Compensation for Unfair Search Measures

Compensation Due to Unfair Arrest Measure

Unfair SearchDue to Arrest, Capture, Detention, Search and Seizure Measures Compensation, is regulated between Articles 141-145 of the Criminal Procedure Code (CMK). According to this regulation; persons who are unfairly subjected to the relevant protective measures They may file a compensation lawsuit against the state.

What is Compensation for Unfair Search Measures?

Protective measures are the restriction of some fundamental rights and freedoms of individuals that are necessary for the effective conduct of criminal justice. For example, an arrest measure leads to the temporary restriction of the freedoms of individuals in order to ensure the fulfillment of a certain procedure due to an ongoing criminal investigation or prosecution.

According to modern views Every human being has fundamental rights and freedoms from birth.. These rights and freedoms that every human being has from birth should be protected and developed by the states. The main rights and freedoms that are conceptualized under the name of human rights and protected by the Constitution of the Republic of Turkey are; right to life, privacy, freedom of travel, right to property and personal inviolability.

Any restriction, limitation or obstruction of these fundamental rights and freedoms will be considered as a tort. The perpetrators of this tort may be individuals or States. Regardless of who commits the tort, shall be sentenced to pay compensation.

Under the title of “Right to Liberty and Security” of the European Convention on Human Rights, Article 5, paragraphs 1, 2, 3 and 4, regulates the situations and ways in which personal freedom can be restricted. The last paragraph of the article states that “Anyone who is a victim of an arrest or detention conducted in violation of the provisions of this article has the right to claim compensation”, and thus, a Search or It is envisaged that those who suffer damage as a result of the capture process may claim compensation.

How is the Unfairness of the Search Measure Determined?

Due to the importance of the fundamental rights and freedoms of individuals as described above, protective measures are subject to strict conditions. Protective measures implemented without complying with these conditions will constitute an unjust interference with the fundamental rights and freedoms of individuals. According to the Turkish Law of Obligations, the validity of compensation claims depends on the existence of an unjust act. Therefore, in the sense of the Turkish Law of Obligations, the ability to claim compensation from the State depends on the determination that the protective measure was implemented 'unjustly'.

The easiest and fastest way to determine if a call is unjustified, is whether the search was conducted sufficiently to find materials related to the crime on which the search warrant is based. Searching any relevant or irrelevant place on you, at your workplace or at your home other than the crime on which the search warrant is based will constitute an example of an excessive search.

Apart from these, it is controversial among the Court of Cassation Chambers whether compensation should be awarded in the event that the search warrant is unlawful. Some Chambers accept that the result of an unlawful search warrant is sufficient if the unlawful evidence obtained is not used.

• Again, although the plaintiff has requested moral compensation due to unjust and disproportionate search; regarding the compensation claim based on the reason that the search warrant and the search conducted were unlawful and the search warrant was carried out disproportionately, in order for compensation to be awarded due to the search protection measure in accordance with Article 141/1-i of the CMK No. 5271, the execution of the search warrant, namely the search conducted, must have been carried out disproportionately, the procedural irregularities in the search warrant and search report are not listed as grounds for compensation in the text of the article, in this context, when the search reports that are the basis of the compensation claim are examined, it is understood that the search warrant was not carried out disproportionately, and also considering that the report stating that there was no damage due to the search was signed by the plaintiff, no error was found in the decision to reject the plaintiff's compensation claim based on the search protection measure because the conditions were not met. (12-penal-department-e-2021-3821-k-2022-4407-t-6-6-2022)

Some Chambers, on the other hand, accept that an unlawful search decision renders the evidence obtained unlawful and that moral compensation should be awarded due to the unjust search.

• Even if the provision in the paragraph generally means that the claim for compensation should be based not on an unjust search warrant or an unlawful search warrant but on the disproportionate execution of the search warrant, it has been discussed whether compensation can be claimed for a search warrant issued unlawfully with the decisions made by our Department, and it has been accepted that disproportionate searches and search warrants issued in a haphazard or arbitrary manner will also be considered within this scope. (12.CD, 24.12.2013/9105-30731)

If you think you have been subjected to an unfair search for the reasons stated, we recommend that you carry out this process with a lawyer. If you have been subjected to an unfair search, you will be able to file a Compensation Lawsuit Based on the Reason for the Unfair Search.

The illegality of the search means that the search decision or warrant or the execution of the search is illegal. Unlawfulness is the non-implementation or incorrect application of a legal rule. While determining the framework and scope of the concept of unlawfulness, which has a broader content than unlawfulness, it should be taken into consideration whether there is a violation of both positive legal rules and universal legal principles regarding fundamental rights and freedoms, and in the event of a violation, the existence of unlawfulness should be accepted. Indeed, in the decision numbered 2-2 dated 22.06.2001 of the Constitutional Court: “Unlawfulness primarily means a violation of all legal rules in force within our national legal system. Within this framework, all practices that are contrary to the constitution, duly accepted international agreements, laws, decrees having the force of law, statutes, regulations, decisions to unify case law and customary law are included in the concept of unlawfulness.

Apart from this, our legal system also accepts the rules called general principles of law, which are applied in all civilized countries of the civilized world, as legal rules. Although there is uncertainty about what the general principles of law are, it is unquestionably accepted in both practice and doctrine that the general principles of law are legally binding. Our Constitutional Court has also ruled in many of its decisions that accepting the existence of general principles of law is one of the requirements of a state governed by the rule of law and that these principles cannot be destroyed even by the legislator. (For example, E. 1985/31. K. 1986/1, KT. 17/03/1986, Constitutional Court Decisions Journal, No. 22. No. 115) Within the framework of these opinions of the Constitutional Court, the general principles of law have been placed in a position superior to laws and even to the amendable provisions of the Constitution.”

In this respect, whether the search is lawful or not should be determined from a holistic perspective, taking into account both the positive law rules and universal law principles regarding the conditions for resorting to the search measure and its implementation.

A search conducted unlawfully may result in a number of sanctions in terms of criminal procedure law, material criminal law and compensation law.

The consequence of the illegality of the search in terms of criminal procedure is that the evidence obtained as a result of the search cannot be used as the basis for the verdict. Article 217 of the CMK No. 5271 states; "1) The judge can only base his decision on evidence that has been brought to the hearing and discussed in his presence. This evidence is freely evaluated by the judge's conscientious opinion.

(2) The charged crime can be proven with any evidence obtained in accordance with the law”, which stipulates that the judge can only take into account evidence obtained through methods permitted by law.

In the second paragraph (a) of the said law, it is stated that the evidence that is sought to be presented will be rejected if it has been obtained illegally, and it is explained that evidence that has not been obtained legally will not be accepted as a means of proof and will not be taken as the basis for the verdict. Moreover, in accordance with the first paragraph of the same law, in the justification of the verdict of conviction, the discussion and evaluation of the evidence, the indication of the evidence that is taken as the basis for the verdict and the evidence that is rejected are required; within this scope, the evidence in the file that has been obtained through illegal methods must also be shown separately and clearly.

The sanction of an illegal search in terms of substantive criminal law is that the action constitutes a crime. Article 120 of the Turkish Penal Code No. 5237, titled “unfair search”, stipulates that a public officer who searches someone’s person or belongings illegally will be punished with imprisonment from three months to one year. Unlawful searches of residences and workplaces will be evaluated within the scope of Articles 116 and 119/1-e of the Turkish Penal Code No. 5237.

Finally, the unlawfulness of the search may lead to the liability for compensation of both the State and the public officials who issue or execute the search warrant.

In this context, it is stipulated in Article 141/1 of the CMK No. 5271 that individuals may claim compensation from the State for all kinds of material and moral damages in the event that the search is carried out excessively and disproportionately to its purpose.

After accepting that the search operation was unlawful, as for whether the evidence other than the material evidence obtained during the unlawful search is sufficient for conviction in the concrete case;

One of the most important and universal principles of criminal procedure, whose aim is to provide justice by reaching the material truth in the concrete case, to punish the perpetrator who is proven to have committed the crime, to prevent the disruption of public order and to re-establish the disrupted public order, is the principle of “the defendant benefits from the doubt”, which is an extension of the rule called “innocence” or “presumption of innocence” in doctrine and practice and is expressed in Latin as “in dubio pro reo”. The essence of this principle is that any doubt regarding any issue that needs to be considered in order to decide on the conviction of the defendant in a criminal case must definitely be evaluated in favor of the defendant. This rule, which has a very wide area of application, is also valid in cases where there is a doubt as to whether the crime in question was committed, if committed, whether it was committed by the defendant or the manner in which it was committed. The basic condition for a decision to punish the defendant for a crime is that the crime can be proven with evidence obtained in accordance with the law with a certainty that leaves no room for doubt.

In this respect, in the case where it was determined that the evidence obtained as a result of the illegal search operation could not be used as the basis for the verdict; considering that the defendant did not accept the accusation at all stages, if the evidence obtained by illegal methods in the file is excluded from evaluation, there is not enough evidence to punish the defendant.

Scope of Material and Moral Compensation Due to Unfair Search

A lawsuit for compensation due to Unfair Search is filed against the State, namely the Treasury. Individuals who are unjustly arrested may claim material and moral compensation for the time they spent in detention.

The content of the request for material compensation is the wages that the person could not earn because he could not work during his detention. Insured employees can request the compensation they have lost based on their actual wages by submitting their SSI premiums and pay slips to the file of the compensation case they have filed. However, for those who cannot prove what wage they worked for and for how long before their arrest, or who retired before their arrest, compensation will be paid in the amount of net minimum wage, excluding monthly AGI.

The compensation to be paid will increase according to the duration of detention. During the period of detention as material compensation Fees paid to the lawyer may also be claimed. However, this fee must be proven with a receipt. If it is not proven with a receipt, an estimated attorney's fee is determined according to the Attorney's Minimum Fee Tariff.

Non-pecuniary damages refer to the compensation that the claimant may claim for the pain, suffering and distress he or she has suffered due to the unfair search and other unfair protective measures. The amount of moral compensation is determined according to the rules of rights and negligence, taking into account the social and economic situation of the plaintiff who was subjected to an unjust search, his/her social position, the duration of the arrest, the media coverage of the incident and the reactions it received from the society, and the extent to which his/her honor, dignity and reputation were damaged due to the unjust search.

So much so that while a minimum wage earner who was subjected to the same unjust detention period was awarded 50,000 TL in non-pecuniary damages, the former general, the defendant in the Ergenekon case, was awarded 500,000 TL due to his position in society and the pain and sorrow he felt. In conclusion, it should be emphasized that the only condition for determining non-pecuniary damages is not the duration of detention.

Time Limit for Filing a Compensation Suit Due to Unfair Search

From the notification of the final decision due to unfair detention to the relevant person 3 months and in any case 1 year from the date of finalization A lawsuit must be filed within 15 days. Otherwise, since the limitation period will have passed, a lawsuit for compensation for unfair detention cannot be filed.

It should be noted that in practice, the reasoned decisions with final annotation are not notified or even if they are notified, they are irregular within the scope of the Notification Law, therefore, the above-mentioned decisions are not notified. It is recommended that you consult a lawyer even if the deadlines have passed. Because only a lawyer can determine the notification processes in question and whether the decision has been finalized properly. Thus, a compensation claim can be filed even if the period appears to have passed.

Is It Necessary for the Previous Case to Be Finalized in Order to File a Compensation Lawsuit for Unfair Search?

In some cases, a lawsuit can be filed to seek compensation for Unfair Search without waiting for the decision to become final.

Because in some cases it is applied The unfairness of the protective measure is so obvious and clear that there is no need to wait for the merits of the case to be resolved. In that case, a compensation lawsuit can be filed without waiting for a decision and finalization due to protective measures and Search that are not related to the merits of the case and whose injustice can be proven before the case is concluded.

Where to File a Compensation Suit for Unfair Search?

The Compensation Case Due to Unfair Search is the case of the person who was unfairly subjected to a protective measure, namely an unfair search measure. It is opened in the High Criminal Court at the place of residence. If there is no High Criminal Court in the place where the person who wants to file a lawsuit is located, he can file a lawsuit in the High Criminal Court closest to him.

The plaintiff (who was subjected to unfair search measures) in Turkey If there is no residence, a lawsuit can be filed in Istanbul, Izmir and Ankara High Criminal Courts.

How to Win a Compensation Case for Unfair Search and How to Prove It?

When filing a compensation lawsuit due to an Unfair Search measure, the protective measure in question, namely the Search, should be stated in the petition. Documents proving wrongdoing (acquittal (e.g. the court decision and the final annotation regarding this decision, the decision not to prosecute and the final annotation regarding this decision, the SSI records and pay slips if the plaintiff is employed, the names and addresses of the witnesses) must be attached.

If the plaintiff (person subject to Unfair Search measure) is not a paid employee and If the company is engaged in free trade, then the tax certificate and income/corporate tax return for the last 4 years before the search measure must be submitted. Thus, the High Criminal Court will rule that the plaintiff, who is engaged in free trade, be paid financial compensation according to his income calculated according to the tax bases he has paid in recent years.

Along with the documents in question, an explanation is given regarding the documents requested to be brought from elsewhere. The High Criminal Court also conducts a social and economic status investigation. The investigation and court files that caused the Unfair Search are brought and examined.

After all documents are collected, the High Criminal Court calls the parties to a hearing by appointing a hearing date. The representative of the Treasury of Finance at that location attends this hearing on behalf of the State. Even if no one attends the hearing, the Court may make a decision in their absence.

Expenses of Compensation Suit Due to Unfair Search

No fee is paid in the Compensation Case Due to Unfair Search.

Any no charge.

Recovery of Compensation for Unfair Search, Detention and Seizure

If the plaintiff collects this money after winning the lawsuit for compensation due to Unfair Search and thereafter If it is determined that the search was not actually unjustified, the compensation paid by the State will be taken back.

There are several different ways that it may turn out that the search was not actually unjust. If the application for retrial is made against the defendant against the final court decision and the acquittal decision given for the defendant is found to be wrong, it will be understood that the previously implemented search measure was also right. The same situation may also apply to the suspect who was given a Decision of Non-Prosecution (KYOK) during the investigation phase. If it is understood that this KYOK decision was wrong in essence, the compensation paid will be taken back.

Persons Who Cannot Claim Compensation Due to Unfair Search

• Under investigation because he confessed to the crime Persons who are subject to protective measures (Search, Detention, etc.) are not entitled to compensation even if they are acquitted during the prosecution phase.
• The time spent in prison by those convicted of a different crime is reduced by the time they were unjustly arrested. is offset. In the compensation case to be filed by these people who were subjected to Unfair Search a symbolic compensation was awardedr. Because of the Unfair Search measure that was subjected to It is deemed to have been offset and eliminated.
• Compromise, give up the complaintIf the case is dismissed due to reasons such as general or special amnesty or if a decision is made that there is no need for prosecution, no compensation will be awarded for Unfair Search.

Interest and Starting Date in a Compensation Case Due to Unfair Search

Interest in a Compensation Suit Due to Unfair SearchLEGAL INTEREST' is applied as.

Interest Starting Date in a Compensation Suit Due to Unfair Search, Unfair The date the search began. Interest is accrued from the date the protective measure is first applied.

It is important to note that TO INTEREST in the petition for judgment INTEREST must be requested.

Since the Code of Civil Procedure (HMK) is applied in the Compensation Case Due to Unfair Search, Even if no interest is requested in the petition, interest can be requested with a petition for amendment to be submitted later.

According to the amendments made in the HMK in July 2020, the Court of Appeal and the Supreme Court of Appeal The case may be amended after the decision to overturn or abolish.

Attorney Fees in Compensation Case Due to Unfair Search

CMK art. 142/9: The proportional attorney fee calculated in accordance with the Minimum Fee Tariff for Attorneys shall be paid for compensation cases. However, the amount to be paid cannot be less than the fixed fee determined in the Tariff for cases followed up in the criminal courts of peace, and cannot be more than the fixed fee determined for cases followed up in the high criminal courts.

Can a Compensation Suit Be Filed for Unfair Search in Case of Postponement of Announcement of Verdict?

• In cases where a decision of HAGB (postponement of the announcement of the verdict) is made, if it is later understood that this decision was unjust; After the HAGB decision, the expected inspection period must be waited for and after the inspection period has passed, a lawsuit must be filed against the decision of dismissal to be given by the Court that gave this decision. (Notes: In practice, decisions on relegation are not made ex officio; they are made upon request at the end of the audit period.

Legal Basis for Compensation Claim Due to Unfair Search

(Criminal Procedure Code – CMK art. 141 – 144)

CHAPTER SEVEN
Compensation Due to Protection Measures
Claim for compensation
Article 141

(1) During criminal investigation or prosecution;
a) Those who are caught outside the conditions specified in the law, arrested or whose detention has been decided to continue,
b) Not brought before a judge within the legal detention period,

c) Request to benefit from legal rights without being reminded or reminded of their rights.
arrested before being fulfilled,
d) If, although arrested in accordance with the law, a person is not brought before the judicial authority within a reasonable time and a verdict is not given within this period,
e) Those who were caught or arrested in accordance with the law and for whom it was decided that there was no need for prosecution or that they were acquitted,
f) Those who have been convicted and whose time spent in custody and detention is longer than their sentence, or who are mandatorily sentenced to a fine because the penalty prescribed by law for the crime they committed is only a fine,
g) The reasons for their arrest or detention and the accusations against them are not explained to them in writing or, if this is not immediately possible, verbally,
h) Those whose capture or detention is not reported to their relatives,
i) The search warrant was executed in an excessive manner,
j) If the belongings or other assets were seized even though the conditions were not met, or if the necessary measures were not taken for their protection, or if the belongings or other assets were used for purposes other than intended or were not returned on time,
k) (Added: 11/4/2013-6459/17 art.) Persons who are not provided with the opportunity to apply against arrest or detention as provided in the Law may claim compensation for all kinds of material and moral damages from the State.

(2) The authorities that make the decisions specified in subparagraphs (e) and (f) of the first paragraph shall notify the person concerned of their right to compensation and this matter shall be included in the decision.
(3) (Added: 18/6/2014-6545/70 art.) Except for the cases stated in the first paragraph, criminal investigation
or during the prosecution, including personal fault, tort or other liability
Decisions made or actions taken by judges and public prosecutors, including
Compensation lawsuits can only be filed against the State.
(4) (Added: 18/6/2014-6545/70 art.) The State shall not be held responsible for the compensation it has paid.
Judges who abuse their duties by acting contrary to the requirements of the Republic
shall appeal to the prosecutors within one year.

Conditions for claiming compensation

Article 142

(1) A claim for compensation may be made within three months from the date of notification to the person concerned that the decision or judgment has become final, and in any case within one year from the date of finalization of the decision or judgment.
(2) The request shall be decided in the high criminal court where the injured person resides, or if the high criminal court of that place is related to the transaction in question and there is no other high criminal court in the same place, in the nearest high criminal court.
(3) The person requesting compensation must record his/her clear identity and address, the nature and quantity of the damage and the transaction in which he/she suffered damage, and attach the documents to his/her petition.
(4) If the information and documents in the petition are insufficient, the court shall notify the person concerned that the deficiency must be remedied within one month, otherwise the request will be rejected. The petition, whose deficiencies are not completed within the time limit, shall be rejected by the court, with the right to appeal.
(5) After examining the file, the court notifies the representative of the State Treasury in its own jurisdiction of a copy of the petition and the attached documents that it determines to be sufficient, and requests the person to submit his/her statements and objections, if any, in writing within fifteen days.
(6) The court is authorized to conduct any investigation it deems necessary or have one of its judges conduct such investigation in the evaluation of the claim and supporting documents and in determining the amount of compensation to be given in accordance with the general principles of compensation law.
(7) (Amended: 25/5/2005 - 5353/20 art.) The court shall give its decision in a hearing. If the person making the request and the Treasury representative fail to appear despite the notification of the explanatory summons, the decision may be given in their absence.
(8) The requesting public prosecutor or the Treasury representative may appeal against the decision; the review shall be carried out with priority and urgency.
(9) (Added: 15/8/2017-KHK-694/144 art.; Accepted as is: 1/2/2018-7078/139 art.)
Proportional fee calculated in accordance with the Minimum Fee Tariff for Attorneys due to compensation cases
attorney fees are paid. However, the amount to be paid is subject to follow-up in the criminal courts of peace in the Tariff.
Less than the fixed wage determined for the work done, cases followed in the high criminal courts
cannot exceed the fixed fee determined for the job.
(10) (Added: 15/8/2017-KHK-694/144 art.; Accepted as is: 1/2/2018-7078/139 art.)
Court decisions regarding compensation are not finalized and the administrative application process is completed.
cannot be subject to enforcement proceedings. The compensation awarded in the final court decision and the power of attorney
the fee to the bank account number that the plaintiff or his/her attorney will notify the defendant administration in writing,
Payment shall be made within thirty days from the date of this notification. Payment shall be made within this period.
If this is not done, the decision is enforced and executed within the framework of general provisions.

Recovery of compensation
Article 143

(1) The decision of not prosecuting was subsequently revoked,
those against whom public lawsuits were filed and convicted, and those whose trial was retried against them
compensation paid to those convicted after their acquittals were overturned, in relation to the period of their conviction
part, with the written request of the public prosecutor, with the decision to be taken from the same court,
The provisions of the legislation regarding the collection of receivables shall be applied and withdrawn. Objection to this decision
can be done.
(2) (Repealed: 18/6/2014 – 6545/103 art.)
(3) Being detained for the crime that constitutes the subject of slander or giving false testimony, and
In case of arrest, the State also has recourse against the person who slanders or gives false testimony.

Persons who cannot claim compensation
Article 144

(1) Persons who are lawfully arrested or detained are as follows:
The following cannot claim compensation:
a) (Repealed: 11/4/2013-6459/18 art.)
b) Favorable regulations that came into force later, even though he/she was not entitled to compensation.
Those whose situation has become suitable for claiming compensation in accordance with the law.
c) General or special amnesty, withdrawal of complaint, reconciliation etc.
it was decided that there was no need for prosecution or that the case was dropped or the public lawsuit was temporarily
Those whose public lawsuits have been suspended or postponed or dropped.
d) No penalty may be imposed on him due to lack of capacity to commit a crime.
those that were decided not to be.
e) Committing a crime or participating in a crime by making a false statement before the judicial authorities.
those who reported and caused their detention or arrest.