Constitutional Court Finds Personal Liberty Violation in an Application Followed by Our Firm

The application our firm followed and the subject of the case

The individual application in the Güneş & Güneş Law Firm’s earlier news archive concerns the adequacy of compensation for protective measures, which the Constitutional Court (AYM) examined in its decision of 8 February 2024 in Abdulkerim Kaya and Others. The application followed by our firm was assessed among the joined applications. The original publication address and archive history are preserved.

Scope of the joined applications

File no. 2021/6844 is a decision in which several individual applications were examined together because of their legal connection in subject matter. The applicants argued that the non-pecuniary compensation awarded in the damages actions they brought after protective measures such as apprehension, police custody or pre-trial detention was inadequate (archive text, §§ 1-5).

The AYM’s review: adequacy of compensation

The compensation route under Article 141 of the Criminal Procedure Code

Within the framework of its case law, the AYM considered the filing of a compensation action under Article 141/1(e) of the Criminal Procedure Code (CMK) in criminal proceedings that end in acquittal or a decision of non-prosecution. In the concrete applications, the review was confined to whether the amounts awarded by the lower courts were adequate (archive text, §§ 6-8).

Limits of the lower courts’ discretion

In setting the amount of non-pecuniary compensation, factors such as the person’s social and economic situation, the type and duration of the measure, its effects, the nature of the charge and the gravity of the violation matter. Taking the characteristics of the individual files into account, the AYM concluded that the amounts awarded were so low as to weaken the very essence of the right to compensation (archive text, §§ 9-12).

No single compensation amount was set for every file

The decision does not fix one compensation amount to be applied to all protective measures. The assessment is made in light of the date of the relevant lower-court decision and the particular circumstances of each case.

Outcome of the decision: violation of personal liberty and retrial

The Constitutional Court held that the right to personal liberty and security was violated under the ninth paragraph of Article 19 of the Constitution, read together with its third paragraph. To redress the consequences of the violation, it ordered that a copy of the decision be sent to the courts listed in the attached list for a retrial (archive text, operative parts D-E).

Outcome of the separate compensation claim before the AYM

The AYM rejected the compensation claims made at the individual application stage on the ground that a retrial was sufficient to redress the consequences of the violation. The decision should therefore not be presented as the AYM itself awarding a new amount of non-pecuniary compensation to each applicant (archive text, §§ 14-16, operative part F).

Legal significance and the process our firm has conducted

The decision shows that the right to compensation for unjustly applied protective measures in criminal proceedings must be operated not merely formally but so as to provide effective and adequate redress. The link with the individual application followed by the firm and the AYM’s finding of a violation are conveyed to the public within the concrete legal framework of the decision.

Decision text and scope of the references

The text of the decision is available on the 2021/6844 decision page of our AYM Individual Application Decisions Archive (in Turkish). The paragraph references in this article follow the four-page extract of the reasoning and operative part published on our earlier website; the attached list referred to in the AYM decision is not included in that copy. Personal information redacted in the archive has not been revealed, and verification codes and QR fields have not been republished.