Police custody and pre-trial detention: what is the difference?

When a relative is taken into police custody, the first question is usually how soon they will be released, and the second is whether they have been remanded. In everyday speech the two words are used interchangeably. In law they are separate measures, ordered by different authorities, on different conditions and for different periods.

Police custody is a temporary measure

Police custody (gözaltı) is the restriction of a person's liberty after apprehension, while the steps of the investigation are completed. It is ordered by the public prosecutor; no judicial decision is required. Its length is capped: as a rule it cannot exceed twenty-four hours from the moment of apprehension. The travel time needed to bring the person from the place of apprehension to a judge or court falls outside that period, and is itself subject to a limit.

Where an offence has been committed collectively and the evidence is difficult to gather, the prosecutor may extend custody by daily extensions. That extension is also subject to an upper limit set by statute. It is made by written order, and the order is served on the person concerned.

When the custody period runs out, one of two things happens: the person is released, or they are brought before a criminal judgeship of peace (sulh ceza hâkimliği) with a request for detention.

Only a judge orders pre-trial detention

Pre-trial detention (tutuklama) is requested by the public prosecutor but ordered by a judge. Two conditions must be met together:

• Concrete evidence showing strong suspicion that the offence was committed. An abstract assessment is not enough.
• A ground for detention: a risk of flight, or a danger that evidence will be tampered with or that pressure will be put on a witness or the victim.

For certain serious offences listed in the Code of Criminal Procedure (Ceza Muhakemesi Kanunu), the existence of a ground for detention is presumed. That presumption does not relieve the judge of the duty to give concrete reasons.

Detention is a last resort. The gravity of the case, the sentence likely to be imposed and whether the measure is proportionate are all weighed. As a rule, detention cannot be ordered for offences punishable only by a judicial fine, or by a prison sentence whose upper limit does not exceed two years.

Judicial control: measures that stand in for detention

Where grounds for detention exist but detention itself would be too heavy a measure, the judge may order judicial control (adli kontrol) instead. The forms seen most often in practice are:

• A ban on leaving the country
• Signing in at a police station or a probation office at set intervals
• Not leaving one's home, or not leaving a defined area of residence
• Payment of a security deposit
• Electronic monitoring

Judicial control can be raised at any point during the hearing on detention, and it can also be requested later, together with an application for release.

Both measures can be challenged

Police custody, the extension of custody and the apprehension itself may all be challenged before a criminal judgeship of peace. The application can be made by the person concerned, by their defence counsel, by their legal representative, by their spouse, or by relatives of the first and second degree. The judge decides on the file, without delay.

The time limit for objecting to a detention order is seven days from the day the decision becomes known. The objection is filed with the judgeship that made the order; the file is then sent to the next criminal judgeship of peace in numerical order.

Detention is reviewed, not fixed

Whether detention should continue is reviewed at regular intervals of the court's own motion, even where no application has been made. A request for release can be made at any time. Statute also sets ceilings on the total length of detention, and those ceilings differ according to whether the offence falls within the jurisdiction of the assize court (ağır ceza mahkemesi).

Where the defendant is acquitted, the case is dropped, or the detention is found to have been unlawful, compensation may be claimed on account of the protective measure. That claim has its own time limit and its own procedure.

This article is for general information only and does not constitute legal advice on any specific matter. Time limits and conditions set by legislation may change.