I.REGULATIONS ON THE PROVISION OF GUARDIANSHIP AND REMOVAL OF GUARDIANSHIP DUE TO RESTRICTION OF LIBERTY PENALTY
One of the amendments made by the Law is the amendments made to Articles 407 and 471 of the TCC with the Articles 5 and 6 of the Law, With the amendment made to Article 407 of the TCC, being in a penal institution is no longer a direct reason for restriction. The provision in Article 407 of the TCC stipulating that every adult who has been sentenced to a binding sentence of one year or more shall be restricted was annulled by the Constitutional Court on the grounds that only the imposition of a binding sentence is considered as a direct reason for restriction for persons who have the power of discernment and are able to carry out their own affairs without the appointment of a guardian. With the amendment made by the Law, the institution of restriction due to a sentence binding on liberty has
been amended and being in a penal execution institution is no longer a direct reason for restriction and the restriction of the convict who is in a penal execution institution for the execution of the finalized prison sentence is mainly left to his/her own will. However, the restriction of the convict in terms of the execution of the finalized imprisonment sentence of five years or more is subject to the criterion of the protection of his/her personality or assets, and the guardianship authority is given the right of discretion in this regard.
Parallel to the amendment made in Article 407 of the TCC, Article 8 of the Law amends Article 471 of the TCC regarding the termination of guardianship. The amendment regulates the cases where the guardianship may be terminated during the continuation of imprisonment. Accordingly, the guardianship may be terminated upon the request of the person in terms of the restraining orders issued based on the execution of the imprisonment sentence of less than five years in total; and upon the request of the person or in the event that the reason for the protection of personality or assets is eliminated in terms of the restraining orders issued based on the execution of the finalized imprisonment sentence of five years or more in total.
II. PROVISIONS ON RESTRICTION OF LIBERTY FOR PROTECTION PURPOSES
Pursuant to Articles 6 and 7 of the Law and the Constitutional Court’s annulment decision, Articles 409 and 436 of the Anti-Terror Law have been amended and an appeal procedure has been introduced for the person who is placed in a health institution by a judge’s decision upon a physician’s preliminary report to restrict his/her freedom for protection purposes. In its annulment decision, the Constitutional Court decided to annul the phrase “and if necessary, the person may be placed in a health institution for a maximum period of twenty days upon the preliminary report of a physician” in Article 436 of the TCC, since there is no other legal regulation that provides the possibility to appeal against this placement decision and since there is no other legal regulation that provides the possibility to appeal in this regard, since the person whose right to personal freedom and security is restricted is overburdened and the restriction imposed by the rule is not proportionate. Article 7 of the Law amended Article 436 of the Civil Code and subparagraph (5) of the first paragraph of the Article stipulates that restriction of liberty for the purpose of protection may be decided for those who have mental illness, mental weakness, alcohol or drug addiction and infectious diseases that pose a serious danger only after obtaining an official medical board report. Subparagraph (6) of the same paragraph of the Article stipulates that the person may be placed in a health institution for a maximum period of twenty days upon the preliminary report of a physician in order to ensure that an official medical board report can be obtained. It is also stipulated that the placement decision shall be immediately notified to the person concerned and his/her relatives, that the person concerned and his/her relatives may appeal against this decision to the supervisory authority within ten days from the notification, and that the appeal shall be decided immediately by the supervisory authority.
III. REGULATIONS ON COMPENSATION CLAIMS DUE TO PROTECTION MEASURES
With Articles 12, 13 and 14 of the Law, the possibility of claiming compensation has been introduced for persons who, after the judicial control obligations of the Criminal Procedure Code (“CPC“) regarding not leaving their residence or receiving treatment in a hospital in order to get rid of addiction, are decided not to be prosecuted or acquitted and who are not benefited from the application opportunities stipulated in the CPC against the judicial control procedure.
Article 12 of the Law amends subparagraph (k) of the first paragraph of Article 141 of the CPC to provide that persons who are granted access to the remedies provided for in the law against “judicial control” procedures, as well as arrest and detention procedures, may claim compensation. Thus, it is envisaged that judicial control procedures will be provided with the same guarantees as arrest and detention procedures in terms of benefiting from the application opportunities.
Article 13 of the Law amends Article 142 of the CPC in relation to this issue, and with this amendment, it is envisaged that these compensation claims to be made due to protection measures will
be made to the Compensation Commission established by Law No. 6384, and it is aimed to conclude these claims quickly through administrative application. Thus, it will be ensured that compensation claims, the determination of which does not require any judicial proceedings, will be decided in a short time. In addition, according to the amendment, the requests made to the high criminal court will be sent to the Commission, although they are within the scope of Law No. 6384. In these cases, the date of the request made to the highy criminal court will be taken as the basis.
Furthermore, with the regulation made in the eighth paragraph of this Article, it is stipulated that if the decision is not deemed appropriate by the regional court of justice upon the application for appeal against the decision of the heavy criminal court, the regional court of justice shall decide on the merits of the case and this decision shall be final.
Finally, with Article 14 of the Law, the expression “under judicial control” was added to Article 144 of the CPP titled “Persons who cannot request compensation”, and harmoziation with the regulation on judicial control obligations in Article 141 has been accomplished.
