Decision to postpone the file of a public case
170/2 of the Code of Criminal Procedure. "If the evidence collected at the end of the investigation phase creates sufficient suspicion that the crime has been committed, the public prosecutor prepares an indictment." As can be clearly understood from the provision in the form, the principle of obligation is valid in our law in filing a public lawsuit.
The duty of opening a public lawsuit belongs to public prosecutors. This task cannot be used by other bodies. If the indictment prepared by the public prosecutor is accepted by the court, the prosecution phase begins. The provision we have mentioned above makes it mandatory to file a public lawsuit in case of sufficient suspicion. Although this is the general principle, in some cases the public prosecutor is granted exceptional discretion as to whether or not to file a public lawsuit. This discretion is explained by the "principle of expediency".
Within the framework of the principle of expediency, the public prosecutor is given the authority to decide on the postponement of the opening of a public case in case of certain conditions that will be explained below. However, it should not be forgotten that this provision is an exceptional provision. Because the principle of compliance with the interests can only be accepted exceptionally in terms of our law. Except for the exceptions listed in the law, the prosecutor's office is obliged to open a public case if there is sufficient suspicion. No discretion is given in this regard. The scope of the exceptions for filing a public lawsuit has been kept as narrow as possible. Except for the existence of effective regret and personal impunity reasons listed in the law and the postponement of the public lawsuit, no exception can be made to the obligation to file a public lawsuit. For example, the public prosecutor cannot avoid issuing an indictment by taking advantage of the principle of suspicion as a result of his investigation procedures. The following statements were used in a Supreme Court decision on the subject:
"The principle of granting discretion to the public prosecutor in opening a public case, or in other words, the principle of expediency, refers to the public prosecutor's discretion whether to initiate an investigation immediately upon learning of the news that a crime has been committed; if the act and the perpetrator are determined as a result of the investigation and if there is sufficient suspicion of crime; and finally whether to continue the public case until the trial is concluded. The principle of obligation to prosecute is valid as the main principle in our law. However, the principle of obligation to prosecute is valid in the CMK. It can be said that in Article 171, as an exceptional case, the principle of compliance with the interests has been adopted, albeit partially (... Keyman, Prosecutor's Office in Criminal Procedure, Sevinç Matbaası, Ankara, 1970, page 94). Y16. CD. 2017/5508 K.
Postponement of the opening of a public case means postponing the opening of a public case for 5 years despite the existence of sufficient suspicion. Here, first of all, it is necessary to explain what a public lawsuit is.
As it is known, in our country, it is accepted that the state is damaged by every crime and the authority to punish can only be exercised by the state (it seems that the view that the state is damaged by every crime is starting to change). No right is granted to the parties in terms of filing a criminal case, and the duty to file this case belongs to the state. For this reason, criminal cases are opened by the public prosecutor and public law is shown as the plaintiff. This is why these cases are called public cases. As a matter of fact, a decision of the Supreme Court containing its evaluations regarding the principle of publicity is as follows:
"The principle of publicity is the principle that states that since the public, that is, the society, is also harmed by the crime, the society has an interest in the prosecution of the crime, and therefore the prosecution is public (Erdener Yurtcan, Criminal Procedure Law, Beta Publications, Istanbul, 2007, page 120). It is the obligation of the State to protect the social order. In this respect, the State retains the right to determine and punish the actions that will disrupt and endanger the public order. For this reason, a punishment is carried out." In the investigation, the public prosecutor conducts the investigation on behalf of the public as the judicial power. Because there is a public interest in the investigation of the crime. The first of these is the absence of complaint in terms of crimes that are subject to complaint; the second is the absence of permission in terms of crimes that require permission to be prosecuted.
CONDITIONS FOR POSTPONEMENT OF OPENING OF A PUBLIC CASE
The institution of "Postponement of the Opening of a Public Case" is in accordance with Article 171/2 of the CMK, as amended by Law No. 7188. regulated in the article. Accordingly: "Except for crimes within the scope of conciliation and prepayment, the public prosecutor may decide to postpone the opening of a public case for five years, despite the existence of sufficient suspicion, for crimes that require a prison sentence of three years or less. The person who is harmed by the crime or the suspect may object to this decision in accordance with the provisions of Article 173."
As can be understood from the above regulation, the public prosecutor is given the discretion to apply for the postponement of the opening of a public case. Even if all conditions are met, the prosecutor can file a public lawsuit.
The decision to postpone the filing of a public lawsuit is subject to certain conditions in Articles 171/2 and 3 of the CMK. The conditions in the 2nd paragraph are divided into objective conditions related to the crime, and those in the 3rd paragraph are divided into subjective conditions related to the suspect. In our analysis, we find it appropriate to explain these conditions with a double distinction: objective and subjective conditions. It should not be forgotten that objective and subjective conditions must coexist in order for the decision to be made.
a- Objective Conditions (CMK 171/2-6)
In order to decide on the postponement of the opening of a public lawsuit;
If the crime thought to have been committed by the suspect is included in the scope of prepayment or conciliation, first of all, procedures regarding this institution are carried out. Because it is assumed that these institutions are in favor of the suspect.
In order for a postponement decision to be made, there must be sufficient suspicion of crime. Otherwise, it is decided that there is no need for prosecution.
b- Subjective Conditions
(CMK 171/3)In order to decide on the postponement of the public case, provided that the provisions regarding conciliation are reserved:
The fact that the suspect has previously been convicted of a reckless crime does not prevent the decision from being made. The finalization of the decision is required in terms of the condition of conviction for a deliberate crime. Additionally, the suspect must have been sentenced to imprisonment. In case of conviction with a judicial fine, a postponement decision may be given. The fact that a HAGB decision has been made about the suspect before does not prevent the postponement decision from being given. The following Supreme Court decision is also related to this issue:
"The case is about the crime of breaking the seal. Among the conditions for postponing the opening of a public case, there is no requirement that the decision to postpone the announcement of the verdict about the suspect has not been made before or that the crime subject to investigation should not have been committed within the supervision period. Considering that the crime of breaking the seal is not among the crimes within the scope of conciliation and prepayment and that the upper limit of the penalty stipulated in the law for the crime charged is three years, it is understood that it may be decided to postpone the opening of the public case for the crime of breaking the seal. "If it is determined that he will not commit a crime again, the decision should be overturned in the interest of law, as it is not deemed appropriate to accept the objection instead of rejecting it, regardless of the fact that the public prosecutor has the discretion to make the said decision." Y11. CD. 2021/3576 K.
If the crime committed is one of the crimes subject to reconciliation or prepayment procedure, a decision cannot be made to postpone the opening of a public case against the suspect.
One of the important issues here is the requirement to compensate for the damages suffered by the victim or the public. In order for the postponement decision to be made, the suspect is obliged to pay the damages he caused. This rule comes to mind: "Is there a requirement for the victim's consent to implement the postponement decision?" It brings up the question. This question will undoubtedly be answered in the negative. There is no requirement for the victim's consent for postponement. If the suspect repairs the damage to be determined by the prosecutor, a postponement decision may be given without seeking the victim's consent.
WHO MAKE THE DECISION TO POSTPONE THE OPENING OF A PUBLIC CASE?
The decision to postpone the opening of a public case is made by the public prosecutor. As we mentioned above, the prosecutor is given a discretion. Even if the above conditions are met, the prosecutor has the authority not to make this decision.
In fact, considering the purpose for which the institution was established, we believe that this decision should be implemented if the conditions are present. Because, with the decision, the person's right not to be tarnished can be protected and the aim of reforming the criminal law can also be achieved. At the same time, we are of the opinion that the right of discretion should be used in favor of the suspect in case the conditions are present, since the effort and expenses of the trial can be saved while achieving the purpose of correction.
The only situation in which the decision to postpone the filing of a public lawsuit must be made is TCK Article 191/2. It is regulated in the article. Accordingly; "In the investigation initiated for this crime, it is decided to postpone the opening of a public case against the suspect for five years, without seeking the conditions in Article 171 of the Code of Criminal Procedure No. 5271 dated 4/12/2004. In this case, the public prosecutor warns the suspect about the consequences that may arise for him if he does not comply with the obligations imposed on him or violates the prohibitions during the postponement period." It is decided to postpone the filing of a public prosecution for the crime of possessing, purchasing, accepting or using drugs, without meeting the above conditions. The decision has to be made. For detailed information on the subject, you can review our article titled Crime of Possession of Drugs for Use.
OBJECTION TO THE DECISION TO POSTPONE THE OPENING OF THE PUBLIC CASE
As an exception to the decision to postpone the filing of a public lawsuit, it has been regulated that the person injured by the crime may object. The reason why we call it an exception is the article 173/5 of the CMK, which states that situations in which the prosecutor uses his discretion are not subject to objection. It constitutes the article.
CMK 171/2. According to the article; The person who is harmed by the crime or the suspect may object to this decision in accordance with the provisions of Article 173.
In that case, the person who has been harmed by the crime may appeal to the "criminal judgeship of peace in the place where the high criminal court is located" within fifteen days from the date the decision is notified to him/her, in the judicial district of the public prosecutor who made this decision.
In the objection petition, events and evidence that may require the filing of a public lawsuit are stated.
If the criminal judgeship of peace deems it necessary to expand the investigation in order to make its decision, it may request the Chief Public Prosecutor's Office of that place, clearly stating this issue; If there are not sufficient reasons for filing a public lawsuit, it rejects the request with justification; sentences the appellant to costs and sends the file to the public prosecutor. The public prosecutor notifies the decision to the objector and the suspect.
If the "Criminal Judgeship of Peace" finds the request appropriate, the public prosecutor prepares an indictment and submits it to the court.
RESULTS OF THE DECISION TO POSTPONE THE OPENING OF THE PUBLIC CASE
Delay Period
The suspect against whom the decision to postpone the opening of a public case will enter a 5-year supervision period. This period is 3 years for children. 171/4 of the CMK. According to the article; If no intentional crime is committed within the postponement period, it is decided that there is no need for prosecution. If a deliberate crime is committed within the postponement period, a civil lawsuit will be filed. The statute of limitations does not run during the postponement period.
Is the Postponement Decision recorded in the Registry?
Decisions regarding the postponement of the opening of a public lawsuit are recorded in a special system. These records can only be used for the purpose specified in this article if requested by the public prosecutor, judge or court in connection with an investigation or prosecution. (CMK 171/5)
As can be understood from the provision, postponement decisions are recorded in a unique registry, not in the judicial registry.
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