Withdrawal of Complaint — Effects on Criminal Proceedings and Irrevocable Cases
Withdrawal of Complaint — Effects on Criminal Proceedings and Irrevocable Cases
In criminal law, a complaint is the application made by the person harmed by a crime to the competent authorities for the punishment of the perpetrator. Withdrawal of complaint means the retraction of this request and, in complaint-dependent offenses, leads to the dismissal of the case, while in public prosecutions, it generally does not produce any legal consequence. Article 73 of the Turkish Criminal Code No. 5237 (TCC) and the relevant provisions of the Code of Criminal Procedure No. 5271 (CPC) regulate in detail the conditions and consequences of withdrawal of complaint. This article comprehensively examines complaint-dependent offenses, the complaint period, the form and timing of withdrawal, the defendant's acceptance requirement, the effect of withdrawal in public prosecutions, and practical issues encountered in application.
What Is a Complaint-Dependent Offense and Which Crimes Are Complaint-Dependent?
Complaint-dependent offenses are crimes whose investigation and prosecution depend on the complaint of the person harmed by the crime. In these offenses, the public prosecutor cannot initiate an investigation or file a public prosecution ex officio unless the victim or the person harmed files a complaint. In determining complaint-dependent offenses, an explicit provision is sought in the articles of the TCC regulating the relevant offense type.
The main complaint-dependent offenses in the Turkish Criminal Code can be listed as follows:
| Offense Type | Relevant TCC Article | Explanation |
|---|---|---|
| Simple intentional injury | TCC Art. 86/2 | Injury treatable with basic medical intervention |
| Simple negligent injury | TCC Art. 89/1 | Excluding conscious negligence |
| Sexual harassment (simple form) | TCC Art. 105/1 | Excluding aggravated forms |
| Threat (simple form) | TCC Art. 106/1 (first sentence) | Threat directed at property |
| Insult | TCC Art. 125 | Excluding insult to public officials |
| Disturbing the peace and tranquility of persons | TCC Art. 123 | All paragraphs |
| Violation of privacy | TCC Art. 134 | Excluding certain aggravated forms |
| Damage to property | TCC Art. 151 | Simple form |
| Use of unpaid promissory note | TCC Art. 156 | All paragraphs |
| Breach of trust | TCC Art. 155/1 | Simple form |
The common characteristic of complaint-dependent offenses is that they are generally crimes committed against individuals with relatively limited social impact. The legislator has given priority to the victim's will in these offenses and has envisaged the termination of criminal proceedings upon the victim's withdrawal of complaint.
What Is the Complaint Period and How Is It Calculated?
Pursuant to TCC Art. 73/1, the complaint period is six months from the date the victim learns of the act and the perpetrator. This period is of a preclusive nature, and the right to complain lapses upon expiration of the period. In calculating the period, the date of learning the act and the perpetrator is taken as a basis; if the perpetrator is learned after the act, the period begins from the date the perpetrator is learned.
There are some important points to consider in calculating the complaint period. If there are multiple victims, the complaint period runs separately for each. If the victim of the crime is a minor or ward, the complaint period begins from the date the legal representative learns of the act and the perpetrator. However, special situations may arise if the legal representative is the perpetrator or if the perpetrator acts in concert with the legal representative [TO BE VERIFIED].
The statute of limitations runs independently of the complaint period. Even if a complaint has been filed within the complaint period, a public prosecution cannot be initiated if the statute of limitations has expired. Therefore, the complaint period and the statute of limitations must be evaluated together.
The Form and Timing of Withdrawal of Complaint
Withdrawal of complaint can be made at any stage of the investigation or prosecution; however, withdrawal made after the finalization of the judgment generally does not produce results. Pursuant to TCC Art. 73/4, withdrawal of complaint during the prosecution stage results in the dismissal of the case.
Withdrawal of complaint is not subject to any formal requirement; it can be made in writing or orally. In case of oral withdrawal, the statement must be recorded in the minutes. During the investigation stage, the withdrawal statement is submitted to the public prosecutor's office, and during the prosecution stage, to the court. Withdrawal through an attorney with a power of attorney is also possible; however, this authority must be explicitly stated in the power of attorney.
An important point regarding the timing of withdrawal is that it can be made until the judgment becomes final. According to Court of Cassation precedents, withdrawal of complaint is also possible at the appeal stage and is taken into consideration by the appellate court. After the judgment becomes final, withdrawal of complaint does not prevent the enforcement of the sentence; however, it may be evaluated in the context of conditional release and other enforcement institutions during the enforcement stage.
The Defendant's Acceptance Requirement in Withdrawal of Complaint
Pursuant to TCC Art. 73/6, for the withdrawal of complaint to be valid during the prosecution stage, the defendant must accept this withdrawal. If the defendant does not accept the withdrawal, the case continues. The purpose of this regulation is to protect the defendant's right to exoneration, as the defendant may wish to prove their innocence through acquittal.
During the investigation stage, the suspect's acceptance is not required for withdrawal of complaint. If the victim withdraws the complaint during the investigation stage, the public prosecutor renders a decision of non-prosecution. This difference is one of the important distinctions between the investigation and prosecution stages.
If the defendant does not accept the withdrawal of complaint, the trial continues and a verdict of acquittal or conviction may be rendered. In practice, the majority of defendants accept withdrawal of complaint, and non-acceptance is generally seen in cases where acquittal is expected.
In cases involving multiple defendants, TCC Art. 73/5 contains an important regulation regarding withdrawal of complaint. According to this provision, withdrawal of complaint does not affect the defendant who does not accept it. That is, if one of multiple defendants accepts the withdrawal and another does not, the case is dismissed for the accepting defendant while the trial continues for the non-accepting defendant.
The Principle of Indivisibility of Withdrawal of Complaint
Pursuant to TCC Art. 73/5, where there are multiple perpetrators, withdrawal of complaint regarding one of them also covers the others. This principle is called the principle of indivisibility of withdrawal of complaint. The victim cannot withdraw the complaint regarding only one of the perpetrators; the withdrawal covers all perpetrators.
However, an important distinction must be made in the application of this rule: while the withdrawal covers all perpetrators, each perpetrator has the right to accept or reject the withdrawal separately. The case is dismissed for the perpetrator who accepts, while the trial continues for the perpetrator who does not accept. Therefore, the principle of indivisibility relates to the scope of withdrawal, not the scope of acceptance.
In situations involving multiple victims, each victim's right to complain is independent. The withdrawal of complaint by one victim does not affect the complaints of other victims. In such cases, the investigation or prosecution continues as long as the other victims' complaints persist.
Offenses Where Complaint Cannot Be Withdrawn: Offenses of a Public Prosecution Nature
In offenses prosecuted ex officio, that is, offenses of a public prosecution nature, withdrawal of complaint does not lead to the dismissal of the case. In these offenses, the public prosecutor initiates an investigation ex officio upon learning of the commission of the crime in any manner and files a public prosecution if sufficient evidence is found. The victim's withdrawal of complaint does not change the course of the case.
The main offenses prosecuted ex officio are as follows:
| Offense Type | Relevant TCC Article | Effect of Withdrawal of Complaint |
|---|---|---|
| Intentional homicide | TCC Art. 81-83 | No effect |
| Aggravated intentional injury | TCC Art. 86/1, 86/3 | No effect |
| Aggravated sexual assault | TCC Art. 102/2 | No effect |
| Sexual abuse of children | TCC Art. 103 | No effect |
| Robbery | TCC Art. 148-149 | No effect |
| Drug trafficking | TCC Art. 188 | No effect |
| Aggravated theft | TCC Art. 142 | No effect |
| Aggravated fraud | TCC Art. 158 | No effect |
| Forgery of official documents | TCC Art. 204 | No effect |
| Offenses against the state | TCC Art. 302 et seq. | No effect |
Although withdrawal of complaint in offenses prosecuted ex officio does not produce a legal consequence for the criminal case, in some situations it may be taken into consideration in the individualization of punishment (such as discretionary reduction, effective remorse). Additionally, withdrawal of complaint may be a separate subject of evaluation for civil cases (compensation claims).
The Relationship Between Withdrawal of Complaint and Mediation
Mediation, regulated in CPC Articles 253-255, is an institution that envisages the dismissal of the public prosecution if mediation is achieved between the victim and the suspect or defendant in certain offenses. Most complaint-dependent offenses also fall within the scope of mediation. The mediation process is regulated as a stage that must be completed before withdrawal of complaint.
Pursuant to CPC Art. 253/1, in offenses within the scope of mediation, the public prosecutor is obliged to apply the mediation procedure during the investigation stage. If mediation is achieved, a decision of non-prosecution is rendered. If mediation fails, the investigation continues and the victim may additionally withdraw the complaint in complaint-dependent offenses.
The fundamental difference between mediation and withdrawal of complaint is that mediation requires a mutual agreement between the parties. Withdrawal of complaint is a unilateral act; however, the defendant's acceptance is required during the prosecution stage. In mediation, a material performance (compensation, reparation of damage) is usually involved, while there is no such obligation in withdrawal of complaint.
The Effect of Withdrawal of Complaint on Civil Cases
While withdrawal of complaint produces consequences for the criminal case, it is evaluated differently for civil cases (compensation cases). As a rule, withdrawal of complaint does not eliminate the victim's right to claim compensation. However, different results may arise depending on the content and scope of the withdrawal statement.
If the victim explicitly states in the withdrawal statement that they also waive their rights to material and moral compensation, the right to file a civil case may also be eliminated. However, if it is stated that the withdrawal is only for the criminal case, compensation rights are preserved. Therefore, it is of great importance that the withdrawal statement be drafted carefully.
In practice, protocols or settlement agreements arranged between the parties generally regulate both withdrawal of criminal complaint and waiver of civil compensation claims together. It is recommended that such protocols be prepared under attorney supervision to protect the parties' rights.
Is It Possible to Retract Withdrawal of Complaint?
Pursuant to TCC Art. 73/6, a person who has withdrawn a complaint may not file a complaint again. This regulation indicates that withdrawal is of a definitive and irrevocable nature. A victim who has once withdrawn a complaint does not have the right to file a new complaint regarding the same act and the same perpetrator.
Exceptions to the rule of irrevocability of withdrawal are quite limited. The invalidity of withdrawal statements made due to defects of will (mistake, fraud, duress) may be asserted; however, proof of this claim is quite difficult and its acceptance in practice is rare [TO BE VERIFIED].
The definitive nature of withdrawal requires victims to carefully evaluate the decision to withdraw the complaint. Particularly in cases of domestic violence, threats, and withdrawals made under pressure, this situation can create serious problems for victims. For this reason, the legislator has envisaged the filing of public prosecutions independent of the victim's will by not requiring a complaint in certain offense types.
Domestic Violence and Withdrawal of Complaint
Withdrawal of complaint in domestic violence cases causes significant debates in practice. Under Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women, protective measures can be applied independently of a complaint. However, in terms of the criminal case, if the offense is complaint-dependent, withdrawal may lead to the dismissal of the case.
The legislator has made certain regulations to prevent victims from withdrawing complaints under pressure in domestic violence situations. When the offense of intentional injury is committed against a spouse, even if it is of a simple injury nature, it is considered an aggravated form pursuant to TCC Art. 86/3-a and is prosecuted ex officio. In this case, withdrawal of complaint does not lead to the dismissal of the case.
However, in offenses such as insult, threat (simple form), and disturbing the peace and tranquility of persons, the fact that they were committed against a spouse alone does not require ex officio prosecution; these offenses continue to be complaint-dependent. Judicial precedents and legislative regulations in this area are continuously evolving [TO BE VERIFIED].
The Effect of Withdrawal of Complaint on Joint Perpetrators and Participation
Pursuant to TCC Art. 73/5, in crimes committed through participation, withdrawal of complaint regarding one perpetrator also covers the others. This rule also applies to instigators and aiders. However, each perpetrator's right to accept or reject the withdrawal is independent.
The effect of withdrawal of complaint in participation cases can be summarized as follows: when the victim withdraws the complaint, naming only one of the perpetrators, this withdrawal covers all perpetrators. However, while this situation is automatically applied during the investigation stage, during the prosecution stage each perpetrator's separate acceptance statement is required.
How to Prepare a Withdrawal of Complaint Petition?
The withdrawal of complaint petition is addressed to the chief public prosecutor's office during the investigation stage and to the court during the prosecution stage. The petition should include the complainant's identity information, the investigation or case file number, the statement of withdrawal of complaint, and the date. It is important that the withdrawal statement be expressed clearly and without ambiguity.
A release or reservation clause regarding compensation rights may also be added to the petition. If it is desired to preserve compensation rights, this must be explicitly stated. Otherwise, disputes may arise in the future regarding the scope of the withdrawal statement.
Withdrawal of complaint can also be made orally; in this case, the statement is recorded in the minutes and the complainant's signature is obtained. Oral withdrawal statements made during the hearing are also valid and are recorded in the hearing minutes.
Conclusion and Evaluation
Withdrawal of complaint is an important institution in criminal procedure that gives priority to the victim's will. While withdrawal leads to the dismissal of the case in complaint-dependent offenses, it does not produce any legal consequence in offenses prosecuted ex officio. The irrevocable nature of withdrawal requires that this decision be made carefully. Particularly in domestic violence cases and in cases of participation, the effects of withdrawal of complaint present a more complex picture. Before making a decision to withdraw a complaint, it is recommended that legal counsel be obtained and all consequences including compensation rights be evaluated.
Legal Disclaimer: This article has been prepared for general informational purposes and does not constitute legal advice. If you are facing a specific legal issue regarding withdrawal of complaint, it is recommended that you consult an attorney. Information may vary in line with legislative changes and current judicial decisions.
This article was prepared by Av. Mustafa MALGIR.