Forced Retrieval
It refers to forcibly bringing the suspect or defendant, for whom there are sufficient reasons to issue an arrest warrant or arrest warrant, or who has been summoned for statement or interrogation but does not comply, before the authority that issued the summons in order to make him/her present for the said procedure(s). (Article 146/1 of the Code of Criminal Procedure) On the other hand, it is also possible to forcibly bring witnesses, experts, victims and complainants who do not appear despite the summons. (Article 146/7) Forcible bringing is mostly intended to ensure that a criminal procedure is carried out.
Forcible bringing does not necessarily require the use of force. It is the existence of potential coercion that gives this term its meaning.
As a rule, the issuance of a summons requires the suspect or accused to have been summoned beforehand. As a matter of fact, according to Article 145, the person whose statement or interrogation is to be taken or interrogated shall be summoned by invitation; the reason for the summons shall be clearly stated; and it shall be written that if he does not appear, he shall be brought by force. However, a suspect or accused person for whom there are sufficient reasons to issue an arrest warrant or arrest warrant may be ordered to be brought by force without a prior summons. (Article 146/1 of the Criminal Procedure Code)
Again, in order for a compulsory appearance order to be issued for witnesses, experts, victims and complainants, it is necessary to have failed to appear despite the summons (Article 146/7 of the Code of Criminal Procedure).
Although it is not listed among the protection measures in the Criminal Procedure Code, compulsion is also a type of protection measure. This is because it interferes with fundamental rights and freedoms before a judicial decision.
TYPES
There are two forms of compulsory bringing:
1- Forcible bringing of the suspect or accused (Art. 146/1)
2- Forcible bringing of persons other than the suspect and the accused (witnesses, experts, victims and complainants) (Art. 146/7)
On the other hand, the Criminal Procedure Code recognizes the application of the provisions on unjustified withdrawal of testimony (Art. 60) for experts who fail to appear despite the summons (Art. 71 of the Criminal Procedure Code).
As a result, it is possible to bring the suspect, defendant, witness, expert, victim and complainant by force.
CONDITIONS
Person Subject to the Measure
It is possible to classify these people in 3 groups;
1-Suspect or defendant who fails to appear despite being summoned by invitation to be interrogated or interrogated (Article 146/1 of the Code of Criminal Procedure)
2-Suspect or accused against whom there are sufficient grounds for issuing an arrest warrant or arrest warrant (Article 146/1, 145 of the Code of Criminal Procedure)
3- Witnesses, experts, victims and complainants who fail to appear despite the call (Article 146/7 of the Code of Criminal Procedure)
AUTHORITY TO DECIDE
The authority that will issue the order of compulsion is the judge, court or C. Prosecutor (Article 146/4 of the Code of Criminal Procedure).
Forcible return is a measure limiting freedom. Therefore, such a decision should actually be made by the judge. However, it is an obligation to allow the prosecutor to make such a decision. The prosecutor’s office uses this authority in cases where it is inconvenient to delay.
DURATION
The compulsory summons shall commence at a time deemed justified for this purpose and shall continue until the end of the interrogation or deposition by the judge, court or the summoning Public Prosecutor (Article 146/5 of the Code of Criminal Procedure). Therefore, as soon as the interrogation or interrogation ends, the measure of compulsory appearance ends automatically.
The suspect or defendant summoned by a summons shall be taken immediately, or if this is not possible, within twenty-four hours at the latest, excluding travel time, to the judge, court or public prosecutor who summoned him/her, and shall be interrogated or his/her statement taken (Article 146/4 of the Criminal Procedure Code).
WHAT SHOULD BE INCLUDED IN THE DECISION
The warrant of compulsion clearly identifies the suspect or accused, the offense related to him/her, his/her description, if necessary, and the reasons for his/her compulsion (Article 146/2 of the Code of Criminal Procedure).
EXECUTION
A copy of the forcible removal order shall be given to the suspect or defendant (Article 146/3 of the Code of Criminal Procedure).
The suspect or defendant summoned by a summons shall be taken immediately, or if this is not possible, within twenty-four hours at the latest, excluding travel time, to the judge, court or public prosecutor who summoned him/her and shall be interrogated or his/her statement taken. (Article 146/4 of the Code of Criminal Procedure)
NON-FULFILLMENT OF OBLIGATIONS
The reasons for the failure to fulfill the order of compulsion shall be determined in a report to be signed jointly by the headman of the village or neighborhood and the law enforcement officer. (Article 146/6 of the Criminal Procedure Code)
LAW PATH
The law does not provide for any remedy in this regard. Therefore, the matter should be considered within the framework of general remedies.
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