Unjust and long periods of detention in criminal proceedings have become a frequently encountered issue, especially in recent years. It created a lot of controversy. These discussions; It is about the fact that arrest has ceased to be a precautionary measure and has become a means of punishment. It should not be forgotten that arrest is not a punishment, but a protective measure. Because the arrested person continues to benefit from the presumption of innocence and no legal system accepts the punishment of the person whose crime is not proven with a final judicial decision. As a matter of fact, detention is a protective measure and tool used to ensure that criminal proceedings achieve their purpose. First of all, we would like to point out that in order for an arrest warrant to be issued, the Code of Criminal Procedure (CMK art. 100/1) must be met at the same time. An arrest made without seeking all the conditions required by 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 “Damages suffered by persons subjected to a procedure other than these principles shall be paid by the state in accordance with the general principles of compensation law”. Procedures and reasons for granting compensation, Articles 141-144 of CMK No. 5271. are regulated by clauses. This provision, which is guaranteed by the Constitution and clearly expressed, provides the opportunity to reclaim the material and moral rights of the victim, as compensation, in case of unjust arrest and detention.
In case of illegality or deficiencies after the arrest or detention decision, when it is mentioned about illegal detention; According to the Constitution and the law, if the prosecution is terminated or acquittal and the actions to be taken after the arrest are made in full and in accordance with the law, if the detention period is longer than the prison term, or if the accused is only fined, 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. The pecuniary damage is the income incurred during unlawful or unjustified detention and therefore the expenses he has to make. These costs include attorney’s fees paid to the attorney if the person has had them represented by a solicitor. Moral damage is the anguish, grief and sadness experienced by a person due to losing his dignity in the family and work environment, experiencing mental problems, being away from his children, family and surroundings. The Supreme Court decision on the subject is presented below. her grief and sadness at being away from her children, family and surroundings. The Supreme Court decision on the subject is presented below. her grief and sadness at being away from her children, family and surroundings. The Supreme Court decision on the subject is presented below.
EXAMPLE COURT DECISION
EN
JURISDICTION 12. PENALTY SECTION. 2017/8800K. 2018/1376T. 12.2.2018
CASE: The decision regarding the partial acceptance of the claimant’s compensation claim was appealed by the defendant’s attorney and the plaintiff’s attorney, the file was examined and deemed necessary;
DECISION: Rejection of the other objections of the defendant and the attorney of the plaintiff, according to the opinion and discretion of the court, according to the examination carried out, the evidence collected and shown at the place of decision, and the results of the prosecution. , and the scope of the examined file;
1-) According to the arrest warrant in the file, the plaintiff was arrested for violating the Law No. 6136 and is guilty in the criminal case file of the Istanbul 10th High Criminal Court, which constitutes the basis for the claim for compensation, Case File Decision No. 2008/190 – 2013/221, the establishment of the organization to commit a crime against the plaintiff. . Considering that a verdict of acquittal was given for being a member, the criminal case file that constitutes the basis for the claim for compensation was collected and examined.
2-) Whether or not the arrest warrant against the plaintiff has been executed or not, if it has been executed, the execution date is determined by questioning the execution date from the execution institution without leaving any room for hesitation,
3-) In the appeal examinations made by our department, when it is determined that more than one lawsuit has been filed on the same subject and due to unjustified arrest; A lawsuit has been filed on the same subject and due to unjustified detention in order to prevent the payments of repetitive lawsuits that cause damage to the Treasury and to use public resources effectively, efficiently and in accordance with the law.
Not paying attention to whether there is a business case from the relevant units by searching through the National Judicial Network Information System (UYAP) and whether it should be determined,
According to the acceptance;
1-) The plaintiff, who cannot present any documents that can be credited regarding his income and loss of earnings for the period he was detained, will be charged over the net minimum wage amounts determined by the Ministry of Labor and Social Security.
has been applied. 4,330,85 TL pertaining to the period of detention and detention for those over 16 years of age. While it should be decided to pay pecuniary compensation to the plaintiff, it is determined that the pecuniary compensation is deficient based on the amount determined by the unfair deductions made from the gross minimum wage in the expert report,
2-) Although it is not an objective criterion, the monetary value of the moral compensation to be given in favor of the plaintiff, the social and economic status of the plaintiff, the nature of the alleged crime, the course of the event, the period of detention and the interest until the compensation case is concluded should be taken into account. Although it is necessary to determine and determine a reasonable amount according to the principles of rights and affiliation, it is decided that the amount of non-pecuniary damage that does not comply with the determined criteria is less,
3-) In the title of the reasoned decision, instead of “Crime”, instead of “Crime”, “Compensation in case of acquittal or KYO decision after Arrest or Arrest”, “Compensation due to protection measures” instead of “Crime date: 13.05.2014”. “Crime date: 23.10.2014” and “Crime place: Istanbul/Bakırköy” and “Plaintiff: KH” phrases,
CONCLUSION: Since it is unlawful and the appeal objections of the defendant’s attorney and the plaintiff’s attorney are deemed appropriate in this respect, the decision is GIVEN TO THE EXTREME LAW pursuant to the request, pursuant to Article 321 of the Penal Code No. 1412. It is still in force in accordance with Article 8 of Law No. 5320, and it was unanimously decided on 12.02.2018.