The Objectionable Rule
Article 13 of the Law No. 5353 of the Law No. 5271. as amended by Article 105. the phrase of the fourth sentence of the article “The decision on eviction made at the stage of prosecution” constitutes the rule subject to appeal.
Grounds for Appeal
In summary of the application decision; during the investigation stage, no way of appealing against the decision to release the suspect by the Public prosecutor is envisaged, the rule that keeps the way open for appeal in terms of release decisions issued by the court at the prosecution stage about the accused being tried as a prisoner causes inequality between the suspect and the accused, the absolute discretion of the court authorized to decipher the merits of the work at the prosecution stage is interfered with by the rule, it has been stated that this situation touches the essence of the right to freedom and security of the person and it has been suggested that the rule is contrary to the Constitution.
Evaluation of the Court
Article 13 of the Constitution. and 19. as a limitation on the right to request for release in accordance with its articles, it is mandatory to have a legal basis for a rule that allows you to appeal an eviction decision made at the stage of prosecution. In this context, it has been concluded that the rule is specific, achievable and predictable in nature, therefore the rule carries the requirement of legality, since the method to be followed for the appeal in the rule is clearly and clearly regulated in such a way that there is no room for any hesitation.
The purpose of the proceedings against the defendant duly fulfilled the judgment of the Criminal Procedure and material truth, uncovering the establishment of peace by ensuring legal and fair judgment is the realization of the rule of law. Protection measures aimed at achieving this goal are measures taken to prevent the suspect or accused from escaping in terms of a criminal act committed on them, to prevent the evidence that will illuminate the crime from being obscured, and to prevent pressure on the victim, witness or other persons of the crime.
An arrest is a protection measure that leads to the restriction of the freedoms of a suspect or defendant by a judge or court decision before sentencing, and it cannot be said that the rule that allows the Public prosecutor to appeal against evacuation decisions made at the prosecution stage to prevent the defendant from escaping, pressuring witnesses, or obscuring evidence during the prosecution stage does not have a legitimate purpose.
However, it is not enough that the limitation imposed in the context of this right meets the requirements of legality and legitimate purpose, but it must also be metered. Article 13 of the Constitution. the principle of proportionality, which is guaranteed in the article, consists of three sub-principles: convenience, necessity and proportionality.
In this context, the rule governing the possibility of appealing against eviction decisions made at the stage of prosecution, which is essentially a request for the continuation of detention, is intended to reveal the material truth and only in accordance with Article 100 of Law No. 5271. considering that there is a protection measure that can be applied if the conditions listed in the article are found, it cannot be said that the rule is not suitable and necessary to achieve the desired goal.
In addition, in the objections put forward against the eviction decisions made at the prosecution stage,;
a) The existence of a strong suspicion of a crime should be sought in decisions both on the request for arrest and on the refusal of the request for release, and in this regard, the existence of reasons for arrest and concrete evidence showing that the measure of arrest is metered should be clearly demonstrated by justification,
b) The authority that will examine the appeal against the eviction decision is also referred to in Article 268 of the Law. according to the article, it is again a judicial authority
c) If this objection is accepted, an arrest decision to be taken by the appeal authority will also be taken in accordance with Article 104 of the Law. and 108. in accordance with the articles, it has been concluded that the rule is proportionate when it is taken into account that it will not prevent the defendant from re-examining his detention or demanding the defendant’s release.
Article 10 of the Constitution. the article contains the principle of equality before the law, and the principle of equality before the law specified in the said article applies to those whose legal situations are the same. By this principle, legal equality is envisaged, not actionable. The purpose of the equality principle is to ensure that people in the same situation are subject to the same procedure in the face of the law, to prevent discrimination and privilege from being granted to people. According to this principle, violation of equality in the face of the law is prohibited by applying separate rules to some people and communities in the same situation. Equality before the law does not mean that everyone will be held to the same rules in all respects. The characteristics of their situation may require different rules and practices for some people or communities. If the same legal situations are the same, separate legal situations are adhered to different rules, the principle of equality provided for in the Constitution will not be violated.
In the constitutionality audit that will be conducted in terms of the equality principle related to the rule, first of all, the 10th Amendment of the Constitution. it should be determined whether different treatment is available to people who are in the same or similar situation within the framework of the article. In this context, it should be determined whether differences are observed between people in the same or similar situation. Deciphering differences between people in the same or similar situation should be determined. After that, it is necessary to examine whether the different treatment is based on an objective and reasonable basis, and ultimately, if it is based on an objective and reasonable basis, whether the different treatment is measured.
In this context, it cannot be said that a difference has been established between the suspect and the accused by comparing the decisiveness decisiveness given by the public prosecutor about the detained suspect and the decision of the court to release him. As a matter of fact, it is not possible to make an equality assessment by comparing the various powers granted to different judicial authorities.
In fact, the rule gives the Public prosecutor the opportunity to appeal against this decision for all detained defendants who have been granted an order to be released by the deciince during the prosecution phase, and does not make any distinction between defendants who are in the same position. In this respect, it is understood that there is no aspect of the rule contrary to the principle of equality.
The Constitutional Court decided on the grounds described that the rule was not contrary to the Constitution and rejected the appeal.
You can read our other articles and petition examples by clicking here