REPUBLIC OF TÜRKİYE COURT OF CASSATION 12th Penal Chamber
Basis No: 2015/4058
Decision No: 2015/10871
SUMMARY: In the petition dated 31.10.2011, the plaintiff’s counsel claimed that although the plaintiff should have been released on conditional release (şartla tahliye) on 17.07.2011 during the execution of the finalized prison sentence rendered by the … Assize Court (dated 21.03.2007, Basis 2007/36, Decision 2007/72), he was released only on 04.10.2011 due to a calculation error. Alleging that the plaintiff was unlawfully detained in prison for 80 days, the counsel requested 15,000 TL in pecuniary and 15,000 TL in non-pecuniary damages.
COURT: Assize Court
JUDGMENT: Dismissal of the Case
DECISION: Upon the appeal by the plaintiff’s counsel against the judgment regarding the dismissal of the compensation request, the file was examined and the requirements were considered:
Pursuant to the established precedents of our Chamber; it was previously accepted that compensation could be requested under Article 141 of the Criminal Procedure Code (CPC) No. 5271 only for unlawful acts concerning protection measures occurring “during the investigation and prosecution of a crime,” and that these acts were listed exhaustively in the text of the article. It was held that unlawful acts occurring during the execution stage (infaz aşaması) did not fall within the scope of said article, and such claims remained within the jurisdiction of the administrative judiciary.
However, in the judgment of the [Constitutional/Umpire] Court dated 26.01.2015 (Basis 2015/9, Decision 2015/17), it was stated that the period of detention document (müddetname) prepared by the Public Prosecutor contains information regarding the execution of a finalized conviction decree rendered by the judicial court and is part of a series of proceedings executed by the judicial authority. It was emphasized that the issuance of the müddetname and the conditional release decision rendered by the courts cannot be considered administrative acts, but are judicial acts.
In light of this, it is a mandatory requirement to obtain the criminal case file and the execution file, determine the date of the crime leading to the conviction and the correct date for conditional release, and render a decision regarding the pecuniary and non-pecuniary damages concerning the loss suffered due to the incorrect issuance of the müddetname or incorrect calculation of the execution period.
CONCLUSION: Since the appeal objections of the plaintiff’s counsel were found justified, it was UNANIMOUSLY DECIDED on 16.06.2015 to REVERSE (BOZULMASINA) the judgment pursuant to Article 321 of the CMUK No. 1412.