Arrest is one of the most severe protective measures in criminal law and can only be applied under certain conditions. However, an arrest warrant cannot be issued in every case. The Code of Criminal Procedure (CMK) and the Constitution aim to prevent arbitrary arrests by protecting the rights of individuals. In this article, we will discuss in detail the situations in which an arrest warrant cannot be issued.
1. Lack of Arrest Conditions
Certain conditions must be met in order for an arrest warrant to be issued. According to Article 100 of the CMK, the following conditions must be met in order for an arrest warrant to be issued:
Existence of strong suspicion of a crime
Existence of reasons for arrest (obstruction of evidence, suspicion of escape, etc.)
The arrest must be proportionate and necessary
If one of these conditions is missing, an arrest warrant cannot be issued.
2. Failure to Issue an Arrest Warrant Due to the Nature of the Crime
According to the CMK, an arrest warrant can only be issued for crimes of certain seriousness. Arrest cannot be applied in the following cases:
Crimes that only require a judicial fine: If the penalty for a crime is limited to a judicial fine only, then an arrest warrant cannot be issued.
Crimes with a lower limit of less than 2 years: The lower limit for arrest is 2 years in prison by law. However, except for exceptional cases, arrest cannot be applied for crimes with a sentence of less than 2 years.
3. No Reason for Arrest
According to Article 100 of the CMK, even if there is a strong suspicion of a crime, arrest cannot be applied if the following situations do not exist:
There is no suspicion that the suspect will flee,
There is no possibility of obscuring or destroying evidence,
There is no possibility of putting pressure on witnesses,
If the above reasons do not exist, judicial control measures can be applied instead of arrest.
4. Crimes Other Than Catalogue Crimes
Some crimes are listed as direct reasons for arrest in the law. These include catalogue crimes such as murder, sexual assault, and drug trafficking. However, it is not possible to issue a direct arrest warrant for crimes that are not among the catalogue crimes.
5. If Judicial Control Is Sufficient
According to the CMK, arrest is a measure that should be resorted to as a last resort. If judicial control measures (ban on leaving the country, ban on going to certain places, signature obligation, etc.) are deemed sufficient, an arrest warrant cannot be issued.
6. Special Regulations for Children and Certain Groups
In criminal law, arrest is subject to stricter rules for certain groups:
Children under the age of 18: Arrest of children should be considered as a last resort and, if possible, alternative measures should be applied.
Pregnant women: Different measures are applied instead of arrest for pregnant women and women who are within a certain period of time after giving birth.
Seriously ill and disabled individuals: Judicial control measures can be applied instead of arrest for individuals who are not suitable for prison conditions due to their health conditions.
Arrest is a measure that seriously restricts the freedom of individuals and can only be applied in cases of necessity in accordance with the basic principles of law. The situations listed above are the main cases where an arrest warrant cannot be issued. The basic principle of law is that freedom is the essence and restriction is the exception. Therefore, detention decisions should be evaluated carefully and proportionately.
