18 Apr Material And Moral Compensationcase From By Unfair Arrest
Unfair and long periods of detention in criminal proceedings have become a frequent issue, especially in the recent period. It’s caused a lot of controversy. These arguments are based on the fact that arrest has become a means of punishment rather than a measure of its purpose.It should be noted that the arrest is a protection measure and is not criminal. Because the arrested person continues to enjoy the presumption of innocence and no legal order accepts punishing the person whose crime is not fixed by a final judicial decision. Indeed, arrest is a protection measure and a tool used to ensure the purpose of Criminal Procedure. First of all, we would like to state that all the conditions required by the Criminal Procedure Code (CMK md. 100/1) must be present at the same time. An arrest is not a protection measure applied without seeking all of the conditions sought by the law. Because it is impossible to justify such an arrest for the purposes of Criminal Procedure.
This right, which has been constitutionally guaranteed, is clearly referred to in the Constitution entitled “Freedom and security of persons”, 19. he stated the principles of the arrest in his article and in his last paragraph, he stated that “the damages suffered to persons subjected to a procedure other than these principles shall be paid by the state according to the general principles of the law of compensation”. The procedures and reasons for granting compensation are 141-144 of the CMK No. 5271. it’s regulated by the clauses. This provision, which is guaranteed and clearly stated by the Constitution, offers the possibility to return to the victim as compensation for the losses of material and moral rights that are unfairly detained and occurred in the event of a detention process.
If there is a lack of or a violation of the law in the work ordered by the law following the detention or arrest decision, the arrest is unfair if the decision to end the prosecution or acquittal is made against the accused who has been arrested in accordance with the Constitution and the law and the procedures required to be done following his arrest are In both cases, the victims can claim all kinds of damages, both material and spiritual, from the state. This compensation case against the state shall be paid by the Undersecretariat of Treasury. Property damage is the loss of income incurred during the period of improper or wrongful arrest, and therefore the expenses it has to make. These expenses include the attorney’s fee paid to the attorney if the person has represented himself with a representative. Spiritual harm is the loss of one’s dignity in his family and business environment, the pain, grief and sadness he feels because he has experienced mental difficulties, his children are away from his family and his environment. The decision of the Supreme Court on the matter is presented below.
SAMPLE SUPREME COURT DECISION
T.C.
Supreme COURT12. THE DEPARTMENT OF CORRECTIONS. 2017 / 8800K. 2018 / 1376T. 12.2.2018
Case: the provision for partial acceptance of the plaintiff’s claim for damages was appealed by the defendant’s attorney and the plaintiff’s attorney, and the case was considered necessary by examining the file;
Decision: the examination, the evidence collected and shown at the decision place, the court’s opinion and discretion in accordance with the results of the prosecution, the defendant’s attorney and the plaintiff’s attorney’s other appeals according to the scope of the examined File are rejected, but;
1 -) according to the arrest müzekkeresi in the file, the plaintiff was arrested for the crime of opposition to the law No. 6136, which is the basis of the claim for compensation in Istanbul 10. 2008/190 Basis Of The High Criminal Court – In the Criminal Case File No. 2013/221 decision, the criminal case file, which is the basis of the claim for compensation, has been subpoenaed and examined and the original or approved samples of the indictment are included in the file and whether it has been decided that there is no place to prosecute the plaintiff for opposing the law No. 6136., the decision should be made in writing with incomplete investigation and investigation, while the decision should be made according to the results of the investigation whether the decision was made on the plaintiff for the aforementioned crime.,
2 -) whether the arrest warrant issued against the plaintiff has been executed or not, in case of execution, the execution dates should be determined in a way that does not give the possibility of hesitation by asking the prison execution institution.,
3 -) in the face of understanding that more than one case has been opened based on the same subject and the reason for wrongful arrest during the appeals investigations conducted by our department; in terms of ensuring the Prevention of payments for repeated cases leading to Treasury damages and using public resources effectively, efficiently and in accordance with the law, whether there is a case,
Acceptance is according to;
1 -) the claimant whose income and the amount of loss of earnings related to the period of detention can not present any documents that can be respected by the Ministry of Labour and Social Security for the period of detention and detention determined by the net minimum wage amounts for those over 16 years should be calculated and decided to pay 4.330. 85 TL to the claimant as material compensation,,
2 -) although it is not an objective criterion, the social and economic situation of the plaintiff, the nature of the offence committed, the manner of the incident causing his arrest, the period of his imprisonment and the monetary value he will obtain with interest until the date when the case for compensation will be finalised should be taken into account and determined as a reasonable amount,
3 -) in the title of the reasoned decision,” crime ”instead of” Case”,” compensation due to protection measures ”instead of the type of Case” Arrest or arrest after the decision of CYO or acquittal compensation”,” case date: 13.05.2014 ”instead of” Crime date: 23.10.2014 ”written” place of crime: Istanbul/Bakırköy ”and ” Plaintiff: K.H.” ,
Conclusion: it is against the law and the appellate objections of the defendant’s attorney and the plaintiff’s attorney are seen in place in this regard, so the provision is for these reasons in accordance with the law No. 5320 8. under Article 321 of the Cmuk No. 1412, which is still being implemented. it was unanimously decided on 12.02.2018 that the article should be annulled in accordance with the request.
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