Violation of the Right to Freedom and Security of the Person Due to Insufficient Compensation Paid in Exchange for Detention Measures
Events
The applicant, who was arrested on 1/11/2016 within the scope of the investigation against him and released on 3/11/2016, was tried and acquitted of the crimes of being a member of an armed terrorist organization, establishing or managing an armed terrorist organization. the end of the trial. The attorney’s fee was not stipulated in favor of the applicant in the acquittal decision, and the applicant appealed against this decision. District court of justice decided to reject the appeal on the merits by adding the phrase about paying the surrogacy fee to the defendant and changing the decision paragraph of the decision.
Upon the finalization of the acquittal decision, the applicant filed a compensation lawsuit claiming that he had been wrongfully arrested; the high criminal court ordered the applicant to pay 500 TL moral compensation. The applicant objected stating that the difficult process he had experienced during the trial had not been taken into account, that a very small amount had been awarded compared to the amount of compensation he had requested, and that it was unlawful not to include the attorney’s fee he had paid in this. in a case for financial compensation. Regional court of appeal rejected the objection definitively on the merits.
The Allegations
Applicant claimed that the right to freedom and security of a person had been violated due to the insufficient compensation paid in exchange for the detention measure.
The Court’s Assessment
The current case law of the Constitutional Court focuses on whether the violation of the law is expressed in the main in the petitions for compensation. In order for compensation to be decided in accordance with paragraph (e) of article 141 (1) of Law No. 5271, it is sufficient to decide that there is no place for prosecution or acquittal of persons. Other words, there is no need for the relevant court to examine the legality of the arrest or arrest. In this context, it has been observed that there are uncertainties in the decisions regarding the need to assert the illegality at every stage.
These uncertainties, which lead to differences in case Decrees, have led to unfair results in terms of the exhaustion of legal remedies among the applicants. Due to the uncertainties regarding which rule the compensation claim will be evaluated according to the current case law, there has been a need to establish a uniform case law on the subject and clarify this case law in all its aspects.
In the light of these evaluations, the Constitutional Court concluded: “In order for those who have no room for prosecution or who have been acquitted to be considered exhausted in their individual applications filed under the allegation that the arrest took place, if the arrest or detention is unlawful and the compensation paid is insufficient, it will be sufficient to file a claim for compensation under subparagraph (e) after the expiry of the compensation method provided for in Article 141 of Law No. 5271.
It is the paragraph (1) of Article 141 of the Law No. 5271. In this case, there is no need for the applicants to file a claim for compensation within the scope of subparagraph (a).”we have examined the concrete incident related to the alleged violation of the right to personal freedom and security in the context of this new case law.
In the context of the new case law, it was accepted that the applicant, who filed a claim for compensation claiming that he was wrongfully arrested due to his acquittal in the case in which he was tried, had exhausted legal remedies. It was stated that the arrest was unlawful and the application was examined on its merits. In the concrete case, it was decided to pay 500 TL moral compensation to the applicant in exchange for three days of detention. Although the amount of moral compensation decided is not the same as the amount of compensation ruled by the Constitutional Court in similar cases, it has been concluded that it is so low as to undermine the essence of the right to compensation in the circumstances of the case concrete event.
The applicant also claimed that the attorney’s fee paid to his lawyer in the case in which he was acquitted should also be covered within the scope of financial compensation. The Court rejected the request for financial compensation for the attorney’s fee on the grounds that the acquittal decision had ruled in favor of the applicant to pay the collective attorney’s fee. In Article 164 of the Law on Lawyers numbered 1136, it is stated that the attorney’s fee to be received from the other party based on the tariff at the end of the case belongs to the lawyer.
Therefore, paying a collective attorney’s fee in favor of the applicant in the case in which he was acquitted may not mean that the applicant’s financial damage has been compensated. At this point, the court conducting the trial should investigate whether the parties include a lump sum attorney’s fee in the attorney’s fee agreement between the applicant and his lawyer. Dec. Although 142 of the Law No. 5271. although paragraph (6) of article states that the court is authorized to evaluate compensation claims and evidentiary documents and to conduct any investigation that it deems necessary or to have one of its judges do it, the court of first instance, which determines the amount of compensation to be adjudicated according to the general principles of compensation law, has not conducted any research on this issue.
On the other hand, even if it is accepted that this attorney fee was paid to the applicant in a lump sum, it is not explained in the decision why the part exceeding this amount cannot be considered within the scope of material damage, whether there is a link of law. If there is a link between the wrongful arrest measure and the law Decrees, whether the fee requested is necessary and reasonable.
For the reasons explained, the Constitutional Court decided that the right to personal freedom and security had been violated.
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