The Legal Limits of Disciplinary Practice in Removal Centres: The Principle of Legality and the Regulatory Gap

A removal centre is not a penal institution. No sentence is enforced against the foreign national held there; the person is under administrative detention so that deportation proceedings can be carried out. Even so, a disciplinary practice operates in fact in these centres in respect of persons considered to have broken the rules: a change of room, being held in a separate room, restrictions on means of communication. The absence of any written regime on which that practice rests creates a serious problem in terms of the principle of legality. This article examines the legal consequences of that gap.

The gap has been officially established

The existence of the regulatory gap is not a matter of interpretation but a fact established institutionally. Visit Report No. 2026/45 of the Human Rights and Equality Institution of Türkiye (TİHEK) on the Istanbul Çatalca Removal Centre — adopted by Board decision No. 2026/778 of 16 July 2026 — found that there is no clear regulation on the disciplinary process for foreign nationals under administrative detention, and recommended that the Presidency of Migration Management accelerate its legislative work on the matter and close the gap. According to the report, incidents occurring in the centre are managed by security officers in the blocks.

In other words: a regime of measures is applied in practice, but there is no regulation setting out its scope, its limits, the authority that decides, or the avenue of challenge.

What does the principle of legality require?

Under Article 13 of the Constitution, fundamental rights and freedoms may be restricted only by statute, without infringing their essence, and only on the grounds set out in the relevant articles of the Constitution. Article 19, for its part, lays down the rule that no one may be deprived of liberty and then lists the exceptions exhaustively.

The decisive question in this framework is: for a person already under administrative detention in a removal centre, is being held in a separate room within the centre, or having communication cut off, a natural consequence of the existing detention decision, or is it an additional interference?

The answer is the latter. Article 58(1) of Law No. 6458 says only this: "Foreign nationals placed under administrative detention shall be held in removal centres." The detention decision provides the legal basis for holding the person in the centre; it does not provide a basis for separating the person from others inside the centre, or for cutting off contact with family and lawyer. Measures of this second kind increase the degree of the restriction on liberty and require a separate legal basis of their own. Where no such basis exists, the measure cannot be said to satisfy the requirement of legality.

Moreover, the statute regulates certain facilities afforded to persons in the centre directly. Under Article 59(1)(b), the foreign national "shall be provided with the opportunity to access and meet relatives, a notary, a legal representative and a lawyer, as well as access to telephone services". This is a facility granted by statute; removing it as part of a disciplinary practice therefore amounts not merely to a general violation of rights but to a direct breach of Article 59(1)(b). A facility granted by statute cannot conceivably be taken away by a measure that has no statutory basis.

There is also a limit as regards the delegation of powers. Article 58(3) lists exhaustively the matters to be regulated by secondary legislation: the "establishment, administration, operation, transfer and supervision" of removal centres and the "transfer procedures" of foreign nationals to the centres. That list does not include a disciplinary regime, types of sanction or restrictions on communication. Within the current statutory framework, therefore, the basis for creating a disciplinary regime at the level of secondary legislation is itself doubtful; solving the problem requires an amendment to the statute.

A comparison is instructive here. By the eighth paragraph added to Article 57 by Law No. 7196 of 6 December 2019, the legislature expressly provided that the electronic and communication devices of foreign nationals placed under administrative detention may be examined in order to establish their nationality, and that the data obtained may not be used for any other purpose. In other words, for that interference with private life a statutory basis was created and its purpose and limits set out. The same legislature made no comparable provision for the regime of measures applied inside the centre. This suggests that the gap results from oversight rather than from a deliberate choice.

The Constitutional Court's judgment in Y.K.

The Second Section of the Constitutional Court addressed this question in a concrete case in Y.K. of 2 June 2020 (Application No. 2016/14347). In that case, deportation and administrative detention decisions were taken in respect of the applicant, a national of the Republic of Kazakhstan, who was sent to a removal centre; he alleged that he had been held for ten days in an unheated cell and that his hands and feet had been placed in chained shackles.

The Court concluded that there was evidence beyond reasonable doubt that the applicant had been held for ten days in a single-occupancy room referred to as the "attention room", and found a violation of both the substantive and the procedural limbs of the prohibition of ill-treatment guaranteed by Article 17 of the Constitution.

The most important part of the judgment for the disciplinary debate is the reasoning that led to the finding of a violation. The Court set out the following findings:

• There was no written order or record concerning the applicant's placement in the attention room.
• After being placed there, no disciplinary investigation was opened against the applicant for attempted escape, participation in an incident or any other reason.
• There was no evidence that the applicant might harm himself, other persons in the centre or property; on the contrary, all the witnesses stated that the applicant appeared calm and cooperative.
• The centre administration gave no explanation as to why the applicant had been placed in that room.
• Throughout his stay in that room the applicant was unable to communicate with other persons in the centre, with his family or with his legal representative; there were no means of communication such as radio, television or telephone in the room, and no evidence was obtained that he had been taken outdoors.

The Court concluded that the interference, which occurred without a legitimate aim and contrary to the operating principles of removal centres, could be characterised as ill-treatment by reason of its nature and duration.

That series of findings reads, in effect, like a list of the elements that would be required if a disciplinary regime existed: a written decision, a concrete reason, a procedure, a time limit and the protection of the right to communicate. The absence of all of them turned the measure from a legal act into a matter of de facto treatment.

The procedural part of the judgment is also important. The Court noted that no examination of the scene had been carried out at the initial stage of the investigation; that, instead of securing and preserving the security camera footage directly, the authorities had been content with recordings supplied by the very centre staff against whom the complaint was made; that, instead of establishing the applicant's state of health by medical report, the prosecutor's observation had been entered in the record; and that the public officials complained of had not been asked for their defence — and concluded that no effective investigation had been conducted.

Minimum elements of a disciplinary regime

Taking the principle of legality together with the criteria set out in Y.K., the minimum elements that a regime of measures applied in removal centres must contain are these:

• A statutory basis. The basis for every measure restricting liberty beyond the existing detention must be set out in statute. A regulation or circular cannot suffice on its own in the face of Article 13 of the Constitution.
• An exhaustive list of measures. It must be established in advance which measure may be applied to which conduct; the measures must be listed exhaustively.
• A written and reasoned decision. The reason for the measure, its duration and its scope must appear in a written decision. The clearest finding in Y.K. was the absence of a written order or record.
• The right of defence and interpretation. The allegation must be communicated to the person in a language he or she understands and an opportunity to present a defence must be given.
• A maximum duration. The duration of the measure must be limited in advance; any extension must be the subject of a separate decision.
• Core rights that may not be touched. The forms of access listed in Article 59(1)(b) — access to relatives, a notary, a legal representative and a lawyer, and telephone services — and the emergency and basic health care in Article 59(1)(a) must not be removed by any measure. One of the elements aggravating the violation in Y.K. was that the applicant could not communicate with his legal representative; that is at the same time a breach of Article 59(1)(b).
• An avenue of challenge. The authority to which the measure may be challenged and the time limit must be stated in the decision.
• Records and supervision. Recording every measure applied is also necessary for supervision by TİHEK in its capacity as national preventive mechanism.

Assessment

The failure to regulate disciplinary practice in removal centres is not only a source of uncertainty for the administration; it also leaves the staff working in the centres without a foundation. The absence of any text showing an officer responding to an incident on what power, within what limits and by what procedure to act leaves both the foreign national and the officer unprotected.

One point deserves attention as to how the gap should be filled: transposing the disciplinary regime of penal institutions to removal centres as it stands would not be appropriate. Administrative detention is not a punishment; a person held in a removal centre is neither convicted nor remanded. The yardstick for any regulation must therefore be not punishment but maintaining order in the centre and the safety of everyone present. The severity of the measures must likewise remain confined to that aim.

Conclusion

In Türkiye, the measures applied in practice in removal centres have no written regime, and this gap has been formally identified by the national human rights institution, which recommended that it be closed. The Constitutional Court has characterised as ill-treatment a practice that rested on no written order or concrete reason, was of indefinite duration and cut off communication entirely. Taken together, these two findings show that the problem is not an isolated error of application but a structural absence of regulation. Legislation setting out a statutory basis, an exhaustive list of measures, a requirement of written and reasoned decisions, a maximum duration, the right of defence and an avenue of challenge would both prevent violations of rights and bring predictability to the administration's work.

Sources

• Constitution of the Republic of Türkiye, Articles 13, 17 and 19.
• Law No. 6458 on Foreigners and International Protection (Official Gazette of 11 April 2013, No. 28615), Article 57(8) (added by Article 77 of Law No. 7196 of 6 December 2019), Article 58 and Article 59(1).
• Constitutional Court, Second Section, Y.K., Application No. 2016/14347, 2 June 2020 (Press Release BB 53/20, 3 September 2020).
• Human Rights and Equality Institution of Türkiye, Istanbul Çatalca Removal Centre Visit Report, Report No. 2026/45, Decision No. 2026/778 of 16 July 2026.

This article is based on the legislation in force as at 11 September 2026. It is intended as general information and does not constitute legal advice; in a specific case it is advisable to consult a lawyer.