16 Apr Re-examination Of The Non-Follow-up Decision Of The Public Prosecutor’s Office.
T.C.
SUPREME
18. CRIMINAL DEPARTMENT
PRINCIPAL NO: 2015/2372
DECISION NO: 2015/12784
DECISION DATE: 07.12.2015
> C. PROSECUTOR’S OFFICE FOR THE BENEFIT OF THE LAW TO BREAK THE DECISION OF NON-FOLLOW-UP-INSULT AND THREAT-APPROVAL AUTHORITY
Abstract: in the article of request; ” Criminal Procedure Law No. 5271 No. 160. “as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by a notice or other means, he immediately begins to investigate the truth of the matter to decide whether there is room to open the public case. The public prosecutor is responsible for collecting and storing evidence against and protecting the rights of the suspect, through the help of the judicial law enforcement officers under his command, in order to investigate the material truth and to carry out a fair trial.” in the face of the regulation, the public prosecutor has to make an investigation, in the concrete case, the suspect was allegedly sent insulting and threatening messages, but the messages were deleted because his mobile phone malfunctioned, he declared, although it is understood that there is no room for prosecution, after the statements of the suspect and the suspect were made during the investigation phase, the contents of the messages deleted by the suspect cannot be identified, the failure to identify the contents of the messages allegedly sent by the suspect alone will not indicate that the crime was not committed., after determining whether the message was sent during the declared hours, the decision to reject the appeal in writing instead of accepting it, considering that it is up to the court to evaluate the evidence and to have discretion.” is called….
Cmk’s 170/2. according to the article, in order for a public trial to be opened, there must be sufficient suspicion that the crime was committed according to the evidence gathered at the stage of the investigation. The public prosecutor, who has the obligation and authority to reach the material truth by making an investigation through a criminal notice or complaint, will evaluate the evidence obtained as a result of the investigation and appreciate whether there is sufficient suspicion that requires a public trial. This requires an evidence assessment. In other words, if the public prosecutor finds that the evidence obtained is sufficient for the opening of a public trial, he will file a lawsuit, otherwise he will decide not to pursue it. Therefore, the prosecutor has the authority to evaluate the evidence. The acceptance of the opposite situation requires that the public prosecutor file a public case on every notice or complaint, and the discretion of the evidence is left to the court, which is incompatible with the right not to be tarnished and will not be in accordance with the spirit of the law….
DECISION:
Insulting and threatening suspected of crimes made in the investigation phase as a result of the Republic of Adana dated 10/06/2013 2012/67080 bassavciliginc given investigation, the decision on whether to prosecute the appeal against Decision No. 2013/16650 on the rejection of the authority of 2. The decision of the Heavy Criminal Court, the Ministry of Justice on the benefit of the law requested to be corrupted, 14/01/2014 day of the Supreme Court of Public Prosecutor’s office and 12880 no request letter sent to our office with the case file was examined:
Request in the article; ” 5271 No. 160 of the Code of Criminal Procedure. “as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by a notice or other means, he immediately begins to investigate the truth of the matter to decide whether there is room to open the public case. The public prosecutor is responsible for collecting and storing evidence against and protecting the rights of the suspect, through the help of the judicial law enforcement officers under his command, in order to investigate the material truth and to carry out a fair trial.” in the face of the regulation, the public prosecutor has to make an investigation, in the concrete case, the suspect was allegedly sent insulting and threatening messages, but the messages were deleted because his mobile phone malfunctioned, he declared, although it is understood that there is no room for prosecution, after the statements of the suspect and the suspect were made during the investigation phase, the contents of the messages deleted by the suspect cannot be identified, the failure to identify the contents of the messages allegedly sent by the suspect alone will not indicate that the crime was not committed., after determining whether the message was sent during the declared hours, the decision to reject the appeal in writing instead of accepting it, considering that it is up to the court to evaluate the evidence and to have discretion.” is called.
I-Event:
As a result of the investigation of the suspect for insulting and threatening offences, a non-follow-up decision was made on the grounds of lack of evidence, upon the objection of the assistant attorney to the decision during the period, the authority … 2. It is understood that the decision of the High Criminal Court dated 02/09/2013 decided to reject the appeal and that a request for a reversal was made against the final decision for the benefit of the law.
II-the scope of the dispute concerning the request for annulment for the benefit of the law:
By examining the decision that there is no place for prosecution on appeal, it is up to the decision of the rejecting authority to determine whether the decision is in accordance with the law.
III – legal evaluation:
Cmk’s 160. Article 1. “as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed by a notice or other means, he immediately begins to investigate the truth of the matter to decide whether there is room to open the public case.” 2. “the public prosecutor is obliged to collect and keep evidence against and protect the rights of the suspect, by the means of the judicial law enforcement officers under his command, in order to investigate the material truth and to carry out a fair trial.” 170. Article 2. in its paragraph, ” if the evidence collected at the end of the investigation phase creates sufficient suspicion that the crime was committed, the Public Prosecutor shall issue an indictment.” 172. Article 1. “the public prosecutor, at the end of the investigation phase, decides that there is no room for prosecution in the event that there is not enough evidence to create suspicion or that there is no possibility of prosecution for the opening of a public case.”its provisions are regulated.
2 of the Code of Criminal Procedure entitled “investigation”, as is evident from the above regulations. in his book, the duties of the court tasked with examining the objection are clearly set out how the public prosecutor will conduct the process of criminal investigation and if it is decided that there is no room for prosecution.
In this context, the court which examines the decision that there is no place for prosecution on appeal may decide to reject the appeal if there is insufficient evidence to open a public trial, to accept the appeal if there is sufficient evidence, or to extend the investigation due to incomplete investigation.
Cmk’s 170/2. according to the article, in order for a public trial to be opened, there must be sufficient suspicion that the crime was committed according to the evidence gathered at the stage of the investigation. The public prosecutor, who has the obligation and authority to reach the material truth by making an investigation through a criminal notice or complaint, will evaluate the evidence obtained as a result of the investigation and appreciate whether there is sufficient suspicion that requires a public trial. This requires an evidence assessment. In other words, if the public prosecutor finds that the evidence obtained is sufficient for the opening of a public trial, he will file a lawsuit, otherwise he will decide not to pursue it. Therefore, the prosecutor has the authority to evaluate the evidence. The acceptance of the contrary requires that the public prosecutor file a public case on every notice or complaint, and that the discretion of the evidence be left to the court, which is incompatible with the right not to be tarnished and does not conform to the spirit of the law.
In the concrete case of the investigation; the suspect … ‘ s insult and threat crimes committed outside the statement of the public action is not required to open evidence, because of the rent dispute, the suspect’s mobile phone message sent to the client admits, but insults and claims not to threaten, the contents of the message can not be presented by the client, in retrospect the contents of the message can not be determined by any institution, , the decision of the authority on the rejection of the appeal was deemed to be in place and the request for annulment for the benefit of the law was decided to be rejected.
Conclusion: for the reasons described above, the opinion in the communiqué issued by the Chief Public Prosecutor of the Supreme Court is not seen in the place, CMK’s 309. in accordance with the article, a unanimous decision was made on 07.12.2015 on the refusal of the request to distort it for the benefit of the law.
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