Events
The applicant, who was detained on 1 November 2016 and released on 3 November 2016 as part of an investigation, was tried for membership of an armed terrorist organisation and for establishing or managing an armed terrorist organisation; he was acquitted at the end of the trial. The acquittal decision did not award legal fees in favour of the applicant, who appealed against this decision. The regional court of appeal amended the operative part of the decision by adding a clause regarding the award of legal fees to the defendant and dismissed the appeal on its merits.
Following the finalisation of the acquittal decision, the applicant filed a compensation claim, alleging that he had been unlawfully detained; the High Criminal Court ruled that the applicant should be paid 500 TL in non-pecuniary damages. The applicant appealed, stating that the difficult process he had undergone during the trial had not been taken into account, that the amount awarded was very small compared to the compensation he had sought, and that the failure to include the attorney’s fees he had paid in the trial in the material compensation was contrary to law. The Regional Court of Appeal definitively dismissed the appeal on its merits.
Allegations
The applicant claimed that his right to liberty and security of person had been violated due to the inadequacy of the compensation paid for the detention measure.
The Court’s Assessment
The Constitutional Court’s existing case law has focused on whether the essence of the unlawfulness has been raised in the petition for compensation. Pursuant to the provision in Article 141(1)(e) of Law No. 5271, it is sufficient for a decision not to prosecute or for an acquittal to be issued in order for compensation to be awarded. In other words, it is not necessary for the relevant court to examine the legality of the arrest or detention of the individuals. In this context, it has been observed that there are some uncertainties in the decisions requiring the essence of the unlawfulness to be raised at all stages. These uncertainties, which have led to differences in case law, have resulted in outcomes that are unfair to applicants in terms of exhausting all avenues of appeal. Given the uncertainties regarding the rules under which compensation claims should be assessed according to current case law, there is a need to establish consistent case law on the matter and clarify all aspects of this case law. In light of these assessments, the Constitutional Court ruled that “in order for the legal remedies to be exhausted in individual applications made by persons who have been acquitted or against whom no prosecution has been brought, claiming that the arrest, detention or arrest, and that the compensation paid is insufficient, it has concluded that it is sufficient for them to file a compensation claim under paragraph (e) of subparagraph (1) of Article 141 of Law No. 5271 in order for their individual applications to be considered as having exhausted all available remedies. In this case, the court accepted a precedent based on the assessment that ‘it is not necessary for the applicants to also file a compensation lawsuit under subparagraph (a).’ It examined the specific case of the alleged violation of the right to liberty and security of the person in the context of this new precedent.
The applicant, who filed a compensation claim on the grounds that he was unlawfully detained because he was acquitted in the trial, was deemed to have exhausted the available remedies regarding the unlawfulness of the detention – in the context of the new precedent – and the application was examined on its merits. In the specific case, it was decided that the applicant should be paid 500 TL in non-pecuniary damages for three days of detention. Although the non-pecuniary damages awarded did not have to be the same as the amount awarded by the Constitutional Court in similar cases, it was concluded that the damages were too low in the circumstances of the specific case and undermined the essence of the right to compensation.
The applicant also argued that the legal fees paid to his lawyer in the case in which he was acquitted should be covered as part of the material damages. The court rejected the claim for material compensation for the attorney’s fees on the grounds that a fixed attorney’s fee had been awarded to the applicant in the acquittal decision. Article 164 of the Attorney’s Act No. 1136 states that the attorney’s fees to be charged to the opposing party based on the tariff at the end of the case belong to the attorney. Therefore, the award of a fixed attorney’s fee in favour of the applicant in the case in which he was acquitted may not mean that the applicant’s material damage has been compensated. At this point, the court of first instance must investigate whether the parties included the fixed attorney’s fee in the attorney’s fee when agreeing on the fee in the attorney-client agreement between the applicant and his attorney. Although Article 142(6) of Law No. 5271 states that, in assessing the claim for compensation and the evidence, the court is authorised to conduct any investigation it deems necessary or to have one of its judges conduct such an investigation in order to determine the amount of compensation to be awarded in accordance with the general principles of compensation law, the court of first instance did not conduct any investigation in this regard. On the other hand, even if it is accepted that this fixed attorney’s fee was paid to the applicant, the decision does not explain why the amount exceeding this sum should not be considered as material damage, whether there is a causal link between it and the unlawful detention measure, and if there is a causal link, whether the fee claimed is necessary and reasonable.
The Constitutional Court ruled that the right to liberty and security of the person had been violated based on the reasons stated.