Can an Arrest Be Made Without Evidence?
Among the fundamental principles of law, it is accepted that depriving a person of their freedom requires serious justification. In the context of criminal law, a person can be arrested not only on suspicion of committing a crime, but also on concrete evidence supporting this suspicion. We can evaluate the question “Can an arrest be made without evidence?” under the following headings:
1. Legal Basis for Arrest
Arrest is a protective measure under the Code of Criminal Procedure (CMK). According to Article 100 of the CMK, the following conditions must be present in order for an arrest warrant to be issued:
Existence of strong suspicion of a crime: There must be a strong suspicion of a crime supported by concrete evidence for an arrest warrant.
Existence of reasons for arrest: There must be reasons such as the suspicion of escape, the risk of tampering with evidence, or the possibility of the crime continuing.
For example: In a murder case, fingerprints, camera footage, or witness statements found at the scene of the crime can be accepted as concrete evidence supporting the suspicion of a crime. However, no one can be arrested solely on suspicion.
2. The Relationship Between Strong Suspicion and Concrete Evidence
Not every suspicion of a crime is sufficient for arrest. Strong suspicion must be based on concrete evidence. Witness statements, camera footage, and physical evidence are evidence supporting strong suspicion.
Example: The discovery of stolen goods in the home of a person arrested on suspicion of theft may justify strong suspicion and arrest. However, it is unlawful to arrest a suspect on the grounds that he “appears guilty” or “has committed similar crimes in the past”.
3. Arrest Decisions Without Evidence Are Unlawful
An arrest without evidence violates the right to freedom and security. According to the Constitution and the European Convention on Human Rights (ECHR), personal freedom is a fundamental right, and unjust arrests are contrary to this right.
Example: The arrest of a person participating in a demonstration solely because the police find him suspicious will be unlawful due to lack of evidence. Such situations may result in compensation in the European Court of Human Rights (ECHR).
4. Alternative Measures to Arrest
In cases of insufficient evidence, there are other measures that can be applied instead of arrest:
Judicial control: The suspect can be released under certain conditions. Measures such as a ban on leaving the country and visiting the police station at certain intervals and signing can be applied.
Detention period: If there is a suspicion of a crime but evidence has not been collected, evidence can be expected to be collected during the detention period.
Example: If there is no concrete evidence against a person who is detained on the grounds that he/she was involved in violent incidents, he/she can be released under judicial control and the arrest will be evaluated when the evidence is collected.
5. ECtHR Decisions
The European Court of Human Rights has emphasized in many decisions that arrests without evidence are unjust. The Court has sentenced the state to pay compensation in cases that can be considered “arbitrary arrest”.
Example: The arrest of an individual who participated in the Gezi Park events in Turkey without evidence, solely on the grounds that he/she was present at a demonstration, was found unjust by the ECtHR and the person was entitled to compensation.
According to the fundamental principle of law, arrest without evidence is unlawful. Arrest is only possible when there is concrete evidence based on strong suspicion of a crime and there are grounds for arrest. Arrests made without evidence constitute a violation of the Constitution and international law, and there are legal remedies against such arrests to protect individual rights.
