Withdrawal of Complaint — Effects on Criminal Proceedings and Irrevocable Cases
What is withdrawal of complaint and what are its effects on criminal proceedings? A comprehensive legal guide to offences requiring a complaint, the time limit and form of withdrawal, and the requirement of the defendant's consent, under TCK Art. 73 and CMK Art. 158.
In criminal law a complaint is an application by the person harmed by an offence to the competent authorities for the punishment of the offender. Withdrawal of complaint means the retraction of that request; in offences requiring a complaint it leads to dismissal of the proceedings, whereas in public prosecutions it as a rule produces no legal consequence. Article 73 of the Turkish Penal Code No. 5237 and the relevant provisions of the Code of Criminal Procedure No. 5271 set out in detail the conditions for, and consequences of, withdrawal of complaint. This article deals comprehensively with offences requiring a complaint, the complaint period, the form and timing of withdrawal, the requirement of the defendant's consent, the effect of withdrawal in a public prosecution, and the problems encountered in practice.
What Is an Offence Requiring a Complaint, and Which Offences Require One?
An express statutory provision is required for an offence to be subject to complaint. For example, simple intentional injury falls under TCK Art. 86/2; a threat of substantial harm to property or of other injury falls under the second sentence of Art. 106/1; insult is as a rule subject to complaint. A threat directed at life, bodily integrity or sexual inviolability, under the first sentence of Art. 106/1, is investigated of the authorities' own motion. In sexual assault the particular paragraph of the offence matters; the investigation of aggravated sexual assault against a spouse is subject to complaint. Generalisations such as “all aggravated forms are prosecuted of the authorities' own motion” are not made.
| Example of an offence requiring complaint | Relevant provision | Note on scope |
|---|---|---|
| Simple intentional injury | TCK Art. 86/2 | Cases remediable by simple medical intervention; aggravated forms and special provisions are examined separately. |
| Threat of substantial harm to property or of other injury | TCK Art. 106/1, second sentence | Must not be confused with a threat directed at life, bodily integrity or sexual inviolability. |
| Insult | TCK Arts. 125 and 131 | As a rule subject to complaint; insult of a public official in connection with their duties and other special cases are assessed separately. |
| Forms of sexual assault made subject to complaint by statute | TCK Art. 102 | The particular paragraph of the offence and the offender-victim relationship are decisive; no single conclusion applies to all forms of sexual assault. |
| Simple form of damage to property | TCK Arts. 151 and 167 | Aggravated forms and grounds of personal impunity or mitigation are assessed separately. |
| Example of an offence requiring complaint | Relevant provision | Note on scope |
|---|---|---|
| Simple form of abuse of trust | TCK Art. 155/1 | The aggravated form and the relationship between the parties must be examined separately. |
What Is the Complaint Period and How Is It Calculated?
Under TCK Art. 73/1 the complaint period is six months from the date on which the victim learns of the act and of the offender. This is a forfeiture period, and the right to complain is extinguished once it expires. The date of learning of the act and of the offender is taken as the starting point; where the offender becomes known after the act becomes known, the period runs from the date the offender becomes known.
Where there is more than one victim, the complaint period runs separately for each. Where the victim is a child or a person under legal restriction, the question of by whom and from which date of knowledge the right of complaint is to be exercised is assessed by reference to the victim's capacity of discernment, the nature of the right protected by the offence, legal representation and any conflict of interest with the representative. Where the legal representative is the offender or a suspect, a representative trustee and special protective provisions may come into play.
The limitation period for prosecution runs independently of the complaint period. Even if a complaint was made within the complaint period, a public prosecution cannot be brought once the limitation period has expired. The complaint period and the limitation period for prosecution must therefore be assessed together.
Form and Timing of Withdrawal of Complaint
Withdrawal may be made at the investigation stage to the chief public prosecutor's office and at the prosecution stage to the court, in writing or by oral statement recorded in the minutes. It produces effect until the judgment becomes final; withdrawal after the judgment has become final does not prevent execution of the sentence (TCK Art. 73/4). Withdrawal must be express, unconditional and made by a person entitled to do so.
The Requirement of the Defendant's Consent to Withdrawal
Under TCK Art. 73/6, for withdrawal of complaint at the prosecution stage to be valid, the defendant must accept the withdrawal. If the defendant does not accept it, the proceedings continue. The purpose of this rule is to protect the defendant's right to be cleared; the defendant may wish to prove their innocence by obtaining an acquittal.
At the investigation stage, by contrast, the suspect's consent is not required for withdrawal of complaint. Where the victim withdraws the complaint at the investigation stage, the public prosecutor issues a decision not to prosecute. This is one of the important distinctions between the investigation and prosecution stages.
Where the defendant does not accept the withdrawal of complaint, the proceedings continue and, depending on the state of the evidence, an acquittal, a conviction or another judgment may be given.
In cases involving more than one defendant, TCK Arts. 73/5 and 73/6 apply together. Under Art. 73/5 withdrawal of complaint in respect of one defendant extends to the others; under Art. 73/6 the withdrawal does not affect a defendant who does not accept it. Accordingly, the proceedings are dismissed in respect of a defendant who accepts the withdrawal while continuing in respect of one who does not.
The Principle of Indivisibility of Withdrawal of Complaint
Under TCK Art. 73/5, where there is more than one offender, withdrawal of complaint in respect of one extends to the others. This rule is known as the indivisibility of withdrawal of complaint. At the prosecution stage the requirement of the defendant's consent in TCK Art. 73/6 applies separately in respect of each defendant.
An important distinction must be drawn in applying this rule: although the withdrawal extends to all offenders, each offender has the right to accept or refuse the withdrawal separately. The proceedings are dismissed in respect of an offender who accepts and continue in respect of one who does not. The principle of indivisibility therefore concerns the scope of the withdrawal, not the scope of the acceptance.
Where there is more than one victim, each victim's right of complaint is independent. One victim's withdrawal of complaint does not affect the complaints of the others. In that situation the investigation or prosecution continues for as long as the other victims' complaints subsist.
Offences Where Complaint Cannot Be Withdrawn: Offences Subject to Public Prosecution
In offences prosecuted of the authorities' own motion — that is, offences subject to public prosecution — withdrawal of complaint does not lead to dismissal of the proceedings. In such offences the public prosecutor's office opens an investigation of its own motion upon learning in any manner that the offence has been committed, and brings a public prosecution where sufficient evidence exists. The victim's withdrawal of complaint does not alter the course of the proceedings. The principal offences prosecuted of the authorities' own motion are as follows:
| Example offence | Relevant provision | Effect of withdrawal of complaint |
|---|---|---|
| Intentional homicide | TCK Arts. 81-83 | Does not terminate the investigation or prosecution. |
| Forms of intentional injury prosecuted of the authorities' own motion | Cases within TCK Arts. 86/1 and 86/3 | Does not terminate the investigation or prosecution; the cases under Art. 86/2, which require a complaint, are assessed separately. |
| Sexual abuse of a child | TCK Art. 103 | Does not terminate the investigation or prosecution. |
| Robbery | TCK Arts. 148-149 | Does not terminate the investigation or prosecution. |
| Manufacture of and trafficking in narcotics or stimulants | TCK Art. 188 | Does not terminate the investigation or prosecution. |
| Aggravated theft | TCK Art. 142 | As a rule does not terminate the investigation or prosecution; special provisions on personal impunity and mitigation are reserved. |
| Aggravated fraud | TCK Art. 158 | Does not terminate the investigation or prosecution; the special effective remorse provisions in the statute are separate. |
| Forgery of an official document | TCK Art. 204 | Does not terminate the investigation or prosecution. |
In offences prosecuted of the authorities' own motion, a victim's statement of withdrawal does not of itself produce dismissal, effective remorse or a discretionary reduction of sentence. The evidential value of the statement, whether it was given of the victim's free will, and the special provisions applicable to the type of offence are examined separately. The right to compensation is assessed separately from the criminal proceedings.
The Relationship Between Withdrawal of Complaint and Mediation
In offences falling within the scope of criminal mediation, the file is referred to mediation under the procedure in CMK Art. 253. A valid withdrawal of complaint may, depending on the stage, result in a decision not to prosecute at the investigation stage or dismissal at the prosecution stage; it cannot be said that mediation must necessarily be completed first. The obligation arising from a mediation agreement and the civil law consequences of withdrawal are different.
The Effect of Withdrawal of Complaint on Civil Proceedings
Under TCK Art. 73/7, dismissal of the public prosecution does not prevent the person harmed by the offence from bringing civil proceedings unless, in withdrawing, they also expressly stated that they were waiving their personal rights. A waiver of the right to compensation must be express. Releases and obligations contained in a mediation document, by contrast, are subject to the special consequences of CMK Art. 253.
Can a Withdrawal of Complaint Be Retracted?
A valid withdrawal of complaint cannot be retracted; the person cannot make a fresh complaint in respect of the same act. However, an allegation that the statement was invalid from the outset by reason of mistake, deception, intimidation, lack of capacity or unauthorised representation raises a separate question of validity.
In allegations of domestic violence, threats or pressure in particular, careful assessment is required of whether the statement was given of the person's free will and of whether the offence is in any event prosecuted of the authorities' own motion.
Domestic Violence and Withdrawal of Complaint
The protective and preventive measures under Law No. 6284 do not lapse automatically upon withdrawal of complaint. Simple injury against a spouse and the aggravated form of the offence, the distinction in threat offences between life, bodily integrity and sexual inviolability on the one hand and property or other injury on the other, and offences prosecuted of the authorities' own motion such as torment, are determined separately. In an offence prosecuted of the authorities' own motion, a victim's statement of withdrawal does not dismiss the proceedings and does not of itself create effective remorse or a discretionary reduction of sentence.
The Effect of Withdrawal of Complaint on Co-perpetration and Participation
Under TCK Art. 73/5, in offences committed through participation, withdrawal of complaint in respect of one offender extends to the others. This rule also applies to instigators and accessories. Each offender's right to accept or refuse the withdrawal is nevertheless independent.
The effect of withdrawal of complaint in cases of participation may be summarised as follows: where the victim makes a statement of withdrawal in respect of only one of the offenders, that withdrawal extends to all of them. However, while this applies automatically at the investigation stage, at the prosecution stage a separate statement of acceptance is required from each offender.
How Is a Withdrawal of Complaint Petition Prepared?
A withdrawal of complaint petition is addressed to the chief public prosecutor's office at the investigation stage and to the court at the prosecution stage. The petition must contain the complainant's identity details, the investigation or case file number, the statement of withdrawal and its date. It is important that the statement of withdrawal be expressed clearly and beyond doubt. The petition may also include a release or reservation regarding rights to compensation. If the rights to compensation are to be reserved, this must be stated expressly. Otherwise disputes may later arise as to the scope of the statement of withdrawal.
Withdrawal of complaint may also be made orally; in that case the statement is recorded in the minutes and the complainant's signature is obtained. Statements of withdrawal made orally during a hearing are also valid and are entered in the hearing record.
Conclusion and Assessment
The effect of a complaint and of its withdrawal is determined by the applicable statutory paragraph of the offence, the number of offenders, the defendant's consent and the stage of the proceedings. Withdrawal after the judgment has become final does not halt execution. An express statement is required for a withdrawal also to extinguish the right to compensation. Protective measures and decisions under Law No. 6284 are assessed separately.
Frequently Asked Questions
Does withdrawal after the judgment becomes final halt execution?
No.
Does withdrawal also extinguish the right to compensation?
Only where the personal right has been expressly waived.
Does withdrawal dismiss proceedings for an offence prosecuted of the authorities' own motion?
No.
Do domestic violence measures lapse upon withdrawal?
No; the measure is assessed on its own conditions.
This article was prepared by Av. Mustafa MALGIR.
