Principles Regarding Criminal Complaints and Complaints
As it is known, two concepts are defined in criminal proceedings. Suspect and defendant.
Suspect: A person suspected of a crime during the investigation phase.
Defendant: A person suspected of a crime from the beginning of the prosecution until the verdict is final.
According to the CMK, in order to file a public lawsuit against a person, sufficient suspicion of a crime must be reached. (Article 170) However, strong suspicion of a crime is required for arrest by law. (Article 100) It should be noted that, although the accused person for whom an arrest warrant is issued during the investigation phase must be qualified as a defendant, since these qualifications are made according to the trial phases, the person arrested during the investigation phase with strong suspicion of a crime will be considered a suspect.
TYPES OF SUSPICION IN CRIMINAL PROCEEDINGS
SIMPLE >REASONABLE >SUFFICIENT >STRONG
CMK art. 160 CMK art. 116 CMK art. 170 CMK art. 100
HOLDER WITH THE RIGHT TO COMPLAIN
COURT OF APPEALS DECISION
Court of Appeals 12th Criminal Chamber’s decision numbered 2019/7858 E., 2020/6400 K. and dated 25.11.2020: “As emphasized in the Court of Appeals Jurisprudence Unification decision numbered 14/9 dated 15.04.1942, juveniles who are discerning have the right to complain about crimes committed directly against them, whether or not their legal representatives consent, and those who have not yet reached the age of 15 considering that the complaints of minors can only be considered valid if their being competent is determined by a report; considering that … born on 11.06.2002 and … born on 25.11.2003 were not yet 15 years of age on the date of the crime and on the date their statements were taken during the trial; after the population records of … and … are brought and their exact ages are determined on the date of the crime, if it is understood that they were not yet 15 years of age, it should be determined with a medical report whether they are competent or not, since if it is determined that they are not competent, their failure to file a complaint will not be considered valid, taking into account the complaint statements of their legal representatives, the defendant can be tried for the crime of causing injury by negligence pursuant to Article 89/4 of the TCK, and if it is understood that they are competent, taking into account their failure to file a complaint, only …’s being tried for the crime of causing injury by negligence pursuant to Article 89/1 of the TCK. “The written verdict is given for causing injury to … and … with incomplete investigation without considering that he should be punished in accordance with the article.”
SUPREME COURT DECISION
The Supreme Court Criminal General Assembly’s decision numbered 2018/80 E., 2020/416 K. and dated 13.10.2020: “In cases where the interest of the legal representative of the victim is one of the defendants of the crime committed against the victim or there is a family relationship between the defendant and the defendant, such as in cases where the interest of the legal representative conflicts with the interest of the minor or the person with a disability, the procedure should be carried out in accordance with Article 426/2 of the Civil Code and the issue of whether the victim will participate in the case should be resolved by appointing a trustee, giving priority to the will of the trustee. ” is as follows.
RIGHTS OF THE VICTIM AND THE COMPLAINANT
CMK art. 234
A) IN THE INVESTIGATION PHASE;
Requesting the collection of evidence,
In article 234, paragraph 1, subparagraph “a-1” of the CMK, it is stipulated that the victim and the complainant have the right to “request the collection of evidence” during the investigation phase.
The right to request the collection of evidence is granted to the victim in a way that will provide coordination with the right granted to the suspect in article 147/1-f of the CMK to “request the collection of evidence in his favor”, considering the principle of equality of arms. (PAZARCIKLI Nusret Alper, “Victim Rights in the Investigation and Prosecution Phase in Turkish Criminal Court”, Journal of the Turkish Justice Academy, Year 4, Issue 14, Ankara 2013, p. 984.)
COURT OF APPEALS DECISION
The decision of the Supreme Court Criminal General Assembly numbered 2012/2-1466E., 2013/246K: “The principle of the court to investigate the material truth and Article 234 of the CMK numbered 5271; “Although it has been accepted that the victim and the complainant have the right to request the collection of evidence during the investigation phase, to obtain copies of the minutes and documents through their attorneys and to request the invitation of witnesses during the prosecution phase, since the relevant person can use these rights even without gaining the status of a participant, as a result, it will not be possible for the right to notify their claims and evidence not to be used.”
Requesting a copy of a document from the public prosecutor, provided that it does not violate the confidentiality and purpose of the investigation,
According to Article 157/1 of the CMK, the procedural procedures during the investigation phase are confidential, provided that it does not harm the perpetrator’s right of defense. For this reason, the victim and the complainant should only be able to obtain a copy of a document from the file provided that the confidentiality of the investigation is not violated. Article 234, paragraph 1, subparagraph “a-2” of the CMK also states that the victim and the complainant have the right to request documents from the public prosecutor, “provided that it does not violate the confidentiality and purpose of the investigation.”
The CMK In the first paragraph of Article 153, it is stipulated that “the suspect’s defense counsel may examine the contents of the file during the investigation phase and obtain a copy of the documents he/she requests free of charge.”
