Koruma Tedbirleri Nedeniyle Tazminat

Abstract

Legal Devices that providing to reach a truth in criminal justice; on purpose to provide application the judgements that is rendered at the conclusion of the hearing, by a judge of criminal justice as a rule, where a non-delayable cases, temporary applied by a competent authorities; are required to interfere person?s fundamental rights and liberty yet before given verdict, are called protection measures. It is required that the protection measures shall be established by legal arrangement, in order to apply shall be a doubt in certain intensity, be restrained the fundamental rights and liberties before the verdict, be a device toward to provide certain purpose, has probability to endanger accomplishing the goal in case not applying it, has proportionality between the purpose and applied measure and shall be based on the decision of competent by law authority. Security measures have variety of differences according to purposes of it, persons of approaching, authorities competent to apply and values of approaching. Illegal act during applying the security measures has some consequences in terms of penal law, criminal procedure law and compensation law. A compensation based on security measures is specifical type compensation inside the penal law, has touch a public. As well as it touches a public, it is an establishment that has similar sides with tort and absolute liability and has regard to equality principle. Sources of a compensation due to security measures are articles 141, 142, 143 and 144th articles of Criminal Procedure Code together with 5/5th article of Europe Human Rights Convention. Hereunder ; Individuals; who were captured, imprisoned or were decided in favor of extension of the imprisonment by means other that those described in laws, who were not brought before the judge within time limits set by laws, who were imprisoned without his/her legal rights being read or his/her right to benefit from those rights were not fulfilled, who, although were imprisoned in accordance with the laws, were not brought before a jurisdiction authority within reasonable time and no decree was set in regard, who were deemed free of prosecution or innocent after they were captured or imprisoned in accordance with laws, who were prisoners and the time they spent in custody or under imprisonments is more than their sentence or who were sentenced to pay a fine as the penalty declared in laws for the crime they committed was only penalized so, who were not given the reasons regarding their capture or imprisonment by written notice or orally, when the former means is not available, whose relatives were not informed of their capture or imprisonment, whose search warrant was carried out carelessly, whose goods or other material assets were seized without necessary conditions fulfilled or precautions were not taken to protect those, or were used off purpose or were not returned on time, during the investigation and prosecution, can demand both material and moral compensation from the State are considered as reason of compensation. Where decree of non-prosecution or acquittance is rendered against individuals who have compensation right, it is required to remind that they have compensation right. Individuals can request every kind of material and moral damages of them; they suffered due to security measures, together with attorney fee and its interest. Suit for damages is settled in the high criminal court. In case the information and documents provided with the petition are deemed inadequate, the court announces to relevant bodies that the request will be denied unless they are completed in a month. A petition not completed before the deadline is rejected by the court. The court, if petition and documents are adequate, by one sample of them conveying to representative of the State Treasurer, requests declarations and objections in written form in fifteen day period. The court is authorized to carry out, or have one of its judges, any investigation it deems necessary for the assessment of the request and proof documents and for the determination of the compensation to be paid. The court reaches a verdict on trials. The individual making the request, the Republic Prosecutor or the representative of treasury may appeal against the verdict. Determination of the compensation and amount of it is carried out according to the general principles of compensation law. The compensation paid to those trailed by revoking decree of non-prosecution against them, were sentenced to imprisonment, paid to those who were imprisoned due to renewal of the trial in disfavor, can be revoked by the judicial ruling at the same court invoked by written notice from the Public Prosecutor. Procedures on collection of public receivables apply in revoking. This decision can be appealed against. The state, due to compensation paid, revokes public officials who were deemed to have committed an act of misconduct by violating requirements of his/her duty related to security measures. In case of probation or imprisonment due to the crime or false witnessing forming the false accusation; the State revokes individuals that have declared false accusations or were false witnesses. Individuals, those whose period of probation and imprisonment was reduced due to another conviction, those who were not granted compensation but became eligible due to laws that later came into effect and brought new arrangements in favor, those deemed inconvenient for prosecution due to reasons such as: general or private pardon, renouncement of complaint, reconciliation, or abatement or temporary halt of the public prosecution or public prosecution postponed or abatement, those decided to be inappropriate due to being illegible to commit misdemeanor, those who were probated or imprisoned due to factitious judicious declaration on committing or participating in crime may not request compensation. Two type of legislation ways are mentioned in the law. First one is objection that is legislation way against the decisions that were rendered at the conclusion of preliminary examination; second one is appeal legislation way against the decisions that were rendered at the conclusion of main hearing.