A CASE OF GOOD TRANSLATION

and rather confusing terminology: ECHR Article 5

Is an arrest always an arrest in Turkey? When does detention start, and does it ever end? Are detained persons under the eye, or are they being held in soft embrace? And on top of that, how to translate "arrest" and "detention" into Turkish? (Spoiler: Here's my answer! –only for the last question, though.)

Article 5 of the European Convention on Human Rights¹, titled "Right to liberty and security" covers issues related to deprivation of liberty, namely, arrest and detention:

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Art.5(4) ECHR

The wording of the English version is clear and comprehensible –although often times not practically applicable by local authorities. Still, let’s focus on the definitions of arrest and detention, as if the problem were merely linguistic:

arrest

(of the police) to use legal authority to catch and take someone to a place where the person may be accused of a crime.

detention

the act or condition of being officially forced to stay in a place.

Cambridge English Dictionary

At first sight, both are easy to translate: arrest is "tutuklama" and detention is "gözaltı" (lit. under the eye), you might say. And the official English-Turkish Glossary for the European Union, published by the Turkish Secretariat General for European Union Affairs² would actually agree with that. According to the glossary, detention might be "alıkoyma" (lit. keeping withheld) or "hapsetme" (lit. imprisonment) depending on the context. But it all gets interesting when we look at the official translation of the Convention³:

4. Yakalama veya tutulma yoluyla özgürlüğünden yoksun kılınan herkes, tutulma işleminin yasaya uygunluğu hakkında kısa bir süre içinde karar verilmesi ve, eğer tutulma yasaya aykırı ise, serbest bırakılması için bir mahkemeye başvurma hakkına sahiptir.

Art.5(4) ECHR

Wow! The words suggested by the glossary –"tutuklama," "alıkoyma," "hapsetme," "gözaltı"– all vanished, and instead "arrest" is translated as "yakalama" (lit. catch, capture) while "detention" is translated as "tutulma" (lit. being held). These are not the conventional legal translations of these words, so what is going on here? It doesn’t sound "legal" at all, it rather sounds like a children’s game of tag where they catch and hold each other. But nope, it’s no child’s play.

In fact, this is a case of a good translation. The "legal" perspective usually puts the institutions to the center, however from a "human" perspective, whose rights are in question, authorities can "catch" and "hold" you, that’s all, and the rest is nothing but procedure. But still, why would the translator(s) of the Convention, such a prominent document, prefer to avoid using official terminology? Let’s dig deeper…

Constitution of the Republic of Turkey⁴ Section III, titled "Personal liberty and security," and the corresponding Article 19 also features the same difficulties of terminology. The original Turkish version states:

"[M]ahkeme kararının veya kanunda öngörülen bir yükümlülüğün gereği olarak ilgilinin yakalanması veya tutuklanması […]"

from the Art. 19 of the Turkish Constitution

Here we see the term "yakalama" (catch, or capture) again, and when we check the English translation of the Turkish Constitution⁵:

"[A]rrest or detention of an individual in line with a court ruling or an obligation upon him designated by law […]"

from the Art. 19 of the Turkish Constitution

Here, "yakalama" (capture) is translated as "arrest," and "tutuklama" (arrest) is translated as "detention," while according to the official Glossary for the European Union "tutuklama" is the usual translation for arrest. Utter confusion...

The Article also includes the note "where procedure and conditions are prescribed by law." And in Turkish law, this is what might happen to a citizen, as a possible scenario:

1. "Stop and frisk" or 5-o’clock-in-the-morning police raid (in practice, with an order by the prosecutor, without any prior court decision)
2. Police custody (without any prior court decision)
3. Pre-trial detention (with a request by the prosecutor, and a court decision)
4. Trial stage (in court, where the prosecutor sits above the defendant, hanging like the mighty sword of Damocles)

In principle, when a police officer "approaches" someone and begins a "conversation," and if the person is not free to end the "conversation" and walk away, then it should mean there’s been either a detention or an arrest. However, as seen in the scenario above, in Turkish "detention" begins not in the first, but in the second stage, while arrest begins in the third –as "pre-trial detention" in Turkish is "tutuklu yargılama" (lit. trial with arrest)– and "capture" (well, this should be an "arrest") begins in the first! And what’s more, the concept "pre-trial detention" emphasizes a lack of trial, while in its Turkish translation "tutuklu yargılama", the exact word used is "trial." Ah, the irony…

"Okay, okay, keep it short! Give me the answers already!"

So, how to translate such fundamental terms as "arrest" and "detention?" Well, it all depends on the context, and many times, the common translations are interchangeable, not so difficult to mistranslate! And when it comes to the liberty and security of a person, a mistranslation is not what they actually need! It seems it is worth, or well, a necessity to delve into the matter.

Back to the domestic law, arrest and detention are regulated in the Turkish Criminal Procedure Code, which can be found both in English and Turkish on legislationline.org.⁶ The code was translated by Prof. Dr. Feridun Yenisey from Bahcesehir University School of Law, and the publication prefers to translate "yakalama" as "arrest without a warrant," "tutuklama" as "arrest with a warrant," and "tutukluluk" as "detention." All three seem to be great translations, although explaining arrest (with/without a warrant) seems too wordy, and might not be possible to use in every situation.

Let's check more sources: A legal handbook published by the Ankara Bar Association in 2011, titled "Durdurma, Yakalama, Gözaltı, Arama, Tutuklama"⁷ begins with worrisome news right in the introduction: "Even basic security practices that are usual and reasonable for democracies are unfortunately causes of anxiety and terror in our country" and "arrest warrants and detention periods 'go beyond protection measures and turn into a nightmare of arbitrary impositions' to a voice the common sense of the society." The handbook goes on to provide definitions for basic terms:

Yakalama is the temporary and de facto restriction of the freedom (before the process of detention) of a person against whom there is a strong suspicion, indication, sign or evidence that they committed a crime. There is no specific form for yakalama, it can be done in any shape or form. For this measure, it is sufficient to deprive the person of their freedom of movement. Police officers have the authority to yakalama a person. (This is an arrest!)

Gözaltı is a temporary restriction of an arrested person’s freedom in order to complete their proceedings until they are either brought before a court or released by the prosecutor. (This is custody!)

Tutuklama is a protection measure applied when there are facts that show the existence of a strong suspicion of a crime and an existing ground for tutuklama such as a strong suspicion that the accused is going to flee, or a strong suspicion that they are going to attempt to destroy, hide or tamper with evidence. A court decision is required for a tutuklama. (And this is pre-trial detention!)

Now it seems to get more and more comprehensible, right? Let's continue... Another good source for legal translators are the ECtHR decisions, translations of which are usually readily available. Just as an example, Kavala v. Turkey, (Application no. 28749/18, dated 10 December 2019) decision by the ECtHR⁸ is rife with terms of "detention" and "arrest," and when we check how they were translated, we see that "arrest" was consistently translated as "yakalama" (in line with the translation of the ECHR), "pre-trial detention" as "tutuklama" and "detention" was translated as either "tutulma" or "tutuklu tutulma." (Very unlike the experience, the phrase has a nice rhythm to it, doesn't it? tutuklu tutulma, tutuklu tutulma...)

So, in short, if you are a fellow translator, and here for suggestions, here are mine:

and once more, this time in the opposite direction...

And if you are not a translator but just here to read, well, since you are not "caught" or "held" yet, what’s better than singing the Beatles?

Hold me tight. Tell me I'm the only one. And then I might never be the lonely one. So hold me, hold me tight, tonight, tonight… It's you, you, you… Don't know what it means to hold you tight!

1. The European Convention on Human Rights can be accessed here
2. Glossary for the European Union can be accessed here
3. The Turkish translation of the European Convention on Human Rights can be accessed here
4. The Constitution of the Republic of Turkey (1982) can be accessed here (in Turkish).
5. The English translation of the Turkish Constitution (1982) can be accessed here
6. A bilingual version of the Turkish Criminal Procedure Code can be accessed here
7. Handbook by Ankara Bar Association, "Stop, Arrest, Custody, Search, Detention" can be accessed here (in Turkish).
8. The ECtHR decision on the case Kavala v. Turkey can be accessed here.