Individual Application

The Facts

Within the framework of the investigation initiated against the applicant, she was taken into custody on 1 November 2016 and released on 3 November 2016. Following a trial, the applicant was acquitted of the offences of membership of and establishing or leading an armed terrorist organisation. In the decision of acquittal, the trial court did not award lawyer’s fee in favour of the applicant. Subsequently, the applicant filed an appeal on points of facts and law against this decision. The regional court of appeal dismissed the applicant’s request for appeal on the merits and rectified the reasoning part of the impugned decision by including a clause ordering the reimbursement of the lawyer’s fee to the applicant.

After the decision of acquittal became final, the applicant brought an action for compensation claiming that she had been unlawfully taken into custody. Thus, the assize court awarded the applicant 500 Turkish liras (TRY) in respect of non-pecuniary damage. The applicant appealed against this decision as well, alleging that the challenging conditions she had experienced were disregarded by the court; that an insignificant amount of compensation was awarded to her compared to what she requested for; and that the refusal to deem the lawyer’s fee as a part of the pecuniary compensation were unlawful. The regional court of appeal dismissed the applicant's request for appeal with final effect.

The Applicant’s Allegations

The applicant claimed that her right to personal liberty and security had been violated due to the insufficient amount of compensation awarded to her on the grounds of the allegedly unlawful custody.

The Court’s Assessment

In its current case-law in relation to the compensation, the Court mainly focuses on whether the applicants substantively raised a complaint of unlawfulness in their petitions for action. Pursuant to sub-paragraph (e) of Article 141 § (1) of Law no. 5271, a decision of non-prosecution or a decision of acquittal shall be sufficient to award compensation. In other words, the trial court is not obliged to examine the lawfulness of the arrest or detention orders against the relevant individuals. In this respect, it has been observed that there are ambiguities in the decisions stating that alleged unlawfulness should be raised at all stages of the proceedings. Such ambiguities creating discrepancies in the case-law have had different outcomes in terms of the exhaustion of legal remedies by the applicants. Given the ambiguities in the relevant case-law, a need to create a uniform case-law including clear and definite expressions concerning the applicable provisions for the evaluation of claims for compensation has arisen. In light of these assessments, the Court has stated: “It has been concluded that filing an action for compensation pursuant to sub-paragraph (e) of Article 141 § (1) of Law no. 5271 will be sufficient in order for all legal remedies to be deemed exhausted in the individual applications filed by those against whom a decision of non-prosecution or decision of acquittal has been issued, on the basis of allegations that the amount of compensation awarded due to the unlawfulness of the arrest, custody and detention orders was insufficient after the exhaustion of all compensation remedies prescribed in Article 141 of Law no. 5271. Under these circumstances, the applicants are not obliged to file a separate action for compensation under sub-paragraph (a) of the same Article.” Thus, the Court has established its case-law based on the aforementioned assessment. Subsequently, in the present case, the Court has addressed the alleged violation of the right to personal liberty and security within the framework of this new case-law.

In light of its new case-law, the Court has decided to examine the present application on its merits, considering that the applicant exhausted all legal remedies as to the alleged unlawfulness of her being placed in custody, given the decision on acquittal. In the present case, the trial court awarded the applicant TRY 500 as non-pecuniary compensation for 3 days spent in custody. Although the amount of non-pecuniary damage awarded in the present case is not necessarily the same as the amount of compensation awarded by the Court in similar cases, the Court has concluded that the amount of compensation was so low that it undermined the essence of the right to compensation in the circumstances of the present case.

In addition, the applicant claimed, as pecuniary compensation, the reimbursement of the lawyer’s fee which she had paid for the proceedings at the end of which she was acquitted. The trial court dismissed the applicant’s request for pecuniary damages as to the lawyer’s fee on the grounds that fixed tariff had been applied in favour of the applicant in the decision of acquittal. Article 164 of the Attorneyship Law no. 1136 prescribes that the fixed lawyer’s fee ordered by the court based on the statutory scale at the end of the proceedings shall be paid to the lawyer. Therefore, the award of fixed lawyer’s fee in favour of the applicant who had been acquitted does not necessarily mean that the applicant’s pecuniary damage was compensated. In this respect, the court of instance is obliged to examine whether the parties included the fixed lawyer’s fee in the amount they specified in the attorney contract between the applicant and her lawyer. Article 142 § (6) of Law no. 5271 envisages that it is incumbent on the courts to conduct all kinds of inquiry deemed necessary, or to appoint a judge do so, regarding the determination of the amount of compensation according to the general principles of the compensation law and the evaluation of the request for compensation and of the documents submitted as evidence. However, the trial court failed to conduct such an inquiry. Moreover, even if it is accepted that a fixed lawyer’s fee was reimbursed to the applicant, the court failed to explain in its decision why the excess amount of the lawyer’s fee could not be considered as pecuniary damage; whether there was a causal link between the said amount and the unlawful custody; and if so, whether the requested fee was necessary and reasonable.

Consequently, the Court has found a violation of the right to personal liberty and security