Does the withdrawal of the complaint dismiss the case? Which offences does it apply to? Comprehensive Analysis
In criminal law proceedings, one of the most important rights you have as a victim of a crime or as a person harmed by a crime is the “right of complaint”. However, as well as the exercise of this right, the decision to withdraw the complaint can radically change the course of the case. The legal consequences of waiving the complaint differ according to the nature of the offence. In this article, we will comprehensively discuss what it means to waive the complaint, in which crimes it drops the case, in which crimes it can only be a reason for reduction, and the legal details that should be considered in this process.
Definition and Importance of the Right to Complaint: The right of complaint is the authority to apply to the competent authorities for the investigation and prosecution of the crime, which is granted to the person who is victimised or damaged by the commission of a crime. The Turkish Penal Code (TPC) and the Code of Criminal Procedure (CPC) make the prosecution of certain offences subject to the complaint of the victim. This is especially the case for offences that concern personal rights and freedoms more and do not directly and severely affect public order.
Legal Nature of Waiver of Complaint: Withdrawal of complaint is the waiver of the person who has the right to complain or the withdrawal of the complaint previously made. The withdrawal can be made at the investigation or prosecution stage.
The effect of withdrawal of complaint on the case: The effect of the withdrawal of the complaint on the criminal case is divided into two main categories according to whether the offence is “subject to complaint” or not:
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Offences Subject to Complaint:
- Definition and Characteristics: In these offences, the Public Prosecutor’s Office cannot initiate an investigation and initiate a public prosecution without the complaint of the victim or the injured party. The complaint is a “condition of the case”. If the complaint is not filed within the time limit or if the complaint is waived, the case is dismissed.
- Example Offences: Some of the offences regulated in the Turkish Penal Code subject to complaint are as follows:
- Insult (Art. 125 TPC)
- Threat (simple form) (TPC Art. 106/1)
- Simple Injury (Art. 86/2 TPC)
- Sexual Harassment (TPC art. 105)
- Violation of the Privacy of Private Life (Article 134 of TPC)
- Violation of Residential Immunity (Article 116 of TPC)
- Damage to Property (Art. 151 TPC)
- Theft (in certain cases, e.g. Article 144/1-b of the TPC)
- Consequences of Withdrawal of Complaint:
- Investigation Phase: If the victim renounces his/her complaint during the investigation of an offence subject to complaint, the public prosecutor issues a “decision on non-prosecution” (KYOK) and the file is closed.
- In the Prosecution Phase: If the complaint is withdrawn while the case has been filed and the trial continues in court, the court decides to “drop the case”. This does not mean that the accused is acquitted, but the proceedings are terminated and the accused cannot be sentenced.
- Waiver of Complaint: As a rule, the withdrawal of the complaint is final and irrevocable.
- Circulation of Waiver of Complaint to Other Defendants: If the offence is committed by more than one person and the victim waives his/her complaint against one of the defendants, this waiver shall also be extended to the other defendants (Article 73/5 of the Code of Criminal Procedure). In other words, the case is dropped against all defendants.
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Offences Not Subject to Complaint (Ex officio Investigated):
- Definition and Characteristics: These offences are crimes that directly concern public order and general security and are considered to have been committed against the whole society. For this reason, the state investigates and prosecutes the crime ex officio (spontaneously) even if the victim does not file a complaint or even if the victim renounces the complaint. The complaint is only a notice in such offences.
- Example Offences:
- Intentional Killing (Article 81 of TPC)
- Qualified Theft (Art. 142 TPC)
- Manufacturing and Trafficking of Narcotic Drugs (Article 188 of TPC)
- Fraud (qualified forms) (TCK art. 158)
- Sexual Assault (Art. 102 TPC)
- Plunder (Article 148 of the Turkish Penal Code)
- Consequences of the waiver of complaint: In crimes that are not subject to complaint, the victim’s withdrawal of the complaint does not cause the case to be dropped. The trial continues and the court decides whether the defendant is guilty or not. However, the victim’s withdrawal of the complaint may be considered by the court as a “discretionary discount reason” in favour of the defendant. This may lead to the sentence being imposed at the lower limit or to the application of other reasons for reduction.
How to withdraw the complaint? Withdrawal of the complaint must be made with a clear and unambiguous declaration of will.
- Written Petition: The most common method is to submit a written petition addressed to the police station, prosecutor’s office or court. In the petition, it must be clearly stated for which offence and against whom the complaint is waived.
- Verbal Declaration: The withdrawal of the complaint can also be declared verbally in the presence of the competent authorities (police, gendarmerie, prosecutor, judge). This declaration is recorded in the minutes and signed.
- Through a Lawyer: If there is a special authorisation in the power of attorney, the lawyer may also declare the withdrawal of complaint on behalf of his/her client.
The Effect of Withdrawal of Complaint on Civil Cases: Withdrawal of the complaint in a criminal case does not directly affect civil proceedings (e.g. compensation proceedings). Even if the victim gives up the criminal case, he/she retains the right to file a lawsuit in civil courts for compensation for the damage he/she has suffered. However, the dismissal of the criminal case may indirectly affect the determination of the amount of compensation in the civil case or the determination of fault.
Relationship with the Reconciliation Institution: Some offences subject to complaint and other offences specified in the law are within the scope of “reconciliation” (Article 253 of the Criminal Procedure Code). Reconciliation is the settlement of the dispute between the victim and the suspect/accused through a conciliator. If reconciliation is achieved, it has the same consequences as if the complaint is waived and the case is dismissed. Reconciliation is a more active process than waiving the complaint and requires mutual agreement of the parties.
Withdrawal of complaint is a transaction that has important legal consequences in the criminal proceedings. Especially in crimes subject to complaint, this withdrawal leads to the dismissal of the case, while it may only be a reason for discretionary reduction in crimes pursued ex officio. Therefore, it is of great importance to understand the nature of the offence, its legal consequences and possible effects before deciding to withdraw the complaint. In order to prevent loss of rights and take the right steps, it is strongly recommended to seek legal advice from an expert criminal lawyer in such cases.