of the offence but in the factual and legal limits of the detention request
When an investigation is opened, the legal nature of the criminal accusation is determined on the basis of the initial evidence. As the investigation progresses, this initial assessment may change. However, where a measure that directly restricts personal liberty, such as pretrial detention, is at stake, the offence classification is not merely the label given to the file. Which statutory element is being investigated, which offence the strong suspicion is directed at and which protective measure is possible also depend on this classification.
The facts showing that an act was committed and the question of which offence’s statutory elements those facts constitute are separate problems. Merely writing down the name of a serious offence, without discussing the content of the evidence, neither establishes a strong suspicion of an offence nor completes the conditions for detention. On the other hand, if the judge adopts the article of law written by the prosecutor without assessing it at all, the judicial review provided for in Article 101 of the Code of Criminal Procedure (CMK) becomes a mere formality.
The decisive distinction here is this: attaching a different legal meaning to the same factual event described in the prosecution’s request is one thing; adding a new event or person that does not appear in the request to the basis of the decision is another. The first is a question of legal classification. The second must be addressed separately in terms of the scope of the request, the right of defence and the limits of the judge’s role in the investigation.
What elements make up the public prosecutor’s request?
Article 160 CMK: Gathering evidence and reassessing the legal classification
Once the public prosecutor learns of a situation giving the impression that an offence has been committed, he or she conducts investigative acts in order to establish the material truth. The obligation under Article 160(2) CMK to ensure that evidence both in favour of and against the suspect is gathered also requires the initial offence classification to be retested at every stage. Persisting with the same legal classification throughout the investigation is not an end in itself. If the event revealed by the investigation does not confirm the distinguishing element of the offence initially considered, the classification must be corrected.
Nevertheless, not every change of classification during the investigation means that the suspect has admitted the act or that it has been established that he or she committed the lesser offence. When the facts and evidence are discussed, particularly in the work of defence counsel, a possibility-based alternative legal assessment must be kept separate from an admission of the event.
Article 101(1) CMK: A detention request is not just the name of an offence
For the judge to order pretrial detention at the investigation stage, a request by the public prosecutor is required. The same provision makes it mandatory for this request to state reasons and to explain, on legal and factual grounds, why judicial control would be insufficient. Therefore, it is not enough for a detention request to state only the number of the article of the Turkish Penal Code (TCK). It must be possible to understand in respect of which act, which person, which evidence, which grounds for detention and which concrete risks the request is made.
This requirement determines not only the form of the request but also its scope. If the factual event attributed to the suspect has not been described at all, it cannot be said that the conditions for detention have been reviewed merely on the basis of the name of a serious offence. The judge addresses the deficiency not by constructing a new accusation as if he or she were the prosecutor of the investigation, but by reviewing the concrete request and the statutory conditions.
Is the criminal judge of peace bound by the prosecutor’s charging article?
The charging article does not remove the judge’s independent application of the law
It cannot be said that the prosecutor’s view on the article of law is absolutely binding on the judge. When deciding on the measure, the judge must independently examine whether the concrete event alleged constitutes an offence, which statutory element the available evidence gives rise to a strong suspicion of, and the conditions for the measure. If the prosecutor’s classification is wrong, accepting it without any discussion is incompatible with the purpose of detention review.
On the other hand, Article 101 CMK requires the detention request to come from the public prosecutor. This requirement cannot be interpreted as meaning that the judge may extend the factual limits of the investigation without restriction by relying on a separate act or person not presented by the prosecution.
Why is it decisive that the same act and the same perpetrator are preserved?
In a debate on legal classification, the starting point is whether the conduct described factually in the referral document remains the same. If the time, place and actions of the event and the role of the person concerned do not change, and only the legal norm corresponding to these facts is being debated, there is a difference in legal classification. If a new act, a different offence date, a different victim or an independent event not contained in the original request is added to the decision, it is no longer merely a matter of choosing a norm.
This distinction is particularly important in referrals for serious offences. The defence may have prepared to discuss another offence provision; however, questioning and a detention order concerning another act that has not been notified in any way give rise to the problem of learning of and challenging a new factual accusation. The judge’s independence does not remove the need to explain which concrete conduct is being attributed to the person.
Applying Article 225 CMK by analogy: Scholarly opinion must be distinguished from an express statutory provision
Article 225 CMK provides that the judgment at the trial phase (kovuşturma) is limited to the act and the perpetrator whose elements are set out in the indictment, while the court is not bound by the legal classification. How this provision may serve as guidance for the decisions of the criminal judgeship of peace (sulh ceza hâkimliği) in the investigation is debated in legal doctrine. Prof. Dr. Ersan Şen and Tamer Berk Bayraklı argue that the investigating judge should be bound by the act and the perpetrator that are the subject of the referral, but free as regards the legal classification.
However, Article 225 does not directly govern the detention order in the investigation; it governs the subject matter of the judgment at the trial phase. It would therefore be incorrect to present Article 225 as an express and unlimited power enabling the criminal judge of peace to change the scope of the detention request. The review should be based primarily on Articles 100–101 and Article 162 CMK and the relevant constitutional safeguards.
Four distinct scenarios when the same act is classified differently
In investigation practice, rather than a single answer, whether the factual event remains the same, whether the changed classification is more serious or less serious, and what the prosecution’s request covers must be considered together.
| Situation examined | Legal problem | Review in terms of detention |
|---|---|---|
| A lesser offence classification is given to the same act | The statutory elements of the serious charging article may not be supported | Strong suspicion, the prohibition under Article 100(4) and the adequacy of judicial control are reassessed for the new classification |
| A more serious offence classification is given to the same act | Has the suspect learned of this classification and its distinguishing elements during questioning? | Stricter reasoning is required as to surprise classification, catalogue offence, severity of the sanction and proportionality |
| An independent factual act not referred by the prosecutor | It is not the classification but the factual scope of the request that changes | Creating a detention request for the new event of the judge’s own motion raises serious problems under the request requirement of Article 101 CMK and the right of defence |
| The prosecutor has requested judicial control only | There is no request for detention | It is taken into account that detention at the investigation stage depends on a prosecutor’s request under Article 101(1); whether there is a separate detention request in the specific file is reviewed |
Lesser offence: Effect on the prohibition of detention and on alternative measures
The judge may consider that there is not sufficient concrete evidence for the serious offence put forward by the prosecutor, but that the same event may be investigated in respect of a lesser offence. In that case, the prohibition of detention, the statutory penalty limits of the offence and the available evidence must be re-examined. Moving to a lesser classification does not automatically lead to release; but it does not allow the statutory conditions for detention to be maintained on the basis of the previous name of the offence.
More serious offence: The risk of leaving the defence unprepared
If the judge considers that a more serious offence classification may be given to the same act before him or her, it must be explained on which facts the different statutory elements are based. Particularly where the consequences include falling within the scope of catalogue offences, an increase in the upper limit of the penalty and a more severe measure, it is of vital importance that the suspect and defence counsel are able to learn the substance of the new assessment and to respond to it. An aggravated legal classification cannot be a reason for treating the defence as having been conducted against a new charge that was not notified in advance.
Another factual act: Judicial review cannot open a new investigation
Basing detention on an event that is not described in the prosecution’s referral and whose evidence and factual limits must be determined separately is not the same act as changing the legal classification of the same event. If such an extension is at issue, an independent procedural problem arises with regard to the scope of the request, the subject matter of the suspect’s questioning and the preparation of defence counsel. The investigating judge reviews the request; he or she cannot step into the shoes of the prosecution and construct a new factual accusation for the first time in the detention order.
Request for judicial control only: Can the request requirement be bypassed?
Article 101(1) CMK makes a detention order at the investigation stage dependent on a request by the public prosecutor. In a file where the prosecutor has requested only judicial control, the judge turning of his or her own motion to detention is not an ordinary change of offence classification; it constitutes the problem of changing the type of protective measure requested. In such a case, the referral record, the full content of the prosecution’s request, any detention request submitted subsequently and the record of questioning must be examined together. It should not be assumed that there is a single-sentence, absolute rule of case law covering every possibility concerning different measures.
Strong suspicion of an offence must be established separately for the elements of the offence requested
It must be shown which element each piece of evidence relates to
What is required under Article 100(1) CMK is not an abstract possibility but a strong suspicion of an offence based on concrete evidence. To apply this standard, the factual event must first be linked to the statutory element. A communication record, camera footage, a bank transaction or a witness account may exist; however, which act these records show and which element of which offence that act supports must each be explained separately.
For example, classifying a contractual dispute as fraud requires the deceptive conduct to be described concretely. Likewise, an allegation that persons acted together does not in itself show that the statutory elements of membership of an organisation have been met. These are not findings of innocence or guilt independent of the specific file, but methodological examples concerning the need to show the distinguishing elements of the alleged offence with evidence.
A catalogue offence does not replace suspicion
The catalogue in Article 100(3) CMK concerns the possibility of presuming a ground for detention for the offences listed, where the statutory conditions are met. Being included in the catalogue is not an automatic ground for detention that removes the strong suspicion of an offence and proportionality. First, the existence of concrete evidence that the offence in question was committed must be assessed; then the grounds for detention and whether the measure is necessary must be discussed.
The E.E.T. (Application No. 2021/35038, 11.07.2024) decision of the Constitutional Court (Anayasa Mahkemesi, AYM) is important for this distinction. Although there was no information showing that the applicant had breached the judicial control previously imposed, detention was later ordered on the grounds of a catalogue offence and the insufficiency of judicial control; the Constitutional Court, considering that the reasoning capable of justifying detention was not sufficient in the specific case, found a violation of the right to personal liberty and security. This decision concerns detention at the trial phase; it contains no direct ruling on whether the investigating judge is bound by the charging article.
Article 100(4) CMK: The offence classification may change the prohibition of detention
Article 100(4) CMK prohibits detention for offences punishable only by a judicial fine, and for offences whose upper limit of imprisonment does not exceed two years, except for intentional offences against bodily integrity. Applying this rule makes it necessary to determine the true statutory nature of the offence. The reasoning given in respect of the serious offence in the charging article does not automatically remain valid once a lesser classification has been adopted. The prohibition of detention must be checked again for the different offences; any special statutory regime must also be examined separately.
A detention order must contain concrete reasoning on four separate matters
Article 101(2) CMK requires that decisions on detention, continued detention and rejection of a request for release explain, with concrete facts, four separate elements: strong suspicion of an offence, the ground for detention, proportionality and the insufficiency of judicial control. Repeating the statutory wording in one of these areas does not remedy a deficiency in the others.
Reasoning on strong suspicion
It must be shown which factual circumstance the relevant evidence relates to, and which element of the offence that circumstance relates to. If the offence classification changes, a general reference to the earlier referral document without discussing the element supporting the new classification does not provide an adequate assessment.
Reasoning on the ground for detention
It must be made concrete why the statutory conditions are met with respect to the risk of flight, hiding, destroying or altering evidence, or exerting pressure on the persons concerned. The expected sentence or the public weight of the accusation alone does not replace a file-specific assessment.
Reasoning on proportionality
The balance between the interference with liberty and the legitimate aim, the seriousness of the event, the suspect’s personal situation, the evidence gathered, the current nature of the risk and the expected duration of the measure must be assessed together. Proportionality is an independent standard to be applied separately once the substantive and procedural conditions for detention have been met.
Why judicial control is insufficient
Judicial control is an alternative protective measure that may be applied instead of detention. If detention has nevertheless been chosen, it must be explained why a particular judicial control obligation would not be sufficient to prevent the concrete risks. The Constitutional Court’s E.E.T. decision illustrates that the name of a catalogue offence and an abstract statement that judicial control is insufficient may not be enough in particular circumstances.
Notification of a new offence classification must be addressed together with defence counsel’s right to challenge it
The function of Article 147 CMK in the investigation
Article 147 CMK regulates the safeguards relating to the taking of statements and questioning, in particular informing the suspect of the offence attributed to him or her and the right to benefit from defence counsel. Defence counsel’s task is not only to read out the charging article given, but also to challenge the concrete factual scope of the act described and the likely consequences of a different classification. A suspect cannot prepare an effective defence without sufficient information as to which of his or her conduct is considered an offence and on what legal ground.
If the judge sees the possibility of a new classification during questioning in the investigation, it must be made possible for this assessment to be discussed in a manner understandable to the suspect and defence counsel. This principle is not a claim that the additional defence (ek savunma) procedure of Article 226 CMK at the trial phase applies identically and automatically to the investigation; it is an assessment derived from the nature of the investigative act together with Article 19 of the Constitution and the safeguards of the defence.
Constitutional Court, İsmail Reçber: Moving to a lesser classification does not make the defence unnecessary either
In the Constitutional Court’s İsmail Reçber (Application No. 2021/7616, 07.06.2023) decision, a conviction for abuse of office, entered without giving the opportunity for an additional defence in a case brought on a charge of accepting a bribe, was examined. The Court held that the right to be informed of the accusation had been violated because the changed accusation had not been notified and the time and facilities necessary for preparing the defence had not been provided. The value of the decision is that the need to inform the defence does not disappear even where the legal classification changes to a lesser offence.
This case law concerns a conviction at the trial phase. It should not be claimed that it contains a direct solution regarding the factual scope of the detention request in the investigation or the judge’s power to order detention under any different charging article. However, it shows why a change of legal classification cannot be regarded as insignificant for the defence.
Constitutional Court, Ali Kemal Tekin: The principles and the outcome of the specific decision must be read together
The Constitutional Court’s Ali Kemal Tekin (Application No. 2014/875, 02.02.2017) decision discusses the problem of timely notification of the cause and nature of the accusation. Although the decision sets out important principles on the ability of the defence to be prepared for the charge, it held that the right to be informed of the accusation had not been violated in the specific application. It is therefore incorrect to quote only the favourable statements of principle and present the outcome of the decision as a “violation”.
When these two decisions are read together, the strong conclusion is this: the effect of a change of classification on the defence is measured in the specific circumstances; but taking the change seriously cannot be dismissed merely by looking at the expected sentence.
The 2026 annulment decision of the Constitutional Court: Change of offence classification and the safeguard of notification
By its decision of 26 March 2026, E.2025/18, K.2026/66, the Constitutional Court annulled the third sentence of Article 226(4) CMK, which deemed notification to defence counsel sufficient where the new legal classification could not be notified to the defendant’s last address or where the defendant did not attend the hearing despite notification. The entry into force of the annulment was deferred for nine months and it is scheduled to take effect on 16 April 2027.
The Constitutional Court’s official announcement of the decision focuses on the need, where the nature of the accusation changes, for the defendant to learn of this new situation, to prepare a defence and for safeguards to be preserved in trials in absentia. Nevertheless, the annulment decision does not directly concern the scope of the detention request under Article 101 CMK and cannot be interpreted as meaning that all notification provisions currently in force have ceased to apply from today. The significance of this development for our article is that the constitutional relationship between a change of offence classification and the right of defence has been re-emphasised in a current context.
The police summary report, the prosecutor’s request and the judge’s decision are not the same legal act
The inquiries carried out by the police and the summary report (fezleke) they prepare serve to submit the data and assessments of the investigation to the prosecution. The public prosecutor evaluates them, separately conducts investigative acts and, where necessary, requests a protective measure. The criminal judge of peace, in turn, carries out judicial review of the request brought before him or her. Because the function and legal responsibility of these three stages are distinct, the unquestioning adoption of an earlier assessment by the next authority is incompatible with the purpose of the procedure.
It is not claimed here that the legal assessment of the police or the prosecution is necessarily wrong. The essential requirement is that the manner in which the evidence was obtained, its inclusion in the file, the factual scope of the accusation and the explanation relating to the statutory elements can be addressed independently at every stage.
Does the investigating judge’s classification bind a subsequent indictment or judgment?
The prosecutor’s responsibility continues when drawing up the indictment
The legal classification made for a protective measure at the investigation stage is not the final judgment of the criminal proceedings. The public prosecutor separately assesses sufficient suspicion and the statutory conditions and decides whether or not to draw up an indictment. The article of law used in the detention questioning does not automatically require the indictment to be drawn up under the same article. The concrete evidence and the legal classification may be reconsidered.
Article 174(2) CMK: An indictment cannot be returned solely because of the legal classification
Article 174(2) CMK expressly provides that the indictment cannot be returned on account of the legal classification of the offence. This provision does not remove the other statutory conditions of the indictment and does not excuse every deficiency where the indictment does not contain sufficient material facts. What matters is that a dispute over the legal classification is not confused with the description of the act forming the basis of the trial and with the evidentiary conditions.
Articles 225–226 CMK: The trial court’s power and the protection of the defence
At the trial phase, the court is not bound by the legal classification of the act; however, it is bound by the factual act and the perpetrator whose elements are shown in the indictment (Article 225 CMK). Where the legal nature of the offence changes, the safeguards of Article 226 CMK come into play so that the defendant can learn of the change and defend himself or herself. The classification assessment in investigation detention and the rules on judgment at the trial phase must not be equated with each other. The statutory powers and the standard of defence for each stage are applied in their own context.
What remedies are available against unlawful classification and detention?
Objection to the detention order: Articles 267–268 CMK
Decisions of judgeships concerning detention are subject to objection. As of 10 November 2026, the general time limit for an objection, unless there is a special provision, is two weeks from the date on which the decision was learned of (Article 268(1) CMK). The objection is submitted to the authority that issued the decision. Under Article 268(3)(b) CMK, the objection against detention and judicial control decisions of the criminal judgeship of peace is examined, except in the special cases specified in the law, by the judge of the criminal court of first instance (asliye ceza mahkemesi) within the judicial district. This special rule must not be confused with the general arrangement for the competent objection authority concerning other decisions of the criminal judgeship of peace.
Rather than merely saying “the decision is unjust” in the objection, the act referred, the legal classification adopted, the missing statutory element, the assessment of strong suspicion, the ground for detention, the judicial control alternative and the notification to the defence should each be set out separately. As a rule, lodging an objection does not by itself suspend the enforcement of the decision; Article 269 CMK and special provisions are assessed separately in the specific case.
Request for release and review of detention: Articles 104–108 CMK
The expiry of the time limit for objecting to detention does not mean that detention can no longer be challenged under any circumstances. The suspect or defendant may request release in accordance with the stage and procedure provided for by law. In the reviews of detention under Article 108 CMK, too, it must be questioned whether the earlier offence classification still holds in the light of the evidence and whether the measure is still necessary.
When new evidence emerges, when the distinguishing element of the accusation weakens or when it becomes clear that the risk can be eliminated through judicial control, these matters must be discussed in the decision on continued detention. Repeating the reasoning of the earlier detention order does not replace an examination of the concrete conditions of the subsequent period.
Constitutional and compensation remedies are subject to separate conditions
For violations alleged in respect of personal liberty, the ordinary legal remedies, the admissibility of an individual application, the time limit for applying and, where applicable, the compensation remedies under Article 141 et seq. CMK must be assessed separately. It cannot be claimed that, for every allegation of unlawful detention, an application may be made directly to the Constitutional Court at the same time and at the same stage, or that compensation arises automatically. In the specific process, the finality of the decision, ongoing detention and the remedies that must be exhausted are important.
A review method defence counsel can apply at the first questioning
Whether the prosecutor’s charging article binds the judge is not merely a theoretical question. Before and during the questioning of the suspect, defence counsel should be able to separate the factual and normative content of the detention request.
Matching the request, the act and the norm
First, it is checked whether the person, the factual event, the date and place details, the alleged actions, the TCK provision chosen and the supporting evidence in the referral document fall within the same scope. It is determined which concrete evidence supports the distinguishing statutory element of the offence. For elements that have been left vague, the judge is asked to make them concrete.
The conditions for the measure must be argued separately
Strong suspicion, the ground for detention, the prohibition of detention, proportionality and the insufficiency of judicial control are different questions. A defence on one element does not replace another. For example, the fact that an assessment of the suspicion of flight has been made does not in itself show that the material and mental elements of the alleged serious offence are actually supported.
An alternative classification argument must not be treated as an admission
Without accepting that the act took place, the defence may argue that even if the alleged event were assumed hypothetically to be true, the statutory elements of the offence chosen have not been fulfilled. To ensure that such an argument is not treated as an admission of material facts, it is useful to keep the limits of the objection clear.
A procedural record must be made when a different classification emerges
If the judge is discussing an offence classification different from the prosecutor’s referral, defence counsel should question which concrete evidence it is based on, whether it remains within the same act, and whether the explanation and opportunity necessary for the suspect to respond to the new assessment have been provided. Having objections and requests on this point entered in the record of questioning is important for subsequent review through legal remedies.
Counterarguments and the legal answers to objections
The view that “the judge applies the law of his or her own motion and may adopt any offence classification”
The judge’s independence in applying the law supports the judge’s ability to challenge the prosecutor’s legal view. However, it does not follow from this principle that liberty may be interfered with in the absence of a prosecution request for detention or by adding a new factual act that is not in the request. The statutory request requirement, the factual scope of the accusation and the opportunity for defence must be preserved as independent limits.
The view that “the article written by the prosecutor cannot be changed; the judge only accepts or rejects”
This approach narrows unduly the judge’s duty to review which offence’s elements the alleged act fits. A judge who can show that the offence classification is wrong or incomplete must be able to discuss this in the reasoning. Nevertheless, the possibility of making a different legal classification does not mean that a detention order may in every case be issued on the basis of that new classification. The request, the defence and the conditions for detention are tested separately.
The approach that “there is a catalogue offence; no other reasoning is needed”
The presumption in Article 100(3) CMK does not create an automatic detention order outside the conditions set out in the article. As in the Constitutional Court’s E.E.T. decision, the specific circumstances of the event, and in particular whether less severe measures would be sufficient, must be addressed with concrete reasoning. A change in the evidence or the passage of time may require the earlier assessment to be reconsidered.
Offence classification and detention review matrix for an investigation file
The matrix below does not replace legal advice or an examination of the specific file; it shows the areas of review that must not be confused with one another when assessing the prosecution’s request.
| Area of review | Key question | Priority document/record | Possible focus of defence or application |
|---|---|---|---|
| Factual act | Which conduct, person and date have been referred? | Referral document, investigation papers, record of questioning | Addition of a new act outside the request |
| Legal classification | Have the distinguishing elements of the offence been explained? | TCK article, records, concrete evidence | Aggravated or incorrect classification |
| Strong suspicion of an offence | Which element of the offence does the evidence support? | Camera, HTS, recordings, documents, statements | Lack of connection between concrete evidence and element |
| Ground for detention | Is the risk of flight or interference with evidence concrete? | The suspect’s conduct and the facts of the file | Boilerplate reasoning and lack of current relevance |
| Catalogue and prohibition | Does Article 100(3)–(4) actually apply? | Statutory limits of the offence, classification of the accusation | Automatic detention or breach of the prohibition |
| Judicial control | Why is a particular alternative insufficient? | Prosecution request and judgeship decision | Disproportionality, insufficient reasoning |
| Notification and defence | Was the changed classification explained to the suspect? | Records of statements and questioning | Request for explanation and recording for an effective defence |
| Legal remedy | What is the date of learning of the decision and which authority is competent? | Decision, pronouncement (tefhim), service records | Two-week objection, release and subsequent review |
Conclusion
The prosecutor’s charging article does not absolutely bind the judge’s independent assessment of the offence. However, the judge’s power to apply the law is not a freedom to construct a new factual event outside the prosecutor’s request or to bypass the statutory conditions of a measure restricting personal liberty. The correct solution to the problem begins with distinguishing between classifying the same act differently and attributing a new act.
What is decisive in detention is not the weight of the name of the offence, but the concrete evidence relating to the statutory elements of that offence, the statutory grounds for detention, proportionality, the insufficiency of judicial control and the informing of the defence. Review of decisions issued without separate reasoning on each of these elements should challenge not only the grounds for detention but also the initial legal classification.
The safeguard of the investigation is not the preservation of the initial name of the offence, but the ability at every stage to bring the facts, the norm and the interference with liberty back before the law.
Frequently Asked Questions
If the prosecutor requests detention for offence A, can the judge order detention for offence B?
There is no single absolute answer. Making a different legal assessment of the same factual act is different from deciding on the basis of an independent act that the prosecutor never referred. The prosecution’s request, the conditions for detention under Articles 100–101 CMK and the suspect’s right of defence must be examined together.
Can the criminal judge of peace change the prosecutor’s legal classification?
The judge may independently assess the legal nature of the act brought before him or her. However, being bound by the request in the investigation and the limits of the factual accusation must be respected. The trial-phase rule of Article 225 CMK is not an express provision granting unlimited power in the investigation.
Does a lesser classification of the offence require automatic release?
No. The statutory conditions for detention are re-examined with respect to the new classification. The prohibition of detention under Article 100(4) CMK, strong suspicion, the grounds for detention and the judicial control options are decisive in the specific case.
Is everyone referred for a catalogue offence detained?
No. The existence of a catalogue offence does not make detention mandatory. Strong suspicion of an offence based on concrete evidence, proportionality and the other relevant conditions are assessed separately.
If the judge is considering a more serious offence classification, must the suspect’s defence be heard?
The factual act and statutory elements on which the different classification is based must be understandable to the suspect and defence counsel, and an opportunity to respond effectively must be provided. The trial-phase procedure of Article 226 CMK cannot be transferred mechanically to the investigation; however, the safeguards of being informed of the accusation and of the defence are also important during questioning in the investigation.
Can the judge order detention where the prosecutor has requested only judicial control?
Article 101(1) CMK makes detention in the investigation dependent on a request by the public prosecutor. In a file where the prosecutor has requested only judicial control, it should be checked whether there is also a separate detention request and on which request the judge based the decision. A general power regarding different protective measures should not be presumed.
Is strong suspicion of an offence re-examined when the offence classification changes?
Yes. The concrete evidence must be reassessed with respect to the distinguishing elements of the new legal classification. Reasoning established for another offence is not automatically transferred to the new classification.
What is the time limit for objecting to detention?
As of 10 November 2026, under Article 268(1) CMK, unless there is a special provision, it is two weeks from the day on which the decision was learned of. The start of the time limit, proper notification and the form of application are assessed separately in the file.
Which authority examines the objection to the detention order?
Under Article 268(3)(b) CMK, the objection against detention and judicial control decisions of the criminal judgeship of peace is examined, subject to the exceptions in the law, by the judge of the criminal court of first instance within the judicial district. It must not be confused with the general competent objection authority for other judgeship decisions.
If the objection is rejected, can a fresh review of detention be requested?
Within the conditions of the law, a request for release and subsequent reviews of detention are possible. If there are grounds such as new evidence, a changed offence classification, the disappearance of the risks or the sufficiency of judicial control, these may be raised again.
Does the prosecutor’s offence classification in the investigation bind the indictment?
No. The provisional assessment in the investigation is not an automatic and unchangeable rule for the indictment. The prosecutor separately assesses the conditions for bringing a public prosecution and the legal classification at the stage of drawing up the indictment.
Is the indictment returned when the offence classification changes?
Under Article 174(2) CMK, an indictment cannot be returned solely on account of the legal classification. However, the other statutory conditions of the indictment and the mandatory investigative acts are examined separately.
Sources and legal bases
- Law No. 5271, Code of Criminal Procedure (5271 sayılı Ceza Muhakemesi Kanunu), in particular Articles 100–101, 104–105, 108–110, 147–148, 160, 162, 170, 174, 225–226 and 267–269; Ministry of Justice of the Republic of Türkiye, UYAP Legislation and Case Law Programme.
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), in particular Articles 13, 19, 36 and 141.
- Constitutional Court (AYM), E.2025/18, K.2026/66, 26.03.2026, the Constitutional Court’s official announcement of the decision dated 16 July 2026; annulment of the third sentence of Article 226(4) CMK and deferred entry into force.
- Constitutional Court (AYM), İsmail Reçber, Application No. 2021/7616, 07.06.2023, in particular §§ 16–20; change in the legal nature of the accusation and the right of defence, violation.
- Constitutional Court (AYM), E.E.T., Application No. 2021/35038, 11.07.2024, in particular §§ 18–22 and the assessment section; ground for detention, adequacy of judicial control and personal liberty, violation.
- Constitutional Court (AYM), Ali Kemal Tekin, Application No. 2014/875, 02.02.2017; principles on being informed of the accusation, no violation in the specific application.
- Ersan Şen – Tamer Berk Bayraklı, “The Criminal Judge of Peace’s Being Bound by the Act” (“Sulh Ceza Hâkiminin Fiille Bağlılığı”), 08.02.2023; scholarly opinion on the investigating judge being bound by the act.
- Fahrettin Kayhan, “Legal Classification at the Investigation Stage” (“Soruşturma Evresinde Hukuki Niteleme”), Hukuki Haber, 28.10.2026; earlier publication on legal classification at the investigation stage.