Unfair and long-term detention in criminal proceedings has become a frequently encountered issue, especially recently. However, it has led to a lot of controversy. These discussions are related to the fact that arrest has become almost a means of punishment rather than a precautionary measure with an aim. It should be noted that the arrest is a protection measure and is not of a criminal nature.
Because the arrested person continues to benefit from the presumption of innocence, and no legal regulation agrees to punish a person whose guilt is not fixed by a final judicial decision. Indeed, arrest is a protection measure and a tool used to ensure that criminal procedure achieves its purpose. First of all, in order for an arrest warrant to be issued, the Criminal Procedure Code (CMK m. 100/1) we would like to point out that all the conditions sought must be found at the same time. An arrest made without searching for all the conditions required by law is not a protection measure. Because it is impossible to justify such an arrest from the point of view of criminal procedure.
This right, which is constitutionally guaranteed, is granted by Article 19 of the Constitution entitled “Freedom and Security of the Person”. it is clearly included in the article. in its article, it specified the principles of arrest and in its last paragraph; It introduced the provision “Damages suffered by persons who are processed outside these principles are paid by the State in accordance with the general principles of compensation law”. The procedures and reasons for granting compensation are 141-144 of CMK No. 5271. it is determined by the substances. This provision, which is guaranteed and clearly stated in the Constitution, provides for the possibility of return to the victim for the purpose of compensation for material and moral rights losses caused by wrongful detention and arrest.
In the case of arrest, detention or negligence or unlawful decision, in the case of wrongful arrest, the provision is reserved that the accused must be tried in accordance with the law or a final decision must be made to arrest and prosecute in accordance with the Constitution and the law and after the arrest, or acquitted if the duration of the prison sentence exceeds the duration of the detainee’s stay, or pay a fine if the arrest is unjustly made if he is the only defendant. In both cases, the victimized persons may request all kinds of material and moral damages from the state.
This compensation lawsuit to be filed against the state shall be paid by the undersecretariat of treasury. Property damage is the loss of income incurred during the period of irregular or unjustified arrest and therefore the expenses that he has to make. These expenses also include the attorney’s fee paid to the lawyer if the person has had himself represented by a proxy. Moral harm is when a person’s dignity is damaged in a family and business environment, he experiences spiritual difficulties, feels pain, grief and sadness due to being away from his children, family and surroundings. The decision of the Supreme Court on this issue is presented below.
EXEMPLARY SUPREME COURT DECISION
TC
THE SUPREME COURT12. CRIMINAL DEPARTMENT. 2017/8800K. 2018/1376T. 12.2.2018
SITUATION : The decision regarding the partial acceptance of the plaintiff’s compensation claim was appealed by the defendant’s attorney and the plaintiff’s attorney, and the file was examined and deemed necessary;
DECISION: Taking into account the scope of the file under review, the examination conducted, the evidence collected and shown at the place of decision, the opinion and discretion formed by the court according to the results of the prosecution, the defendant’s attorney and the plaintiff’s attorney reject other appeals requests, but;
1-) According to the arrest warrant contained in the file, the plaintiff was arrested for opposing the Law No. 6136, which is the basis of the compensation claim. 10. According to the Decision of the High Criminal Court No. 2008/190
– In the Criminal Case No. 2013/221 of the plaintiff, the decision to commit a crime for the purpose of acquittal from the crime of being a member of the organization, made taking into account the criminal case that is the basis of the compensation claim, should be decided according to the result by examining the referral letter of the arrest warrant issued against the plaintiff and presenting the original or approved examples of the indictment, as well as by submitting an investigative petition based on the decision whether the plaintiff should be prosecuted for the crime of opposition to Law No. 6136, investigating whether the case was opened or opened, while, it is necessary to decide according to the result by investigating whether an examination decision has been made against the plaintiff due to the aforementioned crime.
Making a written decision with incomplete examination and research,
2-) If the execution of the arrest warrant issued against the plaintiff has taken place, the dates of execution should be asked from the penitentiary institution to determine the duration of the execution in such a way that there will be no hesitation, and if it has taken place, attention should not be paid to determining the dates of execution,
3-) In case of wrongful arrest and determination of reasons based on more than one face related to the same issue during the examination of the appeal made by our department, the case is filed; the existence of a dark line that causes damage to the treasury, preventing the effective, efficient and lawful use of public resources, wrongful arrest related to the same issue and volumes, and for this reason, whether a lawsuit has been filed, who is the person who is asked via the National Judicial Network Information System (UYAP) and who should be investigated,
Also through acceptance;
1-) The amount of income the plaintiff received during his detention and conviction and the reputation of the loss of earnings suffered by the Ministry of Labor and Social Security for the periods determined by the net minimum wage calculation was made and the monetary compensation of 4.330,85 TL to be paid to the plaintiff, the expert report determined the amount of monetary compensation by ruling incomplete on the gross minimum wage caused by inappropriate behavior over attorney fees,
2-) Although there is no objective criterion for the determination of moral compensation in favor of the plaintiff, a reasonable amount should be determined in accordance with the rights and principles of nesafet, taking into account the nature of the crime, the occurrence of the incident leading to his arrest, the interest and compensation in case of detention, as well as the monetary value to be obtained by the date of finalization of the case, it should not be less than the amount that does not meet the criteria for the determination of moral compensation.
3-) Adding the phrases ”Crime“ instead of ”Case“, ”Compensation in Case of Arrest or Acquittal Decision“ instead of ”Compensation Due to Protection Measures“, ”Date of Crime: 23.10.2014“ instead of ”Date of Trial: 13.05.2014“ and adding the phrases ”Place of Crime: Istanbul / Bakırköy“ and ”Plaintiff: KH” with the addition of the phrases “Place of Crime: Istanbul / Bakırköy” and “Plaintiff: KH,
CONCLUSION: It is contrary to the law, and since the appeals of the defendant’s attorney and the plaintiff’s attorney are considered to be in place as of this date, for these reasons, Law No. 5320 is 8. judgment has been established in accordance with the article. 321 of CMUK No. 1412. according to the article, which is still in force in accordance with the article, it was decided to reject the request unanimously on 12.02.2018.