Tutuklama Kararlarında Gerekçe

Abstract

This study examines the measure of detention, the most serious interference with the right to liberty and security of person in Turkish Criminal Procedure Law, from the perspective of the obligation to "provide justification." The fundamental problem of the thesis is that, despite being a constitutional and legal obligation, detention orders in judicial practice are frequently issued with "pre-printed justifications" lacking concrete facts, and this situation transforms detention from a protective measure into a tool of "pre-emptive punishment."

The first part of the study examines the legal nature of detention in light of the principles of the rule of law and the presumption of innocence. By emphasizing that detention is exceptional, temporary, and a "last resort" (ultima ratio), it is demonstrated that this measure can only be used to ensure the integrity of the trial. The second part focuses on the functions of a reasoned decisionof the arrest warrants. The functions of the justification—preventing arbitrariness on the part of the judge, ensuring that the decision is based on rational grounds, and most importantly, enabling the defense to effectively exercise its right to appeal—are analyzed. Furthermore, it has been argued that the judge's discussion of the evidence in the arrest warrant does not constitute "prejudgment," but rather a legal obligation. In the third and main section of the thesis, the material and formal elements that must be present in an arrest warrant pursuant to Article 101/2 of the Code of Criminal Procedure are examined within the framework of strong suspicion of crime, the requirement of concrete evidence, grounds for arrest (suspicion of escape and tampering with evidence), catalog crimes, and proportionality criteria. In particular, the requirement of "explaining with concrete facts why judicial control would be insufficient," is evaluated in light of current Constitutional Court and ECHR jurisprudence.

In conclusion, the thesis argues that the arrest regime in the Turkish judicial system should be freed from its "automated" and "standardized" structure and transformed into an individualized, persuasive, and verifiable reasoned structure according to the specifics of each concrete case. It is suggested that, in order to prevent arrest from leading to a human rights crisis, priority should be given to judicial control measures, judicial personnel should be trained in this area, and decisions without justification should trigger compensation liability and recourse mechanisms.