Compensation Lawsuit Due to Protective Measures

Protective Measures: What Do They Mean?

Protective measures, as regulated in the Turkish Criminal Procedure Law No. 5271, include detention, arrest, seizure, and imprisonment. If it is proven that these protective measures were unjustly imposed, the person involved acquires the right to claim compensation against the treasury. This compensation claim is also regulated within the scope of the Criminal Procedure Law No. 5271.

Who Can File a Compensation Lawsuit Due to Protective Measures

Individuals whose rights have been unjustly infringed upon by the application of protective measures during the investigation and prosecution stages of criminal proceedings can file this lawsuit. The legal provisions regarding who can file such lawsuits can be explained as follows.

During a criminal investigation or prosecution, individuals who have experienced the following can claim material and moral damages from the state:

Those arrested, detained, or decided to continue detention outside the conditions specified in the laws.
Those not brought before a judge within the legal detention period.
Those arrested without being reminded of their legal rights or without their requests to benefit from these rights being fulfilled.
Even if lawfully arrested, those not brought before a judicial authority within a reasonable time and no verdict is given within that period.
Those against whom a decision of non-prosecution or acquittal is made after being lawfully arrested or detained.
Convicted individuals whose time spent in detention and imprisonment exceeds the term of their sentence, or those who are compulsorily punished with a fine only because the penalty prescribed by law for the crime committed is exclusively a fine.
Those not informed in writing or verbally about the reasons for their arrest or the accusations against them, especially when written communication is not immediately possible.
Those whose arrest or detention is not notified to their relatives.
Those subjected to an excessively executed search warrant.
Those whose personal belongings or other property values are seized without the required conditions being met, or not taken necessary measures for their protection, or used for purposes other than intended, or not returned in a timely manner.
Those not provided with the opportunity to avail themselves of the remedies against arrest or detention as prescribed by law.

When filing this type of lawsuit, it is crucial to identify under which specific provision the case is being opened. This is because, for some provisions, it is necessary for the final outcome of the case to prove the person's innocence, i.e., a decision of non-prosecution or acquittal. However, for others, simply demonstrating that a right was not granted is sufficient to establish victimization. In practice, the most frequently encountered types of compensation are those mentioned in the above paragraphs e, i, and j. These clauses pertain to unjust search, seizure, detention, and arrest.

It's important to clarify which specific article the lawsuit is being filed under, as the requirements for proving victimization can vary significantly depending on the provision invoked. Some require a clear demonstration of innocence as the outcome of the legal process, while others merely require showing that a right was denied, leading to the aggrieved party's suffering.

Timing of Filing the Lawsuit

For the initiation of this lawsuit, it is necessary for all procedures, decisions, and judgments in the case file to be finalized. This means that the decision is deemed final once any pending appeals are resolved. After this point, one can file a compensation lawsuit. The law sets the timeframe as follows: a claim for compensation must be made within three months from when the individual is notified of the finalization of the decision or judgment, and in any case, within one year following the date the decision or judgment becomes final.

The crucial period for filing this lawsuit is within three months following the notification of the case's finalization to the individual. The one-year period mentioned in the law is intended for those who miss the three-month window due to extraordinary circumstances. Practically, even though decisions might be communicated to the person, there often isn't a notification about the finalization or the definitive nature of the decision. Thus, generally, a one-year period is considered applicable. This one-year term acts as a statute of limitations, and lawsuits filed after this period are usually dismissed. Therefore, consulting a lawyer promptly is vital to prevent the loss of rights.

Competent Judicial Authority for the Lawsuit (Subject Matter Jurisdiction and Venue)

The claim should be adjudicated at the heavy penal court where the aggrieved party resides, which has the subject matter jurisdiction. If the heavy penal court in that location is related to the action subject to compensation, and if there is no other heavy penal court available there, then the lawsuit should be brought to the heavy penal court in the nearest venue. Although this lawsuit is regulated in the Code of Criminal Procedure (CMK), it is, by nature, a compensation lawsuit and is subject to procedural rules. Various important aspects, like the commencement date for interest and the issues to be investigated, may differ. Therefore, having a lawyer well-versed in the subject matter of your case is best for protecting your rights.

Circumstances Under Which the State Can Reclaim Compensation

According to Article 143 of the relevant law, the state has specific conditions under which it can reclaim compensation that has been previously paid out.

Revocation Following Non-Prosecution Decision: If the public prosecutor's decision of no ground for prosecution is subsequently lifted and an official claim filed against the individual results in a conviction, the state can reclaim the compensation. This applies also to cases where a previous acquittal judgment is revoked through a trial revision in disfavor of the accused, leading to a conviction in the subsequent trial.
Procedure for Reclaiming Compensation: In these instances, the public prosecutor must issue a written motion to the same court that initially awarded the compensation. The compensation already paid shall then be reclaimed according to the rulings and under the provisions of statutes on collecting public debts.
Right to Contest: The decision to reclaim compensation can be subject to a motion of opposition, allowing the convicted individual a chance to legally challenge the state's claim.
Recovery from Faulty Public Servants: In situations where the state had to pay compensation due to the misuse of duties by public servants, especially related to protection measures, the state shall request the compensation sum from these at-fault public servants.
Cases Involving False Accusations or Testimonies: If police detention or arrest with a warrant occurred due to a false accusation or testimony, the state shall also seek to recover the compensation from the individual who made the false accusation or gave the false testimony.

These provisions ensure that compensation awarded by the state is subject to revision and recovery, particularly in cases where subsequent legal developments alter the initial basis for awarding such compensation. This legislative framework provides a mechanism for adjusting compensation in response to new judicial decisions and for holding accountable those whose actions led to wrongful application of protective measures.

Individuals Not Entitled to Ask for Compensation

Under the law, individuals who were lawfully detained or arrested cannot claim compensation in the following scenarios:

Individuals Benefiting from Subsequent Favorable Legislation: Those who were not entitled to compensation but later became eligible due to new laws enacted that bring favorable changes.
Dismissals Due to Various Legal Reasons: Individuals for whom the prosecution was not pursued, or the case was dismissed due to general or special amnesty, withdrawal of the complaint, reconciliation, temporary suspension of public prosecution, or deferment or dismissal of public prosecution.
Lack of Criminal Responsibility: Those who were decided not to be criminally charged due to a lack of culpability.
Self-Incriminating False Statements: Individuals who caused their own detention or arrest by making false statements about committing or being involved in a crime in front of judicial authorities.

These provisions define specific circumstances where individuals, despite being lawfully detained or arrested, are not entitled to claim compensation. This includes scenarios where legal developments post-arrest change the eligibility for compensation, cases resolved through special legal processes, situations involving lack of criminal responsibility, and instances of self-incrimination through false statements.

Conditions for Determining Material Compensation

When this lawsuit commences, the court requests the nearest law enforcement agency to conduct an investigation by writing an inquiry regarding the individual's social situation. Additionally, while determining the amount of material compensation, the person's occupation and profession are crucial factors. The individual must present documents related to their employment and financial losses when applying to the court. These documents are examined along with the findings of the investigation. If no documents are presented or if the individual was unemployed during the period they suffered rights violations, the compensation amount is calculated based on the minimum wage applicable during that period. This amount varies depending on the specifics of the case. Factors such as the duration of imprisonment or the period during which a seized truck could not be used, will influence the compensation amount.

Conditions for Determining Moral Compensation

The conditions for calculating moral compensation vary depending on the concrete circumstances of the case. Factors like the individual's social and legal status, the extent of the suffering endured, loss of reputation, the nature of the crime alleged against them, and the circumstances surrounding their arrest are all significant. The amounts awarded as moral compensation can vary widely. For instance, a high-ranking officer involved in the Ergenekon case might receive 500,000 Turkish Lira, while a minimum-wage worker might receive 30,000 Turkish Lira. All types of moral anguish can be claimed in these cases.

In this type of lawsuit, which has been reflected in the European Court of Human Rights (ECHR) rulings, the court has established a certain consistency by awarding 1,000 Euros in moral compensation for each month of wrongful imprisonment.

Frequently Asked Questions

Is this a case subject to court fees? Are there any fees to be paid when filing the lawsuit?

A compensation lawsuit due to unjust protective measures is not subject to court fees. Simply submitting a petition is sufficient, and no additional expense items are required to be paid.

A decision of Deferred Prosecution (HAGB) was made in my case. Can I file for compensation?

After a decision of Deferred Prosecution (HAGB) is made, if the person does not commit an intentional crime for 5 years (3 years for children), the file on which HAGB was given is dropped. Once the file is dropped, one can claim compensation for the loss of rights suffered. In practice, files often do not drop automatically but rather upon request. This is an important point to consider.

I was detained longer than the prison sentence I received. Can I file for compensation?

If an individual receives a 6-month prison sentence but is detained for 9 months, they can file a lawsuit based on the execution calculation. The actual time to serve for a 6-month prison sentence is 4 months. If the individual was detained for 9 months, they can claim compensation for the excess time of 5 months.