Arrest and detention powers in English and Turkish law and practice in the light of the European Convention on Human Rights / / M. Bedri Eryilmaz.

• Superior document: International Studies in Human Rights ; 61
• VerfasserIn: Eryilmaz, M. Bedri,
• Place / Publishing House: The Hague, The Netherlands ;, Boston, Massachusetts : : Martinus Nijhoff Publishers,, [1999]; ©1999
• Year of Publication: 1999
• Language: English
• Series: International Studies in Human Rights ; 61.
• Physical Description: 1 online resource.

It is commonly believed that, in the police practices of arrest without judicial warrant and detention without charge, England and Turkey stand at opposite ends of the compliance spectrum among nations signatory to the European Convention on Human Rights. This is the first book to examine the extent to which such belief is warranted. Beginning with a detailed comparison of the arrest and detention standards set by the Convention and the corresponding provisions of Turkish and English law, the author then proceeds to investigate actual police practice in both countries. He reviews and analyzes the existing research in England and Wales on how the status of suspects in practice compares with the status of suspects in law. To determine this in Turkey, where no such research existed before this book, he offers the results of his own field work in 21 Turkish police stations and three gendarmeries in various cities and towns, as well as in two Turkish anti-terrorist departments. This is the first publication of any research into how Turkish police apply law to practice. He goes on to examine the adequacy and effectiveness of remedies in both countries, and to make recommendations, not only for reform in England and Turkey, but to the Convention organs with respect to gaps and weaknesses in their case law. For criminal justice and law enforcement authorities, this is a valuable guide to ensuring compliance with the extensive and developed standards established by the case law of the Convention, and to handling allegations of breaches of the Convention by the police. In addition, Arrest and Detention Powers in Turkish and English Law and Practice in the Light of the European Convention on Human Rights is a penetrating analysis of `law in books' versus `law in action', and as such has relevance to anyone concerned with the enforcement of human rights law.

Table of Contents

Intro -- Title Page -- Copyright Page -- Table of Contents -- List of European Court Cases -- List of European Commission Cases -- List of English Cases -- List of Turkish Cases -- Preface -- Acknowledgements -- List of Abbreviations -- Introduction -- Chapter One An Overview of Arrest and Detention Provisions and Pertinent Evaluative Standards -- A. The European Convention on Human Rights and Fundamental Freedoms (The Convention) -- 1. Relevant Standards Set by the Convention -- 2. To Whom do the Convention's Standards Apply? -- 3. The Doctrine of the Margin of Appreciation and States' Ability to Derogate from these Standards -- i. There must be a war or other public emergency threatening the life of the nation -- ii. The States are allowed to derogate from their obligations only to the extent strictly warranted by the exigencies of the situation -- iii. Measures must not conflict with the States' other obligations under international law -- iv. Derogating measures must not affect a non-derogable right -- v. There must be a valid notice of derogation -- 4. Theoretical Bases of these Standards -- a) The Crime Control Model -- b) The Due Process Model -- c) The Chosen Model -- the Model which should Dominate the Criminal Process -- B. Domestic Laws -- 1. English Law -- a) Police and Criminal Evidence Act 1984 (PACE) -- b) The Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA) -- 2. Turkish Law -- a. The Constitution of 1982 -- b. Codes or Statutes -- (1) The Code of Criminal Procedure of 1929 (CCP) -- (a) Arrest for Flagrant Offences -- (b) Arrest for any offence if all the arrest conditions enumerated in Art. 127(1) are met -- (c) Interference with the police officer's investigatory activities -- (2) Police Powers and Duties Act of 1934 (PPDA) -- (3) Anti-Terror Act of 1991.

Chapter Two Arrest and Detention Powers in English and Turkish Laws as Laid Down in Books -- A. Arrest without Warrant -- 1. The Meaning of Arrest -- a) English Law -- b) Turkish Law -- 2. The Purpose of Arrest -- a) English Law -- b) Turkish Law -- 3. Grounds for Arrest -- a) English Law -- (1) Summary Arrest for an Arrestable Offence -- (a) Summary arrest by any person (including a police officer) -- (b) Summary arrest by the police -- (2) Arrest Without Warrant Under General Arrest Power (s.25) -- b) Turkish Law -- (1) Arrest by Any Person of Suspect Caught in Flagrante Delicto (Art. 127(1) First Sentence) -- (2) Arrest by the Police in Respect of Offences where the Suspect is not Caught in Flagrante Delicto -- Arrest for Any Offence if all the Arrest Conditions are Met (Art. 127(1) - Second Sentence) -- (a) The conditions set out in Art. 104 of the CCP must be present -- (b) The delay in applying for a warrant should be detrimental to the purpose of the arrest -- (c) There should not be any possibility of an immediate plea to their superiors or to the public prosecutor -- (3) Arrest of the Persons who are Interfering with the Conduct of the Investigation and who Cannot Prove their Identity -- 4. The Requirement of 'Reasonable/Great Suspicion' -- a) English Law -- (1) The Requirement of 'Reasonable Suspicion' under PACE -- (2) The Requirement of Reasonable Suspicion under the PTA -- b) Turkish Law -- 5. Information to be Given on Arrest -- a) English Law -- b) Turkish Law -- 6. Disposition After Arrest: The Duty to Take the Suspect to a Police Station -- a) English Law -- (1) Arrest somewhere other than at a Police Station -- (2) Delay in Taking the Suspect to the Police Station -- b) Turkish Law -- B. Detention Without Charge -- 1. The Meaning of Detention -- a) English Law -- b) Turkish Law -- 2. The Role of the Custody Officer During Detention.

a) English Law -- b) Turkish Law -- 3. The Decision to Detain or Release -- a) English Law -- b) Turkish Law -- 4. Limits on Period of Detention Without Charge -- a) English Law -- (1) Limits on Period of Detention under PACE -- (a) Detention for more than 24 hours, up to 36 hours -- (b) Detention for more than 36 hours, up to 96 hours -- (2) Limits on Period of Detention under the PTA -- b) Turkish Law -- (1) Detention for 24 and 48 Hours -- (2) Detention for more than 24 and 48 Hours, up to Four Days -- (3) Detention for more than Four days, up to Seven Days -- (4) Detention for more than Seven Days, up to Ten Days -- 5. Calculating Time of Detention -- a) English Law -- b) Turkish Law -- 6. Reviews of Detention -- a) English Law -- (1) Review of Detention under PACE -- (2) Review of Detention under the PTA -- b) Turkish Law -- C. The Use of Force -- 1. English Law -- 2. Turkish Law -- D. Treatment of Suspects during Detention -- 1. The Right to Communicate -- a) English Law -- b) Turkish Law -- 2. The Right to Legal Advice -- a) English Law -- b) Turkish Law -- 3. The Right to Silence and the Presumption of Innocence -- a) English Law -- i) Cautioning -- ii) The Crime of Staying Silent under s. 18 of the PTA 1989 -- b) Turkish Law -- i) Cautioning -- 4. The Right to be Free from the Use of Torture, Inhuman and Degrading Treatment -- a) English Law -- b) Turkish Law -- E. The Influence of the Crown Prosecution Service (CPS)/the Public Prosecutor on the Police Decisions of Arrest and Detention -- 1. English Law -- 2. Turkish Law -- Chapter Three Arrest and detention Powers in English and Turkish Laws as Implemented in Practice -- A. The Methodology Followed During the Conduct of Research -- 1. England and Wales -- 2. Turkey -- a) Obtaining Permission to Carry Out this Research -- b) Restrictions on/Limitations of this Research.

c) The Period of Time Covered by the Research -- d) Methods Adopted During the Research -- B. The Interpretation of Arrest and Detention Powers in Practice by the Police and its Significance for English and Turkish Legal Systems -- 1. Arrest Without Warrant -- a) The Purpose of Arrest -- (1) English Law -- (2) Turkish Law -- b) The requirement of Reasonable/Great Suspicion -- (1) English Law -- (2) Turkish Law -- c) Information to be Given on Arrest -- (1) English Law -- (2) Turkish Law -- d) Disposition After Arrest -- (1) English Law -- (2) Turkish Law -- 2. Detention without Charge -- a) The Role of the Custody Officer during Detention -- (1) English Law -- (2) Turkish Law -- b) Limits on the Period of Detention -- (1) English Law -- (2) Turkish Law -- c) Reviews of Detention -- a) English Law -- b) Turkish Law -- 3. The Use of Force -- a) English Law -- b) Turkish Law -- 4. Treatment of Suspects During Detention -- a) The Right to Communicate -- (1) English Law -- (2) Turkish Law -- b) The Right to Legal Advice -- (1) English Law -- (2) Turkish Law -- c) The Right to Silence and the Presumption of Innocence -- (1) English Law -- (2) Turkish Law -- d) The Right to be Free from Torture, Inhuman and Degrading Treatment -- (1) English Law -- (2) Turkish Law -- 5. The Influence of the Crown Prosecution Service/the Public Prosecutor on the Police Decisions of Arrest and Detention -- a) English Law -- b) Turkish Law -- Chapter Four Arrest and Detention Standards in the Convention and the Assessment of the Extent to which English and Turkish Laws and Practices Comply with Them -- A. Arrest and Detention Must be Conducted "In Accordance with a Procedure Prescribed by Law" and Must be "Lawful" (Art. 5(1) of the Convention) -- The Question of Compliance with the Convention -- B. The Requirement of Reasonable Suspicion (Art. 5(1)(c) of the Convention).

The Question of Compliance with the Convention -- C. The Purpose of Arrest and Detention Must be to Bring the Suspect Before the Competent Legal Authority (Art. 5(1)(c) of the Convention) -- The Question of Compliance with the Convention -- D. The Right to be Informed "Promptly" of the Reasons for Arrest and Detention (Art. 5(2) of the Convention) -- The Question of Compliance with the Convention -- E. The Right to be Brought "Promptly" Before a Judicial Authority (Art. 5(3) of the Convention) -- The Question of Compliance with the Convention -- F. The Right to be Free from the Use of Lethal Force, Except Where Absolutely Necessary, and from Torture, Inhuman and Degrading Treatment in the Course of Arrest and Detention (Arts. 2 &amp -- 3 of the Convention) -- (a) Prohibition of the Use of Lethal Force -- The Question of Compliance with the Convention -- (b) Prohibition of Ill-treatment -- The Question of Compliance with the Convention -- G. The Right to Have Someone Informed of the Fact of Arrest and Detention (Art. 8 of the Convention) -- The Question of Compliance with the Convention -- H. The Right to Silence and the Presumption of Innocence (Art. 6(1), (2) of the Convention) -- The Question of Compliance with the Convention -- I. The Right to Legal Assistance at the Police Station (Art. 6(1), (3)(c) of the Convention) -- The Question of Compliance with the Convention -- J. The Right to be Free from the Use of Torture, Inhuman and Degrading Treatment During Detention (Art. 3 of the Convention) -- The Question of Compliance with the Convention -- Chapter Five Remedies Against the Abuse of Arrest and Detention Powers in English and Turkish Laws and under the Convention -- A. Remedies in English and Turkish Law -- 1. Habeas Corpus: The Right to Have the Legality of Detention Scrutinised -- a) English Law -- b) Turkish Law.

2. Civil Actions Against the Police.