Note · Law 6706 m.32/1-e
The second file nobody knew about: the open case that stalls a transfer
One open file is enough. Article 32(1)(e) of Law no. 6706 makes the absence of any other investigation or prosecution in Türkiye one of six conditions that must hold together before a sentenced person is transferred out. It applies to any offence, in any province, however minor, and his criminal record certificate will not show it. The file has to be found and closed before the request goes in.
What counts as an open file
Article 32 of Law no. 6706 on international judicial co-operation in criminal matters sets six conditions for transferring a sentenced person out of Türkiye, and they must all be present together. Subparagraph (e) is the one that defeats requests quietly: there must be no investigation or prosecution in Türkiye against him for another offence. Not no other conviction. No other live file, of any kind, in any province.
Two definitions in the Code of Criminal Procedure decide what open means, and they are wider than families expect.
- Investigation — CMK 2(1)(e): the phase running from the moment a competent authority learns of the suspicion until the indictment is accepted. A file sitting in a prosecutor's office in another city, on which he has never been questioned and about which he has never been told, is an open investigation for the purposes of Article 32.
- Prosecution — CMK 2(1)(f): the phase running from acceptance of the indictment until the judgment becomes final. A second case that has already been decided but is under istinaf or temyiz appeal is therefore still open, and stays open until that appeal route is exhausted.
The two timing conditions pull against each other. The conviction you want transferred has to be final (Article 32/1-c). The second file has to be closed. A second case is not closed by being appealed, and the first is not ready until its appeals are over. Work on the second file therefore belongs to the period while the appeal in the main case is still running, not after it.
Nothing is automatic even when all six conditions hold. Under Article 32/3 the Central Authority — the Ministry of Justice, defined in Article 2/1-b — may still refuse, and under Article 32/7 the Minister of Justice takes the decision once the receiving state has consented.
Why nobody knew about it
The usual assumption is that a prisoner knows what he is charged with. In a transfer file that assumption fails for three ordinary reasons.
The file was opened after he went inside. A complaint made months later, an offence reported from the institution, a co-suspect's file separated out and sent to a different prosecutor's office, an account examined in a separate investigation — each produces a new file number in a place he has never been.
His criminal record certificate does not show it. Under Law no. 5352 art. 4 the judicial record holds convictions handed down by Turkish courts that have become final. A pending investigation is not a conviction and never appears. Deferral decisions are kept under art. 6 in a register released only on the request of a court, judge or prosecutor's office in connection with an investigation. A certificate that comes back clean is not evidence that nothing is open; it is evidence of what the Turkish criminal record is built to record.
A small case can finish on paper. Under CMK 251 the criminal court of first instance may, after accepting the indictment, apply the simplified procedure to offences carrying a judicial fine and/or imprisonment with an upper limit of two years or less. The indictment is served and the defendant is asked to give his statement and defence in writing within two weeks; judgment may then be given without any hearing, with a one-quarter reduction on conviction. Under CMK 252(1) a judgment not objected to in time becomes final, and the objection period under CMK 268(1) is two weeks from learning of the decision. Served on an address he left three years ago, that whole sequence can run past a man held two hundred kilometres away.
Where to look, and what each source misses
The Ministry checks this before it sends anything abroad. It is better to find the file first, because finding it late costs the months it takes to close it.
| What is checked | What it shows | Provision |
|---|---|---|
| Judicial record certificate (adli sicil) | Final convictions only — no pending file, ever | Law no. 5352 art. 4 |
| Deferral register | Deferred prosecutions and deferred judgments, released only to a court, judge or prosecutor in connection with a case | Law no. 5352 art. 6 |
| Nationwide file search by an authorised lawyer | Investigations and prosecutions recorded against his identity number and passport, in every province | — |
| Examination of a file once found | Defence counsel may examine the content of the investigation file and take copies free of charge, subject to a judge's restriction order on the prosecutor's request | CMK 153 |
The search has to run on every version of his identity, including passport spellings and any second transliteration of his name, because a file opened elsewhere may carry the version an officer typed at the scene. And someone outside has to do it: this is work that falls naturally to the family of a detainee, working with counsel who can take a power of attorney and query the system nationally.
The routes that end a second file, and what each one costs
What closes a second file depends on what it is. The ordinary routes differ from each other by months.
| Route | What happens | Provision |
|---|---|---|
| No grounds for prosecution | The prosecutor decides not to prosecute; the injured party may object to the criminal judgeship of peace within two weeks, so the file is not settled until that window closes | CMK 172(1), 173(1) |
| Mediation | In a mediation-eligible offence, performance in one go produces a decision that there are no grounds for prosecution | CMK 253(19) |
| Deferred prosecution | Not a closure. Where the offence carries an upper limit of three years or less, the prosecutor may defer for five years; the non-prosecution decision comes only at the end of that period | CMK 171(2), 171(4) |
| Trial to judgment | Questioning may be taken by a court in the province where he is held, except for offences with a lower limit of five years or more, or by simultaneous audio and video link where the court considers it necessary | CMK 196(2), 196(4) |
| Limitation | An old dormant file may already be out of time — eight years for offences punishable by up to five years' imprisonment or a judicial fine | TCK 66(1)(e) |
The route chosen has a second effect, and it is the one to think about before anyone concedes anything. If the second file ends in a conviction, the sentences do not stay separate for execution purposes: the enforcement judge issues a combination decision under Law no. 5275 art. 99, and the remaining term is recalculated on the aggregate. That figure is what Article 32/1-d then measures, and a judicial fine in the second file must be paid before a transfer can be ordered in the same way as one in the first (Article 32/4).
The order of work is therefore set by the statute rather than by preference: find every open file, close each on its own terms, keep the appeal in the main case running while that is done, and only then let the conviction become final and the request go in. The conditions, the documents and the refusal grounds that follow are set out in the note on serving a Turkish sentence and transfer home.
Questions we are asked about the second file
The second case is only a small fine. Does it still hold up the transfer?
He was convicted in the second case and we have appealed. Is that file closed now?
Can the second file be speeded up because a transfer is waiting?
Turkish terms on this page3 terms
The file is written in Turkish. These are the words you will see in it, with the provision behind each.
- istinaf — appeal to the regional court of appeal
- The first appeal against a judgment, to the bölge adliye mahkemesi, within two weeks of service of the reasoned judgment (CMK 273/1).
- temyiz — appeal to the Court of Cassation
- The appeal on points of law against a regional court of appeal decision, to the Yargıtay, within two weeks of service of the reasoned judgment (CMK 291/1).
- adli sicil — judicial record
- The official record of final convictions kept under Law no. 5352. What is entered, and what is not, is set out in article 4 of that Law.
Where this leads
Reach the duty desk
Tell us where the person is and what they have been told. An enquiry commits you to nothing. If it is urgent, message or call rather than write.