In criminal law, the great majority of offences are investigated ex officio (of the authorities’ own motion) by the public prosecutor without any complaint from the victim being required. However, for certain offences the law makes the commencement of the investigation and prosecution dependent on the victim’s complaint. This distinction directly affects both the beginning and the ending of the process.
In this article, we address what complaint-dependent offences mean, the six-month complaint period, and the consequences of withdrawing a complaint.
The Distinction Between Ex Officio Prosecution and Complaint-Dependent Offences
The rule is prosecution ex officio; that is, the prosecutor’s office begins the investigation as soon as it learns of the offence, and the victim’s will is not a condition for the process to continue. Complaint-dependent offences are the exception and are expressly identified in the law. For these offences, a complaint by the victim or the person harmed by the offence is required before an investigation can be conducted.
Which Offences Are Complaint-Dependent?
Whether an offence is complaint-dependent is stated separately in the legal provision governing that offence. Some examples frequently encountered in practice are:
- The basic (simple) form of intentional injury,
- The form of threat carrying a lesser penalty,
- Insult (other than that committed against a public official on account of their duty),
- Violation of the inviolability of the dwelling,
- Damage to property,
- Abuse of trust,
- Important note: The qualified (aggravated) forms of an offence are frequently prosecuted ex officio. For this reason, the legal characterisation of the particular case is critical in determining whether the offence is complaint-dependent.
The Six-Month Complaint Period
Under Article 73 of the Turkish Criminal Code, in complaint-dependent offences the victim must lodge a complaint within six months from the day they know or learn of the act and who the perpetrator is. This is a preclusive period. A complaint made after the six-month period has elapsed does not, as a rule, enable an investigation to be commenced. In any event, the period cannot exceed the limitation period for prosecution of the offence.
The Consequences of Withdrawing a Complaint
In complaint-dependent offences, the victim may withdraw their complaint. A withdrawal made during the investigation stage leads to a decision of non-prosecution; a withdrawal made during the prosecution (trial) stage leads to dismissal of the case. However, this outcome has some important exceptions and features:
- It cannot be reversed: A person who withdraws their complaint cannot, as a rule, retract that withdrawal and lodge a complaint again.
- The accused’s acceptance: During the prosecution stage, if the accused being tried does not accept the withdrawal, the trial may continue; the accused may seek an acquittal.
- Indivisibility in participation: Withdrawal of a complaint in respect of one of the perpetrators who participated in the offence, as a rule, also covers the others.
- No effect in offences prosecuted ex officio: In offences that are not complaint-dependent, withdrawal does not dismiss the case; the process continues of its own motion. In such offences, the victim’s statement is assessed merely as a piece of evidence.
The Relationship Between Complaint, Mediation and Punishment
A significant proportion of complaint-dependent offences also fall within the scope of mediation. In these offences, as a rule, the mediation procedure is conducted between the parties before a case is filed; if the parties reach agreement, the investigation or case may come to an end. For this reason, the institutions of complaint, withdrawal and mediation are in practice frequently assessed together.
Exercising the right to complain within the period, or the consequences that withdrawing a complaint will produce, often give rise to irreversible results. Since whether an offence is complaint-dependent and the characterisation of the particular case require a technical assessment, it will be to your benefit to consult a lawyer before taking any step.