Can Mentally Ill Individuals Be Legally Detained?
Attorney Aziz Emre YILMAZ
Criminal Lawyer
A Legal Analysis of Pre-Trial Detention and Criminal Responsibility
I. Introduction
Pre-trial detention is one of the most severe interferences with personal liberty within the framework of criminal proceedings. As such, it must be applied in strict compliance with both national legislation and international human rights standards. While it serves as a procedural safeguard to ensure the effective administration of justice, it is not intended to serve as a punitive measure.
A particularly complex issue arises when the person subject to pre-trial detention is suffering from a mental illness that eliminates or significantly diminishes criminal responsibility. This article aims to explore whether individuals who lack criminal responsibility due to mental illness can be lawfully subjected to pre-trial detention, and if so, under what conditions. The analysis will primarily focus on Turkish criminal law, supplemented by comparative insights from European human rights jurisprudence.
II. Legal Framework for Pre-Trial Detention in Turkish Law
A. General Conditions under the Code of Criminal Procedure
Under Article 100 of the Turkish Code of Criminal Procedure (CMK), a suspect or defendant may be placed in pre-trial detention if:
- There is strong suspicion based on concrete evidence that the individual has committed an offense (i.e., "kuvvetli suç şüphesi"), and
- There exists at least one "ground for detention," such as:
Furthermore, Article 101 CMK provides that detention must be a proportional and necessary measure, and should not be used when less restrictive alternatives, such as judicial control (adli kontrol), suffice.
B. Special Emphasis on the Purpose of Detention
The primary objective of detention is to ensure the proper conduct of the criminal process—not to punish. This includes securing the suspect’s presence at trial, preventing reoffending during the investigation phase, and preserving the integrity of evidence.
Thus, a fundamental assumption underlying any detention order is that the accused is potentially subject to criminal conviction and punishment. If this assumption collapses due to lack of criminal responsibility, the basis for detention may also cease to exist.
III. The Concept of Criminal Responsibility and Mental Illness
A. Article 32/1 of the Turkish Penal Code
According to Article 32(1) of the Turkish Penal Code (TCK):
“A person who, due to mental illness, lacks the capacity to appreciate the legal meaning and consequences of his act, or to direct his behavior accordingly, shall not be held criminally responsible.”
This provision reflects a core principle of modern criminal justice: no punishment without culpability (nullum crimen sine culpa). Mental illness, when it meets the legal threshold defined under TCK 32/1, completely eliminates an individual’s capacity to be criminally liable. As a result, a person falling within this provision cannot be lawfully punished, regardless of the factual commission of the act.
B. Legal Implications for Procedural Measures
If a suspect or defendant cannot, by law, be convicted and punished for the alleged offense due to lack of criminal responsibility, it raises a critical procedural question: Can such a person still be detained?
From a functional standpoint, the answer tends toward no. Since pre-trial detention is justified primarily as a tool to secure eventual punishment or trial appearance, and no punishment can legally follow in the absence of responsibility, the use of detention becomes disproportionate and unnecessary.
IV. Analysis: Why Mentally Ill Individuals Fail to Meet the Legal Criteria for Detention
A. The Collapse of Purpose and Proportionality
When criminal responsibility is negated:
- There is no legitimate expectation of punishment.
- There is no penal threat justifying restrictions on liberty.
- There is no proportional relationship between the measure and the outcome.
Thus, mentally ill defendants for whom a forensic psychiatric report confirms lack of criminal responsibility do not satisfy the very conditions required by CMK 100–101 for detention. Their detention would serve no legitimate procedural function and would therefore be arbitrary under both domestic and international law.
B. Detention Grounds Become Inapplicable
Several grounds typically used to justify detention become functionally void:
- Risk of Flight: If the individual cannot be punished, their incentive to flee is significantly reduced.
- Tampering with Evidence: In cases of mental disorder, procedural capacity may be impaired to the extent that such a risk is unrealistic.
- Reoffending: While potential harm to public safety may remain, it must be addressed via medical measures, not penal coercion.
In such instances, the appropriate legal response is placement in a medical facility, not detention in a penal institution.
V. Comparative Perspective: European Human Rights Standards
A. European Convention on Human Rights (ECHR)
Article 5(1) of the ECHR permits deprivation of liberty only in exhaustively enumerated cases, including:
- Article 5(1)(e): “... the lawful detention of persons of unsound mind.”
However, the European Court of Human Rights (ECtHR) has imposed strict criteria on the use of this provision.
B. Key ECtHR Case Law
- Winterwerp v. the Netherlands (1979): Detention of persons of unsound mind is lawful only if:
- Lashin v. Russia (2002): The Court held that confinement of mentally ill individuals must be therapeutic, not punitive. Detaining a person who cannot be held criminally liable, in a penitentiary setting, violates Article 5 unless it serves a medical necessity.
- Mouisel v. France (2002): The Court found that detention of a terminally ill prisoner without adequate medical care amounted to inhuman treatment under Article 3 of the ECHR.
Together, these cases underscore that mental health detention must be treatment-oriented and based on medical rather than penal rationales. The use of pre-trial detention solely because of the gravity of the offense or public pressure is not a lawful substitute for forensic hospitalization.
VI. Alternative Measures Under Turkish Law
Instead of detention, Article 109/3(e) CMK allows courts to impose judicial control obligations requiring the defendant:
“... to undergo treatment or be hospitalized, and to accept such measures as part of judicial control.”
This ensures oversight of the individual while also facilitating access to mental health care, thereby striking a balance between public safety and the rights of the accused.
VII. Conclusion
A person who lacks criminal responsibility due to mental illness should not be subjected to pre-trial detention. The application of such a severe measure contradicts both the spirit and the letter of criminal procedure laws and human rights conventions. It amounts not only to a legal misapplication of procedural safeguards but may also constitute a violation of fundamental rights, including the right to liberty, the right to humane treatment, and the principle of legality in criminal justice.
Judicial authorities must ensure that medical, not penal, measures are applied to such individuals. Doing so is essential not only to uphold the rule of law but also to maintain the integrity and humanity of the criminal justice system.