What is conciliation?
Regulations regarding the conciliation institution are included in Article 253 and following articles of the Code of Criminal Procedure. The title of the article was reconciliation, but it was changed to reconciliation with the amendment made on 24.11.2016. It should be noted that the old title continues to be used habitually, and that compromise and conciliation mean the same thing.
Conciliation institution is a method that aims to resolve the dispute non-judicially but under the supervision of judicial authorities. Compromise; It is a legal institution that ensures that, in crimes within this scope, the state renounces criminal investigation or prosecution, and the social order that is disrupted by the commission of the crime is reestablished through peace, subject to the agreement of the perpetrator and the victim to compensate for the damage resulting from the crime. The following statements about the institution are included in the justification of Article 253 of the CMK:
It seems that a sensitivity towards crime victims aimed at protecting their interests in the criminal justice system is emerging increasingly stronger. In our country, as in the rest of the world, the special attention paid to victims until now was only available in some cases of homicide, terrorism and organized crimes, and in some institutions such as postponement of sentences. However, today, in Western countries, special laws even require the state to pay compensation to crime victims or their families. XXI. The 21st century justice system has prioritized the satisfaction of the victim while fulfilling criminal justice: Mere criminal sanctions against crime are not sufficient; Removal of damage and repair should be considered the primary goal.
Thus, the goal of reconciliation is to resolve the conflict that occurs between the perpetrator and the victim after the crime is committed, through the initiatives of the judge or public prosecutor or a mediator appointed by them, to both ensure justice and satisfy the victim. Thus, when the damage is repaired, peace can be established between the perpetrator and the victim. Although it is possible to obtain compensation through some means other than reconciliation. However, in the institution of reconciliation, repairing the damage makes it possible to provide a morale element as well as repair. Conciliation thus aids the private prevention function as well as ensuring the protection of public interests in general. With reconciliation, the perpetrator has the opportunity to reintegrate into society by accepting and assuming responsibility for the crime he committed, eliminating the consequences of the crime. Since the criminal responsibility of the perpetrator will be determined and the necessary action will be taken to compensate for the damage, justice will be served, the validity of the legal rules violated by the act will be emphasized and therefore the restoration of public peace will be served, and the state will also be saved from many expenses it would have to incur in terms of imposing sanctions. These types of practices are called "restorative justice".
As we will include under separate headings in the following sections of our review, conciliation provisions will find application in both the investigation and prosecution phases. As stated in the explanations above and the justification of the provision, Criminal Law aims to establish social peace. In order to achieve this purpose, penalties are determined by law. However, it is at the discretion of the legislator what behavior will be considered a crime and what the sanction will be. In accordance with penal policy, imposing lighter sanctions for some crimes should be considered lawful to the extent that it is compatible with the purpose. Because criminal policy must be carried out in accordance with the principle of the rule of law. Modern criminal law attempts to identify alternative options to punishment. It is seen that, especially in simple crimes, alternative solutions are tried to be brought to the agenda without trial. Recommendation number R18 of the Committee of Ministers of the Council of Europe is also in this direction.
The frequently asked questions section of the Alternative Solutions Department's website (https://alternatifcozumler.adalet.gov.tr/Home/SayfaDetay/sikca-sorulan-sorular) contains the following answers about the benefits of the conciliation institution:
"What is the benefit of the mediation institution to the victim?
It contributes to the elimination of the crisis of confidence and fears experienced by the victim and to the correction of the distorted perception of danger,
It offers the victim the opportunity to request an apology or to obtain compensation for material/moral damage through a determined action,
The chance of the compensation actually being paid increases,
It ensures that there is no need to go to court during a long trial,
It contributes to establishing the feeling of justice being served among the parties.
What is the benefit of the mediation institution to the perpetrator?
It provides the perpetrator with the opportunity to see the impact the crime has on the recipient,
It ensures that the perpetrator is personally responsible to the victim, not to the state,
The possibility of the perpetrator to commit a crime again decreases,
It contributes to establishing the feeling that justice has been served to the parties,
It offers the perpetrator the opportunity to make up for his mistakes instead of just being punished,
The perpetrator has the opportunity to explain the reason for his action and apologize,
It offers people who commit a crime for the first time (especially in juvenile crimes) the opportunity to continue their lives without being labeled a criminal in society by resolving the issue without receiving a penalty or criminal record,
It prevents the offender from entering the execution institution and prevents the possibility of committing a crime again after being released from being influenced by other criminals in the institution,
What is the benefit of the conciliation institution to society?
Since the main reason for sanctioning crimes is to correct the disrupted social order, it ensures that the effects of crime on society are eliminated and contributes to social peace.
It contributes to increasing the society's experience of justice and to solving problems amicably within the society without being reflected in the judicial units,
By resolving recurring disputes between the parties, new crimes and files are prevented,
It contributes to the spread of the culture of reconciliation throughout the society by mediators using and sharing their experiences and skills gained in negotiations within the society.
It increases the parties' confidence in the justice system."
As it is known, it is the duty of the state to determine crimes and sanctions and to ensure the implementation of sanctions. Individuals do not have the authority to forgive crimes committed against them. With the mediation institution, victims are given a stronger status and are also given the chance to choose alternative options to punishment. Thus, the victim's more effective participation in the criminal trial is ensured. It will also be in his favor to compensate the victim for his damage. In order to achieve the targeted success, the compliance of the parties is required. Again, in accordance with the principle of obligation of prosecution, investigation authorities must take action after a crime is reported. However, investigation and prosecution procedures will no longer be carried out after a compromise is reached between the parties in the conciliation institution, which is organized as an exception to the principle of obligation to prosecute. In this respect, it should be said that the institution of conciliation is a condition of judgment.
The conciliation institution regulated in the CMK should not be confused with the mediation institutions in the HMK.
COMPLAINT CONDITION AND SUFFICIENT DOUBT IN CONCILIATION
As a rule, the conciliation institution is foreseen in terms of crimes subject to complaint . However, mediation provisions can also be applied for some types of crimes that are not subject to complaint. If the crime is a crime subject to complaint, the complaint condition must be met in order for the conciliation provisions to be applied. Otherwise, mediation will not be possible.
CMK 253/8. "Making a compromise offer or accepting the offer does not prevent the collection of evidence regarding the crime under investigation and the implementation of protective measures." In accordance with the provision in the form, mediation cannot be made in cases where there is not sufficient doubt.
The public prosecutor can only send the file to the conciliation office if there is sufficient suspicion. The absence of sufficient suspicion requires a KYOK decision, as we stated in our previous reviews. Therefore, practitioners will need to be meticulous. It is extremely wrong to apply to the mediation office without doing any research just because the crime type falls within the scope of mediation.
WHAT ARE THE CRIMES COVERED BY CONDITIONATION?
First of all, in order for the mediation institution to come to the agenda, the existence of a crime type clearly regulated in the Turkish Penal Code and some special laws is required. These crimes are generally crimes subject to complaint. However, there will be no complaint requirement for some crimes.
Crimes Subject to Conciliation in the Turkish Penal Code
Crimes Subject to Conciliation in Special Laws
CONCILIATION WITH RESPECT TO CHILDREN
CMK 253/1. According to clause c of the article; Provided that the victim or the person harmed by the crime is a real person or a private law legal entity, crimes requiring imprisonment or a judicial fine not exceeding three years are also within the scope of mediation for children who are dragged into crime.
With the provision, a distinction has been made in terms of children. Thus, in case of crimes committed by children whose upper limit does not exceed 3 years, in addition to the crimes above, the provisions regarding mediation are applied. This provision does not apply to types of crimes that are not subject to mediation, such as crimes against sexual immunity. Another important point here is this:
When calculating the amount of the penalty, the basic or qualified state of the crime is taken into consideration. In terms of children, after the reduction in Article 31 of the Turkish Penal Code is made, it does not matter whether the penalty limit is exceeded.
CRIMES NOT SUBJECT TO CONDITION
The legislator has ruled that some types of crimes will not be subject to mediation due to their nature. It is possible to explain this approach with criminal policy. Crimes that are not within the scope of mediation are:
COMMITMENT OF TWO CRIMES TOGETHER, WHICH ARE AND ARE NOT IN THE SCOPE OF CONDITION
CMK 253/3. According to the article; "If a crime within the scope of mediation is committed "against the same victim" together with another crime that is not within this scope, the provisions of mediation will not apply."
As clearly stated in the provision, if two different crimes are committed against the same victims and one of them is not within the scope of mediation, the mediation procedure will no longer be applied even for the crime that is within the scope of mediation. However, in such cases, if an acquittal is given for a crime that is not within the scope, mediation procedures must be carried out for the other crime. An example Supreme Court decision is as follows:
"The case is about the crime of disturbing the peace and tranquility of people. In the incident; since it is alleged that the crime of disturbing the peace and tranquility of people regulated in Article 123 of the Turkish Penal Code was committed together with the crime of sexual harassment against children regulated in the 2nd paragraph of Article 105/1 of the same Law, which is not within the scope of mediation, it is not within the scope of reconciliation according to Article 253/3 of the CMK, but as a result of the trial, the defendant was found guilty of the crime of sexual harassment." "In case of acquittal, the crime of disturbing the peace and tranquility of persons has become subject to mediation and the mediation process must be carried out in accordance with the method stipulated in Article 253 of the Criminal Procedure Code, and the legal status of the defendant must be determined according to the result." Y4CD. 2022/24077 K.
Again, Article 10/3 of the Regulation on Conciliation in Criminal Procedure. According to the article:
In cases where a crime within the scope of mediation has been committed together with another crime that is not within this scope and it is decided that there is no need for prosecution for the crime that is not within the scope, the file is sent to the office upon the expiry of the objection period against this decision or the rejection of the objection.
CONCILIATION PRINCIPLES
Voluntarism
Conciliation can only be made with the consent of the parties. The parties can always give up reaching a compromise until an agreement is made. In this respect, reconciliation depends on the will of the parties.
In order to seek mediation for a crime that causes victimization or harm to more than one person, all of the victims or those harmed by the crime must accept reconciliation.
In crimes committed by more than one person, whether or not they are affiliated, only the suspect who reconciles can benefit from conciliation.
Privacy
Conciliation negotiations are conducted confidentially. The mediator is obliged to keep confidential the statements made during the mediation process and the facts conveyed to him or his knowledge in any other way.
Statements made during conciliation negotiations cannot be used as evidence in any investigation, prosecution or lawsuit. Participants in the negotiations cannot be heard as witnesses regarding this information.
The "conciliation office" reminds the mediator that he/she is obliged to act in accordance with the principle of confidentiality of the investigation.
Unless otherwise agreed, the parties, defense counsel and attorneys are obliged to comply with the confidentiality rule specified in the first paragraph.
The fact that a previously existing document or fact has been put forward during conciliation negotiations does not prevent its use as evidence in the investigation and prosecution process or in a lawsuit.
Impartiality
The mediator is prohibited from obtaining evidence. However, the evidence brought by the parties can be examined. The mediator is independent of the parties and the state.
Regulation art. Article 6/a points out his independence and impartiality by stating that "the mediator performs his duty independently and impartially within the framework of the rules of honesty, looks after the common interests of the parties, and takes care that the parties have adequate and equal opportunities in negotiations."
The mediator's receipt of instructions from the public prosecutor should be interpreted as dependency. Article 5 of the Conciliation Regulation in Criminal Procedure is as follows:
1) Reconciliation is carried out if the suspect or defendant and the victim or the injured party agree and decide with their free will. These people can give up their will until the agreement is made.
2) Reconciliation is carried out in accordance with the fundamental rights and freedoms of the suspect or defendant and the victim or injured by the crime, taking into account the principle of protecting their interests.
3) The suspect, defendant, victim or injured party participating in mediation and their legal representatives have the basic guarantees provided by the Law during negotiations.
4) If the suspect, defendant, victim, victim of a crime or the legal representatives of these people do not know Turkish or are disabled, the provision of Article 202 of the Law shall apply.
5) Before starting the mediation process, the suspect or defendant and the victim or the person harmed by the crime; They are informed about their rights, the nature of the compromise and the legal consequences of the decisions they will make.
6) Significant differences such as age, maturity, education, social and economic status of the suspect or defendant and the victim or injured by the crime are taken into consideration in the mediation process.
7) The mediator maintains the confidentiality of the information and documents given to him due to his duty. Confidential information and documents given by one of the parties cannot be disclosed to the other party without the consent of the giver or unless required by law. The obligation to maintain confidentiality continues after the conciliator's duty ends.
8) Before starting conciliatory negotiations, the parties; It explains the basic principles of conciliation, its impartiality, the conciliation process and its results, the functions of the mediator and the parties in conciliation, the obligation of confidentiality, and ensures that they understand the process.
9) The mediator takes appropriate measures to ensure that the parties compromise with their free will, knowing the terms and consequences.
CONCILIATION DURING THE INVESTIGATION PHASE
Collecting evidence
Sending the file to the office and registration
Examination of the file and decision to return
1) As a result of the examination carried out by the public prosecutor responsible for conciliation;
a) Understanding that the act accepted in the decision to send to the Bureau is not within the scope of conciliation,
b) In cases where it is understood from the content of the file that is the subject of the decision to send, that the file was sent to the office without collecting evidence that is deemed to have an impact on the proof of the crime, in order to determine sufficient suspicion to file a public lawsuit against the suspect, the file is sent back to the investigation office.
Appointment of a mediator
- As a result of the examination of the file sent to the conciliation office by the public prosecutor responsible for conciliation, if it is understood that the crime underlying the decision to send is within the scope of mediation, the appointment of a mediator is made with the approval of the relevant public prosecutor according to the list determined by the Department.
- If there are not enough mediators in the jurisdiction of the Chief Public Prosecutor's Office of the High Criminal Court, appointments can be made from the list of the Chief Public Prosecutor's Office of the nearest High Criminal Court.
- After the file is handed over to the mediator, the parties are notified of this issue via telephone, SMS or other electronic means.
- The conciliation document is delivered to the conciliator with a report and the receipt is added to the file.
- A compromise offer cannot be made until one month has passed from the date of the crime.
CONCILIATION REPORT AND CONCILIATION DOCUMENT
Reconciliation report
When the conciliator concludes the conciliation procedures, he submits the report prepared by the parties, one more than the number of parties, in order to leave no room for doubt and hesitation and including the serial number if possible, the acts of the parties separately, the document samples given to him and the document showing the expenses he has incurred, if any, the expense note or the written statement in accordance with the market, with the report to be prepared in UYAP, to the conciliation office.
In case of reconciliation, the report including the signatures of the parties explains in detail how the agreement was reached. However, statements made regarding the commission of the crime during the mediation negotiations are not included in the report.
The office submits the investigation file, report and written agreement, if any, to the public prosecutor in charge of the conciliation office without delay.
If the public prosecutor determines that the reconciliation is based on the free will of the parties and that the action is in accordance with law and morality, he approves the report or document by sealing and signing it and keeps it in the investigation file.
If the public prosecutor does not approve the report or document because the reconciliation is not based on the free will of the parties and the action is not in accordance with the law and morality, he writes the reason in the report. If he/she does not approve the report because the action is not in compliance with the law and morality, he/she may request the conciliator to change the action, provided that the period specified in Article 17 of this Regulation is complied with.
Conciliation Document
In case the suspect and the victim or the injured party reconcile before the mediator is appointed or after the reconciliation offer is rejected; A conciliation document is prepared in accordance with the Conciliation Report Sample in Annex-3, to the extent deemed appropriate by the parties. The public prosecutor examines and evaluates this document according to the criteria specified in the fourth and fifth paragraphs of Article 18.
CONDITIONAL PERIOD
The conciliator concludes the conciliation procedures within thirty days after receiving the conciliation documents. If it cannot be concluded within this period, the conciliation office may extend this period for a maximum of twenty more days, provided that the conciliation office applies to the office with a petition explaining the situation, provided that it obtains the approval of the public prosecutor in charge of the office.
Despite the rejection of the reconciliation offer, the suspect and the victim or the person harmed by the crime can declare their reconciliation by applying to the Public Prosecutor with a document showing that they have reconciled, no later than the date of the indictment.
LEGAL CONSEQUENCES OF CONSOLIDATION DURING THE INVESTIGATION PHASE
Performance of the Act
If the suspect fulfills his actions repeatedly as a result of the mediation, the public prosecutor responsible for mediation decides that there is no need for prosecution of the suspect. When deemed necessary, the juvenile judge is requested to implement the protective and supportive measures in the Child Protection Law No. 5395 for the child dragged into crime.
In case the performance of the action is postponed to a later date, is tied to installments or is continuous, a decision is made to postpone the filing of a public lawsuit against the suspect, regardless of the conditions in Article 171 of the Law. In this case, the office monitors whether the action has been fulfilled or not. The statute of limitations does not run during the postponement period.
After the decision to postpone the filing of a public lawsuit is made, if the requirements of the compromise are met, a decision is made that there is no need for prosecution.
After the decision to postpone the filing of a public lawsuit, if the requirements of conciliation are not met, a public lawsuit is filed without seeking the conditions in the fourth paragraph of Article 171 of the Law.
Failure to Fulfill the Act
In case the suspect does not fulfill his obligation, the conciliation report or conciliation document is considered as one of the documents having the nature of a written decision in Article 38 of the Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932.
Issuing an Indictment
If the mediation process is unsuccessful, the indictment against the suspect is prepared by the public prosecutor responsible for the mediation.
If an indictment is issued against the child dragged into crime at the end of the mediation process, the public prosecutor responsible for mediation, when deemed necessary, requests the court to implement the protective and supportive measures included in the Child Protection Law No. 5395.
CONCILIATION DURING THE PROSECUTION PHASE
After the public lawsuit is filed, in the event of the following situations, conciliation procedures are carried out by the conciliation office in accordance with the principles and procedures specified in Article 253 of the Law, upon the request of the court:
a) It is understood that the crime subject to prosecution is within the scope of reconciliation due to the change in its legal nature,
b) It is first understood during the prosecution phase that a compromise offer should be made during the investigation phase,
c) The existence of a crime subject to compromise, which is brought directly to the court with a document that replaces the indictment, without the preparation of an indictment by the public prosecutor,
ç) The crime falls within the scope of reconciliation due to a change in the law during the prosecution phase.
2) After the file sent by the court is recorded in the office, it receives an office number.
3) Among the documents related to the crime or crimes subject to mediation, those that are necessary for mediation and deemed appropriate by the judge are sent to the office. In the interim decision to send, the persons to whom the mediation procedures will be carried out and the crimes subject to mediation are clearly stated.
4) After the registration process is completed by the office staff, the file is handed over to the public prosecutor in charge of the office.
5) If the persons to be reconciled or the crimes subject to mediation are not clearly stated in the court's interim decision on referral, the public prosecutor may request the court to correct these deficiencies.
6) If it is determined by the public prosecutor that the crime is clearly not within the scope of reconciliation, the court may be asked to re-evaluate the interim decision.
7) Appointment of a mediator is made with the approval of the public prosecutor.
8) After the file is handed over to the mediator, the parties are notified of this issue via telephone, SMS or other electronic means. (Regulation on Conciliation in Criminal Procedure)
LEGAL CONSEQUENCES OF CONSOLIDATION DURING THE PROSECUTION PHASE
If conciliation is achieved, the court decides to dismiss the case if the defendant fulfills his obligation once and for all as a result of the conciliation.
In case the performance of the obligation is postponed to a later date, is made in installments or is continuous; It is decided to postpone the announcement of the verdict regarding the defendant, without seeking the conditions in Article 231 of the Law. The statute of limitations does not run during the suspension period.
After the decision is made to postpone the announcement of the verdict, if the requirements of the compromise are met, the case is decided to be dismissed by eliminating the postponed verdict.
After deciding to postpone the announcement of the verdict, if the requirements of the compromise are not met, the court will announce the verdict without seeking the conditions in the eleventh paragraph of Article 231 of the Law.
In case the defendant does not fulfill his obligation, the conciliation report is considered as a document having the nature of a written decision in Article 38 of Law No. 2004.
STATEMENT OF LIMITATION IN THE CONCILIATION PROCESS
- From the date when the first conciliation offer is made to a suspect, defendant, participant, victim or a person harmed by a crime, until the date when the conciliation attempt fails and the mediator prepares his report and submits it to the office at the latest, the statute of limitations and the lawsuit period, which is a condition of prosecution, do not start.
- If the conciliation offer is not responded to within the deadline or the offer is rejected, the conciliation attempt is deemed unsuccessful.
- If the parties or their legal representatives or attorneys refrain from participating in the conciliation negotiations, or if one of the parties notifies in writing or verbally that they have given up on conciliation during the negotiations, the statute of limitations and the lawsuit period, which is a condition of prosecution, start to run again from the date the report is submitted to the office. (Regulation article 34)
CAN A LAWSUIT FOR DAMAGES BE FILED IF CONSOLIDATION IS ACHIEVED?
CMK 253/19. In the fifth sentence of the article, "In case of agreement, a lawsuit for compensation cannot be filed due to the crime subject to investigation;" The provision was included. However, this provision was annulled by the decision of the Constitutional Court on 26/7/2023 in file number E.2023/43. The announcement of the Constitutional Court general secretariat on the subject is as follows:
"In paragraph (5) of Article 253 of Law No. 5271, where the contested rule is included, it is stated that in case of a compromise offer, the person will be informed about the nature of the compromise and the legal consequences of accepting or rejecting the compromise. Accordingly, the relevant parties will be informed that they will not be able to file a compensation lawsuit in case of settlement. Therefore, there is an important assurance that can prevent the possibility of the person settling without being aware that he cannot file a compensation lawsuit.
In addition, in paragraph (17) of the said article, a provision is also provided for the reconciliation to be realized with the free will of the relevant parties, and also to ensure the legality of the action within this scope, by stating that if the public prosecutor determines that the reconciliation is based on the free will of the parties and that the action is in accordance with the law, he will keep the mediation report or relevant document in the investigation file by sealing and signing it.
In cases where all consequences arising from the crime can be foreseen and the actual damage can be determined during the conciliation process, the failure of the compromised person to file a lawsuit for compensation will not cause a constitutional problem. Because, in principle, the dispute will be eliminated if an agreement is reached in terms of foreseeable and calculable damages in the said process. Accordingly, in order to be able to say that the inability of the compromised person to file a compensation lawsuit is not an unbearable burden, the damage suffered due to the crime under investigation must be at least approximately determined during the settlement negotiations.
In all cases, it will not be possible to know the damage suffered due to a criminal act during the reconciliation process. Especially in cases where some technical data such as disability rate is needed, it will be difficult to accurately determine the damage during the reconciliation process. Accordingly, it cannot be said that in every case, the relevant parties will have complete and accurate information regarding the damage that exceeds the performance and cannot be subject to a compensation lawsuit, if a compromise is reached.
In this context, the rule regulating that a compensation lawsuit cannot be filed when a compromise is reached, without making any distinction in terms of the lawsuits to be filed regarding damages that are difficult to determine accurately or cannot be foreseen during the settlement negotiations, has imposed an unbearable burden on those concerned. As a result, it was evaluated that a reasonable balance could not be established in the rule between the aim of reducing the workload of the judiciary and the limitation on the right to access the court. In this respect, it has been concluded that the rule violates the principle of proportionality in terms of the sub-principle of proportionality.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and annulled it."
Change in Supreme Court Jurisprudence on Compensation
After the annulment decision, the Supreme Court of Appeals 4th HD. With its decision dated 15.01.2025, it announced that it had reneged on its old jurisprudence and ruled that a lawsuit for compensation could be filed despite the compromise. Relevant parts of the decision are as follows:
"Since the Constitutional Court annulled the CMK 253/19 provision and a new legal regulation was made from the annulment decision, the established practice of our Supreme Court has been reversed, stating that no lawsuit for compensation can be filed in case of compromise." 2025/725 K.
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