Pretrial detention is a severe interference with liberty that is applied before the outcome of the criminal proceedings is known. For this reason, the seriousness of the charge, public attention to the investigation or the length of the expected sentence alone do not form a sufficient ground for detention. On the other hand, a fixed residence, family arrangements or a clean criminal record do not automatically lead to release in every file. A legal assessment must examine, on the facts of the specific case, the basis for the suspicion, the risk alleged in order to protect the proceedings, and whether less intrusive measures would be adequate.
Short answer: An objection to pretrial detention asks for review of a specific detention order or of the continuation of detention. A release request, by contrast, may be raised at every stage of the investigation and prosecution. The current general objection period is two weeks from the day the decision is learned of. An effective application separately examines strong suspicion of an offence, the risk of flight or of interference with evidence, proportionality, and why judicial control would be sufficient. [1]
What Are the Legal Conditions for Pretrial Detention?
Strong Suspicion of an Offence Based on Concrete Evidence
Article 100 of CMK requires concrete evidence showing the existence of strong suspicion of an offence. Receiving a report, the detained person recognising another suspect, or a telephone line being registered in one's own name does not by itself mean that this threshold has been crossed. Where a detention order is made, there must be an understandable link between the act attributed to the person and the evidence said to show that act.
At this stage, the standard of proof required for a final conviction does not apply; however, suspicion cannot rest on an abstract assumption. The defence, bearing in mind that not all evidence may have been gathered at the early stage of an investigation, should explain what the existing evidence shows and what it does not show. For example, the existence of a money transfer and knowing that the transfer was made for fraudulent purposes are different facts. A meeting taking place and its content being connected to the offence are also different things.
A Ground for Detention Separate from Suspicion
Strong suspicion and the ground for detention are separate matters. CMK 100/2 sets out the concrete facts that give rise to suspicion of flight, hiding or an intention to abscond, and the strong suspicion of destroying, concealing or altering evidence, or of attempting to exert pressure on witnesses or victims. A court stating that the existing evidence supports the charge does not, by itself, explain why detention is necessary.
When assessing the risk of flight, the following are considered together: whether the person responds to summonses, whether they came forward voluntarily, the circumstances of any arrest, the nature of any link abroad, and address and work arrangements. Being abroad does not always mean fleeing; the dates of the events, the reason for travel and whether the person knew of the investigation all matter. On the other hand, leaving matters such as a false identity, concealment, or losing contact after a summons unexplained weakens the application.
Proportionality and the Prohibition of Detention
Detention must be proportionate to the importance of the case and to the expected penalty or security measure. Under CMK 100/4, a detention order may not be issued for offences that carry only a judicial fine, and also, except for intentional offences against bodily integrity, for offences whose upper penalty limit does not exceed two years of imprisonment. The applicable statutory provision and the possibility of an aggravated form should guide the analysis, rather than the name of the offence.
For children, Article 21 of Child Protection Law No. 5395 (Çocuk Koruma Kanunu) is also important. There is a prohibition on detaining children who have not reached the age of fifteen for acts that require a prison sentence whose upper limit does not exceed five years. The calculation of age, the date of the offence and any special regulation that may apply must be considered together. The deprivation of liberty of children must be assessed under special safeguards and a last-resort approach. [2]
Does Being a Catalogue Offence Mean Automatic Detention?
The Limit of the Statutory Presumption
CMK 100/3 provides that, for certain offences, grounds for detention may be presumed to exist. The provision itself still requires concrete evidence giving strong grounds to suspect that these offences were committed. The fact that an offence appears in the catalogue does not remove the obligation to show concrete evidence. Nor does the law create a mandatory result in the form of "shall be detained".
The defence should make visible that a catalogue heading may still contain different problems. Whether the act attributed actually constitutes that offence, the strength of the person's link to the act, the state of evidence-gathering and the workability of judicial control are discussed together. Saying only "this is not a catalogue offence" is incomplete, and so is saying "because this is a catalogue offence, release is not possible".
How a Dispute over Legal Characterisation Affects Detention
Where an element supporting a serious characterisation of the offence is contested, the defence should explain what that means for detention. For example, commercial purpose, organisational links, joint perpetration or the nature of a weapon may change the legal characterisation of the offence. This debate may affect not only the amount of the expected penalty but also the catalogue-offence assessment and proportionality.
However, an objection to detention should not become a long repetition of every substantive defence that has not yet been examined. It should show which challenge to the legal characterisation directly affects the present basis for restricting liberty. The aim is as much to have the current reasoning for detention reviewed as to have the merits decided.
How Is the Reasoning of a Detention Decision Reviewed?
Four Separate Areas of Assessment
CMK 101/2 requires that decisions ordering detention, refusing continuation of detention or refusing release explain, through concrete facts, the strong suspicion of an offence, the grounds for detention, proportionality, and the evidence showing that judicial control is insufficient. Using these four areas interchangeably can create a problem of reasoning. If the phrase "the evidence in the file" does not show which evidence concerns which person, the application should ask for this to be clarified.
Reviewing reasoning does not mean counting the words in a decision. A short decision may explain concrete facts; a long decision may contain no assessment specific to the file. The defence should show a gap in reasoning not by listing stock phrases, but through the decisive questions that remain unanswered.
The Longer Detention Lasts, the More Current Reasoning Matters
Reasoning given at the moment of initial detention does not serve the same function as reasoning for a continuation decision months later. If witnesses have been heard, the digital examination completed or documents seized, the application should explain why a risk of interference with evidence still persists. A pending expert report does not, by itself, mean that the person could interfere with it.
A large or multi-defendant file may explain the length of the proceedings, but it does not automatically justify the same detention outcome for each defendant. The application should separate the person's own conduct, the evidential position and their conduct in the proceedings. In particular, where no further step concerns the applicant, it should be questioned why investigations into other persons require the applicant's detention.
The Difference Between an Objection and a Release Request
Objection Period and Place of Filing
Under the current general period in CMK 268/1, the period is two weeks from the day the decision is learned of. The petition is submitted to the authority that made the decision; if that authority does not find the objection well-founded, it sends the file to the reviewing authority specified by law. Because of the transitional provisions of Law No. 7499, the regime for decisions made before June 1, 2024 must be evaluated separately. A seven-day period appearing in older online examples should not be applied directly to applications made today. [1]
An objection against the decisions of a criminal judgeship of peace on detention and judicial control is examined, under the current special rule in CMK 268/3-b, by the judge of the criminal court of first instance in the judicial district. This special rule should not be confused with the general sequence system provided for other decisions of criminal judgeships of peace. For decisions of criminal courts of first instance and high criminal courts, different authority rules apply; the competent authority for the file is determined from the heading of the decision.
The Right to Request Release at Every Stage
CMK 104 allows a request for release at every stage of the investigation and prosecution. The fact that the time limit for objecting to a particular decision has passed does not mean that release can no longer be requested. However, a new release request does not automatically cure the time-limit problem concerning the earlier decision. The functions of the two routes must be kept separate.
New evidence, an expert report, a change in a witness's account, a change in health condition or the lengthening of detention may be important in a current release assessment. Rather than resubmitting the same petition without identifying any change, the application should explain what has changed in the basis for restricting liberty since the last decision.
Examination Periods and the Stage of the File
CMK 105 provides a general decision period of three days for release requests and, for offences within the scope of certain organisation-related activity, a seven-day period subject to the exception stated in the article. This period must not be confused with the objection period available to the applicant. When the file has reached the regional court of appeal or the Court of Cassation, the special authority provision in CMK 104/3 is taken into account for the release request.
Ex officio review of detention is a separate safeguard. Under CMK 108, during the investigation, detention is reviewed at intervals of no more than thirty days; during prosecution, at hearings and at the intervals provided by law, whether continuation is necessary is assessed. The existence of ex officio review does not remove the right to submit a document-based release request.
How Does Judicial Control Become a Concrete Alternative?
Linking Risk to Measure
The phrase "judicial control can be applied" remains weak if it does not explain which risk will be addressed by which obligation. For the risk of flight, a travel ban and regular reporting obligations may be considered; for problems involving contact with particular persons or presence in a particular place, appropriate restrictions; and where necessary, measures such as a guarantee or an obligation not to leave the residence. The legal basis and workability of each measure must also be shown.
Judicial control itself is subject to proportionality review. In particular, the obligation not to leave the residence can have serious consequences for work and family life. Where a less onerous obligation would suffice, the reasons should be explained. The review titled Objection to House Arrest and to the Obligation Not to Leave the Residence elaborates on this second assessment.
Personal Circumstances Supported by Documents
Work, education, family responsibilities and health information are meaningful in an application; however, they do not by themselves remove a suspicion of an offence. An employer's letter, an enrolment record, a regular treatment document or a record concerning a person one is obliged to support serve particularly to assess the risk of flight and the weight of the measure. It should be clear which document is submitted for which legal issue.
In health claims, the name of the diagnosis and whether treatment can be continued under prison-facility conditions are separate matters. A current expert assessment and the nature of the necessary treatment are important. Adding a health document to the application does not create an automatic guarantee of release; it requires the court to carry out a concrete assessment of risk and of alternative measures.
How Are Maximum Detention and Reasonable Time Distinguished?
Statutory Upper Limits
CMK 102 provides, for cases outside the duties of the high criminal court, one year of detention with extension for six months in mandatory circumstances; and, for cases within the duties of the high criminal court, two years with extension under the conditions set out in the law. The general upper limit for extension in high criminal court cases is three years and, for offences of State security and terrorism mentioned in the article, five years. Shorter upper limits apply to the investigation phase. [1]
These figures should not be used as a calculator that automatically determines the total period of detention in each file. The offence group, the stage, age, multiple files, legal status after conviction and the remittal process must all be examined. For children, the reduced rates in CMK 102/5 are also considered. Any calculation table should show separately which period fell under which legal status.
A Violation May Occur Before the Upper Limit Is Reached
That the statutory maximum period has not expired does not mean that detention is reasonable in every case. Where, on the concrete facts, relevant and sufficient reasons no longer exist, or due diligence is not shown, a constitutional problem may arise even before the upper limit is reached. Conversely, merely stating the number of months, without explaining the features of the file, does not prove a violation of reasonable time. This topic can also be reviewed in the article on maximum periods of detention.
The defence should add procedural steps to the duration table. Where it is shown which evidence was expected in which period, what caused the delay, what effect the defence's adjournment requests had, and whether the authorities took action, the debate on duration becomes more open to review.
Assessment in Light of Actual Constitutional Court Decisions
Murat Narman: Statutory Limit and Repeated Reasoning
In its decision in Murat Narman, Application No. 2012/1137, July 2, 2013, the Constitutional Court (Anayasa Mahkemesi) found a violation both because the maximum detention period applicable in that file had been exceeded and because detention had lasted beyond a reasonable time. The Court assessed that the same matters were repeated in continuation decisions and that no relevant and sufficient reasoning explained the prolonged detention; see in particular §§ 67–76. [3]
This decision cannot be read as meaning that every file has a single, fixed five-year upper limit. Subsequent legislative changes and offence groups must also be examined. What can be carried into current practice is the principle that the calculation of duration must rest on the correct legal regime, and that continuation must be justified by current, individualised reasoning.
Mustafa Ali Balbay: Initial Detention and Prolonged Detention May Not Lead to the Same Result
In Mustafa Ali Balbay, Application No. 2012/1272, December 4, 2013, the Constitutional Court clearly found manifestly unfounded the complaint that there were no facts justifying detention. However, by assessing the link between prolonged detention and the right to be elected and to engage in political activity, it reached a finding of violation. Section 94 and following of the decision also include an examination of the conditions specific to the applicant's membership of parliament. [4]
Accordingly, the decision cannot be relied on to argue that initial detention was necessarily unlawful, or that all detainees must be released on the same reasoning. What is instructive for the defence is that different complaints in the same file can receive different admissibility and substantive outcomes. The objection must clearly set out which interference it targets.
The File Structure of an Effective Application
Linking Facts, Evidence, Risk and Request
The petition should begin by stating the date of detention and identifying the decision being challenged. The basic evidence on suspicion of an offence, the objections to it, the grounds for detention and the alternative measures should then be discussed in separate sections. Personal circumstances belong in the proportionality section and must not be used as a substitute for answers to evidential problems.
| Basis in the decision | Defence's inquiry | Concretising the request |
|---|---|---|
| Risk of flight | Response to summonses, address, travel and arrest circumstances | Absence of risk; appropriate judicial control if needed |
| Interference with evidence | Evidence already gathered and evidence not yet gathered | Why there is no possibility of interference |
| Digital record | Attribution, method of acquisition, integrity of the record | Examination and re-evaluation of the suspicion |
| Witness account | Eyewitness basis, contradictions, hostility, corroborating record | Effect of the account on the detention threshold |
| Prolonged detention | Periods, steps and delays | Current reasoning and proportionality review |
Where digital or specialist records are decisive, the link should be made with the objection to an expert report; where witness accounts carry weight, with witness statements and cross-examination. Preserving documents and obtaining them in time keeps the release request consistent with the later substantive defence.
Constitutional Court Application and Compensation Routes
In complaints about detention, an application to the Constitutional Court requires separate assessment of the ordinary objection route and of the relevant admissibility conditions. Continuation of detention, release, or a change in legal status through conviction may affect which route is effective for which complaint. A single older decision should not be used to derive one rule on exhaustion of remedies for all applications.
A claim for compensation for a past restriction of liberty serves a different purpose from a release request. Compensation for unlawful detention and police custody and individual application to the Constitutional Court in criminal cases should therefore be assessed separately. The possibility of compensation does not remove the need to review the lawfulness of continuing detention.
For related matters, see crediting detention and police custody against the sentence and file access and restriction orders in criminal investigations.
For more on the subject, see our article on the right to liberty and security.
Conclusion
An effective defence against detention does not rest on a single sentence about the seriousness of the charge or the person's social situation. The evidential basis of the strong suspicion, the currency of the grounds for detention, the effect of the time that has passed and the options for judicial control must be considered together. Ensuring that an objection and a release request are submitted to the right authority, within the right time and supported by documents allows the real grounds for restricting liberty to be reviewed. For details, see the article on maximum periods of judicial control.
For legal support in criminal proceedings and enforcement processes, you may review our criminal defence services.
Frequently Asked Questions
How long is the period for objecting to pretrial detention?
Under the current CMK 268/1, the general period is two weeks and runs from the day the decision is learned of. Decisions made before June 1, 2024 are subject to a separate examination of the transitional provision. The time for requesting release, which can be made at every stage, is different from this period.
If the objection period is missed, can release still be requested?
Yes. Under CMK 104, release may be requested at every stage of the investigation and prosecution. However, this request does not automatically cure the objection period that has passed for the earlier decision.
Can a person detained for a catalogue offence not be released?
They can. Being in the catalogue does not remove the assessment of strong suspicion based on concrete evidence, proportionality and judicial control. The outcome depends on the circumstances of the file.
Does another criminal judgeship of peace review a detention decision of a criminal judgeship of peace?
For detention and judicial control decisions, the current special rule under CMK 268/3-b is the judge of the criminal court of first instance in the judicial district. The general sequence rule for other criminal judgeship of peace decisions should not be confused with this special rule.
If all the evidence has been gathered, is release mandatory?
Gathering the evidence significantly affects the reasoning on the risk of interference with evidence. However, whether other statutory grounds, such as the risk of flight, exist is assessed separately. A continuation decision must contain current and concrete reasoning.
Is detention always lawful if the maximum period has not expired?
No. The statutory upper limit and reasonable time are different reviews. Where sufficient reasons no longer exist on the facts of the case, a constitutional issue concerning liberty may arise even before the upper limit is reached.
Sources and legal bases
1. Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), particularly Articles 100–109, 267–271 and Provisional Article 6. Current text check: October 12, 2026.
2. Child Protection Law No. 5395 (Çocuk Koruma Kanunu), particularly Articles 4, 20 and 21.
3. Constitutional Court (AYM), Murat Narman, Application No. 2012/1137, July 2, 2013, particularly §§ 67–76.
4. Constitutional Court (AYM), Mustafa Ali Balbay, Application No. 2012/1272, December 4, 2013, particularly §§ 94–134 and the operative part.
5. Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), particularly Articles 13, 19 and 36.