Inadmissibility Of The Allegation Of Violation Of The Right To A Fair Trial And The Freedom To Travel Due To The Failure To Evaluate The Request For Compensation
Events
The applicant was detained within the scope of an investigation conducted by the Chief Public Prosecutor’s Office and released on judicial control conditions by the decision of the criminal judge of peace.
The Chief Public Prosecutor’s Office filed a public case at the heavy criminal court with the request for the applicant to be punished on the grounds that the applicant had committed the offence of sexual abuse of a child.
Applicant requested the judicial control measure imposed on the applicant to be lifted; the heavy criminal court decided to lift the judicial control measure imposed on the applicant and acquitted the applicant of the offence charged against him. The appeal against this decision was rejected and the acquittal was finalised.
The applicant filed a lawsuit under Article 141 of the Code of Criminal Procedure No. 5271, claiming 20.000 TL pecuniary damages and 40.000 TL non-pecuniary damages for unjust detention and judicial control measure.
As a result of the trial, the court of first instance decided to award the applicant 31.63 TL pecuniary compensation and 1,000 TL non-pecuniary compensation together with the legal interest to be accrued from the date of detention, as well as an attorney’s fee of 4,360 TL.
An appeal was lodged against this decision. The regional court of appeal dismissed the appeal for the part related to pecuniary compensation on the merits and dismissed the appeal for the part related to non-pecuniary compensation on the merits with correction.
Allegations
Applicant claimed that his right to a fair trial was violated as his claim for compensation based on the judicial control measure was not evaluated and his freedom of movement was violated due to the judicial control measure.
The Court’s Assessment
The right to a fair trial, guaranteed under Article 36 of the Constitution, applies to proceedings relating to criminal charges as well as to proceedings concerning the adjudication of a person’s civil rights and obligations. Rights and privileges granted to individuals by law and having a defensible basis are also included in the concept of right.
In its previous judgment, the Constitutional Court concluded that the right to a reasoned decision was violated due to the failure of the court of first instance to meet the request for compensation for judicial control; after examining a large number of applications on the same issue, the Constitutional Court felt the need to address whether the request for compensation for judicial control measures is recognised by Turkish law.
In the concrete dispute, there is no doubt that there is no trial based on a criminal allegation. However, it is necessary to determine whether the dispute can be seen within the scope of civil rights and obligations due to its nature and, in this context, whether there is a right recognised by law or jurisprudence. In this respect, it should be clarified whether the right to compensation due to the application of judicial control measures in Turkish law is recognised by law or jurisprudence.
In the Law No. 5271, which is the basic legal regulation subject to the dispute, the conditions under which compensation will be granted are clearly listed. There is no regulation in the said Law regarding judicial control decisions issued unlawfully.
In addition to not accepting a defensible right of a civil nature explicitly recognised by the law, the practices and practices of the competent judicial authorities must also be evaluated in determining whether such a right exists.
In the judgement of the Court of Cassation submitted by the applicant, it is understood that it is stated that the content and duration of the judicial control decision leads to a practice that may result in deprivation of liberty, such as arrest, and that the Court of Cassation has accepted that the application of the judicial control decision in question is not proportionate. İn the cases where similar allegations were put forward, it has been observed that a determination similar to the decision of the Court of Cassation could not be reached, on the contrary, it has been observed that, except for this exceptional decision, the established jurisprudence that the lawsuits filed due to judicial control measures should be rejected due to the lack of an explicit regulation in Law No. 5271 continues.
In the face of this situation, it has been determined that the concrete material conditions and the results of the judicial practice shown as the basis for the issues claimed by the applicant are different from each other.
After all these explanations, it has been evaluated that there is no clear legal basis for the damages claimed by the applicant, in other words, it cannot be said that there is a right explicitly or implicitly recognised by the law, in addition to this, it has been evaluated that it cannot be determined that judicial practices are in a way that would allow or form the basis for these claims.
For the reasons explained above, the Constitutional Court ruled that the claim regarding the violation of the right to a fair trial was inadmissible due to lack of jurisdiction in terms of subject matter.
The applicant also claimed that his freedom of movement was violated due to the judicial control measure.
According to the third paragraph of Article 148 of the Constitution and Article 45 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court, in order for an individual application to be examined, the right alleged to have been violated by the public power must not only be guaranteed by the Constitution, but must also fall within the scope of the European Convention on Human Rights (Convention) and the additional protocols to the Convention to which Turkey is a party. Applications alleging violation of rights outside the common protection area of the Constitution and the Convention are not covered by the individual application.
Article 23 of the Constitution and Article 2 of Protocol (4) to the Convention provide for freedom of movement within the country, as well as freedom to leave the country of residence. However, since Turkey is not a party to the aforementioned Protocol, applications concerning the freedom of movement under Article 23 of the Constitution are not within the scope of individual application.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the freedom of movement was inadmissible due to lack of jurisdiction in terms of subject matter.
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