Violation of the Right to Freedom and Security of the Person Due to Insufficient Compensation Paid Due to the Detention Measure


The applicant, who was detained on 1/11/2016 and released on 3/11/2016 within the scope of an investigation conducted against him, was tried on charges of membership in an armed terrorist organization, forming or managing an armed terrorist organization; he was acquitted as a result of the trial. The power of attorney fee was not ruled in favor of the applicant in the acquittal decision, and the applicant applied for an appeal against this decision. The district court of justice has decided to reject the appeal application on the merits by correcting the sentence paragraph of the decision by adding an expression related to the granting of a power of attorney fee to the defendant.

Upon the finalization of the acquittal decision, the applicant filed a lawsuit for compensation, claiming that he had been unjustly detained; the high criminal court decided to pay 500 TL moral compensation to the applicant. The applicant applied for an appeal stating that the difficult process he had experienced in the trial had not been taken into account, that a very small amount had been awarded according to the amount of compensation he requested, and that it was unlawful not to include the surrogacy fee he had paid in the case he was tried in financial compensation. The district court of justice has definitely decided to reject the application for appeal on the merits.

The Allegations

The applicant claimed that the right to freedom and security of a person had been violated due to the insufficient compensation paid due to the detention measure.

The Court’s Assessment

The current case law of the Constitutional Court focuses on whether the illegality is expressed in essence in the petitions for compensation. 141 of the Law No. 5271. in order for compensation to be decided in accordance with the regulation (e) of paragraph (1) of the article, it is sufficient to decide that there is no place for prosecution against persons or their acquittal. In other words, it is not necessary for the relevant court to examine the legality of the arrest or detention of persons. In this context, it has been observed that there are some uncertainties in the decisions that the illegality should be asserted at all stages in terms of its essence. These uncertainties, which have caused differences in case law to arise, have led to unfair results in terms of the consumption of avenues of application among the applicants. Dec. Due to the uncertainties regarding the rule under which the compensation claim will be evaluated according to the current case law, a uniform case law on the subject has been created and the need to clarify this case law in all its aspects has arisen. In the light of these evaluations, the Constitutional Court stated that “Those against whom there is no room for prosecution or who have been acquitted are subject to Article 141 of Law No. 5271. 141 of Law No. 5271 in order that the avenues of application may be considered exhausted in individual applications made by them with the claim that the arrest, detention or arrest is not legal and the compensation paid is insufficient after they have exhausted the way of compensation provided for in Article 141 of the Law. it has been concluded that it will be sufficient for him to file a compensation claim within the scope of paragraph (e) of paragraph (1) of the article. In this case, the applicants are also not required to file a claim for compensation under subparagraph (a).” by accepting a case law based on the evaluation containing his statements, he considered the concrete incident related to the alleged violation of the right to freedom and security of a person in the context of this new case law.

It was accepted that the applicant, who filed a claim for compensation claiming that he was unjustly detained due to his acquittal in the trial, had exhausted his avenues of application in terms of the illegality of his detention – in the context of the new case law – and it was started to examine the application on its merits. In the concrete case, it was decided to pay 500 TL moral compensation to the applicant for three days of detention. Although the moral compensation awarded should not be the same as the amount of compensation that the Constitutional Court has ruled to be awarded in similar cases, it has been concluded that it is so low as to undermine the essence of the right to compensation in the circumstances of the concrete incident.

The applicant also claimed that the surrogacy fee he paid to his lawyer in the case in which he was acquitted should be covered within the scope of financial compensation. The Court rejected the request for financial compensation for the surrogacy fee on the grounds that along with the acquittal decision, the victim’s surrogacy fee was ruled in favor of the applicant. 164 of the Law on Lawyers No. 1136. in the article, it is stated that the attorney fee to be charged to the other party based on the tariff by the decision at the end of the case belongs to the lawyer. Therefore, the fact that the award of the victim’s power of attorney fee was made in favor of the applicant in the case in which he was acquitted may not mean that the applicant’s financial damage has been covered. At this point, the court of instance should investigate whether the parties included the victim’s power of attorney fee in the attorney fee in the power of attorney agreement between the applicant and his lawyer when Decrees the fee. 142 of the Law No. 5271. although it is stated in paragraph (6) of article that the court is authorized to conduct any research that the court deems necessary in determining the amount of compensation to be awarded in accordance with the general principles of compensation law in evaluating the compensation claim and proof documents, or to have one of its judges do it, the court of instance has not conducted any research on this issue. Paying the Decedent’s power of attorney fee to the applicant, on the other hand, even if it is accepted that it was paid to the applicant, it is not explained in the decision why the part exceeding this amount will not be considered as material damage, whether there is an illusory connection between it and the unjust detention measure, if there is an illusory connection, whether this fee requested is necessary and reasonable.

The Constitutional Court has decided that the right to personal freedom and security has been violated on the grounds described.


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