Investigation And Prosecution Phase Of Fraud
INVESTIGATION PHASE
As a rule, the offence of fraud is prosecuted ex officio. However, in the event that the offence is committed within the scope of the “qualified case” requiring a lesser penalty specified in Article 159 of the TCC, its prosecution is subject to complaint.
In Turkish criminal law, the investigation carried out by the Public Prosecutor upon the complaint or denunciation of the offence or upon the Public Prosecutor’s belief that the offence has been committed is called investigation in criminal proceedings. At this stage, the public prosecutor initiates an investigation to investigate in order to decide whether or not to proceed to the prosecution stage. The investigation phase is regulated in Article 160 of the Turkish Criminal Procedure Code. Regarding the offence of fraud, as will be explained in more detail below, since it is not a crime subject to complaint, an investigation can be initiated both upon complaint and upon the prosecutor’s re-sen investigation.
PROSECUTION PHASE
Regarding the offence of fraud, the Public Prosecutor may, as a first possibility, terminate the investigation phase by deciding that there is no ground for prosecution on the grounds that there is not sufficient suspicion that the suspect has committed the offence. Or, as a second possibility, he/she prepares an indictment against the suspect. If the Criminal Court accepts the indictment issued by the prosecutor, the prosecution phase is initiated. This trial process is called prosecution in the Criminal Procedure Code and is regulated in Article 175 of the Criminal Procedure Code. In the prosecution phase, the action and the suspect in the indictment prepared by the Public Prosecutor are prosecuted and the suspect is now the defendant.
DETENTION AND ARREST
Detention is the restriction of a person’s freedom of movement by the police (police, gendarmerie) by keeping them in a certain place with the decision of the prosecutor’s office. Detention does not necessarily require a judge’s decision. According to the Code of Criminal Procedure, detention is the restriction of the suspect/person by depriving him/her of his/her liberty in order to carry out and complete the proceedings against him/her in a healthy manner. A suspect caught with the offence of fraud can also be detained. The detention decision is not recorded in the judicial record (criminal record).
The maximum period of detention for the offence of fraud is 1 year under Article 102/1 of the Criminal Procedure Code. In mandatory cases, this period can be extended by 6 months. This period does not include the time spent in legal remedies (Appeal and Appeal).
Arrest is also a temporary protection measure. With the arrest decision, the person’s freedom is restricted again, but the difference from the detention decision is that it must be issued by a judge, whether at the investigation or prosecution stage. Therefore, the Public Prosecutor cannot issue an arrest warrant for the suspect. In order for the arrest provisions to be applied, there must be a strong criminal suspicion that the suspect has committed the offence of fraud and the conditions in Article 100 of the Code of Criminal Procedure. In the presence of these conditions, arrest provisions may be applied.
DURATION OF COMPLAINT, STATUTE OF LIMITATIONS, RECONCILIATION, EFFECTIVE REMORSE AND THE COURT IN CHARGE
COMPLAINT DURATION
Complaint, crimes whose prosecution is subject to complaint, are crimes where the investigation or prosecution of a crime depends on the complaint of the victim of the crime or the persons damaged by the crime. As a rule, the offence of fraud is prosecuted ex officio. However, in the event that the offence is committed within the scope of the “qualified case” that requires a lesser penalty specified in Article 159 of the TCC, its prosecution is subject to complaint.
STATUTE OF LIMITATIONS
The statute of limitations is regulated in Article 66 of the Turkish Penal Code. According to Article 66/e of the Turkish Penal Code, for offences punishable by imprisonment for not more than five years or a judicial fine, the public case shall be dropped after 8 years. The statute of limitations for the offence of fraud is 8 years.
RECONCILIATION
Reconciliation is the termination of criminal proceedings as a result of the agreement of the victim of the crime with the suspect of the crime. The offence of fraud is within the scope of reconciliation. If the parties reconcile during the investigation phase, the prosecution phase does not proceed.
EFFECTIVE REMORSE
Effective remorse is an institution that envisages some penalty reductions with the regret of the persons with their own will after the crime they committed, eliminating the negativities caused by the crime and contributing to justice. According to Article 168 of the Turkish Penal Code; if the perpetrator, instigator or aider and abettor shows remorse after the crime is completed but before the prosecution is initiated for this reason and completely eliminates the damage suffered by the victim by returning or compensating in kind, up to two-thirds of the penalty to be imposed is reduced.
COURT IN CHARGE
The competent court is the Criminal Court of First Instance within the scope of Article 157 of the TCC, the Assize Criminal Court in case of qualified fraud within the scope of Article 158 of the TCC, and the Criminal Court of First Instance within the scope of Article 159 of the TCC. In other words, in the event that the offence of fraud is committed in its simple form and within the scope of a lesser penalty under Article 159 of the TCC, the court in charge is the Criminal Court of First Instance. However; the qualified cases of the offence that require a heavier penalty
In the event that the offence is committed within the scope of the Law No. 5235 on the Establishment, Duties and Powers of the Courts of First Instance and Regional Courts of Appeal, the court in charge is the Assize Court pursuant to Article 12 of the Law.
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