Unjust and long periods of detention in criminal proceedings have become a frequently encountered issue, especially in recent years. It has generated a lot of controversy. These discussions; It is about the fact that detention has ceased to be a precautionary measure and has almost become a means of punishment. It should be noted that arrest is a protective measure and not a punishment. Because the arrested person continues to benefit from the presumption of innocence and no legal system accepts to punish the person whose crime is not proven with a final judicial decision. Indeed, detention is a protective measure and a tool used to ensure that the criminal procedure achieves its purpose. First of all, we would like to point out that in order for an arrest warrant to be issued, all the conditions sought by the Criminal Procedure Code (CMK art. 100/1) must be met at the same time. An arrest, which is implemented without seeking all the conditions required by the law, is not a protective measure. Because it is impossible to justify such an arrest for criminal purposes.
This constitutionally guaranteed right clearly states the principles of detention in Article 19 of the Constitution titled “Personal Freedom and Security” and in the last paragraph; It has brought the provision that “The damages suffered by persons who are subjected to a procedure other than these principles shall be paid by the state in accordance with the general principles of compensation law”. The procedures and reasons for granting compensation are Articles 141-144 of the CMK No. 5271. regulated by the articles. This provision, which is guaranteed by the Constitution and clearly stated, provides the opportunity to return the material and moral rights lost to the victim, as compensation, in the event of an unjustly detained and detention process.
In case of deficiencies or violations of the law following the decision of detention or detention, when referring to irregular detention; If a decision to terminate the prosecution or acquittal is given for the accused who has been arrested in accordance with the Constitution and the law and the necessary procedures to be carried out following his arrest have been carried out in full and in accordance with the law, if the period of detention is longer than the period of imprisonment or the accused is sentenced to only a fine, the arrest is unjustified. In both cases, victims can claim all kinds of material and moral damages from the state. This compensation lawsuit to be filed against the state is paid by the Undersecretariat of Treasury. Material damage is the loss of income incurred during the illegal or unjustified detention and therefore the expenses he has to make. These expenses include the attorney’s fee paid to the attorney, if the person has had himself/herself represented by an attorney. The moral damage is the loss of dignity of the person in his family and work environment, experiencing mental problems, and the anguish, grief and sadness he feels because of being away from his children, family and environment. The Supreme Court decision on the subject is presented below.
EXAMPLE COURT DECISION
T.R.
JURISDICTION12. CRIMINAL DEPARTMENT. 2017/8800K. 2018/1376T. 12.2.2018
CASE: The decision regarding the partial acceptance of the claimant’s claim for compensation was appealed by the defendant’s attorney and the plaintiff’s attorney, the file was examined and the necessary was considered;
DECISION: Rejection of other appeals of the counsel of the defendant and the counsel of the plaintiff, according to the examination, the evidence gathered and shown at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the file examined;
1-) According to the arrest warrant in the file, the plaintiff was arrested for violating the Law No. 6136, and in the criminal case file of the Istanbul 10th High Criminal Court, which is the basis of the claim for compensation, the criminal case file numbered 2008/190 – 2013/221 Decision, the organization established to commit a crime against the plaintiff. Considering that a verdict of acquittal was given for the crime of being a member, the criminal case file, which is the basis of the claim for compensation, was summoned and examined, and the warrant of arrest, the interrogation memorandum and the original or certified copies of the indictment were included in the file. While a decision should be made according to the result by investigating whether a decision has been made regarding the absence of prosecution or whether a lawsuit has been filed, whether a decision has been made about the plaintiff for the aforementioned crime, a written decision should be made with incomplete examination and research,
2-) Failure to observe whether the arrest warrant issued against the plaintiff has been executed, and if it has been executed, the duration of the execution should be determined without leaving any room for hesitation by asking the execution dates from the penitentiary institution,
3-) In the face of the understanding that during the appeal examinations made by our department, it was determined that more than one lawsuit was filed based on the same subject and the reason for unjust arrest; In order to prevent payments for repetitive lawsuits that cause treasury damage and to use public resources effectively, efficiently and lawfully, a lawsuit has been filed based on the same subject and wrongful arrest reason.
Not observing that whether there is a business case should be asked from the relevant units and determined by researching it through the National Judicial Network Information System (UYAP),
According to the acceptance;
1-) The plaintiff, who could not submit any documents that could be credited regarding his income and the amount of loss of earnings for the period he was detained, was calculated over the net minimum wage amounts determined by the Ministry of Labor and Social Security for those over the age of 16 regarding the period of detention and detention, amounting to 4,330,85 TL. While it should be decided to pay the plaintiff as pecuniary compensation, the incomplete determination of the pecuniary compensation by taking the amount determined by the wrongful deductions from the gross minimum wage in the expert report as a basis for the decision,
2-) Although it is not an objective criterion, the monetary value of the moral compensation to be awarded in favor of the plaintiff, together with the social and economic status of the plaintiff, the nature of the crime charged, the course of the event that led to his arrest, the period of his detention and the interest until the compensation case is finalized, should be taken into account. While it is necessary to determine and determine a reasonable amount in accordance with the principles of rights and affiliation, the judgment of less moral compensation in an amount that does not comply with the determined criteria,
3-) In the title of reasoned decision, instead of “Crime” instead of “Crime”, “Compensation in the event of a decision of acquittal or KYO after Arrest or Arrest” instead of “Crime”, “Compensation due to protection measures”, instead of “Date of lawsuit: 13.05.2014”. “Crime date: 23.10.2014” and “Crime place: Istanbul/Bakırköy” and “Plaintiff: KH” including phrases,
CONCLUSION: As it is against the law and the appeal objections of the defendant’s attorney and the plaintiff’s attorney are deemed appropriate in this respect, the judgment is OVERFINED in accordance with the request, pursuant to Article 321 of the Criminal Code No. 1412, which is still in effect pursuant to Article 8 of the Law No. 5320, 12.02.2018 It was unanimously decided on.