Unjustified and prolonged detention in criminal proceedings has become a frequent problem, especially in recent times. These debates concern the fact that detention has become a means of punishment rather than a precautionary measure, which is its intended purpose. It should not be forgotten that detention is a protective measure and is not punitive in nature.
This is because the detained person continues to benefit from the presumption of innocence, and no legal regulation accepts the punishment of a person whose guilt has not been established by a final court decision. Indeed, detention is a protective measure and a tool used to achieve the purpose of criminal proceedings. Firstly, we would like to point out that all the conditions required by the Criminal Procedure Code (CMK m. 100/1) must be met simultaneously for a detention order to be issued. Detention without meeting all the legally required conditions is not a protective measure. This is because it is not possible to justify such detention from a criminal procedure perspective.
This right, which is constitutionally guaranteed, is explicitly stated in Article 19 of the Constitution, titled “Personal Liberty and Security.” The principles of arrest are outlined, and the final paragraph states: “Damages suffered by persons subjected to procedures outside these principles shall be paid by the State in accordance with the general principles of compensation law.” The procedures and principles for awarding compensation are regulated in Articles 141-144 of the Criminal Procedure Code No. 5271.
Unjustified and prolonged detention in criminal proceedings has become a frequent problem, especially in recent times. This situation has led to much debate. These debates concern the fact that detention has become a means of punishment rather than serving its original purpose as a precautionary measure. It should not be forgotten that detention is a protective measure and is not punitive in nature.
This is because the detained person continues to benefit from the presumption of innocence, and no legal regulation accepts the punishment of a person whose guilt has not been established by a final court decision. Indeed, detention is a protective measure and a tool used to achieve the purpose of criminal proceedings. Firstly, we would like to point out that all the conditions stipulated in the Criminal Procedure Code (CMK m. 100/1) must be met simultaneously for a detention order to be issued. Detention carried out without all the legally required conditions being met is not a protective measure. The reason for this is that it is not possible to justify such detention in terms of criminal proceedings.
This constitutionally guaranteed right is explicitly stated in Article 19 of the Constitution, titled “Personal Freedom and Security.” The principles of arrest are summarized, and the last paragraph states: “Damages suffered by persons who are subject to proceedings outside these principles shall be paid by the State in accordance with the general principles of compensation law.”
The procedures and principles for awarding compensation are regulated by Articles 141-144 of the Criminal Procedure Code No. 5271. This provision, which is guaranteed and explicitly stated in the Constitution, provides for the possibility of compensation to the victim for material and moral rights losses arising from unjust detention and arrest.
Following an arrest, detention, or a negligent or unlawful decision, when an unlawful arrest is involved, the law requires that Yahweh be done; Completing all procedures required after arrest in accordance with the Constitution and the law, conducting the arrest and prosecution procedures in accordance with the law or issuing a final decision, acquitting the detainee if the period of detention is longer, or paying a fine if the detainee is convicted of wrongful arrest in the case of a single defendant. In both cases, victims can claim all kinds of material and moral compensation from the state.
This compensation claim against the state is paid by the Undersecretariat of the Treasury. Material damage is the loss of income suffered during the period of unlawful or unjust detention and the expenses incurred as a result. These expenses include the attorney’s fees paid to the lawyer if the person is represented by a lawyer. Moral damages include the violation of the person’s honor in their family and work environment, the emotional distress they experience, and the pain, sorrow, and grief they feel due to being separated from their children, family, and community. The Supreme Court decision on this matter is presented below.
SAMPLE SUPREME COURT DECISION
TC
COURT OF APPEALS 12TH CRIMINAL CHAMBER. 2017/8800K. 2018/1376T. 12.2.2018
PROCEDURE: The decision partially granting the plaintiff’s claim for compensation was appealed by the defendant’s counsel and the plaintiff’s counsel, and the case file was reviewed and the necessary examination was conducted;
DECISION:
Considering the scope of the reviewed file, the investigation conducted, the evidence gathered and presented in the decision, and the opinion and discretion formed by the court based on the results of the prosecution, the other appeals of the defendant’s attorney and the plaintiff’s attorney are rejected, however;
1-) According to the arrest warrant in the file, the plaintiff was arrested by the Istanbul 10th Heavy Penal Court for the crime of violating Law No. 6136, which is the basis of the compensation claim.
According to Heavy Penal Court Decision No. 2008/190 – In Criminal Case No. 2013/221, the plaintiff’s decision to commit a crime in order to be acquitted of the crime of membership in an organization, which was the basis for the criminal case on which the claim for damages was based, was made by examining the arrest warrant issued against the plaintiff and submitting the original or certified copies of the indictment. and also by submitting an investigation petition based on the decision that there were no grounds for prosecution against the plaintiff for the crime of violating Law No. 6136, and by examining whether the case was opened or not, a decision should be made accordingly. However, a decision should be made accordingly by investigating whether an investigation decision was made against the plaintiff for the aforementioned crime.
Issuing a written decision based on insufficient examination and investigation,
2-) If the arrest warrant issued against the plaintiff has been executed, the execution date should be determined without any doubt by inquiring with the penal institution, and if it has been executed, attention should be paid to determining the time of execution,
3-) If, during the examination of the objection made by our Chamber, an unlawful arrest and a lawsuit based on multiple reasons related to the same subject are identified, the lawsuit is filed; the existence of a dark line causing damage to the treasury, the prevention of payments, and ensuring the effective, efficient, and lawful use of public resources, the identification and examination of the person who should be queried and examined through the National Judicial Network Information System (UYAP) regarding unlawful detention and whether a lawsuit has been filed on the same subject and volumes,
By way of acceptance;
1-) The plaintiff’s income during the period of detention and imprisonment and the loss of earnings suffered could not be proven by any document. The net minimum wage for persons over 16 years of age, determined by the Ministry of Labor and Social Security, was calculated, and the plaintiff was awarded monetary compensation of TL 4,330.85. The amount of monetary compensation was determined by the expert report based on the gross minimum wage for those who acted improperly in relation to attorney’s fees, with an insufficient ruling.
2-) Although there is no objective criterion for awarding moral damages in favor of the plaintiff, a reasonable amount must be determined in accordance with the nature of the crime, the plaintiff’s social and economic situation, the occurrence of the event leading to their arrest, the monetary value that would be obtained during the period until the finalization of the case in the event of detention, and the principles of fairness and justice. Furthermore, the amount of moral damages awarded must not comply with legal criteria.
3-) The addition of the phrases “Crime” instead of “Case,” “Compensation or Acquittal Decision in Case of Arrest or Detention” instead of “Compensation for Protective Measures,” and “Date of Crime: 10/23/2014” instead of “Date of Case: 05/13/2014” and the addition of the phrases “Place of Crime: Istanbul / Bakırköy” and “Plaintiff: KH,”
CONCLUSION:
As it is contrary to the law and the appeals of the defendant’s attorney and the plaintiff’s attorney are accepted as valid as of this date, it has been decided to rule in accordance with Article 8 of Law No. 5320 for these reasons. Pursuant to Article 321 of Law No. 1412, the request was rejected in accordance with the currently applicable provision, and a unanimous decision was made on February 12, 2018.