Introduction
This study, aiming to support lawyers’ legal research processes, has been compiled from judicial decision analyses presented on the existence of the right to object to administrative detention decisions, the procedure for its exercise, the judicial authority to apply to, the objection periods, and the functioning of the process. The study aims to provide a comprehensive review by bringing together the current legal situation shaped within the framework of Law No. 6458 on Foreigners and International Protection, the perspectives in different court decisions, and important procedural details.
1. Existence and Legal Basis of the Right to Object to Administrative Detention
Court decisions clearly demonstrate that with the entry into force of the Law on Foreigners and International Protection No. 6458, the right to object to administrative detention has been established on a legal basis. As reiterated in many decisions, the relevant article of the law guarantees this right as follows: “A person placed under administrative detention, or their legal representative or lawyer, may apply to the criminal judge of peace against the administrative detention decision.” This right ensures that the detention procedure, which deprives a person of their liberty by an administrative decision, is subjected to rapid judicial review.
However, decisions reviewing older applications, such as those of the Constitutional Court dated 17/2/2016 and 9/6/2016, offer an important historical perspective. In these decisions, it was determined that during periods when the relevant provisions of Law No. 6458 were not in force, there was no “effective administrative and judicial remedy capable of providing a solution in theory and practice, and offering a reasonable chance of success” against administrative detention. This situation was considered a violation of the right to personal liberty and security, which is guaranteed by Article 19 of the Constitution.
2. Application Authority and Period
The clearest and most consistently emphasized point in the examined decisions is that the competent court is the Criminal Judgeship of Peace. The Constitutional Court has drawn attention to the exclusive nature of this authority in many of its decisions: “…that the legislator exclusively designated the Criminal Judgeships of Peace as the appeal authority against administrative detention decisions, and from this perspective, administrative courts have no authority regarding the judicial review of the legality of administrative detention decisions…” This clear distinction prevents potential jurisdictional confusion in practice and clarifies that the Criminal Judgeships of Peace are the sole judicial authority to be applied to.
Regarding the application period, a general uncertainty prevails in the decisions. Almost all of the examined texts do not contain specific information regarding the duration within which the initial objection against an administrative detention decision must be made. However, in the Constitutional Court (AYM) decision dated 17.12.2024 and the Council of State (Danıştay) decision dated 16.11.2020, it is stated that it is mandatory to provide “information about the outcome of the decision, objection procedures, and deadlines” to the person under administrative detention or their representative. This situation suggests that the period exists but is specifically notified to the individual during the announcement (notification).
3. Functioning and Outcomes of the Objection Process
The objection process is explained in detail in the decisions:
Submission of the Application: The objection petition can be submitted directly to the competent Criminal Judgeship of Peace, or it can be presented to the administration. If submitted to the administration, the administration is obliged to immediately forward the petition to the judgeship.
Review and Decision: The Magistrate Judge must finalize the application within a short period like five days. This expedited judicial procedure aims to prevent the prolonged interference with personal liberty. The decision rendered by the judge is final.
Right to Re-appeal: The finality of the decision does not mean that the right to appeal is a one-time right. As emphasized in many decisions, the path to re-application is open if circumstances change:“The person placed under administrative detention, or their legal representative or lawyer, may re-apply to the Magistrate Judge alleging that the conditions for administrative detention have ceased to exist or have changed.”
Legal Remedies After Objection: The path to be followed varies according to the decision of the Magistrate Judge:
Rejection of Objection: In case the objection is rejected, since this decision is final, a direct individual application can be made to the Constitutional Court within the prescribed period, alleging the violation of the right to personal liberty and security.
Acceptance of Objection: If the Judge accepts the objection and rules that the administrative detention is unlawful, the person is immediately released. After this stage, a full action for damages must be filed in administrative courts for the compensation of material and non-pecuniary damages incurred due to unlawful detention. An application cannot be made to the Constitutional Court for compensation without exhausting this remedy.
Conclusion
In light of judicial decisions, it is observed that there is an effective, fast, and accessible appeal mechanism against administrative detention decisions in Turkey. At the center of this system, established by Law No. 6458, are the exclusively authorized Criminal Judgeships of Peace. The obligation to decide within five days is an important guarantee that ensures the rapid review of interventions concerning personal liberty. In case of the rejection of the appeal, there is the option of an individual application to the Constitutional Court, and in case of acceptance, the possibility of filing a full remedy lawsuit in administrative courts, ensuring the continuity of avenues for seeking justice. It is essential for lawyers, in order to protect their clients’ rights, to regard this appeal route as a primary legal remedy that must be exhausted, as emphasized by the Constitutional Court, and to meticulously conduct the process accordingly. An article suggestion.
Why is Expert Lawyer Support Necessary?
The process of appealing an administrative detention decision is an extremely sensitive and technical legal procedure, both in terms of personal liberty and the protection of fundamental rights. In this process, conducted within the framework of Law No. 6458 on Foreigners and International Protection, it is of great importance that the application is made to the correct authority and within the specified period, and that the legal grounds to be included in the petition are presented completely. Even a small procedural error can lead to the rejection of the application or the violation of the right to liberty.
Therefore, it is of vital importance that the process of objecting to the administrative surveillance decision is carried out by an expert lawyer to prevent the individual from losing their rights. Especially for foreigners living in areas such as Istanbul, Tuzla, Gebze, Pendik, Tepeören, Aydınlı, Orhanlı, Mercan Mahallesi, Şifa Mahallesi, and Bayramoğlu, an experienced lawyer who knows the local practices and court procedures can manage the process much faster and more effectively.
An expert lawyer knows how to present the objection against the administrative surveillance decision to the Criminal Judgeship of Peace, which legal arguments should be included in the petition, which documents are mandatory to submit, and which legal remedies can be pursued after the decision. Furthermore, in case the objection is rejected, they professionally represent their client in subsequent stages such as an individual application to the Constitutional Court or a full judicial review lawsuit.
Legal support obtained from law firms operating in and around Tuzla, Gebze, Pendik, Tepeören, Aydınlı, Orhanlı, Mercan Mahallesi, Şifa Mahallesi, and Bayramoğlu enables foreigners to effectively exercise their right to seek justice in Turkey. Therefore, in every application made against administrative surveillance decisions, it is recommended to seek legal support from an expert lawyer to carry out the process completely.
