Compensation case due to protection measures

The Code of Criminal Procedure includes a number of protection measures such as arrest, judicial control, capture, detention, seizure, search. Since all protection measures interfere with the fundamental rights and freedoms of individuals, certain conditions are required for the implementation of these measures. In order for a protection measure to be implemented, that measure must be specified in the law. Then, the existence of doubt is sought. The degree of suspicion sought for each protection measure varies. However, the absence of suspicion prevents the implementation of protective measures. For this reason, protective measures can be applied to the suspect. Procedures such as monitoring the communication or monitoring with technical tools applied in terms of intelligence activities within the scope of preliminary field investigations are not considered as protection measures within the scope of the CMK.

The most basic requirement for the implementation of protection measures is proportionality. Measures implemented without respecting the principle of proportionality will be unlawful. We have included other conditions in our relevant reviews.

Arbitrary or excessive application of protection measures results in the violation of the fundamental rights and freedoms of individuals. In order to prevent these drawbacks, regulations have been made that require compensation for unlawful application of protection measures. In such cases, a lawsuit for compensation will be brought to the agenda due to protective measures.

Legal Basis

The principle of paying compensation to people who were unjustly captured or detained was first stipulated in the 1961 Constitution, and after explaining the circumstances in which capture or detention would be subject to in the thirtieth article, it is stated in the last paragraph of the article; It is stated that "Any damages incurred by persons who are subjected to procedures other than these principles shall be paid by the state in accordance with the law."

In line with this provision in the 1961 Constitution, in the first article of the Law No. 466 on Compensation to Persons Caught or Detained Illegally, which came into force by being published in the Official Gazette dated 15.05.1964, the situations requiring compensation in seven paragraphs are regulated in detail, and in the eighth paragraph of the first article of the same Law, those who are convicted of the same type of crime, habitual criminals, those who commit crimes as a profession or a means of earning a living. The provision stating that those who committed crimes cannot claim compensation was abolished by Law No. 3696 of 10.01.1991.

In the fifth article of the European Convention on Human Rights, it is determined in which cases the freedom of individuals can be restricted, and in the last paragraph of the article, the principle that everyone who is aggrieved has the right to demand compensation in case of violation of these conditions is accepted.

Payment of compensation to persons who were unjustly and unlawfully captured and detained was continued in the 1982 Constitution. After specifying the conditions of capture and detention in the nineteenth article, in the last paragraph; It was stated that "The damage suffered by persons who are subjected to a procedure other than these principles shall be paid by the state, in accordance with the law."

This provision was amended by Article 4 of Law No. 4709, which came into force after being published in the Official Gazette dated 17.10.2001, as "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."

With the 18th article of the Law on the Enforcement and Implementation of the Criminal Procedure Law No. 5320, which came into force on 1 June 2005, Law No. 466 of 07.05.1964 was abolished, and in the seventh chapter of the Criminal Procedure Law No. 5271, under the title "Compensation due to protective measures", the conditions and consequences of requesting compensation in articles 141 to 144 were reconsidered, Article 141 regulates the circumstances in which compensation can be claimed, Article 142 regulates the conditions for requesting compensation, Article 143 regulates the withdrawal of compensation, and Article 144 regulates the situations in which compensation cannot be claimed. YCGK 2018/293 K.

While the previously implemented law no. 466 was in force, the CMK abolished this law. However, it has been ruled that Law No. 466 will continue to be applied for crimes committed before the effective date of the CMK. There are many justified criticisms that this issue is not legal.

IN WHICH CASES CAN A CASE FOR COMPENSATION BE FILED DUE TO PROTECTIVE MEASURES?

Article 141 of the CMK lists the circumstances in which a lawsuit for compensation can be filed. These situations are as follows: During criminal investigation or prosecution;

• a)Caught, detained or whose detention is decided to continue outside the conditions specified in the law,
• b) Not brought before a judge within the legal detention period,
• c) Arrested without being reminded of their legal rights or without fulfilling their request to benefit from their reminded rights,
• d) Although he was arrested in accordance with the law, he was not brought before the judicial authority within a reasonable time and was not sentenced within this period,
• e) After being caught or detained in accordance with the law, it was decided that there was no need for prosecution or that they were acquitted,
• f) Those who are convicted and whose periods of detention and detention are longer than their conviction period, or who are compulsorily punished with this penalty because the penalty prescribed by law for the crime they committed is only a fine,
• g) The reasons for the arrest or detention and the accusations against them are not explained to them in writing or, in cases where this is not immediately possible, verbally,
• h) Their arrest or detention was not notified to their relatives,
• i)The search warrant against you was carried out in an excessive manner,
• j) Their belongings or other assets were seized even though the conditions were not met, or the necessary measures were not taken to protect them, or their belongings or other assets were used for purposes other than their intended purpose, or were not returned on time,
• k) Not benefited from the application opportunities provided for in the Law against arrest or detention,

In addition to the above cases, CMK 323/3. A reason for compensation is also included in the article. According to the ruling:

"If, as a result of the renewal of the trial, it is decided that there is no need for acquittal or punishment, the material and moral damages suffered by the person due to the full or partial execution of the previous conviction will be compensated in accordance with the provisions of Articles 141 to 144 of this Law."

One of the special situations here is the conditions under which compensation can be requested due to the search. We covered this issue in our review titled Search Decision. Details of the subject can be found in our review. However, it should be noted here that it would be wrong to attribute compensation solely to the criterion of disproportionality. The right to compensation will arise for searches carried out without complying with the conditions under which a search warrant can be issued and the procedures that must be followed during the search. While in some decisions of the Supreme Court, pure excessiveness is considered, sometimes the illegality of the search is also accepted as a reason for compensation. Since there is no uniformity in practice, this issue should be resolved and the view that one would be entitled to compensation only due to proportionality should be abandoned.

Paragraph f of the relevant article; also includes the right to compensation of people who have been convicted and whose time spent in custody and detention is longer than their conviction period, or who have been compulsorily punished with this penalty because the penalty prescribed by law for the crime they committed is only a fine. According to this provision, people whose punishment for the crime they committed is less than the time spent in detention are given the right to compensation. This provision should not be understood as the bare form of the sentence, but as the period the prisoner will remain in prison after deducting execution reductions and conditional release periods. For example, a person who was sentenced to 6 years for a common crime committed before April 2020 should not stay in prison at all according to the execution regime. In such a case, if the person is detained, the right to compensation will arise.

PERIMENT TO FILE A COMPENSATION CASE DUE TO PROTECTIVE MEASURES

In order for this lawsuit to be filed, first of all, a decision of KYOK or acquittal must be made for the plaintiff, that is, the suspect or the defendant, and this decision must be final. 142/1 of the Criminal Procedure Code No. 5271. According to the article, claims for compensation due to protection measures may be filed within three months from the date of notification to the relevant party that the decision has become final, and in any case within one year following the date of finalization of the decision or provisions.

Since it is not uncommon for courts to notify the relevant parties of the request for finalization, the case must be filed within 1 year. In order to avoid loss of rights, we recommend that the case be filed within 3 months in cases where the finalization decision is learned (for example, through compliance control). Even though the law requires notification, interesting decisions of the courts are sometimes encountered. Even if notification is not made, if a lawsuit is not filed within 1 year, the right will be forfeited.

These periods are restrictive periods. The judge automatically observes whether the case is filed within the prescribed period.

IN WHICH COURT CAN A CASE FOR COMPENSATION BE FILED DUE TO PROTECTIVE MEASURES?

CMK's 141-144. The compensation case regulated under the articles is filed in the High Criminal Court. As it is known, compensation cases are heard in civil courts according to the Code of Civil Procedure. However, due to the relevant article of the CMK, it will be considered as a special law against the CMK-HMK and the provisions of this law will be applied.

CMK 142/2. According to the article:

The request is decided in the high criminal court of the place where the injured party resides, and if the high criminal court of that place is related to the transaction subject to compensation and there is no other high criminal court in the same place, it is decided in the nearest high criminal court.

Authority to File a Case

A compensation lawsuit can be filed by the addressee of the damaging transaction. It is not possible for the case to be filed by the heirs. A Supreme Court decision on the subject is as follows:

"As stated in the decision of the Criminal General Assembly of the Supreme Court dated 26.03.2002 and numbered 92/223, the right to file a lawsuit due to protection measures belongs to the injured person as a rule, this right will be transferred to the heirs only if the injured party files a lawsuit before his death or clearly expresses his will to file a lawsuit, and the heirs can continue the lawsuit filed under these conditions or file a lawsuit.." Y 12.CD. 2014/1203)

HOW IS JUDGMENT MADE?

The person requesting compensation must record his/her clear identity and address, the nature and quantity of the transaction in which he/she suffered damage and the damage, and attach their documents to his/her petition.

In case the information and documents in the petition are insufficient, the court informs the relevant party that the deficiency must be corrected within one month, otherwise the request will be rejected. A petition that is not completed within due time will be rejected by the court, with the possibility of appeal.

After reviewing the file, the court notifies a copy of the petition and its annexes, the sufficiency of which has been determined, to the representative of the State Treasury in its own jurisdiction and asks him to submit his statements and objections, if any, in writing within fifteen days.

In evaluating the request and proof documents and determining the amount of compensation to be given according to the general principles of compensation law, the court is authorized to conduct any research it deems necessary or to have one of its judges conduct it.

The court gives its decision after a hearing. If the requester and the Treasury representative do not appear despite the notification of the explanatory call sheet, a decision may be made in their absence.

Against the decision, the public prosecutor or the Treasury representative who made the request may appeal; The investigation is carried out first and foremost.

In the following current decision of the Supreme Court, reference was made to compensation cases in private law and it was ruled that the provisions of the Civil Code should be observed, especially in terms of appeal applications:

"Although lawsuits for compensation due to protective measures are regulated in the Code of Criminal Procedure No. 5271, since it is a case with a predominant private law aspect, the Code of Civil Procedure No. 6100 must be applied within the framework of the general principles of the law of compensation in cases where there is no regulation in this Law. Situations in which the appeal application may be rejected on the merits by correcting it without opening a hearing, regulated in Article 280/1 of the Code of Criminal Procedure, are cases that are given as a result of a criminal prosecution." "For this reason, the provisions of the Code of Civil Procedure regarding appeal must be applied by analogy, and since there is no obstacle to rejecting the reduction or increase of the compensation amounts on the merits without opening a hearing, in accordance with Article 353 of the same Law, we did not agree with the opinion in the notification proposing reversal on this issue." Y12CD. 2023/981 K.

HOW IS THE AMOUNT OF COMPENSATION DETERMINED IN A CASE FOR DAMAGES DUE TO PROTECTIVE MEASURES?

In this case, the plaintiff has the right to demand both material and moral compensation. There are some criteria to be used when determining the amount of compensation.

FINANCIAL COMPENSATION CRITERIA

When determining the amount of financial compensation to be paid to the plaintiff, all damages that the plaintiff is deprived of due to unfair protection measures are calculated. There must be a proper causal link between the damage and the unfair transaction, and the damage must relate to lawful income. Income such as salaries and business profits are considered damages. These damages must be documented. If the damages cannot be documented, a compensation should be awarded to the plaintiff at a rate that he can humanely survive according to the conditions of the period. This situation is expressed in the following Supreme Court decision as follows:

"While pecuniary compensation is aimed at covering expenses such as a concrete decrease in the plaintiffs' assets or loss of earnings, and the attorney fees they paid, non-pecuniary compensation is intended to relieve, at least to some extent, the pain, grief, suffering and mental distress felt by the person due to the loss of reputation in his social circle and deprivation of his freedom.

The subject of financial compensation is the material damages suffered by people who are exposed to an unlawful protection measure. Material damage that must be covered in compensation cases due to protective measures; It may occur as a decrease in the asset values of the assets or an increase in the liabilities, in other words, the debts.

In determining the decrease in assets or loss of income, which forms the basis of financial compensation, objective measures and documents should be based, and the person's job before his detention or arrest should be taken into consideration. If the plaintiff is a worker or a civil servant, the question should be asked about the place where he works, if he is a freelancer, the relevant professional organization should be asked, tax records should be examined, his health status, the nature of his job, whether he works on weekends, religious and national holidays should be investigated and, if necessary, his financial loss should be calculated by an expert.

In calculating the financial compensation to be given to people who do not work in any job, the net minimum wage during the period they were detained or detained should be taken into consideration, the tax office or relevant professional organization should be asked about how much income those who are self-employed earned, and for those who do not work in a certain workplace and therefore their wage or salary is not known, it should be investigated whether they work in agriculture or industry and compensation should be calculated based on the minimum wage in this field.

In accordance with the general principles of compensation law, which should also be applied in compensation cases due to protective measures, the plaintiff must clearly show the nature and amount of all the damages he claims to have suffered in the petition and the relevant evidence. In order to determine the financial loss, if the plaintiff is working in any job, he must submit his pay slips and similar information or documents and show his witnesses, if any.

As a matter of fact, in the doctrine; "We can describe all kinds of financial losses that an illegally caught or arrested person may suffer, depending on his professional occupation, as material damage. The measures used to determine this damage are objective measures. For example, we can count the loss of earnings suffered by people engaged in trade or agriculture as material damage. The criteria for determining damages are certain measures and documents rather than subjective assessment. The material damage to be paid will be the equivalent of the actual damage, will be proven with evidence, and will be determined by an expert when necessary. 'If I had not been arrested, it would be determined by an expert. Abstract requests such as 'I was envisioning a business like this, the profit it would provide would be at this rate' will not be met. (M. Naci Ünver-A. Mümin Kavalalı, Compensation for Those Illegally Caught or Detained, Kazancı Publishing House, Istanbul 1990, p. 42-43) "Pecuniary damage is the loss of income suffered by people who are caught or detained unfairly during the capture and detention period. In addition, the expenses they incur due to unfair action should also be evaluated within the scope of material damage. Lawyer fees and travel expenses are taken into account in the calculation of material damage. If the arrested person is a salaried person, such as a worker or civil servant, the net wage loss is considered as material damage. However, if the person is to receive all his wages and rights due to his reinstatement, he will not be paid financial compensation. If this is not the case, the net income loss must be determined by investigating whether the workers working in a certain workplace work in agriculture or industry. "The compensation must be paid to the unemployed based on the net minimum wage. For those who are self-employed, the loss of income must be determined by asking the tax office or professional organization, or if necessary, by hearing from an expert, and compensation must be awarded accordingly." ( Osman Yaşar-Cengiz Otacı, Code of Criminal Procedure, Seçkin Publishing House, Ankara 2015, 6th Edition, vol. 2, p.1684) "If the plaintiff requesting compensation has a record such as insurance or tax, the necessary documents must be brought from the relevant institution and the net income loss during the period of detention or detention must be calculated by taking into account whether the workplace he employs continues to operate during the detention period. If it is determined that the plaintiff works without any registration, an amount of financial compensation must be determined by calculating it on the net minimum wage." Opinions such as (Hülya Poyraz Giyik, Compensation Cases Regarding Illegal Capture, Arrest, Search and Seizure, Adalet Publishing House, Ankara 2012, p. 71) were put forward.

In order to claim compensation due to protective measures, there must be a suitable causal link between the damage and the unfair transaction, and the damage must relate to a lawful income. For example, a lawsuit for compensation filed by someone who engages in usury or gambling, claiming that he was deprived of the earnings he would have earned through the specified methods for the days he was detained, will not be accepted.

The Code of Criminal Procedure; In accordance with the general principles of the law of compensation to which such transactions, which are considered to be torts, are subject to the express provision that "they can claim all kinds of material and moral damages from the state", stabilized judicial precedents and the internal circular of the Ministry of Finance on the payment of compensation due to protection measures, since the damage will be compensated by compensation, interest will be accrued on the material and moral compensation to be determined and, depending on the request, from the date on which unfair or unlawful protection measures are implemented or terminated, or Legal interest must also be awarded starting from the date of the lawsuit or judgment." YCGK 2018/293 K.

Another decision is as follows:

"Considering that the plaintiff, who was not working at any job at the time of his arrest and was a senior student at the Department of Physics Teaching at the Faculty of Education, could not graduate on time because his education was disrupted due to unfair detention and arrest, and could not take the exams as a result of unfair detention and arrest, and that he only submitted a document stating that he had to interrupt his education in relation to his financial loss during the litigation phase, in accordance with the principle of equity, an amount to be determined over the entire net minimum wage that at least meets his basic needs and allows him to live humanely, taking into account the plaintiff's age at the date of the transaction subject to the compensation request, will be determined as financial compensation. needs to be determined." YCGK 2019/47 K.

In addition, the expenses incurred by the plaintiff due to the protection measure must also be compensated. However, compensation for expenses such as prison expenses is not accepted. The attorney's fee must be paid to the injured party, as stated in the CGK decision above. In its decision below, the Supreme Court ruled that attorney fees beyond the fixed attorney fee are not within the scope of compensation. In our opinion, this decision is wrong:

"Ignoring the fact that a fixed attorney's fee will be imposed on behalf of the plaintiff who was acquitted in the criminal case file, which is the basis of the compensation claim, and that if the plaintiff and his lawyer decide on a higher fee for this service by agreement between them, this part exceeding the fixed attorney's fee cannot be considered within the scope of pecuniary damage in the compensation case due to protection measures, as it is based on the legal relationship between the plaintiff and his lawyer, the pecuniary attorney fee of 14,000 TL provision within the scope of compensation," Y12CD. 2020/2163 K.

Again, as can be seen from the decision below, in case of seizure, the trustee's fee must be compensated:

"With regard to the determination of the security fee of 401,000.00 TL requested for the motor yacht subject to the seizure measure, it was not deemed appropriate to decide to accept the objection in written form, without making any research as to the law and regulation under which this fee was determined, and without considering that it would not be equitable to leave the said expense to the treasury, based solely on the statements of the trustee's representative." Y16. CD. 2020/5735 K.

In addition, any decrease in value that will occur within the scope of confiscation must be paid as damages.

In the compensation case to be filed due to wrongful arrest, the Supreme Court of Appeals has ruled that the following criteria must be complied with in determining the compensation for the plaintiff, the business owner:

"It should be accepted that the plaintiff's real income and therefore loss of earnings should be determined by investigating whether the plaintiff's workplace was open during the period he was detained and whether he earned any income, and if this is not possible or the determined income is less than the net minimum wage, an amount to be determined over the entire minimum wage that at least meets his basic needs and allows him to live humanely should be determined as financial compensation." YCGK K. 2018/293

A decision made about the worker is as follows:

"The case is about the claim for compensation in case there is no need for prosecution after arrest or arrest or if the plaintiff is acquitted. In the event that it is understood that the plaintiff worked in the company before his arrest, the original or certified copy of the plaintiff's employment contract and contract termination documents are brought, and it is determined without any hesitation whether the employment contract is temporary or indefinite, and as a result of determining that it was terminated due to arrest or detention, if the contract is made indefinitely, the amount calculated based on the net salary at the time of arrest, "If the contract is made for a limited period of time, the award of financial compensation based on the expert report regarding the calculation by increasing the salary the plaintiff received at the time of his arrest according to the years and deducting the minimum subsistence allowance amount, without considering that the amount to be calculated on the net salary at the time of arrest between the date of arrest and the expiry date of the contract, and on the net minimum wage tariff between the expiry date of the contract and the date of release, should be included in the financial compensation is a reason for reversal." Y12CD. 2022/2398 K.

In addition to the plaintiff's salary, duty revolving fund etc. Losses such as these are not accepted within the scope of compensation.

MORAL DAMAGES CRITERIA

According to the established jurisprudence of the Supreme Court; Although there is no objective criterion in the determination of pecuniary damages, the non-pecuniary damage to be awarded must be determined as a reasonable amount in accordance with the rules of fairness and fairness, without exceeding the measure of equity, by taking into consideration the social and economic situation of the plaintiff, the nature of the crime charged against him, the manner in which the incident that led to his arrest, the period of detention, the monetary value that the plaintiff will obtain until the date of finalization of the compensation case and similar issues.

ATTORNEY'S ATTORNEY FEES, INTEREST AND FEES IN THE CASE FOR COMPENSATION DUE TO PROTECTIVE MEASURES

In case the claim for compensation is accepted due to the protective measure, attorney fees will be awarded if the plaintiff is represented by an attorney. CMK article 142/9. According to the article; Due to compensation cases, the relative attorney fee calculated in accordance with the Attorney Minimum Fee Tariff is paid. However, the amount to be paid cannot be less than the fixed fee determined in the Tariff for the cases pursued in the criminal judgeships of peace, and cannot be more than the fixed fee determined for the cases pursued in the high criminal courts.

Court decisions regarding compensation cannot be put into enforcement proceedings before they become final and the administrative application process is completed. The compensation awarded in the finalized court decision and the attorney's fee are paid to the bank account number to be notified in writing by the plaintiff or his attorney to the defendant administration within thirty days from the date of this notification. If payment is not made within this period, the decision will be executed and enforced in accordance with the general provisions.

In case the case is rejected, attorney fees will be awarded in favor of the treasury. However, in case of partial acceptance and partial rejection, no attorney fee will be awarded in favor of the treasury. However, this fee may be awarded if the case is rejected altogether.

Interest Start Date

If the plaintiff requests, legal interest will be charged on the compensation from the date of implementation of the protection measure. If interest is not requested in the petition, interest will be charged from the date of the lawsuit.

MORTAR

A lawsuit for compensation filed due to unfair protection measures is not subject to any fees or expenses.

RECOVERY OF COMPENSATION

The portion of the compensation paid to those who were subsequently acquitted and convicted after the decision of non-prosecution is annulled and the trial is adversely renewed, and the part of the compensation paid to those who are acquitted and convicted, shall be taken back by applying the provisions of the legislation on the collection of public receivables, with a decision to be taken from the same court upon the written request of the public prosecutor. This decision can be appealed.

In case of detention and arrest due to the crime or false testimony that constitutes the subject of slander; The state also has recourse against the person who slanders or gives false testimony.

PERSONS WHO CANNOT ASK FOR COMPENSATION

The following people cannot claim compensation among the people who are captured or detained in accordance with the law: •Those who are not entitled to compensation, but whose situation has become eligible to request compensation due to the law that came into force later and introduced favorable regulations.

• Those against whom it has been decided that there is no need for prosecution or the case has been dismissed, or the public case has been temporarily suspended, or the public case has been postponed or dropped, due to reasons such as general or special amnesty, withdrawal of complaint, reconciliation, etc.
• Those who were determined not to be punished due to their lack of criminal ability.
• Those who cause their detention or arrest by making false statements before the judicial authorities that they have committed a crime or participated in a crime.

Also; If a person who is being investigated or prosecuted for a crime declares falsely before the judicial authorities that he committed a crime or participated in a crime, and causes his detention or arrest due to his personal fault, this person will no longer be able to claim compensation.

In order for compensation to be awarded in case the case is time-barred, it is required that the plaintiff not be at fault in the expiration of the statute of limitations. An example Supreme Court decision is shared below:

"Article 144/1-c of the CMK No. 5271 states that persons against whom it is decided that there is no need to prosecute or whose case is decided to be dropped or whose public case is temporarily suspended or whose public case is postponed or dropped due to reasons such as general or special amnesty, giving up the complaint, reconciliation cannot claim compensation, and considering the nature of the reasons for determining the situations that will not demand compensation, these cases are institutions that foresee not to punish the defendant, based on the will of the parties or the actions of the state that changed after the commission of the crime. In the article, there is no clear regulation stating that compensation cannot be claimed if the case is decided to be dismissed due to statute of limitations, and in case of a decision to dismiss the case after the statute of limitations has expired, if this issue is not caused by the actions of the defendant, who is a party to the file, considering that a reasonable compensation must be awarded for the material and moral damage claimed to have been suffered in favor of the party who was unjustly detained or detained, there can be no doubt as to whether the plaintiff is at fault in bringing and examining the file that is the basis for compensation and the case being time-barred. If it is clarified and it is determined that the plaintiff has no fault, the establishment of a ruling to reject the case without considering that a reasonable pecuniary and non-pecuniary compensation should be awarded for the damage claimed to have been suffered in favor of the plaintiff...” Y12CD. 2022/4901 K.