Unfair and long periods of detention in criminal proceedings have become a frequent issue, especially recently. It has caused a lot of controversy with it. These discussions are about the fact that arrest has become almost a means of punishment, rather than a precautionary measure, which is its purpose.It should be noted that the arrest is a measure of protection and is not of a criminal nature. Because the arrested person continues to benefit from the presumption of innocence and no legal order accepts to punish the person whose crime is not fixed by a final judicial decision. Indeed, arrest is a measure of protection and is a tool used to ensure that criminal procedure achieves its purpose. First of all, we would like to note that all the conditions required by the Criminal Procedure Code in order for an arrest decision to be made (CMK art. 100/1) it must be present at the same time. An arrest that is carried out without seeking all the conditions required by law is not a protection measure. Because it is impossible to justify such an arrest for the purposes of criminal procedure.
This right, which is constitutionally guaranteed, is expressly enshrined in the Constitution, Article 19, entitled ”Freedom and Security of the Person”. in its article, it specified the principles of arrest and in its last paragraph; It introduced the provision that “The damage suffered by persons subjected to a procedure other than these principles shall be paid by the state in accordance with the general principles of compensation law”. The procedures and reasons for granting compensation are determined by CMK No. 5271, 141-144. it is regulated by articles. This provision, which is guaranteed and clearly stated by the Constitution, provides for the possibility of returning to the victim as compensation for material and moral rights losses that have been unjustly detained and occurred in the event of a detention process.
Following the decision to arrest, detention or omissions or contrary to law is the law which Yahweh has commanded to be done in the work if undue arrest when referring to; in accordance with the Constitution and the law and complete the processes necessary to be done after the arrest arrested and carried to prosecute the defendant in accordance with the law or a final decision is given, or if the term of imprisonment the prisoner’s acquittal from the period of the stay is more, or if it is the only defendant to pay a fine if he is convicted of the arrest unjust. In both cases, the aggrieved persons may ask the state for all kinds of material and non-pecuniary damages. This compensation case to be filed against the state shall be paid by the undersecretariat of treasury. Property damage is the loss of income suffered during the period of irregular or unjustified arrest, and therefore the expenses that it is obliged to make. These expenses include the attorney’s fee paid to the attorney if the person has represented himself with a proxy. Its moral damage is the loss of a person’s dignity in his family and work environment, he experiences spiritual difficulties, he feels pain, grief and sadness due to being away from his children, his family and his environment. The decision of the Supreme Court on this issue is presented below.
SAMPLE SUPREME COURT DECISION
T.C.
YARGITAY12. IT’S THE CRIMINAL DEPARTMENT. 2017/8800K. 2018/1376T. 12.2.2018
CASE : The decision on the partial acceptance of the plaintiff’s claim for compensation was appealed by the defendant’s attorney and the plaintiff’s attorney, and the file was reviewed and considered as necessary;
DECISION : Refusal of other appeals of the defendant’s deputy and the plaintiff’s deputy in accordance with the scope of the file under review, in accordance with the review conducted, the evidence collected and shown at the place of decision, the opinion and discretion of the court formed in accordance with the results of the prosecution, but;
1-) According to the arrest warrant contained in the file, the plaintiff was arrested for opposition to Law No. 6136, which is the basis of the claim for compensation in Istanbul 10. Based On The Assize Court Of 2008/190 – The plaintiff in the criminal case No. 2013/221 Decision about committing a crime for the purpose of acquittal on charges of being a member of the organization, which was established granted in consideration of the criminal case which forms the basis of a claim for compensation by examining whether to subpoena issued arrest warrant referral related to the plaintiff and file the original or certified copies of the indictment, and must also file the memorandum of query based on the decision on whether to prosecute the crime of the plaintiff 6136 about opposition to the law was given, and whether or whether the case was opened, while it is necessary to make a decision according to the result by investigating whether a review decision has been made about the plaintiff for the aforementioned crime, it is necessary to make a decision in writing with incomplete examination and research,
2-) Failure to observe that the period of execution should be determined in such a way as not to hesitate by asking the execution dates from the penitentiary institution if the arrest warrant issued about the plaintiff has been executed, if it has been executed, the execution dates should be determined,
3-) made during the review of the appeal Dairemizce wrongful arrest and the reasons for the same subject based on more than one face is detected, it is understood that an opening of the case; a dark streak that leads to the detriment of the treasury of payments and the provision of the Prevention of public resources in an effective, efficient and lawful use, in terms of the same subject and volumes based on the reason for wrongful arrest and asked about whether that is the case is opened from the National Judiciary Network Information System (UYAP) is not the person that should be identified and examined through,
By admission, too;
1-) regarding the amount of income and the loss of earnings of the period of being imprisoned reputation can not present any document in the custody and detention of the plaintiff that as the Ministry of labour and social security of the periods designated for 16 years older than the calculation of the net minimum wage is performed and the 4.330,85 TL monetary compensation to be paid to the plaintiff as should be decided, while over the legal fees of the expert’s report improper conduct as determined by the gross minimum wage based on the determination of the amount of pecuniary compensation by the provision of missing,
2-) although it is not an objective criterion, in favor of the plaintiff to be awarded non-pecuniary damages for the plaintiff’s social and economic situation thrown on the nature of the Crime, The Happening of the event which led to the arrest of style, while being imprisoned, with interest and damages of the case would be finalised until the date of obtain the monetary value that will be taken into account, in accordance with the rights and principles nesafet must be able to determine a reasonable amount, while less than the amount that did not fit the criteria for non-pecuniary damages hukmolunmas,
3-) Instead of ”Case”, ”Crime” instead of ”Case”, ”Compensation due to protection measures” instead of the type of case “Compensation in Case of Arrest or Arrest or Acquittal Decision”, ”Date of case: 13.05.2014” instead of ”Date of crime: 23.10.2014″ with the inscription ”Place of crime: Istanbul / Bakırköy” and “Plaintiff: K.H.” inclusion of phrases,
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, the provision is made for these reasons in accordance with Article 8 of the Law No. 5320. article 321 of CMUK No. 1412, which is currently being implemented in accordance with Article. according to the article, it was decided unanimously on 12.02.2018 that the request be overturned in accordance with
