The Rule Regulating The Possibility Of Appealing The Evacuation Decisions Made At The Prosecution Stage Is Not Contrary To The Constitution
Rule Subject to Objection
The fourth sentence of Article 105 of the Law No. 5271 amended by Article 13 of the Law No. 5353 constitutes the rule subject to objection.
Grounds of Objection
In the application decision, in summary; it has been argued that the rule is unconstitutional by stating that there is no appeal against the decision of the Public Prosecutor to release the suspect at the investigation stage, that the rule that keeps the appeal route open for the release decisions made by the court at the prosecution stage for the defendant who is being tried in pre-trial detention causes inequality between the suspect and the defendant, that the absolute discretionary power of the court authorised to resolve the merits of the case at the prosecution stage regarding the release is interfered with by the rule, and that this situation touches the essence of the right to personal freedom and security.
Evaluation of the Court
As a limitation on the right to request release pursuant to Articles 13 and 19 of the Constitution, the rule that allows an objection to the release decision given at the prosecution stage must have a legal basis. In this context, since the method to be followed for the objection is regulated clearly and precisely in a way that leaves no room for any doubt, it has been concluded that the rule is specific, accessible and foreseeable, and therefore the rule fulfils the requirement of legality.
The aim of the criminal procedure is to reveal the material truth by carrying out the proceedings against the accused in accordance with the procedure, to establish an environment of legal peace and to realise the principle of the rule of law by ensuring a fair trial. The protection measures aimed at achieving this goal are measures taken to prevent the suspect or defendant from escaping in terms of the criminal act attributed to him, to prevent the evidence that will illuminate the crime from being darkened and to prevent pressure on the victim, witness or other persons.
Arrest is a protection measure that results in the restriction of the freedom of the suspect or defendant by the decision of the judge or court before the judgement, and it cannot be said that the rule that allows the public prosecutor to appeal against the release decisions made at the prosecution stage in order to prevent the defendant released at the prosecution stage from escaping, pressurising witnesses or obscuring evidence does not have a legitimate purpose.
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However, it is not enough for the restriction imposed in the context of the right in question to fulfil the conditions of legality and legitimate purpose, it must also be proportionate. The principle of proportionality guaranteed under Article 13 of the Constitution consists of three sub-principles: convenience, necessity and proportionality.
In this context, considering that the rule regulating the possibility of objection to the release decisions given at the prosecution stage, which is essentially in the nature of requesting the continuation of detention, is a protection measure that can only be applied in order to reveal the material truth and only if the conditions listed in Article 100 of Law No. 5271 are present, it cannot be said that the rule is not suitable and necessary to achieve the desired goal.
In addition, in the objections raised against the release decisions made during the prosecution phase;
a) The existence of strong criminal suspicion should be sought both in the request for arrest and in the decisions regarding the rejection of the request for release, and in this context, concrete evidence showing the existence of reasons for arrest and the proportionality of the arrest measure should be justified and clearly shown,
b) The authority that will examine the objection to the eviction decision is also a judicial authority in accordance with Article 268 of the aforementioned Law
c) It is concluded that the rule is proportionate considering that an arrest decision to be taken by the objection authority in case this objection is accepted will not prevent the re-examination of the detention status of the defendant or the request for the release of the defendant in accordance with Articles 104 and 108 of the Law.
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Article 10 of the Constitution stipulates the principle of equality before the law, and the principle of equality before the law stated in the said article is in question for those who have the same legal status. With this principle, legal equality is envisaged, not de facto equality. The purpose of the principle of equality is to ensure that persons in the same situation are subject to the same treatment before the law, and to prevent discrimination and privileges.
This principle prohibits the violation of equality before the law by applying different rules to certain persons and communities in the same situation. Equality before the law does not mean that everyone is subject to the same rules in every respect. The characteristics of their situations may require different rules and practices for some individuals or communities. If the same legal situations are subject to the same rules and different legal situations are subject to different rules, the principle of equality stipulated in the Constitution will not be harmed.
In the constitutionality review of the rule in terms of the principle of equality, it must first be determined whether there is different treatment of persons in the same or similar situations within the framework of Article 10 of the Constitution. In this context, it must be determined whether there is a difference between persons in the same or similar situations. After that, it should be analysed whether the different treatment is based on an objective and reasonable basis and finally, if it is based on an objective and reasonable basis, whether the different treatment in question is proportionate.
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In this context, it cannot be said that there is a difference between the suspect and the defendant by comparing the release decision of the public prosecutor and the release decision of the court. As a matter of fact, it is not possible to evaluate equality by comparing various powers granted to different judicial authorities.
In fact, the rule gives the public prosecutor the opportunity to appeal against this decision for all arrested defendants who have been released by the authority at the prosecution stage and does not discriminate between defendants in the same position. In this respect, it is understood that the rule does not contradict the principle of equality.
For the reasons explained above, the Constitutional Court decided that the rule is not contrary to the Constitution and rejected the objection.
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