The action for compensation for unfair arrest, detention, search and seizure may be brought on the basis of Article 141 of the Code of Criminal Procedure No. 5271. The compensation of people for unjust detention was first recognized by the 1961 Constitution. This regulation was also preserved in the 1982 Constitution. However, the Law no. 466, which was in force until the entry into force of the Code of Criminal Procedure No. 5271, provided for compensation only for unjustified arrest and detention.
With the entry into force of the Code of Criminal Procedure no. However, as the Law No. 5271 provides for compensation only in terms of arrest, arrest, search and seizure, the damage caused by the application of other protection measures will not be covered under CMK art.141.
In this respect, for example, the search of computers and computer files, copying and seizure, the detection of communication, the appointment of confidential investigators and technical tools and so on. If damage occurs due to protection measures, no compensation under CMK art.141 shall be claimed. However, this does not mean that damages caused by these protection measures will not be compensated at all. In such a case, the person who has suffered will be able to bring full action for damages against the state under the provisions of administrative law.
What are the causes of compensation?
The reasons for which individuals can claim compensation from the state are listed individually in CMK m.141. Reasons for compensation
1. Detaining, Arresting or Resumption of Detention Except as provided in the Law
According to Article 1441/1-a of the CMK, the implementation of one of these procedures leads to compensation of the state, although there are no conditions for a person’s arrest, arrest or continuation of detention prescribed in CMK or other laws. In this context, the Court of Cassation ruled that according to the decision of the 9th Criminal Chamber dated 18.12.2003 and numbered 2335/2281, compensation should be paid for the person who was arrested without an arrest warrant and released after three days of unjustified arrest.
It should be noted, however, that in cases where everyone has the authority to arrest (eg, red-handed), damages arising from the exercise of such authority are not the responsibility of the state. As the state authority is not used here, the state cannot be held responsible for the damages arising from this reason.
2. Not to appear before a judge within the Kanuni custody period
According to the Code of Criminal Procedure, detention for individual offenses is 24 hours. According to the CMK’s regulation, detention for collective offenses may be extended by a maximum of three days, not exceeding one day at a time, by the Public Prosecutor’s written order due to the difficulty in collecting evidence or the large number of suspects. If the detainees are not brought before the judge within these periods, the state’s liability for compensation arises.
3. Arrest without reminding or exercising the rights of reminder
It is a necessity to inform the detainee of his / her rights under CMK art.147. If this notification has not been made and the person has not benefited, for example, from the legal assistance of a lawyer or the right to inform the family of the arrest warrant, then the state is obliged to compensate.
4. Not to be arrested or to be sentenced within the reasonable time
The detained person must be brought before the trial authority within a reasonable time and the sentence against him should be given within a reasonable time. The right to a fair trial is assessed within the framework of the right to a fair trial under Article 6 of the European Convention on Human Rights. In this context, if the detainee is not brought before the trial authority within a reasonable time and the provision against the person is not given within a reasonable time, the liability of the state arises.
5. After the lawful arrest or arrest, there is no place for prosecution or acquittal
According to Article 1441/1-e of CMK, the person who has been arrested or acquitted in accordance with the law is not allowed to prosecute or the acquittal may request compensation. In such a case the judge shall not examine whether the damage is present. Indemnity shall be awarded if there is no place for prosecution or if an acquittal decision is made. The reason for the acquittal decision (lack of evidence, etc.) does not matter. As the decision to postpone the announcement of the provision is not considered an acquittal, no compensation will be ruled on account of these decisions.
6. Compensation in case of conviction
According to Article 1441/1-f of CMK, if the person’s time spent in custody and detention exceeds the period of his / her conviction, the obligation of compensation of the state arises. However, it should be noted that exceeding the conditional release period is not a cause for compensation.
7. The reasons for the arrest and arrest and the accusations against them are not explained to them
According to CMK m.97, law enforcement officers issue an arrest report about the person he apprehended and give a copy of this report to the person arrested. The arrest report shall state the reason for the person being arrested and what their rights are. If the person is not informed of his or her rights, then the state’s compensation will arise. Example: TCK m.141 theft crime or m.148 looting crime and so on.
8. Arrest or Arrest Not Notified to Relatives
It is a necessity to inform relatives of the person who has been arrested or detained in accordance with CMK Article 95/1. Failure to comply with this obligation will result in the State’s obligation to compensate.
9.Calling the search decision in an unmeasured way
According to CMK 141/1, the State may be liable for damages incurred during the execution of the search decision.
10.Second decision to seize the circumstances, the seizure of the confiscated goods, use of the confiscated goods, the necessary measures to protect the confiscated goods and the confiscation of the confiscated goods are not returned in time
According to CMK 141/1-j, the state may be liable for compensation if the seizure decision is taken, the use of the confiscated property for the purpose, the necessary measures for the protection of the confiscated property are not taken and the confiscated property is not returned in time.
11.Not Benefited From The Possibility Of Applying Against Arrest Or Arrest
The fact that the arrested or detained person is not allowed to benefit from one of the procedures provided for in the law is another reason that gives rise to the responsibility of the state for compensation.
12. Compensation in case of renewal of proceedings
Persons acquitted as a result of the renewal of the proceedings under CMK art.
Conditions for Claims
The subject of compensation shall not be decided automatically by the original criminal case. Compensation must be filed separately. The conditions of the claim for compensation based on the reasons stated in CMK m.141 are stated in CMK m.142. Compensation conditions include;
1. The person authorized to apply must make the application.
Persons who have been subjected to unlawful arrest, arrest, search and seizure pursuant to CMK Article 141/1 may request compensation. In the event of the death of the person entitled to claim compensation, the Court of Cassation accepted that the heirs could continue if the claim for compensation was filed, but the heirs had no right to claim such a case from the beginning if the person who had the right to claim compensation died.
2. Application must be made within the time limit.
The request for compensation under CMK Art.141 must be filed within three months from the notification of the decision concerning the absence of acquittal or prosecution to the person concerned, and within one year of the decision on whether there is in any case acquittal or prosecution. The indemnity lawsuit that is not opened during these periods is rejected without entering the merits.
3. Application must be made to the relevant Mercie.
The request for compensation under the CMK Art.141 is made to the Assize Court. This court is the heavy penal court in the courthouse of the district where the injured person resides.
4. The application must be duly made.
The application is made with a petition. The petition must contain the information specified in CMK Art.141/2. If this information is not included in the petition, the court will grant the applicant one month to complete the shortcomings. If the deficiencies in the application are not completed within this period, the application is rejected. It should also be noted that the case opened for unjust arrest or detention is not subject to any fees.
Notification to the Treasury Representative
Pursuant to Article 1442/5 of CMK, in case of damages filed against the state within the scope of CMK m.141, notification is made to the representative of the state treasury to communicate its declarations and to ensure the formation of a party. This is a matter of particular concern to the Court of Cassation, which is the reason for the reversal of the decision.
Proceedings
In compensation cases, the court makes its decision in a hearing. If the representative of the Treasury is not ready despite the notification, it may be decided from his absence. Against this decision, the applicant, the public prosecutor or the treasury representative may appeal against the decision.
In compensation cases arising from unjustified arrest, the power of attorney in favor of the defendant treasury shall be ruled only in case of total rejection of the case, while the power of attorney in favor of the plaintiff is not ruled.
Damages to be compensated by the State
According to Article 1441/1 of CMK, all damages can be claimed from the state. The judge is bound by the claim for compensation and cannot rule more than that requested.
Compensation
In the case of compensation, the person may lose his job due to arrest or arrest, the attorney’s fee paid to the lawyer for the necessary objections, the severance payment up to the date of termination of the employment contract due to the loss of the person’s job, and the right to claim social assistance and bonuses. According to the Court of Cassation, if the plaintiff did not submit any evidence of his material losses during the period of his stay, he decided that the person would be regarded as unskilled worker and that the person should be paid a net minimum wage at the rate of detention.
It is possible to determine the amount of compensation in the calculation of pecuniary damages by considering the inflation rates. In the same way, with the decision dated 23.11.2004 and numbered 1-177 / 203, it was decided by the General Assembly of the Supreme Court of Penalties that interest should be applied in financial compensation. In addition, it is against the law to determine the missing material compensation with the foreseeing that the plaintiff will not work on religious and national holidays while determining the financial compensation.
Likewise, it is possible for the attorney to pay the attorney’s fee due to the unjustified arrest and detention of the person because he or she represents him with a lawyer, but the plaintiff must present the evidence proving the attorney and the payment made to the lawyer.
In addition to unjustified arrest or detention, financial compensation may also be claimed for unjustified searches and seizures. In this context, if the seized property is damaged during the search or under the supervision of the state, it can be requested from the state for compensation for this damage.
2. Spiritual Compensation
The detained or detained person, both in the family and in the business environment shake reputation, longing for the family and relatives, difficulties in being in prison, because of the freedom of the person to enter into a spiritual depression and so on. due to the circumstances of the person’s spiritual pain and grief must be removed. For such non-pecuniary damage, non-pecuniary damage is claimed.
Although there is no objective criterion in determining the non-pecuniary damages, the non-pecuniary damages will be judged by the social and economic status of the plaintiff, the nature of the offense, the occurrence of the plaintiff’s arrest, the period of detention, and so on. a reasonable amount shall be determined according to the rules of rights and dignity.
Withdrawal of Compensation
According to Article 1443/1 of CMK, it is made possible to receive the compensation paid under certain conditions. Accordingly, if the person who has been given the decision that there is no place for acquittal or prosecution and who has received compensation for this reason has been prosecuted and the person has been convicted, the court will decide to reimburse the paid compensation upon the written request of the public prosecutor. It is possible to appeal the withdrawal decision.
The amount to be returned is the amount related to the period of conviction. In this context, for example, if a person has spent longer than a conviction in detention, only the amount of the term of conviction will be withdrawn. The collection procedure of the public receivables shall be applied in the recovery of the compensation paid.
Recourse to Public Officials and Others
Compensation paid to public officials who cause deliberate failure to comply with the requirements of the duty to pay compensation is recourse. It should be noted that the recourse to the public official will not be made in all cases. Recourse can only be made if the public official does not intentionally comply with the requirements of his / her duty.
In addition, those who cause the state to pay compensation by slander or false testimony may be recourse.
People Who Will Not Seek Compensation
Article 14 of CMK states that persons who cannot claim compensation from the state within the scope of Article 14 of CMK. These people are;
– who are in a position to claim compensation due to favorable regulations which came into force afterwards, although they are not entitled to compensation under the existing regulation,
-General or special amnesty, the complaint is abandoned, there is no place to prosecute for reasons such as reconciliation or decided to drop the case, or the public lawsuit is suspended temporarily or the public trial is postponed,
– Those judged that there is no place for punishment due to lack of criminal capacity,
– Those who have been placed in custody or arrested by making false claims to the judicial authorities.
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