Prosecutor’s Office Reversal Of Non-Prosecution Decision In The Interest Of The Law – Insult And Threat
Republic of Turkey
Supreme Court of Appeals
18th Criminal Chamber
Case No.: 2015/2372
Decision No.: 2015/12784
DATE OF DECISION: 07.12.2015
>PROSECUTOR’S OFFICE DECISION NOT TO PROSECUTE OVERTURNED IN THE INTEREST OF THE LAW – INSULT AND THREAT – DISCRETIONARY AUTHORITY
SUMMARY: The petition states: “Article 160 of the Criminal Procedure Code No. 5271 states: ‘Upon learning of a situation that gives the impression that a crime has been committed, either through a report or by other means, the public prosecutor shall immediately begin investigating the facts of the case in order to decide whether there are grounds for initiating public prosecution. The public prosecutor is obliged to collect and preserve evidence for and against the suspect through the judicial police officers under his command in order to investigate the material truth and ensure a fair trial, and to protect the rights of the suspect.” In light of this provision, the public prosecutor is obliged to conduct an investigation. In the specific case, the complainant alleged that the suspect sent messages containing insults and threats, but stated that the messages were deleted due to a malfunctioning cell phone. After the statements of the complainant and the suspect were taken during the investigation, it was understood that a decision was made not to prosecute on the grounds that the content of the messages deleted by the complainant could not be determined. it is stated that the inability to determine the content of the messages allegedly sent by the suspect does not in itself prove that the crime was not committed, and that after determining whether messages were sent at the times stated by the complainant, the evaluation of the evidence and the discretion of the court should be taken into account, and it is not considered appropriate to reject the appeal in writing instead of accepting it.
According to Article 170/2 of the Criminal Procedure Code, in order for a public prosecution to be initiated, there must be sufficient suspicion that a crime has been committed based on the evidence gathered during the investigation phase. The public prosecutor, who has the obligation and authority to investigate through crime reports or complaints and to reach the material truth, will assess the evidence obtained as a result of the investigation and determine whether there is sufficient suspicion to warrant the initiation of public prosecution. This situation requires the evaluation of evidence. In other words, if the public prosecutor concludes that the evidence obtained is sufficient to initiate a public prosecution, he or she will initiate the case; otherwise, he or she will issue a decision of non-prosecution. Therefore, the prosecutor has the authority to evaluate the evidence. Accepting the opposite would require the public prosecutor to initiate a public prosecution upon every report or complaint, leaving the assessment of evidence to the court, which would be incompatible with the right not to be defamed and would not be in accordance with the spirit of the law….
DECISION:
Regarding the objection to the decision not to prosecute, dated 10/06/2013 and numbered 2012/67080 investigation, 2013/16650 decision, issued by the Adana Chief Public Prosecutor’s Office as a result of the investigation phase conducted against the suspects … for the crimes of insult and threat, the competent authority … Upon the request of the Ministry of Justice for the annulment of the decision of the 2nd Heavy Penal Court in the public interest, the case file was sent to our Chamber for review with the request letter of the Supreme Court Chief Public Prosecutor’s Office dated 14/01/2014 and numbered 12880:
The request letter stated: “Pursuant to Article 160 of the Criminal Procedure Code No. 5271, ‘Upon learning of a situation that gives the impression that a crime has been committed through a report or by any other means, the public prosecutor shall immediately begin investigating the facts of the case in order to decide whether there are grounds for initiating public prosecution. The public prosecutor is obliged to collect and preserve evidence for and against the suspect through the judicial police officers under his command in order to investigate the material truth and ensure a fair trial, and to protect the rights of the suspect.” In light of this provision, the public prosecutor is obliged to conduct an investigation. In the specific case, the complainant alleged that the suspect sent messages containing insults and threats, but stated that the messages were deleted due to a malfunctioning cell phone. After the statements of the complainant and the suspect were taken during the investigation, it was understood that a decision was made not to prosecute on the grounds that the content of the messages deleted by the complainant could not be determined. it is stated that the inability to determine the content of the messages allegedly sent by the suspect does not in itself prove that the crime was not committed, and that after determining whether messages were sent at the times stated by the complainant, the evaluation of the evidence and the discretion of the court should be taken into account, and it is not considered appropriate to reject the appeal in writing instead of accepting it.
I-Incident:
As a result of the investigation conducted against the suspect for the crimes of insult and threat, a decision of non-prosecution was issued on the grounds of insufficient evidence. Upon the complainant’s representative’s appeal against the decision within the time limit, the competent authority… The 2nd High Criminal Court, in its decision dated 02/09/2013, rejected the appeal, and it is understood that a request for annulment in the interest of the law was filed against this final decision.
II- Scope of the Dispute Regarding the Request for Review in the Interest of the Law:
It concerns the determination of whether the decision of the authority, which reviewed the decision not to prosecute upon appeal and rejected it, is in accordance with the law.
III- Legal Assessment:
Paragraph 1 of Article 160 of the Criminal Procedure Code states, “Upon learning of a situation that gives the impression that a crime has been committed, either through a report or by other means, the public prosecutor shall immediately begin investigating the facts of the case in order to decide whether there are grounds for initiating public prosecution.” Paragraph 2 states, “The public prosecutor is obliged to collect and preserve evidence for and against the suspect through the judicial police officers under his command in order to investigate the material facts and ensure a fair trial, and to protect the rights of the suspect.” Paragraph 2 of Article 170 states, “If the evidence gathered at the end of the investigation phase raises sufficient suspicion that a crime has been committed, the public prosecutor shall prepare an indictment.” Article 172, paragraph 1, stipulates that “At the end of the investigation phase, if the Public Prosecutor cannot obtain sufficient evidence to initiate a public prosecution or if there is no possibility of prosecution, he/she shall decide that there are no grounds for prosecution.”
As can be understood from the above provisions, Book 2 of the Criminal Procedure Code, titled “Investigation,” clearly regulates how the public prosecutor shall conduct the criminal investigation process and, in the event that a decision is made that there are no grounds for prosecution, the duties of the court responsible for reviewing the appeal.
In this context, the court reviewing the decision not to prosecute upon appeal may decide to reject the appeal if there is insufficient evidence to initiate public prosecution, accept the appeal if there is sufficient evidence, or extend the investigation due to insufficient investigation.
According to Article 170/2 of the Criminal Procedure Code, for a public prosecution to be initiated, there must be sufficient suspicion that a crime has been committed based on the evidence gathered during the investigation phase. The public prosecutor, who has the obligation and authority to reach the material truth by conducting an investigation through a crime report or complaint, will assess the evidence obtained as a result of the investigation and determine whether there is sufficient suspicion to warrant the initiation of public prosecution. This situation requires the evaluation of evidence. In other words, if the public prosecutor concludes that the evidence obtained is sufficient to initiate a public prosecution, he or she will initiate the case; otherwise, he or she will issue a decision of non-prosecution. Therefore, the prosecutor has the authority to evaluate the evidence. Accepting the opposite would require the public prosecutor to initiate a public prosecution upon every report or complaint, leaving the assessment of evidence to the court, which would be incompatible with the right not to be defamed and would not be in accordance with the spirit of the law.
In the specific case under review, apart from the complainant’s statement that the suspect committed the crimes of insult and threat, there is no evidence sufficient to warrant the initiation of public prosecution. The suspect admitted to sending messages to the complainant via mobile phone due to a rental dispute, but he claims he did not insult or threaten them. Since the complainant cannot present the content of the messages, and since it is not possible to determine the content of the messages retrospectively based on information obtained from any institution, and since merely obtaining the call records would not affect the outcome in this specific case, the decision to reject the appeal is deemed appropriate, and the request for reversal in the interest of the law is rejected.
CONCLUSION: For the reasons explained above, since the opinion in the notification prepared by the Chief Public Prosecutor’s Office of the Court of Cassation is not considered appropriate, in accordance with Article 309 of the Criminal Procedure Code, it was unanimously decided on 07.12.2015 to REJECT THE REQUEST FOR REVERSAL IN THE INTEREST OF THE LAW.