In the Code of Criminal Procedure, it is stipulated that the suspect or accused may be asked to be released at all stages of the investigation and prosecution stages. (CMK m.104/1) The continuation or release of the suspect or accused from detention shall be decided by the judge or the court. These decisions can be appealed.
The first-degree trial stage has been completed and the decision on the request for release is made after the review of the file by the relevant department of the Regional Court of Justice or the Court of Cassation or the Criminal General Assembly of the Court of Cassation, when the file arrives at the Regional Court of Cassation or the Supreme Court; this decision can also be made if you re.(CMK m.104/3)
The criminal files coming to the Supreme Court stage first come to the Public Prosecutor’s Office of the Supreme Court. The file is registered in the Prosecutor General’s Office of the Supreme Court of Cassation and a notification number is given to the file. The tracking of the file is done via this number. Then the file is sent to the archive to wait for the review order. The file that comes next is submitted to the Public prosecutor. After the Prosecutor General of the Supreme Court examines the file, the file is delivered to the relevant criminal court of the Supreme Court together with the notification number. Since all these stages are taking a long time, this situation is a great victimization for the defendants who are unjustly detained.
While this is the case; in the criminal case files coming to the Supreme Court stage, the issue of whether it is expected to send the file to the relevant department for the defendant’s request for release is encountered.
In Article 104/3 of the CMK; “ The decision on the request for release when the file arrives at the regional court of justice or the Supreme Court is made after the examination to be made on the file by the relevant department of the regional court of justice or the Supreme Court or the General Assembly of the Criminal Court of the Supreme Court. it has been said that “. As the wording of the article suggests, the arrival of the file to the Supreme Court (not to the relevant department) will be sufficient for the request for release, and the arrival of the file to the relevant department will not be expected.There is no indication that the file should come to the relevant department, it is only stated that the decision on the release request should be made after the examination to be made on the file by the relevant department. In the same article “ ……..it is issued after the examination to be carried out on the file. “it was stated that the request for release should be decided by examining the file (i.e., as the file came from the court of first instance).
As a result, we believe that even if the criminal case files that have reached the Supreme Court stage are waiting in line at the Public Prosecutor’s Office stage of the Supreme Court before the file is sent to the relevant department, a request for the defendant’s release can be made.
T.C. COURT OF CASSATION 1. CRIMINAL DEPARTMENT E. 2005/3139, K. 2006/79, T. 1.5.2006
SUMMARY: CMK about the eviction requests made to the Supreme Court.104/3 of the. in accordance with the article, a decision must be made by examining the file.
CASE: Convict Inc. U. according to the new TCK, with the petition dated 25.04.2006, the file was examined and eviction was requested.
CMK regarding the eviction request in the precedent file numbered 2005/5061.104 and 105 of the. in accordance with the articles of the Court of Cassation, the Prosecutor General’s Office, whose opinion was asked, issued on 10.06.2005, dated 13.06.2005 and numbered 2004/236797-1 in its reasoned response article CMK about the eviction requests made to the Supreme Court as a result.104/3 of the. 105 of the same law, since it must be decided by examination on the file in accordance with Article 105 of the same Law. since the article does not concern the courts of first instance and does not cover the Supreme Court review and the Public Prosecutor’s Office of the Supreme Court was not given the duty to express an opinion on the request, it was seen that no opinion was expressed on the bet.
At the same time, this opinion of the Prosecutor General’s Office of the Supreme Court of Cassation, which was considered appropriate, was examined, limited to the request for the release of the file, which was not in the order of the appeal review:
CONCLUSION: The amount of the sentence imposed on the accused was decided unanimously on 01.05.2006 to request (REJECT) the release according to the time elapsed in detention.
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