1- The name, purpose and scope of Law No. 6384 are amended and new duties are assigned to the Commission established pursuant to this Law.
In the pilot decision of the Constitutional Court dated 5/7/2022 and numbered 2021/58970; it was emphasised that there is a structural problem regarding the right to trial within a reasonable time despite the regulation made and stated that in order to eliminate this structural problem, an effective remedy should be established before the individual application in accordance with Article 40 of the Constitution in order to compensate the damages arising from the violation of the right to trial within a reasonable time.
Then, in its decision dated 25/7/2023 and numbered 2023/18536, the Constitutional Court, stating that no administrative or judicial mechanism was established by Law No. 7445 for the claims of violation of the right to trial within a reasonable time, and that the applications within this scope continued to be made directly to the Constitutional Court, therefore, the requirements of its decision numbered 2021/58970, which was issued as a pilot decision, were not fully fulfilled, and that there was no reason justifying the continuation of the examination of the application alleging violation of the right to trial within a reasonable time. The Constitutional Court continued to issue dismissal decisions in respect of individual applications made on the same subject after 9/3/2023.
Provisional Article 2 of the Law No. 6384 was amended by the Law No. 7445 dated 28/3/2023 and as of 9/3/2023, individual applications regarding the violation of the right to trial within a reasonable time and the late or incomplete execution or non
execution of court decisions have been allowed to be concluded by the Commission upon the application to be made after the inadmissibility decision.
The regulation establishes a more accessible, fast acting and primary remedy for the violation claims arising from long trials and provides the relevant person with the opportunity to apply to the Commission.
In addition, it is also possible to apply to the Commission for material and moral compensation claims arising from the protection measures in subparagraphs (e) and (f) of the first paragraph of Article 141 of the Code of Criminal Procedure No. 5271, which are currently within the jurisdiction of the high criminal courts, and the protection measures in subparagraph (l) included in the same scope. Thus, some compensation claims, the determination of which does not require any judicial proceedings, will be finalised quickly.
2- In this context, firstly, the scope and purpose of the Law are amended with the following articles.
The former name of “Law on the Settlement of Certain Applications to the European Court of Human Rights through the Payment of Compensation” has been amended as the “Law on the Duties and Working Procedures and Principles of the Compensation Commission” and the purpose of the Law is defined as follows;
ARTICLE 1 – (1) The purpose of this Law is to determine the duties and working procedures and principles of the Compensation Commission.
The following additions have been made to the scope of the article:
Scope
ARTICLE 2 –
(2) The provisions of this Law may also be applied by a Presidential Decree in other areas of violation in respect of the applications made to the European Court of Human Rights, taking into account the intensity of the violation judgements rendered against Turkey in line with the established case law of the European Court of Human Rights regarding the rights protected under the European Convention on Human Rights and the additional protocols to which Turkey is a party.
(3) This Law, comprises applications made to the Commission with a request of
a) Non-pecuniary damages for alleged failure to conclude investigations and prosecutions under criminal law and proceedings under private law and administrative law within a reasonable time,
b) Compensation for all kinds of pecuniary and non-pecuniary damages arising from protection measures pursuant to the second paragraph of Article 142 of the Code of Criminal Procedure dated 4/12/2004 and numbered 5271,
3- The Commission is authorised to conduct the research it deems necessary, including expert examination, or to have one of its members conduct such research.
The Commission and its working principles
ARTICLE 4
(6) In the evaluation of the application and proof documents and in determining the amount of compensation to be awarded, the Commission is authorised to carry out the investigations it deems necessary or to have one of its members carry out such investigations or to request an expert examination from the public prosecutor’s offices.
(7) The expenses of the Commission shall be met from the budget of the Ministry.
4- It is stipulated that the Commission may also be applied electronically and the procedures and principles regarding the electronic submission of applications shall be determined by the Ministry.
The form and term of the application to be made to the Commission by those who have applied to the European Court of Human Rights
ARTICLE 5 –
(5) The application may also be made electronically. The procedures and principles regarding the electronic submission of applications shall be determined by the Ministry.
5- Depending on the expansion of the scope of the Law, a regulation is made regarding the form and term of the applications to be made to the Commission with the claim that the proceedings have not been concluded within a reasonable time.
ARTICLE 5/A – (1) The application to the Commission pursuant to subparagraph (a) of the third paragraph of Article 2 shall be made within one month during the investigation, prosecution or judgement process or at the latest within one month from the date of learning that these have been concluded with a final decision. Those who are unable to apply within the time limit due to a justified excuse may apply within fifteen days from the date the excuse is lifted and together with the evidence documenting their excuse.
(2) In his/her petition, the applicant is required to specify his/her clear identity and address, the transaction in which he/she has suffered damage, the nature and quantity of the damage and to attach the documents thereof to his/her petition.
(3) In case the information and documents in the petition are insufficient, the Commission notifies the relevant person that the deficiency must be corrected within one month, otherwise the request will be rejected. In case the deficiency in the petition is not completed in due time, the application shall be rejected by the Commission.
(4) The fourth, fifth and sixth paragraphs of Article 5 shall apply to the applications to be made pursuant to this Article.
6- The decisions given by the Commission on compensation claims can be appealed to the Ankara Regional Administrative Court, and if the court accepts the appeal, it will make a final decision on the merits of the matter.
ARTICLE 5/B – (1) The application to the Commission pursuant to subparagraph (b) of the third paragraph of Article 2 shall be made within three months following the notification of the finalisation of the decision or judgement to the relevant person and in any case within one year following the date of finalisation of the decision or judgement.
(2) Pursuant to the second paragraph of Article 142 of the Code of Criminal Procedure, the requests made to the Commission, despite they are within the jurisdiction of the high criminal court, shall be sent to the high criminal court. If the requests that fall within the scope of the Commission’s jurisdiction and those that do not fall within the scope of the Commission’s jurisdiction are made together, the Commission shall separate the requests that do not fall within the scope of its jurisdiction and send them to the high criminal court. In these cases, the date of the request made to the Commission shall be taken as the basis. In the event of a dispute between the Commission and the high criminal court, the high criminal court or the Commission shall apply to the Ankara Regional Court of Justice for a final decision in order to determine the matters falling within the jurisdiction of the Commission.
(3) The Commission shall apply Articles 141, 143 and 144 of the Code of Criminal Procedure in its assessment of compensation claims and the withdrawal of compensation. Pursuant to Article 143 of the Code of Criminal Procedure in relation to the compensation awarded by the Commission, the public prosecutor’s written request for the withdrawal of the compensation shall be submitted to the Commission.
(4) The fourth, fifth and sixth paragraphs of Article 5 and the second and third paragraphs
of Article 5/A shall apply to the applications to be made pursuant to this Article.
Decision on the application and appeal against the decision
ARTICLE 7- (1) The Commission is obliged to decide within nine months on the applications made under the first and second paragraphs of Article 2.
(2) The Commission shall give a reasoned decision on the application by taking into consideration the precedent decisions of the Constitutional Court and the European Court of Human Rights.
(3) The Commission may decide by combining applications of similar nature by considering procedural economy.
7- The transitional provision introduces the possibility to apply to the Commission in respect of individual applications filed with the allegation of violation of the right to trial within a reasonable time and pending before the Constitutional Court as of the date of entry into force of the Law, as well as individual applications that the Constitutional Court has decided to dismiss on the grounds that there is no reason justifying the continuation of the examination.
PROVISIONAL ARTICLE 3- (1) The Commission shall examine the applications within the scope of subparagraph (a) of the third paragraph of Article 2 within three months for;
a) The individual applications pending before the Constitutional Court as of the date of entry into force of this article, as of the notification of the inadmissibility decision given due to non exhaustion of remedies,
b) Individual applications which the Constitutional Court has decided to dismiss on the grounds that there is no reason justifying the continuation of the examination, from the date of entry into force of this Article or from the notification of the dismissal decision,
c) the applications filed directly to the European Court of Human Rights upon the Constitutional Court’s decision of dismissal on the grounds that there is no reason justifying the continuation of the examination or as of 10/10/2023, as of the notification of the inadmissibility decision of this Court based exclusively on the grounds of non-exhaustion of domestic remedies,
2) The application to the Commission within the scope of subparagraphs (a) and (b) of the first paragraph shall be made with a signed petition containing the identity information and address of the applicant and the date and number of the application to the Constitutional Court. The form regarding the individual application to the Constitutional Court, the inadmissibility or dismissal decision and the document on the notification of this decision and other information and documents regarding the alleged violation shall be attached to the petition. The application to the Commission within the scope of subparagraph (c) of the first paragraph shall be made according to the procedure specified in Article 5.
(3) In case the information and documents in the petition are insufficient, the Commission notifies the relevant person that the deficiency must be corrected within one month, otherwise the request will be rejected. If the deficiency in the petition is not completed in due time, the application shall be rejected by the Commission.
(4) An application may be made to the Commission after 1/6/2024 for the requests within the scope of the second paragraph of Article 142 of the Code of Criminal Procedure.
(5) Taking into account the workload of the Commission, the Minister of Justice may appoint members to form additional committees within the Commission. These members shall not be included in the total number of Commission members. The provision of this paragraph shall apply for three years from the date of entry into force of this Article. The Minister of Justice may extend this period for two more years.
8- By amending Article 141 of the Criminal Procedure Law No. 5271, the scope of compensation claims due to protection measures is expanded.
With the amendment made in the first paragraph of the Article, it is accepted that persons who are not benefited from the application opportunities stipulated in the law against “judicial review” procedures as well as arrest and detention procedures may claim compensation. Thus, it is envisaged that judicial review procedures will be provided with the same guarantee as arrest and detention procedures in terms of benefiting from the application opportunities.
It is stipulated that the periods spent under the judicial review obligation of “being subject to and accepting treatment or examination measures, including hospitalisation, especially in order to be free from drug, stimulant or volatile substances and alcohol addiction” specified in subparagraph (e) of the third paragraph of Article 109 of the Code of Criminal Procedure and the judicial review obligation of “not leaving his/her residence” specified in subparagraph (j) shall be considered as a reason for limitation of personal freedom and deducted from the sentence.
With the subparagraph (l) added to the first paragraph of the Article, it is made possible for persons who are decided not to be prosecuted or acquitted after judicial review obligations such as not leaving their residence or being subject to and accepting treatment or examination measures, including hospitalisation, in order to be free from drug, stimulant or volatile substances and alcohol addiction, to request compensation.
On the other hand, with the regulation made in the second paragraph of the Article, it is stipulated that the relevant authorities shall notify the persons who are decided not to prosecute or acquitted after the judicial control obligations listed in subparagraph (l) added to the Article that they have the right to compensation.
Article 142- (1) A claim for compensation may be filed within three months following the notification of the finalisation of the decision or judgement to the person concerned, and in any case within one
year following the date of finalisation of the decision or judgement.
(2) The claim shall be decided at the high criminal court of the place where the injured person resides, and if the high criminal court of that place is related to the transaction subject to compensation and if there is no other high criminal court of the same place, at the nearest high criminal court. However, the provisions of the Law dated 9/1/2013 and numbered 6384 on the Duties and Working Procedures and Principles of the Compensation Commission shall apply to the claims under subparagraphs (e), (f) and (l) of the first paragraph of Article 141. Pursuant to this paragraph, the claims made to the high criminal court despite being within the scope of Law No. 6384 shall be sent to the Commission. If the claims that fall within the jurisdiction of the high criminal court and those that do not fall within the jurisdiction of the high criminal court are made together, the high criminal court shall separate the claims that do not fall within its jurisdiction and send them to the Commission. In these cases, the date of the request made to the high criminal court shall be taken as basis.
…
(5) The court, after examining the file, notifies the representative of the State Treasury in its jurisdiction of the petition and a copy of the annexed documents, which it determines to be sufficient, and asks him to submit his statements and objections, if any, in writing within two weeks. (formerly 15 days)
(8) The petitioner, public prosecutor or the representative of the Treasury may apply for appeal against the decision; the examination shall be conducted with priority and urgency. If the decision is not deemed appropriate, the regional court of justice shall decide on the merits. The decisions rendered by the regional courts of justice pursuant to this paragraph shall be final.
Article 141- (1)
e) Those who, after being arrested or detained in accordance with the law, have been decided not to be prosecuted or acquitted,
f) Those who has convicted and spent more time in detention or imprisonment than the period of their conviction, or who have been punished with this punishment compulsorily due to the fact that the penalty prescribed by law for the offence committed is only a fine,
l) Those who were decided not to be prosecuted or acquitted after the judicial review obligations such as not leaving their residence or being subject to and accepting treatment or examination measures, including hospitalisation, in order to be free from drug, stimulant or volatile substances and alcohol addiction,
CONCLUSION:
With the amendment, the mechanism for the establishment of an effective remedy before the individual application in accordance with Article 40 of the Constitution in order to compensate the damages arising from the violation of the right to trial within a reasonable time, which has been emphasised by the Constitutional Court regarding the long trial periods, is put into practice in a comprehensive manner.
In this context, the regulation of the electronic application procedure will be an important achievement. We hope that the possibility to apply electronically will also be provided for Individual Applications in the near future.
The inclusion of protection measures within the scope of compensation claims under the Criminal Procedure Code is also considered as a positive development towards strengthening the right to a fair trial.
