T.C.
SUPREME
- CRIMINAL DEPARTMENT
MAINLY NO:2015/2372
DECISION NO:2015/12784
DATE OF DECISION:07.12.2015
C. THE PROSECUTOR’S OFFICE HAS THE AUTHORITY TO OVERTURN THE DECISION OF NON-PROSECUTION FOR THE BENEFIT OF THE LAW – DEFAMATION AND THREAT-TAKTIR
ABSTRACT: In the article of the request; “Article 160 of the Code of Criminal Procedure No. 5271. as soon as the public prosecutor finds out about a situation that gives the impression that a crime has been committed by a denunciation or other means, he immediately begins to investigate the fact of the matter to decide whether there is room to open a public case. The public prosecutor is obliged to collect and preserve the evidence in favor of and against the suspect and protect the suspect’s rights with the help of the judicial law enforcement officers at his disposal in order to investigate the material truth and conduct a fair trial.” in the face of the regulation, the Public prosecutor is obliged to investigate, in a concrete case, the complainant claims that the suspect sent insulting and threatening messages, but the messages were deleted because the mobile phone malfunctioned, after the statements of the complainant and the suspect were taken during the investigation stage, it was understood that the content of the messages deleted by the complainant could not be determined and it was decided that there was no room for prosecution, although the fact that the contents of the messages allegedly sent by the suspect could not be determined would not indicate that the crime was not committed alone, after determining whether the message was sent during the declared hours of the client, there was no hit in evaluating the evidence and deciding to reject the appeal in writing instead of accepting it, taking into account that the discretion belongs to the court.” is called….
CMK’s 170/2. according to the article, in order to open a public case, there must be sufficient doubt that the crime was committed according to the evidence collected at the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by investigating a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and evaluate whether there is sufficient doubt that it requires filing a public lawsuit. This situation requires an assessment of the evidence. In other words, if the public prosecutor believes that the evidence obtained is sufficient for a public trial, he will file a lawsuit, otherwise he will make a decision on non-prosecution. Therefore, the prosecutor has the authority to evaluate the evidence. Otherwise, acceptance of the situation requires the public prosecutor to open a public case upon each notification or complaint, and the evidence discretion is left to the court, which acceptance will not be compatible with the right not to be tainted and will not be in accordance with the spirit of the law….
decision:
Made in the investigation phase of insulting and threatening suspected of crimes as a result of the investigation dated 10/06/2013 2012/67080 bassavciliginc given the Republic of Adana, No. 2013/16650 decision on whether to prosecute the appeal against the decision on the rejection of the authority of 2. Upon the request of the Ministry of Justice to overturn the decision of the High Criminal Court for the benefit of the law, the case file of the Prosecutor General’s Office of the Supreme Court of the Republic of 14/01/2014 days and with the request letter No. 12880 was sent to our Department:
In the article of the claim; “Article 160 of the Criminal Procedure Code No. 5271. as soon as the public prosecutor finds out about a situation that gives the impression that a crime has been committed by a denunciation or other means, he immediately begins to investigate the fact of the matter to decide whether there is room to open a public case. The public prosecutor is obliged to collect and preserve the evidence in favor of and against the suspect and protect the suspect’s rights with the help of the judicial law enforcement officers at his disposal in order to investigate the material truth and conduct a fair trial.” in the face of the regulation, the Public prosecutor is obliged to investigate, in a concrete case, the complainant claims that the suspect sent insulting and threatening messages, but the messages were deleted because the mobile phone malfunctioned, after the statements of the complainant and the suspect were taken during the investigation stage, it was understood that the content of the messages deleted by the complainant could not be determined and it was decided that there was no room for prosecution, although the fact that the contents of the messages allegedly sent by the suspect could not be determined would not indicate that the crime was not committed alone, after determining whether the message was sent during the declared hours of the client, there was no hit in evaluating the evidence and deciding to reject the appeal in writing instead of accepting it, taking into account that the discretion belongs to the court. it is said that “.
I-Event:
As a result of the investigation into the suspect for insulting and threatening crimes, a non-prosecution decision was made on the grounds of lack of evidence, upon the objection of the client’s deputy to the decision within the time limit, the authority … 2. It is understood that by the decision of the Criminal Court dated 02/09/2013, it was decided to dismiss the appeal, and a request was made to overturn this final decision in the interests of the law.
II- Scope of the Dispute Related to the Request to Violate the Benefit of the Law:
By examining the decision that there is no place for prosecution on appeal, the rejecting authority is concerned with determining whether the decision is in accordance with the law.
III- Legal Assessment:
CMK’s 160th. article 1. in his paragraph, “As soon as the public prosecutor finds out about a situation that gives the impression that a crime has been committed by denunciation or other means, he immediately begins to investigate the fact of the matter to decide whether there is room to open a public case.” 2. in its paragraph, “The public prosecutor is obliged to collect and preserve the evidence in favor of and against the suspect and protect the rights of the suspect by the ingenuity of the judicial law enforcement officers at his disposal, in order to investigate the material truth and to ensure a fair trial,”the public prosecutor said.” 170. article 2. in its paragraph, “If the evidence collected at the end of the investigation stage creates sufficient doubt that a crime has been committed, the Public Prosecutor shall issue an indictment.” 172. article 1. in its paragraph, “The public prosecutor decides at the end of the investigation phase that there is no room for prosecution if there is no evidence to create sufficient doubt for the opening of a public case to be obtained or there is no possibility of prosecution.” its provisions are regulated.
As can be seen from the above-mentioned regulations, part 2 of the Code of Criminal Procedure is entitled “investigation”. in his book, the tasks of the court charged with examining the appeal are clearly regulated in terms of how the public prosecutor will conduct the process of the criminal investigation and in the event that it is decided that there is no room for prosecution.
In this context, the court examining the decision that there is no room for prosecution on appeal may decide to reject the appeal if there is not enough evidence to open a public case, accept the appeal if there is enough evidence, or expand the investigation due to an incomplete investigation.
CMK’s 170/2. according to the article, in order to open a public case, there must be sufficient doubt that the crime was committed according to the evidence collected at the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by investigating a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and evaluate whether there is sufficient doubt that it requires filing a public lawsuit. This situation requires an assessment of the evidence. In other words, if the public prosecutor believes that the evidence obtained is sufficient for a public trial, he will file a lawsuit, otherwise he will make a decision on non-prosecution. Therefore, the prosecutor has the authority to evaluate the evidence. Otherwise, acceptance of the situation requires the Public prosecutor to open a public case upon each notification or complaint, and the evidence discretion is left to the court, which acceptance will not be compatible with the right not to be tainted and will not be in accordance with the spirit of the law.
The subject of the review is in the concrete case; suspicious …’s insulting and threatening the complainant’s statement that they have committed crimes outside of the public in the absence of evidence, which requires you to open the case, due to a lease dispute the complainant’s mobile he agreed to send a message from the suspect, but they have not advocated that insults and threats, is presented by the complainants of the contents of the message, not the message content of the information to be obtained from any institution retroactively as to be able to identify, only to result in concrete would be effective records search, it is clear that events are brought up, the decision of the authority to reject the appeal was considered in place, but it was decided to reject the request to overturn it for the benefit of the law.
CONCLUSION: For the reasons described above; Since the opinion in the communiqué issued by the Public Prosecutor’s Office of the Supreme Court is not seen in its place, CMK’s 309. the REFUSAL of the REQUEST TO OVERTURN IT FOR THE BENEFIT OF THE LAW in accordance with its article was decided unanimously on 07.12.2015.
