INTRODUCTION

The right to liberty and security of person is one of the fundamental elements of the rule of law. During criminal proceedings, the apprehension, detention in custody, and pre-trial detention of a suspect or defendant are precautionary measures that may be imposed when certain conditions are met. However, the unlawful application of these measures or the deprivation of individuals’ liberty without the conditions prescribed by law may have serious material and non-pecuniary consequences.

Compensating for losses arising from unlawful apprehension, detention in custody, or pre-trial detention is important both for the protection of individual rights and for ensuring that public authority is exercised in accordance with the law. In Turkish law, the principal provisions governing this area are Article 19 of the Constitution of the Republic of Türkiye and Articles 141 et seq. of Criminal Procedure Law No. 5271. Article 5 of the European Convention on Human Rights (ECHR) also safeguards the right to liberty and security and grants a right to compensation in certain cases to individuals who have been unlawfully deprived of their liberty.

The mere fact that a person’s liberty has been restricted is not, in itself, sufficient to establish a right to compensation for unlawful pre-trial detention or detention in custody. The legal grounds for the restriction of liberty, the outcome of the criminal proceedings, whether the statutory conditions have been satisfied, whether the damage can be demonstrated, and whether the applicable time limits have been observed must all be assessed together.

Furthermore, apprehension, detention in custody, and pre-trial detention are legally distinct concepts. The conditions under which these measures may be imposed, the procedures for ordering them, and their legal consequences are not identical. Accordingly, a proper assessment of a compensation claim requires these concepts to be explained first, followed by an examination of the conditions governing the right to compensation.

This study examines the concepts of apprehension, detention in custody, and pre-trial detention; the legal grounds for claiming compensation for unlawful precautionary measures; the conditions set out in Articles 141 et seq. of Criminal Procedure Law No. 5271; available remedies and applicable time limits; the assessment of pecuniary and non-pecuniary damage; and the approach adopted by relevant judicial decisions.

1. THE CONCEPTS OF APPREHENSION, DETENTION IN CUSTODY, AND PRE-TRIAL DETENTION

1.1. What Is Apprehension?

Apprehension is the temporary restriction of a person’s liberty in connection with a suspicion that a crime has been committed and the placement of that person under the control of the competent authorities. As a general rule, apprehension is a precautionary measure that may be carried out without a judicial warrant. However, it may only be applied when the conditions prescribed by law are satisfied.

Article 90 of Criminal Procedure Law No. 5271 regulates the circumstances in which apprehension for criminal proceedings may be carried out. In cases involving an offence committed in flagrante delicto and other circumstances specified by law, apprehension may be carried out by law enforcement officers or, where the statutory conditions are met, by other persons. Following apprehension, the individual must be brought before the competent authorities in accordance with the procedure prescribed by law.

Apprehension does not, in itself, mean that the person is deemed guilty. It is a temporary measure intended to facilitate the conduct of criminal proceedings. Accordingly, the lawfulness of apprehension must be assessed in light of its statutory basis, the circumstances of the specific case, and compliance with the relevant procedural rules.

1.2. What Is Detention in Custody?

Detention in custody is the holding of an apprehended person under the supervision of the competent authorities for a specified period, subject to the statutory conditions, for the purpose of completing the investigation. Since detention in custody restricts personal liberty, it must be carried out in accordance with the statutory requirements and procedural safeguards.

Under Article 91 of Criminal Procedure Law No. 5271, detention in custody may be imposed subject to statutory conditions, including where it is necessary for the investigation and there are indications suggesting that the person may have committed an offence. The rules governing the authority to order detention and its duration must be observed.

Unlike pre-trial detention, detention in custody is generally a precautionary measure applied during the investigation stage and limited by statutory time periods. An unlawful extension of the detention period, the prevention of a person from exercising their statutory rights, or the imposition of the measure without the necessary conditions may give rise to legal liability, depending on the circumstances of the case.

During detention in custody, the individual’s rights must be protected, access to the right of defence must be ensured, and the safeguards prescribed by law must be observed. Where these safeguards are violated, the relevant legal remedies may be pursued depending on the nature of the violation.

1.3. What Is Pre-Trial Detention?

Pre-trial detention is a precautionary measure that temporarily restricts the liberty of a suspect or defendant by judicial order during criminal proceedings. It is not a punishment or a conviction; rather, it is intended to safeguard the proper conduct of the proceedings.

Pursuant to Article 100 of Criminal Procedure Law No. 5271, an order for pre-trial detention may be issued only where there is concrete evidence indicating a strong suspicion that the person has committed an offence and a ground for detention exists. The measure must also be proportionate, and the other statutory conditions must be satisfied. Decisions concerning the imposition, implementation, and continuation of pre-trial detention must be assessed in accordance with the relevant provisions of the law.

Since pre-trial detention constitutes a serious interference with personal liberty, it must be treated as an exceptional measure. Its purpose is not to punish a person for an alleged offence, but to pursue legitimate statutory objectives, such as preventing the risk of flight or the possibility of tampering with evidence. The continuation of pre-trial detention must therefore also be assessed in light of the circumstances of the case and the applicable legal requirements.

An order for pre-trial detention issued without the statutory conditions being met, the continuation of the measure after the necessary conditions have ceased to exist, or the unlawful implementation of detention may, depending on the circumstances, give rise to legal remedies and compensation claims.

1.4. Differences Between Apprehension, Detention in Custody, and Pre-Trial Detention

Although apprehension, detention in custody, and pre-trial detention are related, they are not the same legal measures. Apprehension is a temporary intervention that brings a person under the control of the competent authorities. Detention in custody involves holding a person, subject to statutory conditions and time limits, for the purpose of conducting an investigation. Pre-trial detention is a more serious precautionary measure imposed by judicial order.

The common feature of these measures is that they restrict personal liberty. However, the conditions for their application, the procedures for ordering them, and the rules governing their duration differ. Consequently, the lawfulness of each measure must be examined independently in accordance with its own statutory requirements.

When compensation is sought for unlawful apprehension, detention in custody, or pre-trial detention, the specific measure imposed, the dates during which it was applied, its legal basis, the damage suffered by the individual, and the conditions prescribed by the relevant legislation must be assessed separately. This distinction is important both for identifying the appropriate legal remedy and for establishing the legal basis of the compensation claim.

2. LEGAL GROUNDS FOR COMPENSATION ARISING FROM UNLAWFUL PRE-TRIAL DETENTION AND DETENTION IN CUSTODY

2.1. The Right to Liberty and Security under Article 19 of the Constitution

Article 19 of the Constitution provides that everyone has the right to liberty and security of person. This right aims to prevent individuals from being apprehended, detained in custody, or placed in pre-trial detention arbitrarily.

Personal liberty may be restricted only where the conditions specified in the Constitution and the relevant legislation are satisfied. Accordingly, apprehension, detention in custody, and pre-trial detention must have a legal basis, be carried out in accordance with statutory procedures, and remain limited to the purposes prescribed by law.

Article 19 of the Constitution is also important with regard to the compensation of damage suffered by persons who have been unlawfully deprived of their liberty. In this context, the State is under an obligation to ensure that interferences with personal liberty comply with the law and to provide mechanisms through which damage arising from unlawful interferences may be remedied.

2.2. Articles 141 et seq. of the Criminal Procedure Code

The principal statutory basis for claiming compensation arising from unlawful apprehension, detention in custody, and pre-trial detention is Articles 141 et seq. of Criminal Procedure Law No. 5271.

Article 141 of the Criminal Procedure Code (CPC) regulates the circumstances in which individuals may seek compensation for pecuniary and non-pecuniary damage. The purpose of this provision is to ensure that damage caused by the application of precautionary measures in criminal proceedings contrary to the statutory requirements can be remedied.

Article 142 of the CPC contains provisions concerning the manner in which compensation claims must be brought and the applicable time limits. However, following amendments introduced by Law No. 7499, an application to the Compensation Commission under Law No. 6384 has also been established for certain categories of compensation claims.

Before submitting an application, it is therefore necessary to determine which legal framework governs the claim, which authority has jurisdiction, and which time limit applies.

2.3. Article 5 of the European Convention on Human Rights

Article 5 of the European Convention on Human Rights safeguards the right to liberty and security. Its primary purpose is to prevent arbitrary restrictions on liberty and to ensure that any deprivation of liberty is subject to specific legal safeguards.

Article 5(5) of the Convention provides that anyone who has been the victim of arrest or detention in contravention of the provisions of that Article shall have an enforceable right to compensation.

This provision requires the safeguards available under domestic law to be assessed alongside international human rights standards. However, an individual application to the European Court of Human Rights and a domestic claim for compensation are distinct legal remedies, each subject to its own admissibility requirements and procedural conditions.

3. CIRCUMSTANCES IN WHICH COMPENSATION MAY BE CLAIMED UNDER ARTICLE 141 OF THE CPC

3.1. Apprehension or Pre-Trial Detention Outside the Statutory Conditions

One of the circumstances in which compensation may be claimed under Article 141 of the CPC is where a person has been apprehended or placed in pre-trial detention outside the conditions prescribed by law.

Apprehension and pre-trial detention are precautionary measures that directly restrict personal liberty. Accordingly, the statutory conditions must be satisfied and the relevant procedures must be followed before these measures may be imposed.

A precautionary measure imposed without the statutory conditions being met may constitute an unlawful interference with personal liberty. In such a case, a compensation claim may arise if the other conditions prescribed by law are also satisfied.

3.2. Failure to Bring the Person Before a Judge Within the Statutory Time Limit

Ensuring that an apprehended or detained person is brought before a judge within the periods prescribed by law is a fundamental safeguard for the protection of personal liberty.

Exceeding these time limits or failing to comply with the procedures governing the presentation of the person before a judge may, depending on the circumstances of the case, give rise to liability to pay compensation.

The assessment must take into account the relevant statutory provisions, the dates of the procedural acts, the period during which the individual was deprived of liberty, and the reasons for any delay.

3.3. Failure to Inform the Person of Their Statutory Rights or to Allow Them to Exercise Those Rights

During criminal proceedings, individuals who have been apprehended or detained in custody must be informed of their statutory rights and given the opportunity to exercise them.

Failure to inform a person of their legal rights or preventing them from exercising those rights may constitute grounds for a compensation claim where the conditions specified in the relevant legislation are satisfied.

However, not every procedural irregularity automatically gives rise to a right to compensation. The specific act, the right allegedly violated, the relevant statutory provision, and the conditions governing the claim must be assessed together.

3.4. Unlawful Continuation of Pre-Trial Detention

The imposition of pre-trial detention does not mean that criminal proceedings may continue indefinitely. The continuation of detention must be assessed in accordance with the statutory conditions.

A failure to conclude proceedings within a reasonable time or the continuation of pre-trial detention in breach of statutory safeguards may, depending on the circumstances, give rise to different legal remedies.

Nevertheless, a violation of the right to trial within a reasonable time and a compensation claim arising from unlawful pre-trial detention do not fall into the same legal category. The specific violation relied upon and the applicable statutory framework must be clearly identified.

3.5. An Acquittal or a Decision Not to Prosecute

The conclusion of a criminal investigation or prosecution in favour of the individual may be relevant to compensation claims arising from unlawful pre-trial detention. However, an acquittal or a decision not to prosecute does not automatically give rise to a right to compensation in every case.

Whether a compensation claim should be upheld depends on whether the conditions set out in Articles 141 et seq. of the CPC have been satisfied, the applicability of other relevant provisions, and the circumstances of the specific case. Accordingly, the reasoning behind the acquittal or decision not to prosecute, the precautionary measure to which the individual was subjected, and the scope of the relevant statutory provision must be assessed together.

4. APPLICATION PROCEDURE AND COMPETENT AUTHORITY FOR COMPENSATION CLAIMS

4.1. General Application Procedure

A person seeking compensation for unlawful apprehension, detention in custody, or pre-trial detention must first determine which statutory framework applies to the case.

Articles 141 et seq. of the CPC establish the principal framework for compensation claims. However, certain cases also require an application to the Compensation Commission under Law No. 6384.

Before submitting an application, the following matters should therefore be examined:

• The precautionary measure to which the individual was subjected.
• The statutory provision governing the alleged violation.
• The decision by which the criminal investigation or prosecution was concluded.
• The date on which the decision became final.
• The applicable time limit for the application.
• The authority with subject-matter and territorial jurisdiction.

Particular care must be taken in these matters because an application submitted to the wrong authority or outside the statutory time limit may prevent the merits of the claim from being examined.

4.2. Applications to the Compensation Commission

Following amendments introduced by Law No. 7499, the procedure for applying to the Compensation Commission under Law No. 6384 was established for certain claims falling within specific subparagraphs of Article 141(1) of the CPC.

In particular, for claims falling within Article 141(1)(e), (f), and (l) of the CPC, the possibility of applying to the Compensation Commission must be assessed in light of the applicable legislation and transitional provisions.

The scope of cases that may be referred to the Commission, the application period, and the procedural requirements are determined in accordance with the relevant provisions of Law No. 6384. It should therefore not be assumed that every allegation of unlawful pre-trial detention or detention in custody may be brought directly before the Commission.

4.3. The Importance of Application Time Limits

Time limits are critical in compensation proceedings because compliance with them may determine whether the merits of a claim can be examined.

For certain applications governed by Article 5/B of Law No. 6384, an application must be submitted within three months from notification of the final decision and, in any event, within one year from the date on which the decision becomes final.

However, these periods should not be treated as a single time limit applicable to all compensation claims. The relevant time limit must be determined separately according to the legal nature of the application, the applicable statutory provision, and the legislation in force.

Before submitting an application, the current version of the relevant legislation should therefore be checked, and the dates on which the decision became final and was notified should be established from the relevant documents.

4.4. Documents That May Be Submitted with an Application

Documents demonstrating the alleged unlawfulness and the resulting damage are important when a compensation claim is assessed. Depending on the nature of the application, relevant documents may include apprehension, detention in custody, or pre-trial detention orders; a release order; an acquittal or a decision not to prosecute; a certificate confirming finality; and documents relating to the damage suffered.

Where pecuniary damage is claimed, documents demonstrating loss of income or other economic losses should also be prepared. Employment records, payslips, employment contracts, and other documents evidencing the specific loss may help substantiate the claim.

The documents required will not necessarily be the same in every application. The necessary documents should therefore be identified in light of the procedural rules of the competent authority and the circumstances of the case.

5. ASSESSMENT OF PECUNIARY AND NON-PECUNIARY DAMAGES

5.1. Pecuniary Damage

Losses affecting a person’s assets as a result of unlawful apprehension, detention in custody, or pre-trial detention may, where the relevant conditions are satisfied, form the basis of a claim for pecuniary compensation.

In assessing pecuniary damage, consideration may be given to income that the individual was unable to earn as a result of being deprived of liberty, losses affecting their employment or professional activities, and other economic losses that have an appropriate causal connection with the specific incident.

However, not every alleged economic loss can necessarily be included in a compensation award. The existence and amount of the damage, as well as its connection with the unlawful precautionary measure, must be established.

For this reason, income records, employment records, tax records, employment contracts, and other documents capable of demonstrating the loss are important when claiming pecuniary compensation.

In calculating pecuniary damage, a distinction must be made between income that the individual was unable to earn during the period of deprivation of liberty and the economic loss actually sustained in the specific case. A verifiable calculation is necessary to establish the basis and amount of the claim clearly.

5.2. Non-Pecuniary Damage

The distress, anxiety, reputational harm, and adverse effects on social life experienced by a person who has been unlawfully deprived of liberty may be taken into account when assessing a claim for non-pecuniary compensation, provided that the relevant conditions are satisfied.

The purpose of non-pecuniary compensation is to provide appropriate redress for the non-material harm caused by the violation. There is no single criterion for determining the amount; the circumstances of the incident and the nature of the interference suffered by the individual must be considered together.

Relevant factors include the duration of the deprivation of liberty, the nature of the offence alleged, the individual’s social and economic circumstances, the manner in which the incident occurred, and the effects of the interference on the individual.

The amount of non-pecuniary compensation should be assessed proportionately to the incident giving rise to the claim and in light of the specific circumstances. The amount is not determined solely by the duration of detention in custody or pre-trial detention; other relevant factors must also be considered.

5.3. Interest and Calculation of Damage

In addition to determining the amount of compensation, the starting date for interest and the method of calculation are also important aspects of the dispute.

When calculating pecuniary damage, each head of loss must be identified separately, and the calculation must be capable of verification. The applicable legal framework, the nature of the claim, and relevant judicial decisions must be taken into account when determining interest.

The Court of Cassation has emphasised the need to correct errors in the calculation of pecuniary damage and to determine non-pecuniary compensation in a manner appropriate to the circumstances of the specific case.

Accordingly, a compensation claim should not merely state a total amount. To the extent possible, it should explain the individual components of the damage and identify the documents supporting each component.

6. DETERMINING COMPENSATION IN LIGHT OF COURT OF CASSATION DECISIONS

In compensation claims arising from unlawful pre-trial detention, the Court of Cassation places importance on ensuring that the calculation of pecuniary damage is verifiable and that the amount of non-pecuniary compensation is determined in accordance with the circumstances of the specific case.

In its decision dated 24 March 2025, Case No. 2024/1425 and Decision No. 2025/3139, the 12th Criminal Chamber of the Court of Cassation examined the amounts of pecuniary and non-pecuniary compensation awarded to a person who had spent 956 days in pre-trial detention. The decision indicated that there was an error in the amount calculated for pecuniary compensation and that factors such as the individual’s social and economic circumstances, the alleged offence, the circumstances of the incident, the duration of pre-trial detention, and interest should be considered when determining non-pecuniary compensation.

The decision demonstrates that the duration of pre-trial detention cannot be the sole basis for determining compensation. The calculation of pecuniary damage must be based on concrete evidence, while non-pecuniary compensation must be assessed in accordance with the circumstances of the incident.

The decision of the 12th Criminal Chamber of the Court of Cassation dated 30 May 2022, Case No. 2021/10862 and Decision No. 2022/4202, is also among the decisions that may be examined in disputes concerning compensation for unlawful pre-trial detention.

When relying on judicial decisions, the full text of the decision, the circumstances of the case, and the legal basis of the dispute must be verified. Compensation amounts awarded in previous cases should not be treated as fixed tariffs that can be directly applied to other cases. Each dispute must be assessed in light of its own circumstances.

7. THE APPROACH OF THE CONSTITUTIONAL COURT AND THE EUROPEAN COURT OF HUMAN RIGHTS

7.1. The Approach of the Constitutional Court

In individual applications concerning the right to liberty and security, the Constitutional Court examines whether the applicant has exhausted the ordinary remedies that are effective and accessible.

Where compensation may be claimed for unlawful apprehension or pre-trial detention, it is important to determine whether Article 141 of the CPC and other relevant remedies are effective in the specific circumstances of the case.

Before submitting an individual application to the Constitutional Court, it must therefore be assessed whether the available remedies need to be exhausted in light of the nature of the alleged violation. It is also important to determine whether a suitable legal remedy exists for the applicant’s complaint, whether that remedy is accessible, and whether it is effective in the particular case.

An individual application to the Constitutional Court is not a general appeal mechanism that replaces ordinary legal remedies. The admissibility of an application is assessed according to criteria including whether an alleged violation of a constitutional right has been raised and whether the relevant procedural requirements have been satisfied.

7.2. The Approach of the European Court of Human Rights

The European Court of Human Rights examines interferences with the right to liberty and security under Article 5 of the European Convention on Human Rights.

Article 5(5) of the Convention safeguards the right to compensation for arrest or detention carried out in contravention of the provisions of that Article.

The case of Hasdemir v. Türkiye also addresses issues concerning the right to compensation under Article 5(5) of the Convention. Such decisions are important when assessing the relationship between the lawfulness of a deprivation of liberty and the provision of compensation for a resulting violation.

Nevertheless, applications to the European Court of Human Rights must also comply with the Convention’s admissibility requirements, including the exhaustion of domestic remedies and the applicable time limit. Whether a compensation remedy is available under domestic law and whether that remedy is effective in the particular case may also be relevant to the assessment of an application.

CONCLUSION

Compensation for unlawful apprehension, detention in custody, or pre-trial detention is an important legal safeguard for the protection of the right to liberty and security. Article 19 of the Constitution, Articles 141 et seq. of the Criminal Procedure Code, and Article 5 of the European Convention on Human Rights establish the principal legal framework governing this area.

Apprehension, detention in custody, and pre-trial detention are precautionary measures that restrict personal liberty but differ in their legal nature and the conditions governing their application. The lawfulness of each measure must therefore be assessed separately in accordance with its own statutory requirements.

The conclusion of a criminal investigation or prosecution in favour of an individual does not automatically give rise to a right to compensation in every case. A claim may be upheld only where the relevant statutory conditions are satisfied, the application is submitted to the proper authority, and the applicable time limits are observed. It is also important to substantiate the alleged pecuniary damage with concrete evidence and to relate a claim for non-pecuniary compensation to the circumstances of the incident.

For pecuniary compensation, the specific economic losses must be established. For non-pecuniary compensation, the duration of the deprivation of liberty, the nature of the incident, the individual’s social and economic circumstances, and the effects of the interference must be assessed together. Decisions of the Court of Cassation likewise demonstrate the importance of considering the circumstances of the particular case and the accuracy of the calculation of damage when determining compensation.

The amendments introduced by Law No. 7499 mean that an application to the Compensation Commission may be relevant for certain categories of claims. Accordingly, the competent authority and the applicable time limit must be identified carefully before an application is submitted. Articles 141 et seq. of the CPC and the relevant provisions of Law No. 6384 should be examined together to determine the correct legal nature of the application.

In conclusion, compensation claims arising from unlawful pre-trial detention and detention in custody must be assessed by considering the legal nature of the specific case, the current version of the applicable legislation, the relevant time limits, and pertinent judicial decisions. This approach helps ensure both that the application is submitted in accordance with the applicable procedure and that the alleged damage is established on a sound legal basis.

BIBLIOGRAPHY AND JUDICIAL DECISIONS FOR FURTHER REFERENCE

A. Legislation

1. Constitution of the Republic of Türkiye, Article 19.
2. Criminal Procedure Law No. 5271, particularly Articles 90, 91, 100, and 141–144.
3. Law No. 6384 on the Settlement, by Way of Payment of Compensation, of Certain Applications Lodged with the European Court of Human Rights.
4. European Convention on Human Rights, Article 5.
5. Law No. 7499.

B. Judicial Decisions

1. Court of Cassation, 12th Criminal Chamber, Case No. 2024/1425, Decision No. 2025/3139, dated 24 March 2025.
2. Court of Cassation, 12th Criminal Chamber, Case No. 2021/10862, Decision No. 2022/4202, dated 30 May 2022.
3. European Court of Human Rights, Hasdemir v. Türkiye.
4. European Court of Human Rights, Taş v. Türkiye.
5. European Court of Human Rights, Sakık and Others v. Türkiye.