Detention is not a tool for reaction

The investigation recently launched against comedian Deniz Göktaş and the subsequent detention measure applied have reopened public debate not only on the boundaries of humor but also on detention, one of the most fundamental institutions of criminal procedure. While the material facts of the case and the elements of the alleged crime are, of course, subject to the assessment of judicial authorities, the real issue that should be discussed in such files is not whether a specific person is right or wrong, but under what conditions the detention measure can be applied and whether this measure is truly necessary.

In criminal procedure, detention is not a punishment. In fact, because it is one of the most severe interventions into personal liberty, the legislator has regulated this measure as an exceptional protective measure. Pursuant to Article 100 of the Criminal Procedure Code No. 5271, the mere existence of strong suspicion of a crime is not sufficient for a detention order. In addition, there must be concrete facts regarding the suspicion of flight, the possibility of destroying or altering evidence, or the potential for pressure to be exerted on witnesses or victims. In short, detention is a measure that can only be resorted to to the extent that it is necessary for the proper conduct of the investigation.

This approach is a natural consequence not only of the Criminal Procedure Code but also of Article 19 of the Constitution and Article 5 of the European Convention on Human Rights. The principle is that a person should not be deprived of their liberty while being tried, and that protective measures should only be applied when milder methods are insufficient. Therefore, achieving an objective through detention that could be reached with milder measures such as judicial control is always open to debate in terms of the principle of proportionality.

Regarding the concrete case, one of the most debated issues in the public eye is the suspicion of flight. Based on information reflected in the press, it is understood that although Deniz Göktaş was aware of the investigation while abroad, he returned to Turkey of his own volition to participate in the legal process. Of course, this fact alone does not lead to the conclusion that the detention order is unlawful. However, in assessing the suspicion of flight required by the Criminal Procedure Code, the fact that the person returned to the country of their own free will instead of fleeing the investigation is an important fact that should not be ignored. It is a requirement of the rule of law that courts evaluate not only the facts against the suspect but also the facts in their favor when applying protective measures.

Another remarkable aspect of the file is the discussions carried out on social media. Some of the posts, especially on the X platform, have created an atmosphere that leads to the targeting of a person who has not yet received a final conviction and declaring them guilty in the eyes of the public in advance. However, criminal procedure is not conducted on social media platforms, but before independent and impartial courts. Public reaction, intense criticism, or support cannot replace the legal criteria for the application of protective measures. Otherwise, a serious perception arises that judicial decisions are shaped by social pressure rather than legal grounds, which is extremely dangerous for the rule of law.

This file also has a separate importance in terms of freedom of expression. In democratic societies, freedom of expression protects not only thoughts that are embraced by society or do not cause discomfort, but also statements that are harsh, shocking, disturbing, and sometimes carry the nature of severe criticism. Stand-up shows are, by their nature, based on exaggeration, irony, and humor. Of course, freedom of expression is not unlimited. Statements that incite violence, constitute hate speech, or violate the fundamental rights of others may give rise to legal liability. However, the assessment of whether a statement constitutes a crime and whether it is necessary to deprive a person of their liberty due to this statement are completely different issues.

The case law of both the Constitutional Court and the European Court of Human Rights clearly emphasizes that detention cannot be used as a tool for preemptive punishment or a method to appease public reaction. Detention is an exceptional protective measure that serves only to ensure the proper conduct of the proceedings. The criterion that should be taken as a basis in the application of protective measures is whether the conditions stipulated in the law are met in the concrete case.

No matter how the Deniz Göktaş file concludes, the fundamental truth that this investigation reminds us of in terms of law will not change: Detention is not a natural consequence of a criminal accusation. It is an exceptional protective measure that must be evaluated separately in each case and must be justified by concrete facts. The rule of law is tested exactly at this point. The file discussed today may change; what should not change are the constitutional guarantees protecting personal liberty and the legal sensitivity to be shown toward the detention measure, which is regulated as an exception to these guarantees.

Attorney Deniz Ali İlkem Demir