Forced bring decision

The decision to bring by force, which is a type of protection measures, is regulated in Article 146 of the CMK. It is aimed to carry out trial procedures that cannot be carried out with precautionary measures, and the general conditions sought in other protection measures must also be present in terms of the decision to impose force. Again, the principle of proportionality must be observed when applying measures.

According to Article 146 of the CMK; It may be decided to forcibly bring the suspect or defendant for whom there are sufficient reasons for issuing an arrest warrant or who does not appear when summoned pursuant to Article 145. The article clearly states the conditions for implementing the measure, which we will detail below. But we feel the need to point out one thing here. The suspect or defendant must not have arrived despite the call. Making a decision to bring the child by force without making a call would be against the law.

Although the legislator has deemed the invitation method appropriate, in some cases it has paved the way for the order to be brought by force without sending an invitation. A warrant can be issued directly for those for whom there is sufficient reason to issue an arrest warrant or arrest warrant, without having to send a summons.

The order to bring by force can be given not only for the suspect or defendant, but also for the expert, witness, complainant or victim. We will discuss the details of the subject in detail below.

CONDITIONS OF FORCED DELIVERY

Some conditions are required for the decision to bring the child by force. First of all, it should be noted that it is aimed to carry out judicial procedures that cannot be done with the decision to bring by force. These processes may be taking statements or interrogation, or they may be other reasoning processes such as discovery and diagnosis.

CMK 146/1. According to the article, a decision may be made to bring the suspect or defendant by force if he does not come despite the invitation to be questioned or interrogated.

There is no obligation to send a summons to people for whom there are sufficient reasons to issue an arrest warrant or an arrest warrant. A direct forcible retrieval order can be issued against these people.

WHO CAN A DECISION TO BE FORCED TO BE MADE ABOUT?

The decision to bring by force can be given for the defendant, suspect, victim, complainant, witness and expert.

According to Article 44 of the CMK; Witnesses who are duly summoned but do not appear without giving an excuse are brought by force and the expenses caused by their failure to appear are assessed and made to pay in accordance with the collection procedure of public receivables.

We tried to explain the procedure for calling witnesses in our review titled Testimony in Criminal Procedure. We feel the need to repeat an important point in this review.

The procedure for calling witnesses is regulated in Article 43 of the CMK. According to Article 43:

"Witnesses are summoned with a summons. The consequences of not coming are stated in the summons. In cases of detainees, a decision may be made to bring witnesses by force. The reasons for bringing them in this way are stated in the decision letter, and the same procedure is applied to the witnesses who come with a summons.

This call can also be made using means such as telephone, telegram, fax, and e-mail. However, the consequences attached to the summons do not apply in this case." As can be seen, there are two exceptions for the decision to bring the witness by force. The first exception is detainee jobs. The second case of coercion regulated in the law is the failure of the witness to come to court despite the summons. If a summons is not sent to a witness, it cannot be decided to bring that witness by force. In other words, apart from the call sheet, telephone, telegraph etc. A decision cannot be made to bring people by force in terms of calls made via communication tools.

It is also possible to bring in experts by force. Our statements about the witness are also valid for experts.

As we have stated in many places, a warrant can also be issued for the complainant and the victim. If the complainant invited to be questioned does not appear, the public prosecutor may decide to bring him/her by force.

"The victims or complainants who are duly summoned with an annotated invitation and do not come without giving an excuse are brought by force." (CMK 44).

"The victim and the complainant are summoned and heard with a summons by the public prosecutor, the president of the court or the judge. When the prosecution phase begins, the indictment is added to the summons. In addition, information regarding the indictment and the hearing date are notified by using these tools, if contact information such as telephone, telegram, fax, e-mail is in the file."

The provisions regarding witnesses are applied in terms of "bringing by force" in this regard." (CMK 233)

We believe that the results attached to the call sheet are also valid here.

WHO MAKE THE DECISION FOR FORCED BRINGING?

A judge's decision is required in order to implement the measure of forcible imposition, which is a protection measure restricting freedom. However, the authority of the public prosecutor to make a decision to bring a person by force has also been accepted. 146/4 of the CMK. "The suspect or defendant who is summoned with a decision to bring by force is immediately taken before the summoning judge, court or public prosecutor and interrogated or his statement is taken, within twenty-four hours at the latest, excluding travel time when this is not possible." According to the provision, the authority of the public prosecutor to make the decision is clearly accepted.

An example Supreme Court decision on the subject is as follows:

"Since the complainant, who was summoned for his statement, did not appear, the authority to bring him by force was also granted to the C. Prosecutor with the 4th and 5th paragraphs of the 146th article of the CMK No. 5271, as amended by the 20th article of the Law No. 5560, which came into force on 19.12.2006, and the 7th paragraph added, and therefore, the G. 1st Criminal Court of First Instance "In the face of understanding that there was no error in the decision to reject the objection," COURT OF COURT 5.CD.2007/542 E.

FORCED BRINGING TIME

Forcible bringing begins at a time deemed justifiable and continues until the end of the interrogation or statement taking by the judge, court or public prosecutor. (CMK 146/5) As can be seen, the legislator did not set a period for the termination of the measure and sought the completion of the process. The measure of coercion ends automatically when the above-mentioned transactions are carried out.

According to CMK 146/4:

"The suspect or defendant who is summoned with a decision to bring by force is immediately taken before the summoning judge, court or public prosecutor and interrogated or his statement is taken, within twenty-four hours at the latest, excluding travel time when it is not possible."

Those who must take the decision to bring by force are listed as follows in the law:

"The decision to bring by force includes clearly who the suspect or defendant is, the crime related to him, his description if necessary, and the reasons for bringing him by force." CMK 146/2)

HOW IS A FORCED BRING ORDER IMPLEMENTED?

The decision to bring by force is carried out by the law enforcement notifying and accompanying the person to whom the decision will be applied. It should be noted here that law enforcement forces cannot forcibly enter the house or workplace of the person about whom the decision will be imposed. If the person does not leave his home, it should be sufficient to determine that the decision has not been fulfilled. Because CMK 146/6. The article states, "The reasons why the decision to bring by force cannot be fulfilled are determined by a report signed jointly by the village or neighborhood headman and the law enforcement officer." The provision is included.

If the person to be brought by force is in a public area, he must be taken to the authority accompanied by law enforcement.

The decision to bring by force is different from capture. Forced retrieval decisions cannot be reached through the GBT query. In practice, it is usually sufficient to invite the person to whom the decision to bring the person by force has been issued to the authority to which he/she has been summoned.

Law enforcement CMK 146/3. In accordance with the article, a copy of the decision to bring by force must be given to the suspect or defendant.

OBJECTION TO THE FORCED BRINGING DECISION

It is possible to appeal against the decision to bring the person by force, in accordance with the general provisions.
The person who is notified of the decision may appeal within 7 days and request the decision to be annulled.
In cases where the decision is made by the public prosecutor, the procedure to be followed is not regulated in the law. In such cases, an objection can be made to the criminal judgeship of peace by resorting to analogy.