7 Basic Legal Basis for Objection to Extension of Detention

7 Basic Legal Basis for Objection to Extension of Detention. In criminal procedure law, detention, the most serious interference with personal liberty, is not considered a punishment but a temporary “tool” used to facilitate the proper conduct of the trial. Both the initial implementation of this interference with the right to personal liberty, guaranteed by the Constitution and the European Convention on Human Rights, and the decision to continue it during periodic reviews, known as “extensions,” are subject to extremely strict legal conditions. In practice, each “continuation of detention,” referred to as an “extension,” is not an automatic confirmation of the initial decision but rather a new decision that must be re-issued from scratch, taking into account the evidence and the elapsed time, and is subject to stricter scrutiny. These decisions must meet a variety of concrete and personalized legal grounds, ranging from strong suspicion to the principle of proportionality, from the inadequacy of judicial control measures to the requirement that a reasonable time be not exceeded.

1- Review of Detention (CMK Art. 108) and the Legal Nature of “Extension” Decisions

In criminal procedure law, detention is recognized as the most severe preventive measure within the system of the Turkish Code of Criminal Procedure (CMK), No. 5271, due to its deprivation of a person’s liberty. The fundamental philosophy of this measure is not to serve as a punishment or a means of executing a sentence, but rather as a temporary “tool” used to uncover the material truth, ensure the proper conduct of the trial process, and enable the implementation of the final judgment. As it constitutes a direct interference with the right to liberty and security of person (Constitution Article 19, European Convention on Human Rights – ECHR Article 5), its application and continuation are subject to extremely strict formal and substantive conditions.

The process known in practice as the “extension of detention” is, legally, a “continuation of detention” decision issued following the “review of detention” process under CMK Article 108. This review is conducted ex officioat thirty-day intervals during the investigation phase, and at each hearing or at least every thirty days during the prosecution phase. Both doctrine and high court jurisprudence concur that these “continuation” or “extension” decisions are not automatic endorsements of the initial detention order. On the contrary, each review decision is considered a new detention order, which must be made from scratch, taking into account the suspect’s or defendant’s current legal and factual situation (status of evidence, time spent in detention, health condition, etc.).

Within this analytical framework, a decision to continue detention is subject to even stricter scrutiny than the initial detention order. This is because the passage of time tends to strengthen the presumption of innocence while weakening the “public interest” justifications required for continued detention.

This article will comprehensively analyze the seven fundamental legal grounds that can be asserted in objections to decisions continuing or extending detention (or in subsequent individual applications to the Constitutional Court), in light of the CMK legislation and the jurisprudence of the Constitutional Court (AYM) and the European Court of Human Rights (ECHR). These seven requirements outline the obligations that courts must meet to issue a lawful extension decision and how the violation of these obligations forms a basis for objection.

2- Legal Requirement: Concretely Demonstrating the Continued Existence of “Strong Suspicion of Guilt” at the Extension Stage

The sine qua non (indispensable) condition for any detention order, pursuant to CMK Article 100/1, is the presence of “concrete evidence showing strong suspicion that the suspect or defendant committed the crime.” This condition applies not only at the time of the initial arrest but also at every moment the detention continues.

The critical point in objecting to extension decisions is to emphasize that the concept of “strong suspicion” is not static but dynamic. At the beginning of an investigation, a witness statement or an informant’s tip might be deemed sufficient for “strong suspicion.” However, as the trial progresses, evidence is collected, the defense presents its own evidence, and witnesses undergo cross-examination, the strength of this initial suspicion may weaken, be refuted, or at least lose its “strong” character.

The Constitutional Court and the ECHR, acknowledging this dynamic process, have accepted that the grounds for detention existing at the beginning of the trial must be subject to stricter evaluation in the later stages of the proceedings (i.e., in extension decisions). An extension decision cannot be issued merely by referencing the indictment or the initial arrest warrant while ignoring new exculpatory evidence entered into the file (e.g., an expert report excluding the suspect, contradictory complainant statements, a witness testimony refuting the allegation).

Therefore, the arguments to be put forward as a basis for objection are:

New Exculpatory Evidence: Concretely demonstrating that new evidence (expert reports, witness statements, digital forensics results, etc.) has reduced the “strong suspicion” to the level of “reasonable suspicion” or has entirely eliminated it.
Change in the Nature of the Crime: The emergence of a possibility that the legal classification of the offense attributed to the defendant may change in light of the collected evidence (e.g., from aggravated theft to simple theft, or from intentional homicide to involuntary manslaughter). A change in the classification of the crime in the defendant’s favor will both render the detention disproportionate by reducing the expected sentence (See Requirement IV) and show that the initial “strong suspicion” was not directed at that specific serious crime.

The court cannot hide behind the argument that “There was suspicion at the beginning.” Instead, it must provide a concrete answer to the question: “When all inculpatory and exculpatory evidence in the file is evaluated as of this moment, is the suspicion still ‘strong’ within the meaning of CMK Article 100?” If this question is not answered, the decision is unlawful.

3- Legal Requirement: Basing Detention Reasons (Flight or Evidence Tampering) on Concrete Facts, Not Assumptions

The existence of strong suspicion of guilt (Requirement I) is not, by itself, sufficient for detention. CMK Article 100/1 also requires the presence of a “reason for detention.” These reasons are exhaustively listed in CMK Article 100/2 as “the existence of concrete facts evoking suspicion that the suspect may flee, hide, or attempt to flee” and “the existence of strong suspicion regarding attempts to destroy, hide, or alter evidence; or to exert pressure on witnesses, victims, or others” (danger of evidence tampering).

In the case of “catalog offenses” listed in CMK Article 100/3 (e.g., intentional homicide, robbery), it is accepted that these detention reasons (flight or evidence tampering) may be presumed. However, this presumption is rebuttable and not absolute, especially when it comes to extension decisions.

In objecting to the continuation of detention, it is critical to prove that these two risk factors (flight and evidence tampering) no longer exist in concrete terms:

Cessation of the Danger of Evidence Tampering: By the nature of a trial, evidence is collected over time. Witnesses are heard, digital materials are examined, and site inspections are conducted. If no uncollected evidence remains in the file, or if the remaining evidence is outside the defendant’s access and influence (e.g., a report at the Forensic Medicine Institute), the danger of “evidence tampering” legally and factually ceases to exist.
The Fallacy of “Uncollected Evidence” vs. Tampering: The most common erroneous justification used by courts is that “evidence has not yet been collected.” The Constitutional Court has drawn a clear line on this issue in its jurisprudence: “The fact that evidence has not yet been collected” is not, by itself, a ground for detention. The law does not list “uncollected evidence” as a reason, but rather the danger of the defendant influencing that evidence, i.e., “tampering with evidence.” In an objection, the following specific questions must be posed to the court: “Which piece of evidence has not yet been collected?”, “How can this evidence be tampered with by a non-detained defendant?”, and “What is the concrete possibility of my client influencing this evidence?” A justification of “evidence tampering” that cannot answer these questions is abstract and invalid.
Weakening the Suspicion of Flight with Concrete Facts: “Suspicion of flight” also cannot be an abstract assumption. Concrete facts such as the defendant having a fixed residence, family and social ties, a regular job, and having personally attended hearings are data indicating the absence of flight risk. If the court still perceives a “suspicion of flight” despite these concrete facts, it must prove this with its own “concrete facts” (e.g., the defendant transferring money abroad, preparing a false identity, etc.).

At the extension stage, especially in a file where evidence has been largely collected, the burden of proof rests on the prosecution and the court to show that the grounds of “evidence tampering” and “suspicion of flight” still continue based on concrete facts.

4- Legal Requirement: “Personalized” and Concrete Justification for Why Judicial Control Measures Are Insufficient (CMK Art. 101/1-2)

Detention is a measure of ultima ratio (last resort). Constitutional and legal regulations prohibit resorting to detention when judicial control measures (CMK Article 109), which are less restrictive of personal liberty, are available.

This principle is regulated in CMK Article 101 as a very clear and mandatory procedural rule.

CMK Article 101/1 mandates that in a request for detention, the public prosecutor “must show justification and include the legal and factual reasons indicating that judicial control measures would be insufficient.”
More importantly, paragraph (d), added to CMK Article 101/2 by an amendment in 2021, imposes the obligation that in decisions regarding the continuation of detention (extension), “The evidence showing that the application of judicial control would be insufficient shall be clearly indicated with concrete facts and justification.”

This regulation constitutes one of the strongest legal grounds for objecting to the extension of detention. For a court to issue an extension decision, it is no longer sufficient to merely state “there is strong suspicion” (Requirement I) or “there is a risk of flight” (Requirement II). The court must conduct a two-stage review:

Do the grounds for detention (flight/evidence tampering) still exist?
If so, why are judicial control measures such as “signing at a police station,” “house arrest,” “electronic monitoring,” or “a ban on traveling abroad” insufficient to mitigate these risks?

The Constitutional Court also emphasizes the requirement of “personalization.” In decisions rejecting release requests, it is mandatory to “consider the specific situation of the person requesting release” in addition to the general state of the case and to “personalize the grounds for detention.”

In practice, many extension decisions include a cliché phrase like “judicial control measures will be insufficient,” but they fail to explain why they would be insufficient with concrete facts. For example, it must be demonstrated with a “personalized” analysis why “a travel ban and electronic monitoring” are not sufficient for a defendant with a “suspicion of flight”; or if there is a risk of “pressure on witnesses,” how this risk continues after those witnesses have testified, and why judicial control (e.g., a ban on contacting specific persons) is insufficient. An extension decision that lacks this analysis is in clear violation of CMK Article 101/2(d) and is procedurally and substantively unlawful.

5- Legal Requirement: Non-Violation of the Principle of Proportionality

Proportionality, regulated in Article 13 of the Constitution, is a fundamental constitutional principle that all interferences with fundamental rights and freedoms must adhere to. Detention is one of the most severe interferences with the right to personal liberty under Article 19 of the Constitution, and this interference must also be “proportionate.”

CMK Article 101/2(c) mandates that detention and extension decisions must be justified with concrete facts showing that “The detention measure is proportionate.”

Proportionality in the context of detention is evaluated in two main dimensions:

Balance of Means and End: The measure (detention) must be proportionate to the aim sought (the proper conduct of the trial). If the same aim can be achieved with a lighter measure (judicial control), detention is disproportionate (This is closely related to Requirement III).
Balance of Legal Interest and Individual Harm: The public interest expected from the continuation of detention (e.g., the administration of justice) must outweigh the harm suffered by the suspect/defendant being deprived of their liberty.

In objections to extension decisions, the principle of proportionality should be invoked, especially in the context of the “prohibition of pre-trial punishment.” As the trial process lengthens, the time spent in detention can turn into a de facto punishment. In the objection, the potential sentence the defendant is likely to receive at the end of the trial (considering possible reductions and the parole regime) must be compared with the time already spent in detention.

For example, in a scenario where the minimum sentence for the alleged crime is 3 years, and the defendant is likely to receive a 2-year sentence with various reductions, holding this defendant in pre-trial detention for 18 months severely violates the principle of “proportionality.” This is because the situation has transformed into a de facto execution of a sentence, exceeding the purpose of the measure.

In the Sadun Doğan and Agit Alpaslan decision of the Constitutional Court, the applicants argued that “given the time they had been detained, the detention should be terminated based on the principle of proportionality.” The Constitutional Court (combining this with claims of unreasonable time and lack of justification) ruled that Article 19, seventh paragraph, of the Constitution had been violated. This decision shows that the time spent in detention is central to the proportionality review.

6- Legal Requirement: Not Exceeding the Absolute (Maximum) Detention Periods (CMK Art. 102)

While other requirements (suspicion, reason, proportionality) involve the court’s discretion and interpretation, the “maximum detention periods” regulated in CMK Article 102 are absolute and mathematical limits that are not open to interpretation. The expiration of these periods necessitates immediate release, even if strong suspicion of guilt or the risk of flight continues.

CMK Article 102 stipulates different maximum periods depending on the nature of the case and the competent court. These periods have a complex structure, especially due to the 2019 amendments (Law No. 7188) and the exceptions introduced for crimes falling under the Counter-Terrorism Law (TMK).

According to CMK Article 102, the maximum detention periods (total for investigation and prosecution phases) are as follows:

Cases Not Falling under the Jurisdiction of the High Criminal Court (Criminal Court of First Instance):
- The detention period is at most 1 year.
- This period can be extended by 6 months in necessary cases, with justification.
- Total Maximum Period: 1 Year 6 Months.
- (This period cannot exceed 6 months during the investigation phase).
Cases Falling under the Jurisdiction of the High Criminal Court (General Rule):
- The detention period is at most 2 years.
- This period can be extended in necessary cases with justification; however, the extension period cannot exceed a total of 3 years.
- Total Maximum Period: 5 Years ($2 + 3 = 5$ Years).
- (This period cannot exceed 1 year during the investigation phase).
Exceptional Offenses under the Jurisdiction of the High Criminal Court:
- (Offenses defined in the Turkish Penal Code, Second Book, Fourth Part, Chapters Four, Five, Six, and Seven, and offenses falling under the scope of the Counter-Terrorism Law No. 3713 – TMK).
- For these offenses, the 5-year total maximum period mentioned above is applied as 7 years.
- Total Maximum Period (TMK, etc.): 7 Years.
- (During the investigation phase, this period is at most 1 year and 6 months, and can be extended by another 6 months; total 2 years).

It is also a procedural requirement that extension decisions for these periods must be made after hearing the opinions of the public prosecutor, the suspect or defendant, and their defense counsel (CMK Article 102/3).

At the objection stage, the defense counsel must meticulously calculate these periods and emphasize that if the absolute limit has been reached or is about to be reached, release is mandatory, independent of all other conditions.

The following table summarizes the maximum periods in CMK Article 102:

Competent Court / Offense Type	Maximum Duration in Investigation Phase	Total Maximum Duration in Prosecution Phase (Incl. Extension)
Criminal Court of First Instance(Non-Aggravated)	6 Months	1 Year 6 Months (1 Year + 6 Months Extension)
High Criminal Court (General Rule)	1 Year	5 Years (2 Years + 3 Years Extension)
High Criminal Court (TCC Exceptions and CTM Scope)	1 Year 6 Months (+ 6 Months Extension)	7 Years

7- Legal Requirement: Non-Violation of the “Reasonable Time” Guarantee (Constitution Art. 19/7, ECHR Art. 5/3)

The most common legal error made in objections to the extension of detention is confusing the concept of “reasonable time” with “maximum time.” The maximum periods examined in the previous requirement (Requirement V) are the statutory ceilings specified in CMK Article 102. “Reasonable time,” however, is a constitutional and international limit guaranteed by Article 19/7 of the Constitution and Article 5/3 of the ECHR.

The critical nuance is this: The “reasonable time” for a case is always shorter than the statutory “maximum time.”

For example, the fact that the maximum detention period for a CTM-related offense is 7 years does not mean it is “reasonable” for a defendant in that case to remain in detention for 6 years. In practice, courts tend to reject “reasonable time” objections with the legally flawed justification that “the maximum periods in CMK 102 have not expired.”

The Constitutional Court’s Ramazan Aras decision clearly outlines how the “reasonable time” review should be conducted:

No General Principle: Whether the detention period is reasonable is assessed on a case-by-case basis, according to the specific features of each case.
Increased Burden of Justification: While the initial grounds for detention (Requirement I and II) may be considered sufficient for a certain period, after this period passes, the burden of providing “relevant and sufficient” justifications in extension decisions increases.
Key Criteria: In the reasonable time review, the ECHR and the Constitutional Court look at four main criteria: a) The complexity of the case, b) The conduct of the suspect or defendant (actions aimed at prolonging the trial), c) The applicant’s complaints about the length of detention, and most importantly, d) The diligence of the competent authorities in conducting the proceedings (the principle of a speedy trial).

If a case is not complex, or if the prolongation of the trial is due to delays attributable to the court (e.g., waiting months for an expert report, setting very long intervals between hearings), a “reasonable time” violation can occur long before the statutory maximum periods are reached.

In the Ramazan Aras and Sadun Doğan cases, the Constitutional Court found detentions exceeding 5 years (but which were below the maximum limits at the time) to be violations on the grounds that they “exceeded a reasonable time.”

In an objection, a case-specific argumentation must be developed, such as: “The maximum period may be 7 years, but given the simplicity of this case and the slowdown in the proceedings, with no hearing held for 1 year, my client’s 2-year detention has already exceeded the reasonable time for this specific case.”

8- Legal Requirement: The Extension Decision Must Be Reasoned, “Relevant, and Sufficient” (Prohibition of Cliché Justifications)

The last of the seven legal requirements is, in fact, the proof of whether the other six requirements have been effectively reviewed by the court: The Requirement of Justification.

CMK Article 101/2 clearly lists the elements that a detention continuation decision must include. The decision must:

Strong suspicion of a crime,
The existence of detention grounds,
The proportionality of the detention measure,
The insufficiency of judicial control measures,

and the evidence for these must be “clearly indicated with concrete facts and justification.”

The Constitutional Court considers unreasoned or insufficiently reasoned detention continuation decisions as a violation of the right to personal liberty and security (Constitution Article 19). According to the Constitutional Court, continuation decisions that are “completely devoid of justification” or based on “excessively brief justifications” are unacceptable.

In practice, extension decisions frequently resort to abstract, formulaic, and (cliché) phrases applicable to any file, such as “the current state of evidence in the file,” “the nature and character of the alleged crime,” “the continuation of the conditions in CMK Article 100,” and “the insufficiency of judicial control.”

The Constitutional Court’s Ramazan Aras and Sadun Doğan decisions have established that such cliché justifications do not meet the “relevant and sufficient justification” standard required for constitutional review.

If an extension decision does not include the four concrete analyses required by CMK Article 101/2 (the analysis of Requirements I, II, III, and IV), this indicates that the court did not actually conduct these reviews or, if it did, failed to reflect them in the decision. In either case, the decision is unlawful. “Lack of justification” (Requirement VII) is tantamount to an admission or proof that the other requirements (Requirements I, II, III, IV) have been violated.

If the authority reviewing the objection (Criminal Court of First Instance or High Criminal Court) also issues an unreasoned decision, such as “The objection is rejected as no error was found in the decision of the Sulh Ceza (Peace) Judgeship,” this perpetuates the violation. The reviewing authority must also explain why it agrees with the justifications in the contested decision or provide its own justification.

Therefore, the objection should be based directly on the law: “The decision is unreasoned because it fails to include the concrete facts and personalized analysis mandated by CMK 101/2, paragraphs (a), (b), (c), and (d).”

Strategy for Objecting to Detention Extensions and the Path to Individual Application at the Constitutional Court

The legal strategy for objecting to detention extension decisions must be based on the violation of one or more of these seven requirements. An effective objection should present these seven legal grounds in an interconnected manner.

For example: “As all evidence regarding the crime alleged against my client has been collected (Requirement II), the danger of evidence tampering no longer exists. Due to his fixed residence and his conduct during the hearings, the suspicion of flight is not supported by concrete facts. Since these risks could be mitigated by the most severe judicial control measures (electronic monitoring) (Requirement III), the continuation of detention violates the principle of ‘proportionality’ (Requirement IV). My client’s 18-month detention has exceeded the ‘reasonable time’ for the trial (Requirement VI) and has turned into a de facto punishment. The court’s extension decision, issued with a cliché phrase like ‘current state of evidence’ without analyzing these concrete facts, violates the ‘concrete facts and justification’ obligation required by CMK Article 101/2 (Requirement VII).”

The rejection of objections made against these “continuation” decisions under CMK Article 108 signifies the exhaustion of domestic remedies. After this stage, the claim that these seven legal requirements have been violated will form a strong basis for an individual application to the Constitutional Court. Precedent-setting decisions by the Constitutional Court, such as Ramazan Aras, Sadun Doğan, Mehmet Halim Oral, and Engin Demir, show that violations such as lack of justification in continuation decisions, exceeding a reasonable time, and failure to consider judicial control measures have been registered as violations of Article 19 of the Constitution.

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