Criminal LawComplaint and Conciliation Process in Criminal Case

Criminal law is a branch of public law that regulates criminal acts and the sanctions to be applied to these acts in order to protect social order. When an offence is committed, the state’s power to punish (public prosecution) comes into play. However, for some offences, investigation and prosecution cannot be carried out without the complaint of the victim. Such offences are called “offences subject to complaint”. In offences subject to complaint, the will of the victim is of great importance. In addition, the Code of Criminal Procedure (CPC) provides for an alternative remedy called “conciliation” between the parties in certain offences. These processes play an important role in the functioning of the criminal justice system and aim to alleviate the workload of the judiciary while ensuring victim satisfaction.

Legal Framework: Legal Bases of Complaint and Conciliation

Complaint is regulated by the Turkish Penal Code (TPC) and the Criminal Procedure Code (CPC). Article 73 of the TCK specifies the duration of the complaint and the consequences of waiving the complaint for offences subject to complaint. Conciliation is regulated in detail in Article 253 of the Criminal Procedure Code and lists which offences are within the scope of conciliation.

Complaint Process and Features

• Offences Subject to Complaint: Due to the nature of some crimes, the legislator did not want them to be investigated without the will of the victim. These crimes are generally those that violate the private life, honour or property of persons in a less severe manner. For example; offences such as insult, threat (simple form), simple form of intentional injury, violation of residential inviolability, sexual harassment, damage to property are subject to complaint. Whether an offence is subject to complaint is clearly stated in the relevant article of law.
• Duration of Complaint: The person who has the right to file a complaint (the victim or the person damaged by the crime) must file a complaint within 6 months from the date of learning the act and the perpetrator. This period is a forfeiture period; in other words, if the complaint is not made within this period, investigation and prosecution cannot be carried out.
• Withdrawal of Complaint: If the complaint is withdrawn at the investigation stage, the prosecutor’s office issues a “decision of non-prosecution” (decision of non-prosecution). If the complaint is withdrawn at the prosecution (trial) stage, the court issues a “decision of dismissal”. Waiver of the complaint is possible until the judgement is finalised and the waiver cannot be reversed.

Conciliation Process and Purpose

Conciliation is a criminal procedure institution that enables the victim and the perpetrator of the crime to come together through an impartial conciliator and agree on the elimination of the damage caused by the crime. Its purpose is to resolve the dispute between the parties in a faster and peaceful way without going to court.

• Offences Subject to Conciliation: Article 253 of the Criminal Procedure Code lists the offences subject to conciliation. In general, all crimes subject to complaint and some crimes that are not subject to complaint (for example, theft, fraud, abuse of trust) are within the scope of conciliation. However, some offences, such as offences against sexual inviolability, are outside the scope of conciliation.
• Conciliation Process:
  1. Sending the file to the Conciliation Office: If the prosecutor’s office determines that the offence subject to investigation is subject to conciliation, it sends the file to the conciliation office.
  2. Appointment of a Conciliator: The conciliation office appoints a conciliator to the file. The conciliator is selected from the list determined by the Ministry of Justice and has a legal education.
  3. Communication and Negotiation with the Parties: The conciliator makes a conciliation offer to the parties. If the parties accept the offer, the conciliator conducts negotiations by bringing the parties together or meeting separately. Negotiations are confidential.
  4. Agreement (Performance): The parties may reach an agreement on the compensation of the damage. This agreement may take various forms such as payment of financial compensation, apology, donation to an institution.
  5. Conciliation Report: If the parties reach an agreement as a result of the negotiations, the conciliator prepares a “conciliation report”. This report is submitted to the public prosecutor’s office.
• Consequences of Conciliation: If the conciliation is successful, that is, if the parties agree and the perpetrator fulfils his/her obligations, the prosecutor’s office makes a “decision on non-prosecution” and the file is closed. No public case is opened against the perpetrator. If the conciliation offer is rejected or no agreement is reached as a result of the negotiations, the prosecutor’s office continues the investigation and if there is sufficient evidence, the prosecutor’s office prepares an indictment and opens a public case.

In the criminal justice system, complaint and conciliation are two important institutions that give importance to the will and satisfaction of the victim. Complaint is a condition of the case that seeks the will of the victim for the investigation of certain offences and is subject to a 6-month statute of limitations. Conciliation, on the other hand, is an alternative solution that allows the parties to resolve the dispute by agreement without going to court, both in offences subject to complaint and in some other offences listed in the law. A successful conciliation allows the perpetrator to close the file without being punished, while the victim’s damages can be compensated more quickly. Correct understanding and management of these processes is of great importance in terms of protecting the rights of both the victim and the suspect.