Lawsuit For Material And Moral Damages Due To Unjust Detention
Unjustified and prolonged periods of detention in criminal proceedings have become a frequently encountered issue, particularly in recent times. This has given rise to considerable debate. These debates center on the fact that detention has deviated from its intended purpose as a precautionary measure and has become a means of punishment. It should not be forgotten that detention is a protective measure and does not constitute punishment. This is because the detained person continues to benefit from the presumption of innocence, and no legal system accepts the punishment of a person whose guilt has not been established by a final court decision. Indeed, detention is a protective measure and a tool used to ensure that the objectives of criminal proceedings are achieved. Firstly, we would like to point out that all the conditions required by the Criminal Procedure Code (CMK Article 100/1) must be met simultaneously for a detention order to be issued. Detention applied without all the conditions required by the law being met is not a protective measure. This is because it is impossible to justify such detention on the grounds of criminal proceedings.
This constitutionally guaranteed right is clearly stated in Article 19 of the Constitution, entitled “Personal Liberty and Security,” which sets out the principles of arrest and stipulates in its final paragraph that “Damages suffered by persons subjected to procedures outside these principles shall be paid by the state in accordance with the general principles of compensation law.” The procedures and grounds for compensation are regulated by Articles 141-144 of the Criminal Procedure Code No. 5271. This provision, guaranteed and clearly stated by the Constitution, provides the victim with the possibility of compensation for material and moral rights losses incurred in the event of unjust detention and imprisonment.
Unlawful detention refers to cases where there are deficiencies or violations of the law in the procedures required by law following a detention or arrest decision. If the defendant was arrested in accordance with the Constitution and the law, and the necessary procedures following the arrest were carried out completely and in accordance with the law, and if a decision to terminate the prosecution or an acquittal decision has been issued, or if the period of detention exceeds the sentence, or if the defendant has only been sentenced to a fine, the arrest is unjust. In both cases, the victims may claim all kinds of material and moral damages from the state. This compensation lawsuit against the state is paid by the Undersecretariat of the Treasury. Material damage is the loss of income suffered during the period of unlawful or unjust detention and the expenses incurred as a result. If the person was represented by a lawyer, the lawyer’s fees paid to the lawyer are also included in these expenses. Moral damages are the grief, sorrow, and sadness felt by the person due to the damage to their reputation among their family and work environment, the mental distress they experience, and their separation from their children, family, and environment. The Supreme Court decision on this matter is presented below.
SAMPLE SUPREME COURT DECISION
T.C.
SUPREME COURT 12TH CRIMINAL CHAMBER E. 2017/8800 K. 2018/1376 T. 12.2.2018
CASE: The judgment partially accepting the plaintiff’s claim for compensation was appealed by the defendant’s attorney and the plaintiff’s attorney, and the case file was reviewed and considered;
DECISION: Based on the review conducted, the evidence gathered and presented in the decision, the opinion and discretion of the court in accordance with the results of the investigation, and the scope of the case file reviewed, the other appeals of the defendant’s attorney and the plaintiff’s attorney are rejected, however;
1-) According to the arrest warrant in the file, the plaintiff was arrested for violating Law No. 6136, and considering that the Istanbul 10th Heavy Penal Court’s 2008/190 Case – 2013/221 Decision, the plaintiff was acquitted of the crime of membership in an organization established for the purpose of committing crimes. Therefore, the criminal case file on which the claim for compensation is based shall be summoned and examined, and the arrest warrant issued against the plaintiff, interrogation record, and indictment prepared regarding the plaintiff were also included in the file. It was necessary to investigate whether a decision was made not to prosecute the plaintiff for the crime of violating Law No. 6136 or whether a case was opened, and whether a separation decision was made regarding the plaintiff for the aforementioned crime, and to make a decision accordingly. However, a decision was made in writing based on incomplete investigation and research.
2-) Failure to ensure that the period of detention was determined beyond doubt by inquiring with the penal institution whether the arrest warrant issued against the plaintiff was executed and, if so, the dates of execution,
3-) During the appeal review conducted by our Chamber, it was determined that multiple lawsuits had been filed based on the same subject matter and unjust arrest grounds. failure to ensure that payments for duplicate lawsuits causing damage to the treasury are prevented and that public resources are used effectively, efficiently, and in accordance with the law, failure to ascertain whether a lawsuit has been filed based on the same subject matter and unjust detention reason by inquiring with the relevant units and investigating through the National Judicial Network Information System (UYAP),
Accordingly;
1-) Since the plaintiff could not present any credible documentation regarding his income and the amount of lost earnings during the period of detention, the amount of 4,330.85 TL should be paid to the plaintiff as material compensation, but the amount determined in the expert report based on the gross minimum wage with incorrect legal deductions was used as the basis for the ruling, resulting in an insufficient determination of material compensation.
2-) Although not an objective criterion, the moral compensation to be awarded in favor of the plaintiff should be determined based on the plaintiff’s social and economic situation, the nature of the crime attributed to him, the manner in which the incident leading to his arrest occurred, the duration of his detention, and the monetary value he would obtain with interest until the date the compensation claim becomes final, and it should be determined and assessed as a reasonable amount in accordance with the principles of justice and fairness, but awarding moral damages in an amount that does not comply with the established criteria,
3-) In the heading of the reasoned decision, instead of “Case,” “Crime,” and instead of the type of case “Compensation due to protective measures,” “Compensation in the Event of KYO or Acquittal Decision Following Arrest or Detention,” “Case date: 05.13.2014” and the inclusion of the phrases “Date of crime: 23.10.2014,” “Place of crime: Istanbul/Bakırköy,” and “Plaintiff: K.H.”
CONCLUSION: As it is contrary to the law, the appeals of the defendant’s attorney and the plaintiff’s attorney are deemed valid for this reason, and the judgment is REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is currently in force pursuant to Article 8 of Law No. 5320, It was unanimously decided on February 12, 2018.