In the Code of Criminal Procedure; It has been stipulated that the release of the suspect or defendant may be requested at any stage of the investigation and prosecution phases. (CMK article 104/1) The judge or the court decides whether the suspect or the accused will continue to be detained or released. These decisions can be appealed.
The first degree trial phase has been completed and when the file comes to the Regional Court of Justice or the Supreme Court of Appeals, the decision on the request for release is made after the review of the file by the Regional Court of Justice or the relevant chamber of the Supreme Court of Appeals or the General Criminal Assembly of the Supreme Court of Appeals; This decision can also be made ex officio. (CMK article 104/3)
Criminal files that reach the Supreme Court stage first come to the Supreme Court of Appeals Chief Public Prosecutor’s Office. The file is registered at the Supreme Court of Appeals Chief Public Prosecutor’s Office and a notification number is given to the file. The file is tracked via this number. The file is then sent to the archive to await review. The next file is assigned to the public prosecutor. After the Chief Public Prosecutor of the Supreme Court of Appeals examines the file, the file is delivered to the relevant criminal chamber of the Supreme Court of Appeals together with its notification number. Since all these stages take a long time, this situation creates great suffering for the defendants who are unjustly detained.
While this is the case; In criminal case files that reach the Supreme Court stage, the issue of whether to wait for the file to be sent to the relevant chamber in order to request the release of the defendant is encountered.
In article 104/3 of the CMK; “When the file comes to the regional court of justice or the Supreme Court of Appeals, the decision on the request for release is made after the examination of the file by the regional court of justice or the relevant chamber of the Supreme Court of Appeals or the General Criminal Assembly of the Supreme Court of Appeals.” As can be understood from the wording of the article, the arrival of the file to the Supreme Court of Appeals (not to the relevant chamber) will be sufficient for the request for release, and it will not be necessary to wait for the file to arrive at the relevant chamber. There is no indication that the file should arrive at the relevant chamber, it only states that the decision on the release request should be made after the review of the file by the relevant chamber. Again, in the same article, it is stated that the request for release should be decided by examining the file (i.e., as the file comes from the first instance court), with the expression “…it is given after the examination of the file.”
As a result, we believe that in criminal case files that have reached the Supreme Court stage, a request for the release of the defendant can be made, even if the file is waiting at the Supreme Court of Appeals Chief Public Prosecutor’s Office stage before it is sent to the relevant office.
T.R. COURT OF COURT 1. CRIMINAL SECTION E. 2005/3139, K. 2006/79, T. 1.5.2006
SUMMARY: Article 104/3 of the CMK regarding the requests for release made to the Supreme Court. In accordance with the article, the decision must be made by examining the file.
CASE: Convicted Ş. With the petition dated 25.04.2006 sent by U., the file was examined in accordance with the new Turkish Penal Code and a request for release was made.
In the reasoned response letter of the Chief Public Prosecutor’s Office of the Supreme Court of Appeals, whose opinion was asked in accordance with Articles 104 and 105 of the CMK, regarding the request for release in the precedent file numbered 2005/506, dated 10.06.2005, dated 13.06.2005 and numbered 2004/236797-1, as a result, the CMK.’s opinion regarding the requests for release made to the Supreme Court. 104/3. It has been observed that no opinion was given on the subject, as the decision must be made by examining the file in accordance with the article, Article 105 of the same law concerns the first instance courts but does not include the review of the Supreme Court of Appeals, and the Chief Public Prosecutor’s Office of the Supreme Court of Appeals is not given the duty to express an opinion about the request.
In accordance with this opinion of the Chief Public Prosecutor’s Office of the Supreme Court of Appeals, the file, which was not due for appeal review, was examined limited to the request for release:
RESULT: It was unanimously decided on 01.05.2006 to REJECT the request for release based on the amount of penalty imposed on the defendant and the time spent in detention.