Önleyici Gözaltı ve Hürriyet Hakkı Çerçevesinde “Masumiyetin” Anlamı

Extended Abstract

Presumption of innocence is a well-established fundamental protection that abolishes stigmas from multiple directions. The status of “innocence” protects the individual from not just mere perception and treatment of third parties and public in general, but also from arbitrary criminal procedures starting from the very first time an individual can be legally deprived of his/her liberty. A deprivation of liberty in criminal procedure shall be tied to an actual crime and eventually a perpetrator that actually commits this crime. In that sense, a deprivation of liberty may appear in many forms such as an arrest, a pre-trial detention or an incarceration carried out as a prison sentence. These measures as a principle either rely on a suspicion that a crime may have been committed or on a res judicata sentence -proof beyond reasonable doubt- that the person has actually committed the crime in question. This line of reasoning should lead to the conclusion that every legally entitled body -whether it’s a judge, prosecutor or a police officer- shall be strictly limited to an authority in which they deem the person to be deprived of his/her liberty is guilty of a crime. The person may eventually be exonerated at the end of the investigation or the prosecution; and even be entitled to a reparation because of the unlawful violation of his/her right to liberty. However, if a person doesn’t start to engage in an act of crime, then a legal authority doesn’t even get to contemplate a measurement of “innocence” or “guiltiness” in the first place. There is apparently no presence of an “act”, an element of actus reus that should lead to a deprivation of liberty, thus, there is no substance a criminal procedure can follow. “Preventive detention” on the other hand serves a different purpose in which a legal authority doesn’t actually contemplate on a criminal act that has already been committed. This legal phenomenon -increasingly popular in law enforcement circles- aims to disrupt a person from committing crimes in the future.