Public Prosecutor’s Office Decision of Non-Prosecution Violation in the Interests of the Law – Insult And Threat – Iftir – Decision of the Court of Cassation

T.C.
SUPREME
18. CRIMINAL DEPARTMENT
MAIN NUMBER:2015/2372
DECISION NO:2015/12784
DECISION DATE: 07.12.2015

>C. THE AUTHORITY TO DISRUPT THE DECISION NOT TO FOLLOW THE PROSECUTOR’S OFFICE IN THE INTEREST OF THE LAW- INSULTS AND THREATS-APPRECIATION

ABSTRACT: In the letter of the request; “160 of the Code of Criminal Procedure No. 5271. “as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed through a notification or other means, he immediately begins to investigate the truth of the matter in order to decide whether there is a place to open a public case. The public prosecutor is obliged to collect and preserve the evidence in favor and against the suspect and to protect the rights of the suspect with the help of the judicial law enforcement officers under his command in order to investigate the material truth and to conduct a fair trial. in the face of the regulation in the form of “, the public prosecutor is obliged to conduct an investigation, in the concrete incident, the client claims that the suspect sent insulting and threatening messages, but declares that the messages were deleted because his mobile phone malfunctioned, although it was understood that after taking the statements of the complainant and the suspect during the investigation phase, it was decided that there was no place for prosecution on the grounds that the content of the messages deleted by the complainant could not be detected, the failure to detect the contents of the messages allegedly sent by the suspect alone would not indicate that a crime had not been committed, after determining whether the message was sent during the hours declared by the client, there was no hit in evaluating the evidence and deciding to reject the objection in writing instead of accepting it, taking into account that the discretion belongs to the court.” is called….

CMK’s 170/2. according to the article, in order for a public case to be opened, there must be sufficient suspicion that a crime has been committed according to the evidence collected during the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by conducting an investigation through a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and assess whether there are sufficient doubts that require opening a public case. This situation requires the evaluation of evidence. In other words, if the public prosecutor believes that the evidence obtained is sufficient to open a public trial, he will file a lawsuit, otherwise he will make a decision not to pursue. Therefore, the prosecutor has the authority to evaluate the evidence. Acceptance of the opposite situation requires the public prosecutor to open a public case upon each notification or complaint and to leave the evidence evaluation to the court, which will not be compatible with the right not to be tainted and will not comply with the spirit of the law….

decision:

Made in the investigation phase of insulting and threatening suspected of crimes as a result of the investigation dated 10/06/2013 2012/67080 bassavciliginc given the Republic of Adana, No. 2013/16650 decision on whether to prosecute the appeal against the decision on the rejection of the authority of 2. Upon the request of the Ministry of Justice to overturn the High Criminal Court decision for the benefit of the law, the case file of the Chief Public Prosecutor’s Office of the Court of Cassation was examined by sending it to our Office with the request letter dated 14/01/2014 and numbered 12880:

In the letter of the request; “160 of the Code of Criminal Procedure No. 5271. “as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed through a notification or other means, he immediately begins to investigate the truth of the matter in order to decide whether there is a place to open a public case. The public prosecutor is obliged to collect and preserve the evidence in favor and against the suspect and to protect the rights of the suspect with the help of the judicial law enforcement officers under his command in order to investigate the material truth and to conduct a fair trial. in the face of the regulation in the form of “, the public prosecutor is obliged to conduct an investigation, in the concrete incident, the client claims that the suspect sent insulting and threatening messages, but declares that the messages were deleted because his mobile phone malfunctioned, although it was understood that after taking the statements of the complainant and the suspect during the investigation phase, it was decided that there was no place for prosecution on the grounds that the content of the messages deleted by the complainant could not be detected, the failure to detect the contents of the messages allegedly sent by the suspect alone would not indicate that a crime had not been committed, after determining whether the message was sent during the hours declared by the client, there was no hit in evaluating the evidence and deciding to reject the objection in writing instead of accepting it, taking into account that the discretion belongs to the court.” is called.

I-Event:

As a result of the investigation conducted against the suspect for insulting and threatening crimes, upon the objection of the client’s attorney to the decision during which a decision of non-prosecution was made on the grounds of lack of evidence, the authority … 2. It has been understood that the decision of the Assize Criminal Court dated 02/09/2013 to reject the appeal has been decided and a request to overturn this decision, which is final, has been filed in the interest of the law.

II- Scope of the Dispute Related to the Request to Disrupt in the Interest of the Law:

By examining the decision that there is no place for prosecution on appeal, the rejecting authority is concerned with determining whether the decision is in accordance with the law.

III- Legal Assessment:

CMK’s 160. article 1. in its paragraph, “As soon as the public prosecutor learns about a situation that gives the impression that a crime has been committed through a notification or other means, he immediately begins to investigate the truth of the matter in order to decide whether there is a place to open a public case.” 2. in its paragraph, “The public prosecutor is obliged to collect and preserve the evidence in favor and against the suspect and to protect the rights of the suspect with the help of the judicial law enforcement officers under his command in order to investigate the material fact and to conduct a fair trial.” 170. 2 of the article. in its paragraph, “If the evidence collected at the end of the investigation phase creates sufficient suspicion that a crime has been committed, the Public Prosecutor shall issue an indictment.” 172. article 1. in its paragraph, “The public prosecutor, at the end of the investigation phase, decides that there is no place for prosecution in case of insufficient evidence to create sufficient suspicion for the opening of a public case or in the absence of the possibility of prosecution.” the provisions are regulated.
As can be understood from the regulations mentioned above, 2 of the Code of Criminal Procedure entitled “investigation”. in his book, the duties of the court charged with examining the appeal are clearly regulated, how the public prosecutor will conduct the process related to the criminal investigation and if it is decided that there is no place for prosecution.
In this context, the court examining the decision that there is no place for prosecution on appeal may decide to reject the objection if there is insufficient evidence for opening a public trial, to accept the objection if there is sufficient evidence, or to expand the investigation due to incomplete investigation.

CMK’s 170/2. according to the article, in order for a public case to be opened, there must be sufficient suspicion that a crime has been committed according to the evidence collected during the investigation stage. The public prosecutor, who has the obligation and authority to reach the material truth by conducting an investigation through a criminal complaint or complaint, will evaluate the evidence obtained as a result of the investigation and assess whether there are sufficient doubts that require opening a public case. This situation requires the evaluation of evidence. In other words, if the public prosecutor believes that the evidence obtained is sufficient to open a public trial, he will file a lawsuit, otherwise he will make a decision not to pursue. Therefore, the prosecutor has the authority to evaluate the evidence. Acceptance of the opposite situation requires the public prosecutor to open a public case upon each notification or complaint, and the discretion of evidence to be left to the court, which will not be compatible with the right not to be tainted and will not comply with the spirit of the law.

The subject of the review is in the concrete case; suspicious …’s insulting and threatening the complainant’s statement that they have committed crimes outside of the public in the absence of evidence, which requires you to open the case, due to a lease dispute the complainant’s mobile he agreed to send a message from the suspect, but they have not advocated that insults and threats, is presented by the complainants of the contents of the message, not the message content of the information to be obtained from any institution retroactively as to be able to identify, only to result in concrete would be effective records search, it is clear that events are brought up, the decision of the authority on the rejection of the objection was considered on the spot, and it was decided to reject the request to overturn it in the interest of the law.

CONCLUSION: For the reasons explained above; Since the thought in the communiqué issued by the Chief Public Prosecutor’s Office of the Court of Cassation is not seen in its place, 309 of the CMK. it was unanimously decided on 07.12.2015 to REJECT the REQUEST TO OVERTURN IN THE INTEREST OF THE LAW in accordance with the article.

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