Criminal proceedings begin with the investigation phase. The purpose of the investigation phase, which initiates the criminal procedure, is to uncover the material truth by collecting various pieces of evidence related to the crime. While pursuing one of the main goals of criminal law — discovering the material truth — certain measures are taken during the investigation phase after the public prosecutor has obtained sufficient suspicion regarding the occurrence of the crime, in order to collect the necessary evidence and prevent its loss. These measures are referred to as protective measures in criminal law. Protective measures constitute Part Four (Articles 90–141) of the Code of Criminal Procedure and are judicial tools applied to preserve the evidence that is the subject of the measure and to prevent its disappearance.
One of the fundamental requirements for the fair conduct of criminal proceedings is that the trial should be concluded in the shortest time possible. Protective measures such as search, seizure, arrest, and detention, which are applied during criminal proceedings, serve the purpose of ensuring a fair trial. Therefore, protective measures are referred to as legal remedies that involve intervention in fundamental rights and freedoms prior to a final judgment, with the aim of conducting the criminal procedure, enforcing the resulting decisions, and covering the costs of the proceedings.
As can be seen, when protective measures are applied, there is also an intervention in an individual’s fundamental rights and freedoms. Resorting to fundamental rights and freedoms guaranteed by the Constitution requires acting with care and ensuring that such intervention does not result in an unjust violation of these rights. Protective measures are instruments of the criminal process and are temporary by nature. The application of protective measures must not result in an unjust violation of the suspect’s fundamental rights and freedoms.
An unjust infringement of the suspect’s fundamental rights and freedoms is inconsistent with both the principle of a fair trial and the interests of criminal procedure. Therefore, protective measures applied during the investigation or prosecution stages must be appropriate and proportionate.
If a decision of non-prosecution is rendered regarding the suspect, or if the defendant is acquitted at the end of the trial, this indicates that the applied protective measure was unjust (Article 91, final paragraph of the Criminal Procedure Code). The unjust nature of the applied protective measure means that the suspect’s or defendant’s fundamental rights and freedoms have been violated.
It is not necessary for the protective measure in question to have been unlawful from the beginning. A protective measure that was lawful at the time of its application may still become unlawful as a result of the investigation or prosecution process.
To remedy such unjust practices, Article 141 of the Criminal Procedure Code provides for the possibility of filing a compensation claim against the protective measure. A compensation lawsuit can be filed under Article 141 of the CPC in response to the unjust application of protective measures.
Compensation claims related to protective measures may only be brought against the state and only for measures such as arrest, custody, detention, search, and seizure. In the case of other measures not covered under the CPC’s compensation provisions, material or moral damages must be claimed according to the general principles of law.
The legal remedy of filing a material or moral compensation lawsuit in cases where protective measures applied during criminal proceedings are found to be unjust plays an important role in preventing potential constitutional violations. With the opportunity to file such a lawsuit, the requirement set forth in Article 40/3 of the Constitution is also fulfilled.
Circumstances in Which a Compensation Lawsuit May Be Filed Against a Protective Measure
The specific circumstances under which a material or moral compensation claim may be filed against protective measures applied during criminal proceedings are explicitly stated in the Criminal Procedure Code. Compensation claims can only be made in the situations specified by law, and it is prohibited to extend these situations by analogy.
According to Article 141 of the Criminal Procedure Code (CPC), the circumstances in which a person may claim material or moral compensation are as follows:
Article 141 – (1) During a criminal investigation or prosecution, individuals may claim compensation from the State for material and moral damages if:
a) They were arrested, detained, or their detention was extended under conditions not specified by law,
b) They were not brought before a judge within the legally prescribed period of custody,
c) They were detained without being informed of their legal rights, or their request to benefit from such rights was not fulfilled,
d) Although lawfully detained, they were not brought before the judicial authority within a reasonable time and no judgment was rendered during that time,
e) After being lawfully arrested or detained, a decision of non-prosecution or acquittal was rendered regarding them,
f) They were convicted, but the time spent in custody or detention exceeded the sentence imposed, or they were punished with imprisonment despite the fact that the law prescribed only a fine for the offense committed,
g) The reasons for their arrest or detention and the charges against them were not communicated to them in writing, or if not immediately possible, at least verbally,
h) Their arrest or detention was not reported to their relatives,
i) A search order issued against them was executed in a disproportionate manner,
j) Their property or other assets were seized without the required conditions being met, or necessary measures to preserve them were not taken, or the property/assets were used for purposes other than intended, or not returned in due time,
k) (Added: 11/4/2013 – Law No. 6459/Article 17) They were not allowed to make use of the legal remedies provided by law against arrest or detention procedures.
In all such cases, individuals may claim compensation for material and moral damages from the State.
(2) The authorities that render the decisions mentioned in subparagraphs (e) and (f) of the first paragraph shall inform the concerned person that they have the right to claim compensation, and this information shall be included in the decision.
(3) (Added: 18/6/2014 – Law No. 6545/Article 70) Except for the cases listed in the first paragraph, compensation claims arising from decisions or actions taken by judges or public prosecutors during criminal investigations or prosecutions—whether due to personal fault, unlawful acts, or other grounds of liability—may only be filed against the State.
(4) (Added: 18/6/2014 – Law No. 6545/Article 70) The State shall have the right of recourse, within one year, against judges and public prosecutors who, by acting contrary to the requirements of their duties, have abused their powers and caused the payment of compensation.
As seen, compensation claims can only be made in the cases explicitly listed in the law. For situations not specified in the law, compensation claims must be pursued under general provisions.
Persons Who Cannot Claim Compensation
According to Article 144 of the Criminal Procedure Code (CMK), persons who are lawfully arrested and detained cannot claim compensation in the cases specified by law. The situations in which individuals cannot claim compensation under the law are as follows: those who are not entitled to compensation, those whose status becomes eligible for compensation due to laws enacted later with favorable provisions, those for whom prosecution is dismissed or the case is dropped due to general or special amnesty, withdrawal of complaint, reconciliation, or similar reasons, those for whom the case is temporarily suspended, postponed, or dismissed, those who are found not to have the capacity for fault and therefore no punishment is imposed, and those who cause their detention or arrest by making false statements or admitting involvement in the crime before judicial authorities. In the cases listed above, individuals cannot claim material or moral compensation.
Time Limit for Filing a Compensation Claim
A claim for material or moral compensation against protective measures applied during criminal proceedings can be made within 3 months from the notification to the concerned party that the decision or judgment has become final, and in any case, within 1 year following the finalization of the decision or judgment. According to criminal law, the finalization of the decision or judgment is required to file a compensation claim. As understood from Article 141 of the Criminal Procedure Code (CMK), the decision and judgment referred to include, for the decision, a ruling of non-prosecution, and for the judgment, a court decision given as a result of the trial. There are also situations in criminal procedure law that are not concluded by a judgment. An example of this is the case of a person who was apprehended and then released without notifying their relatives. In such cases, there is no reading or notification of the decision. According to the dominant view in doctrine, the moment the unlawful act is committed is taken into account, and the time limit starts to run from that moment.
Competent Court
The compensation claim is filed at the heavy criminal court of the applicant’s place of residence. If the heavy criminal court at the applicant’s residence is the same court that issued the relevant ruling and it is the only heavy criminal court there, then the heavy criminal court where the compensation claim will be filed is the nearest heavy criminal court.
REQUIREMENTS FOR A COMPENSATION CLAIM PETITION
In the petition for a lawsuit filed with a claim for material or moral compensation, the person filing the lawsuit must include;
- Clear identity and address
- It is necessary to record the nature and extent of the harmful act and the damage suffered, and to have the relevant documents.
If there are deficiencies in the petition, the judge gives the relevant party a final period of one month to remedy them. If the deficiencies are not corrected within this period, the judge notifies the relevant party that the case will be dismissed. If the deficiencies in the petition are not resolved, the case is dismissed, with the right to appeal remaining open.
After reviewing the petition and the documents submitted with it, the court sends a copy to the representative of the State Treasury in its jurisdiction. If the representative of the State Treasury exists, they must submit their objections and statements to the court in writing within 15 days.
Determination of Compensation
The court is authorized to conduct all necessary investigations while evaluating the claim and the submitted documents to determine the amount of compensation. This assessment is based on the general principles of compensation law, taking into account the damages suffered by the individuals.
The payment of attorney’s fees by the defendant in favor of the treasury is only possible if the compensation case arising from unlawful detention is completely dismissed.
LEGAL REMEDY
An appeal can be filed against the decision given as a result of a material or moral compensation lawsuit filed against an unjust protective measure by the claimant, the public prosecutor, or the Treasury representative. The appeal is examined by the appellate court as a priority and with urgency.
Payment of Compensation
In a compensation lawsuit filed due to wrongful protective measures, once the court decision becomes final, the plaintiff or their attorney applies to the relevant administration to request the payment of the awarded compensation and attorney fees by the defendant administration. The payment is made to the bank account number provided in writing to the administration. The payment must be made within 30 days from the date of notification. If the payment is not made within the specified period, enforcement and execution procedures are carried out according to the general provisions pursuant to Article 142/10 of the Criminal Procedure Code (CMK). Furthermore, according to Article 142/10 of the CMK, no enforcement action can be initiated by the plaintiff before the decision becomes final and the administrative application process is completed.
Attorney’s Fee
The ruling regarding attorney’s fees resulting from the compensation lawsuit is given based on the proportional attorney’s fee calculated according to the Minimum Attorney Fee Tariff. The awarded attorney’s fee cannot be less than the fixed fee determined for cases followed in peace criminal courts nor exceed the fixed fee determined for cases followed in heavy criminal courts, in accordance with Article 142/9 of the Criminal Procedure Code (CMK).
Recovery of Compensation
The compensation paid by the State as a result of the court’s decision may be recovered in certain cases. These situations are listed in Article 143/1 of the Criminal Procedure Code (CMK). Accordingly:
- The decision of non-prosecution is later annulled, a public case is filed, and a conviction is rendered; or
- The acquittal verdict is overturned as a result of a retrial initiated to the detriment of the accused, and a conviction is issued.
If one of the circumstances listed in the legal provision is present, the portion of the compensation paid by the State relating to the conviction may be reclaimed from the individual concerned, upon the written request of the public prosecutor and by a decision of the same court. The procedure for reclaiming compensation from the individual is subject to the provisions of the legislation on the collection of public receivables. An objection may be filed against the decision to reclaim the compensation. Additionally, the law does not prescribe any time limit for reclaiming compensation.
In cases where compensation is reclaimed, if the detention or arrest was due to the offense of false accusation (Article 267/4 of the Turkish Penal Code) or perjury (Article 272/5 of the Turkish Penal Code), the State may also seek recourse against the person who made the false accusation or gave false testimony. However, this is only applicable if the protective measure of detention or arrest was implemented.
THE LIABILITY OF JUDGES AND PROSECUTORS FOR COMPENSATION
According to Article 141/4 of the Criminal Procedure Code (CMK), the compensation awarded as a result of a lawsuit filed under this provision shall be recourseable within one year to judges and public prosecutors who, in relation to the application of protective measures, acted contrary to the requirements of their duties and thereby abused their authority.
Sample Court of Cassation (Yargıtay) Decisions Regarding Compensation Lawsuits Filed Against Protective Measures
Partial acceptance of the lawsuit and the awarding of 132,512.00 TL in pecuniary damages and 90,000 TL in non-pecuniary damages to the plaintiff, to be collected from the defendant Treasury; the appeal application has been REJECTED ON THE MERITS.
The decision regarding the partial acceptance of the plaintiff’s compensation claim was reviewed by the 16th Criminal Chamber of the Gaziantep Regional Court of Justice, which issued a decision on 14.11.2016, with docket number 2016/73 and decision number 2016/68, rejecting the appeal on the merits. Upon appeal of this decision by the defendant’s attorney, the case file was examined and deliberated accordingly:
1- In the case file numbered 2012/267 of the Diyarbakır 2nd High Criminal Court, which constitutes the basis of the compensation lawsuit, the plaintiff was held in pre-trial detention between 20/09/2008 and 14/01/2013. At the time of his arrest, the plaintiff was working as a laborer for the Provincial Special Administration. Although there was no error in taking into account the salary and bonuses received by another person working in the same position as the plaintiff during this period when calculating pecuniary damages, a review conducted through the UYAP system revealed that the plaintiff retired as of 15/05/2010 and began receiving a pension from the Social Security Institution. In this context, considering that the plaintiff was receiving a pension between 15/05/2010 and 14/01/2013, the pecuniary loss suffered during this period should have been calculated based on the net minimum wage applicable during that time, and the determined amount should have been awarded as pecuniary compensation. However, without taking this into account, an excessive amount of pecuniary compensation was awarded in favor of the plaintiff.
2—Although it is not an objective criterion, the amount of non-pecuniary damages to be awarded should be determined and assessed as a reasonable amount in accordance with the principles of fairness and equity, taking into account the plaintiff’s social and economic status, the nature of the alleged crime, the manner in which the incident leading to the arrest occurred, the duration of detention, and similar factors, as well as the monetary value the plaintiff is expected to obtain by the time the compensation case becomes final. However, awarding an excessive amount of non-pecuniary compensation that does not comply with these criteria in favor of the plaintiff has been deemed a ground for reversal. (Court of Cassation, 12th Criminal Chamber, 2017/3319 E., 2017/5747 K.)
There is no doubt that a person who is lawfully arrested or detained for a single crime cannot claim compensation if, as a result of the investigation or prosecution, a decision is made in accordance with Article 144/1-c of the Criminal Procedure Code (CMK). However, if a person is arrested or detained simultaneously for multiple crimes, even if a decision as specified in Article 144/1-c of the CMK is made for one of these crimes, but the person is acquitted or the case is dismissed for all other crimes, it is established that the arrest or detention was unlawful. Therefore, pursuant to Article 144/1-e of the CMK No. 5271, a compensation amount determined according to the principles of rights and fairness must be awarded.
During the investigation for violations of Law No. 4320, insult, and intentional injury to spouse, the plaintiff was detained for all three crimes, and a public lawsuit was filed. As a result of the trial, the charge of insult was dropped due to withdrawal of complaint, and acquittals were given for violations of Law No. 4320 and intentional injury to spouse. Although compensation cannot be awarded under Article 144/1-c of the CMK in case of dismissal due to withdrawal of complaint, the acquittal for violations of Law No. 4320 and intentional injury to spouse constitutes an unlawful detention. Since the plaintiff was not convicted of any crime for which they were detained and was acquitted of all other charges, compensation must be awarded in an amount to be determined according to the principles of rights and fairness under Article 144/1-e of the CMK No. 5271. The acceptance of the claim that no compensation can be awarded on the grounds that a verdict was issued according to Article 144/1-c of the CMK for one of the crimes under investigation or prosecution is against procedural and legal principles. (Court of Cassation General Assembly of Criminal Chambers – Decision No. 2015/144)
Judgment: An award of 1,000 TL in non-pecuniary damages to be paid by the defendant to the plaintiff.
Although there is no objective criterion, the amount of non-pecuniary damages to be awarded should be determined and assessed as a reasonable amount in accordance with the principles of fairness and equity, taking into account the plaintiff’s social and economic status, the nature of the alleged crime, the manner in which the event causing the detention occurred, the duration of detention, similar factors, and the monetary value the plaintiff will obtain until the finalization of the compensation lawsuit. The ruling of awarding an excessive amount of non-pecuniary damages in favor of the plaintiff that does not comply with these criteria is not a ground for annulment based on the status of the appellant.
As adopted by our Chamber and also stated in the Supreme Court General Criminal Assembly decision dated 12.05.2015, numbered 2013/531 Main – 2015/157, Article 144/1-e of the Criminal Procedure Code No. 5271 titled “Persons Who Cannot Claim Compensation” includes the provision: “Those who cause their detention or arrest by making false statements before judicial authorities that they committed or participated in the crime,” and the article’s justification explains: “If a person causes detention or arrest by falsely stating before judicial authorities that they committed or participated in the crime, they shall not be entitled to claim compensation.”
Accordingly, a person under investigation or prosecution for an accusation who has caused their own detention or arrest by making false statements before judicial authorities regarding the commission or participation in the crime due to their personal fault shall no longer have the right to claim compensation.
Within this scope, failing to summon the criminal case file that forms the basis of the compensation claim, examining all statements of the plaintiff (defendant) during the investigation and prosecution phases, including original or certified copies that enable Supreme Court supervision into the file, and determining whether the plaintiff has the right to claim compensation is a ground for annulment due to neglect. (Supreme Court 12th Criminal Chamber, Case No. 2016/2284 Main, Decision No. 2017/6035, dated 06.07.2017)
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