TC
Supreme
CRIMINAL DEPARTMENT
ORIGINAL NO.: 2015/2372
DECISION NO:2015/12784
DECISION DATE:07.12.2015
C. THE PROSECUTOR’S OFFICE HAS THE AUTHORITY TO OVERTURN THE DECISION ON NO PROSECUTION IN THE INTEREST OF LAW – INSULT AND THREAT-THANK YOU
ABSTRACT: In the request letter; “160 of the Criminal Procedure Code numbered 5271. its substance. As soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by notification or otherwise, he immediately begins to investigate the case of the incident in order to determine whether there is room to file a public lawsuit.
The public prosecutor is obliged to collect and preserve the evidence in favor of and against the suspect with the help of the judicial law enforcement officers at his disposal in order to investigate the material truth and to ensure a fair trial, and to protect the rights of the suspect.” in the face of the regulation, the public prosecutor has an obligation to investigate, in the concrete case, the client claims that the suspect sent insulting and threatening messages, but the messages were deleted due to the malfunction of the mobile phone, at the investigation stage,
after receiving the statements of the client and the suspect, it became clear that the content of the messages deleted by the client could not be detected and it was decided that there was no place for prosecution, although the fact that the content of the messages allegedly sent by the suspect could not be detected does not indicate that the crime was not committed alone, after determining whether the message was sent during the working hours declared by the client, there was no hit in evaluating the evidence and deciding to reject the written objection instead of accepting it, taking into account that the discretion belongs to the court.” it is said….
CMK’s170/2. according to the article, in order for a public lawsuit to be opened, there must be sufficient suspicion that a crime was committed according to the evidence collected during the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by conducting an investigation upon a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and assess whether there is sufficient doubt to require a public prosecution.
This situation requires the evaluation of the evidence. In other words, the public prosecutor will file a lawsuit if he believes that the evidence he has obtained is sufficient for a public trial, otherwise he will decide that there is no room for prosecution. Therefore, the authority to evaluate the evidence belongs to the prosecutor. Otherwise, the acceptance of the situation requires the Public prosecutor to open a public case on every notification or complaint, and the discretion of evidence is left to the court, and this acceptance will not be incompatible with the right not to be tainted and will not be in accordance with the spirit of the law….
decision:
As a result of the investigation dated 10/06/2013 of the offense of insulting and threatening the suspect for allegedly committing the offense of insulting and threatening, the decision that there is no place for prosecution on the appeal against the decision of denial of authority with the decision numbered 2012/67080 Adana Republic issued by the chief prosecutor’s office 2013/16650. Upon the request of the Ministry of Justice to overturn the decision of the High Criminal Court for the benefit of the law, the file was sent to our office with the letter of request of the Chief Prosecutor of the Supreme Court of Appeals dated 14/01/2014 and numbered 12880:
In the indictment; “160 of the Criminal Procedure Code No. 5271. its substance. As soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by notification or otherwise, he immediately begins to investigate the facts of the incident in order to determine whether there is room to file a public lawsuit.
The public prosecutor is obliged to collect and preserve the evidence in favor of and against the suspect and to protect the rights of the suspect with the help of the judicial law enforcement officers at his disposal in order to investigate the material truth and to conduct a fair trial.” in the face of the regulation, the public prosecutor has an obligation to investigate, in the concrete case, the client claims that the suspect sent insulting and threatening messages, but the messages were deleted due to the malfunction of the mobile phone, at the investigation stage, after receiving the statements of the client and the suspect,
it became clear that the content of the messages deleted by the client could not be detected and it was decided that there was no place for prosecution, although the fact that the content of the messages allegedly sent by the suspect could not be detected does not indicate that the crime was not committed alone, after determining whether the message was sent during the working hours declared by the client, there was no hit in evaluating the evidence and deciding to reject the written objection instead of accepting it, taking into account that the discretion belongs to the court.” it is said.
I-Activity:
As a result of the investigation against the suspect for insulting and threatening crimes, after the client’s attorney objected to the decision within the time limit, it was decided that there was no room for prosecution due to lack of evidence, authorized … 2. It is understood that with the decision of the Criminal Court dated 02/09/2013, it was decided to reject the appeal, and this final decision was requested to be overturned in the interest of law.
II- Scope of the Dispute regarding the Claim of Violation of the Legal Benefit:
The authority examining the decision that there is no place to apply for an appeal is obliged to determine whether the decision is in accordance with the law.
III-Legal Evaluation:
CMK’s 160. article 1. in the paragraph, “As soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by notification or otherwise, he immediately begins to investigate the case of the incident in order to determine whether there is room to file a public lawsuit.” 2. in the paragraph, “the public prosecutor is obliged to collect and preserve evidence in favor of and against the suspect and protect the rights of the suspect with the ingenuity of judicial law enforcement officers under his command in order to investigate material facts and ensure a fair trial.” it was said. 170. 2 of the article.
in the paragraph, “If the evidence collected at the end of the investigation phase creates sufficient suspicion that a crime has been committed, the public prosecutor issues an indictment.” 172. Article 1. in the paragraph, “the public prosecutor decides at the end of the investigation phase that there is no room for prosecution if sufficient evidence to create suspicion cannot be obtained for the opening of a public case or if there is no possibility of prosecution.” the judgment is fixed.
As can be seen from the above-mentioned regulations, 2 of the Code of Criminal Procedure. the part bears the title ”investigation”. in his book, the duties of the court charged with examining the application for appeal are clearly laid out in terms of how the public prosecutor will conduct the criminal investigation process and how he will act if it is decided that there is no place for prosecution.
In this context, the court examining the decision that there is no place for prosecution on appeal may decide to reject the appeal application if there is insufficient evidence to open a public case, to accept the appeal application if there is sufficient evidence, or to extend the investigation due to incomplete investigation.
CMK’s170/2. according to the article, in order for a public lawsuit to be opened, there must be sufficient suspicion that a crime was committed according to the evidence collected during the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by conducting an investigation upon a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and assess whether there is sufficient doubt to require a public prosecution.
This situation requires the evaluation of the evidence. In other words, the public prosecutor will file a lawsuit if he believes that the evidence he has obtained is sufficient for a public trial, otherwise he will decide that there is no room for prosecution. Therefore, the authority to evaluate the evidence belongs to the prosecutor. Otherwise, accepting the situation requires the Public prosecutor to open a public case on every notification or complaint, and the discretion of evidence is left to the court, and this acceptance will not be incompatible with the right not to be tainted and will not comply with the spirit of the law.
The subject of the examination is the concrete case; suspect …’s statement that the complainant committed a crime in the public domain contains insults and threats without evidence, a situation that requires a lawsuit to be filed, the complainant accepts sending messages to his mobile phone due to a rent dispute, but does not claim that he made insults and threats, the content of the message was submitted by the complainants, information about the content of the message will not be able to be determined retrospectively from any institution, only a search for concrete records will be effective, events have clearly emerged that the complainant has accepted sending messages to his mobile phone due to a rent dispute,
but he has not claimed that he made insults and threats, only a search for concrete records will be effective, the information of the message content will not be able to be determined retrospectively from any institution., it was assessed that the decision of the administration to reject the appeal was appropriate, but it was decided to reject the request to overturn it in the interest of the law.
CONCLUSION: For the reasons explained above; Due to the fact that the opinion in the communiqué published by the Chief Public Prosecutor’s Office of the Court of Cassation is not considered in place, 309 of the CMK. in accordance with the article, it was decided unanimously on 07.12.2015 to REJECT the REQUEST FOR VIOLATION IN THE INTEREST OF THE LAW.