1) The Right to Complain
The right to complain refers to the legal entitlement of a victim to apply to competent authorities to initiate an investigation by the prosecutor’s office or a prosecution by the court upon the occurrence of a crime. Since this right is classified under public law as a strictly personal right (highly personal right), it can only be exercised personally by the rightholder. While the right to complain itself cannot be inherited by heirs, the heirs can ensure the continuation of criminal cases that have already been filed during the lifetime of the complainant (complainant) who personally exercised their right before passing away.
Legal entities such as associations, foundations, corporations, etc., also possess the right to complain. A legal entity can exercise its right to complain through its authorized organs, just like a natural person.
1.1) Competent Authorities for Submitting a Complaint
The provision regulating the right to complain is stipulated in Article 158 of the Criminal Procedure Code (CMK) No. 5271. It dictates that the complainant’s recourse must be directed to the following public authorities:
- Law enforcement authorities (Police / Gendarmerie)
- The Office of the Chief Public Prosecutor
- Turkish Embassies and Consulates for crimes committed abroad that require prosecution within Turkey
- The relevant institution or organization administration for offenses committed during the execution of a public duty
- Governorates, District Governorates, or Courts
There are no formal strict requirements that must be followed when exercising the right to complain. The right to complain can be exercised in writing, or orally, provided that an official transcript (minutes) is drawn up and recorded.
1.2) Impossibility of Complaining Against Only One Person: Exercising the Right of Complaint Regarding a Tortious Act
In essence, when exercising the right to complain, the complaint is filed regarding the underlying ‘tortious act’ that took place; a specific individual cannot be isolated to the exclusion of others via a selective approach; every person involved in the incident is deemed to have been complained against.
| Precedent Case Summary Court of Cassation 13th Criminal Chamber, Basis: 2020/6356, Decision: 2020/10400, Date: 27.10.2020: Criminal Court of First Instance | CRIME: Damaging Property | VERDICT: Conviction Upon reviewing the file on appeal against the judgment rendered by the local court, the requirements were deliberated: Considering that the complainant’s counsel declared at the hearing on 09.04.2019 that they waived the complaint against the non-appealing defendant …, and that the public case filed against defendant … was dismissed due to the waiver of the complaint; evaluating the act as a whole, the complaint targets the deed (act) rather than the perpetrator. In offenses committed in complicity, the complainant does not need to waive the complaint by listing the names of all perpetrators individually due to the rule of indivisibility of the complaint. Pursuant to Article 73/5 of Law No. 5237, a waiver of a complaint regarding the same incident will also extend to the other defendant. Failing to observe this and rendering a conviction instead of a dismissal for defendant … required a REVERSAL of the judgment against the notification, as the appeal request of defendant … was deemed appropriate in this respect. Decided unanimously on 27.10.2020. |
If multiple tortious acts have occurred within a single incident, it is possible to complain about each of these tortious acts separately. When filing a complaint for other independent tortious acts that have occurred, there is no procedural obligation that forces the complainant to also complain about the individuals who carried out those specific separate acts.
1.3) Statute of Limitations (Forfeiture Period)
According to the Turkish Penal Code (TCK), while certain offenses require a complaint to be filed for their investigation and prosecution, others do not. Pursuant to TCK Art. 73, for offenses dependent on a complaint, the complaint must be filed within ‘6 months’ from the date the victim learns of the act and the identity of the perpetrator. After this 6-month forfeiture period expires, the right to complain will terminate. However, an essential detail must be added: if the tortious act was committed against multiple persons, and the victims learn about the act and the perpetrator at different times, this forfeiture period operates independently for each person. One person learning about it before others does not affect the statute of limitations applicable to the other victims.
1.4) Execution and Processing of the Right to Complain
The right to complain can be exercised by making a declaration to the police, gendarmerie, or the prosecutor’s office, as well as by submitting a written ‘complaint petition’ to the prosecutor’s office or the court. As a rule, a complaint petition submitted to a court is forwarded to the prosecutor’s office. While the main rule mandates recourse to judicial authorities, administrative authorities may also be approached under different circumstances:
- For crimes committed abroad that require tracking and prosecution by our country, a report or complaint can be made to Turkish embassies and consulates.
- The administration of the relevant institution or organization for crimes committed during the execution of any public duty.
- A report made to a Governorate or District Governorate is ensured to be forwarded to the relevant prosecutor’s office.
A complaint petition must contain the complainant’s identity, address, contact details, and a clear explanation of the incident. The complaint petition can be recorded orally, handwritten, or via a computer; that is to say, the method used to create the complaint petition is of no consequence. The crucial point is that the complainant clearly explains the sequence of events.
If the report is evaluated as not requiring an investigation or as being abstract and general in nature, leading to the conclusion that no crime has materialized, a decision of ‘no grounds for investigation’ (non-prosecution) is rendered. When this decision is ruled, the person complained against cannot be granted the status of a suspect. The rendered decision is notified to the complainant. If the complainant sees fit, they may object to this decision. If the objection is approved, the Chief Public Prosecutor’s Office initiates the investigation proceedings. For an investigation to be launched directly upon a report—without resorting to an objection path—the allegation underlying the report must be deemed by the prosecutor to constitute a criminal offense. Evidence is collected, witnesses are heard, and expert examinations/discovery are conducted. In line with these steps, the prosecutor drafts an indictment and files a criminal case against the perpetrator.
According to the Court of Cassation, the baseline age limit for exercising the right to complain is 15 (fifteen). The right to complain for children who have not completed the age of 15 belongs to the child’s legal representative. Due to the minor age in question, there is a ‘lack of capacity to discern in criminal proceedings,’ and this right cannot be exercised by the child without the consent of the legal representative.
2) Waiver of Complaint (Withdrawing a Complaint)
Waiver of a complaint is the retraction of a complaint by the victim (who is in the position of a complainant) during either the investigation or prosecution phase (a process that lasts until the judgment becomes final). The right to waive a complaint, just like the right to file one, is classified as a strictly personal right. After the judgment becomes final, the right to waive the complaint disappears, and even if a waiver is desired, it cannot prevent the execution of the sentence pursuant to Article 73, Paragraph 4 of the Turkish Penal Code No. 5237. (TCK Art. 73/4: In offenses where prosecution is dependent on a complaint, unless otherwise stated in the law, a waiver by the person harmed by the crime dismisses the case, and a waiver after the judgment becomes final does not prevent the execution of the sentence.)
2.1) How Does Waiving a Complaint Alter the Course of the Legal Process?
If the right to waive a complaint is exercised during the investigation phase, the investigation terminates; if it is exercised during the prosecution phase, the court case is dismissed. As explained above, after the prosecution phase ends and a final, binding judgment is rendered, waiving the complaint will not hinder the execution of the sentence.
2.2) Waiving a Complaint in Files with Multiple Suspects or Defendants
We previously explained that despite multiple individuals executing a tortious act against a complainant, the right to complain must be exercised ‘jointly/collectively’. In the same manner, waiving a complaint also takes place collectively. For instance, let us consider a hypothetical situation where 5 individuals rob 1 person. If the complainant forgives the opposing party and waives the complaint while the investigation process is underway, they are deemed to have waived their complaint not just against one individual, but against all five individuals.
2.3) The Defendant’s or Suspect’s Rejection of the Waiver
As a consequence of waiving a complaint, the defendant has the right to reject this decision. The defendant is not obliged to accept the waiver of the complaint; they may reject the waiver in order to be tried and acquitted, or for any other underlying reason. As a matter of fact, this issue is explicitly explained in TCK Art. 73/6: ‘Unless otherwise written in the law, a waiver does not affect a defendant who does not accept it.’
2.4) The Methods through which a Complaint Can Be Waived
Complaint applications can be directed to judicial bodies such as the prosecutor’s office, courts, and law enforcement units, as well as to administrative authorities such as district governorates or governorates (CMK Art. 158/1-2).
No specific procedural rule regarding the form of waiving a complaint has been established in the Criminal Procedure Code. Therefore, this declaration can be submitted orally before a court, judge, or prosecutor’s office, or it can be recorded through notary publics or law enforcement units. The essential criterion here is that the intent to withdraw the complaint must be demonstrated and proven beyond any doubt. For example, expressions such as ‘…I have received my material and moral compensation, I waive my complaint’ contained in release agreements drawn up through a notary public following traffic accidents involving injury or death carry full legal validity.
On the other hand, when it comes to individuals for whom a mandatory defense counsel (lawyer) must be appointed, the method of waiver is tied to a special condition. Accordingly, it is mandatory that the legal representatives and lawyers of minors under the age of 18, the deaf or mute, or individuals disabled to an extent that prevents them from explaining their grievances, are mutually informed of the process, and that the lawyer enlightens these representatives. Waiver declarations submitted by the legal representative of a minor, a deaf-mute, or a disabled individual without the necessary briefing by the lawyer assigned by the Bar Association are not considered valid under criminal procedure law.
Frequently Asked Questions (FAQ)
Q1) If the ‘authority to complain’ is not explicitly stated in a power of attorney, is a complaint made by a lawyer considered valid?
A1) Even if the ‘authority to complain’ is not explicitly mentioned in a power of attorney, filing a criminal complaint with the prosecutor’s office or lodging a complaint regarding enforcement proceedings under a general power of attorney is valid. This situation is evaluated within the scope of the general authority to follow up on proceedings aimed at protecting a right. However, for exceptional transactions that yield definitive consequences, such as waiving a complaint or the recusal of a judge, the presence of special authorization in the power of attorney is mandatory pursuant to the HMK (Code of Civil Procedure) and CMK.
Q2) What is the difference in terms of consequences between waiving a complaint during the investigation stage versus the prosecution (trial) stage?
A2) If a complaint is waived during the investigation stage, a Decision of No Grounds for Prosecution (nolle prosequi/dismissal) is rendered by the prosecutor’s office. On the other hand, if the waiver occurs during the prosecution (trial) stage, the court orders the dismissal of the public case. The most critical difference in this process is the requirement of the defendant’s consent; while the suspect’s acceptance is not sought for a waiver during the investigation phase, the defendant has the right to reject the waiver during the court phase, demand the continuation of the trial, and seek exoneration (acquittal).
Q3) After a fight or a traffic accident, I signed a statement at the police station in the heat of the moment saying ‘I have no complaint.’ The next day my pain increased, or I regretted it once I calmed down; can I go to the courthouse and file a complaint again?
A3) After signing a statement at a police station stating ‘I have no complaint,’ it is legally impossible to retract this waiver declaration and file a complaint again for the same offense. However, if you receive a qualified injury report from a hospital the next day indicating conditions such as a ‘bone fracture, loss of limb function, or a life-threatening condition,’ the offense will lose its nature of being dependent on a complaint and gain a character that is investigated ex officio on behalf of the public. In that case, the prosecutor’s office will reopen the file and resume the investigation. Furthermore, your waiver statement at the police station only terminates the criminal process; your right to file a lawsuit for compensation in civil courts for treatment expenses and your material and moral damages arising from the incident remains reserved under all circumstances.
Q4) A customer insulted me over the phone on my corporate company line. The company does not want to complain so that its ‘corporate image is not tarnished.’ Can I personally complain about that person, or do I need the boss’s permission?
A4) Since the legal value protected in the crime of insult you were exposed to over a company line is directly your personal honor, dignity, and reputation, the right to complain belongs to you personally, and you do not need to obtain permission from your boss or the company to file a complaint. The company’s reluctance to initiate a judicial process with the thought that its ‘corporate image will be tarnished’ only binds its own legal entity; it cannot legally block your freedom to personally go to the prosecutor’s office or police station and file a criminal complaint against the customer who insulted you. In this criminal case to be opened on your own behalf, company phone records or corporate line voice recordings may be requested by the court as evidence, and the company is obliged to submit these records to the judicial authorities. We have previously discussed how audio recordings that will serve as evidence can be utilized and their legal nature in our previous articles; you may review them if you wish.
Q5) My ex-boyfriend/spouse constantly calls and disturbs me, showing up at my doorstep. If I file a complaint, can I get a restraining order immediately, or do I have to wait for a criminal case to be opened?
A5) In the event that your ex-boyfriend or spouse constantly calls to disturb you and shows up at your doorstep, you do not need to wait for a criminal case to be opened or for any investigation process to be completed to obtain a restraining order. Pursuant to Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women, in the presence of violence or the danger of violence, protective and preventive injunction decisions are granted immediately the moment you apply to the nearest police station, to the prosecutor’s office as a complainant, or directly to the family court. By law, no condition of evidence or document research is sought by judicial authorities for this restraining order to be granted swiftly; the victim’s declaration is deemed sufficient for taking preventive measures at the first stage. Therefore, a restraining order is issued against the suspect on the day you complain or at the latest on the following day, and the criminal case proceeds along its own course completely independent of this process.
Q6) Can a waiver of a complaint be made conditionally?
A6) A waiver of a complaint cannot be made subject to a condition or qualification; according to the established precedents of the Court of Cassation, this declaration must be explicit, unconditional, and unqualified. If the complainant puts forward a condition in their petition or statement such as ‘I waive my complaint if my damage is compensated’ or ‘I waived on the condition that he performs this specific task,’ this statement is not accepted as a legally valid waiver, and the criminal case is not dismissed. However, for a waiver of a complaint to yield legal consequences, the parties may draw up a protocol between themselves; after the perpetrator fulfills their obligation (e.g., paying the damages, delivering the money), the complainant can go to the courthouse and declare that they have waived their complaint completely ‘unconditionally and without qualifications.’
| Precedent Extract “…Since it is impossible to bind the waiver of a complaint to a condition, and thus there is no waiver in accordance with the proper procedure; while it was necessary to continue the trial regarding the defendant and render a conviction (…), rendering a dismissal decision in writing required a Reversal…” (Court of Cassation 3rd Criminal Chamber, Basis: 2017/2587, Decision: 2017/17353, Date: 25.12.2017) |
A Selection of Precedent Decisions on the Matters Discussed
1) Pursuant to Article 20 of the Labor Law No. 4857, an employee who claims that their employment contract was terminated without a valid reason must file a lawsuit within one month from the date of notification of termination, requesting the invalidity of the termination and reinstatement. This period is a forfeiture period (statute of limitations) and must be taken into account ex officio by the court. (…) Provisions in personnel regulations or contracts that foresee an administrative appeal path against the notification of termination will not interrupt the period for filing a lawsuit, nor will the fact that the employee received a medical report due to illness during this period suspend this timeframe. (Court of Cassation 7th Civil Chamber, 2014/8122 Basis, 2014/8122 Decision, 15.11.2014 Date.)
2) “…Upon discovering from the examination of the file that the victim submitted a petition to waive the complaint after the judgment, and that the offenses matching the acts of the defendants fall within the scope of Article 86/2 of the TCK No. 5237 and are among the offenses whose prosecution is dependent on a complaint, it is mandatory to ask the defendants whether they accept the waiver of the complaint pursuant to Article 73/6 of the TCK No. 5237, and evaluate the legal status of the defendants according to the result. (…) It has been decided to VACATE our Chamber’s decision regarding the approval of the convictions, (…) and since it is mandatory to ask the defendants whether they accept the waiver of the complaint pursuant to Article 73/6 of the TCK No. 5237 in light of the victim’s declaration of waiver, and evaluate the legal status of the defendants accordingly, this required a REVERSAL of the judgments, as the appeal reasons of the defendants were deemed appropriate in this regard…” (Court of Cassation 3rd Criminal Chamber, Basis: 2020/23768, Decision: 2020/18421, Date: 8.12.2020)
3) “…In the face of the fact that Article 73/5 of the TCK states that if a complaint is waived for one of the defendants due to offenses committed in complicity, the waiver will also extend to the other defendants; it was necessary to decide on the dismissal of the case against the defendants … pursuant to Article 354 of the Execution and Bankruptcy Code (İİK) via the guidance of Article 73/5 of the TCK…” (Court of Cassation 19th Criminal Chamber, 2016/13315 Basis, 2018/10115 Decision, 10.10.2018 Date.)
4) “The manner and the authorities to which a complaint or report regarding an offense shall be made are explicitly regulated in Article 158/1 of the CMK No. 5271; accordingly, a report or complaint regarding an offense can be made to the Chief Public Prosecutor’s Office or law enforcement authorities. A report or complaint made to a governorate, district gendarmerie/governorate, or a court shall be forwarded to the relevant Chief Public Prosecutor’s Office. Although the legislator did not explicitly deem it necessary to make a separate regulation, there is no doubt that the waiver of a complaint shall also be made to the same authorities and to the courts authorized to hear the public case. (…) An explicit waiver of a complaint can take place before judicial organs such as the Republican Prosecutor’s Office, the court, or a judge, as well as before law enforcement authorities or a notary public. Furthermore, the person harmed by the crime may also waive the complaint with a written statement containing the declaration of waiver. The important issue here is to prove that this declaration belongs to the person harmed by the crime. In other words, it is sufficient to determine the intent to waive the complaint beyond any room for doubt, and it is not mandatory to make this declaration of intent before the authorities listed in Article 158 of the CMK.” (Court of Cassation Criminal General Assembly, Basis: 2013/71, Decision: 2014/206)
5) “Considering that if the person harmed by an offense whose investigation and prosecution is dependent on a complaint is a legal entity, the right to complain can be exercised by the authorized organs and legal representatives of the legal entity; in the concrete case, when it is observed that the [counsel], who was authorized by the complainant company executive via a power of attorney to follow up on all kinds of lawsuits and transactions on behalf of the complainant legal entity and to protect the interests of the company, protected the company’s interests with this complaint and that the scope of the power of attorney essentially includes the right to complain, it was not correct to reject the objection [against the decision of non-prosecution] instead of accepting it, without considering that the (…) petition was a valid complaint petition. (…) Since the points contained in the notification based on the request for reversal for the sake of law were deemed appropriate, the decision was REVERSED for the sake of law pursuant to Article 309/4-a of the CMK…” (Court of Cassation 7th Criminal Chamber, Basis: 2021/13141, Decision: 2021/12992, Date: 19.10.2021)