Deferral of the initiation of public prosecution, which aims to remedy the harm caused by the offense and to reintegrate the offender into society through rehabilitation, and which is a product of the restorative justice approach, refers to the public prosecutor's decision to defer, for a certain period, the initiation of public prosecution, rather than initiating it, where the conditions prescribed by law exist, even though the prosecutor has reached sufficient suspicion as a result of the investigation. This institution aims to prevent the offender from committing a new offense and to remedy the harm arising from the offense, thereby fulfilling the rehabilitative and preventive functions of criminal law.
Deferral of the initiation of public prosecution constitutes one of the exceptions to the principle of mandatory prosecution set out under Article 170/2 of the Code of Criminal Procedure (CMK), titled "Duty to initiate public prosecution." The general rule is that "If the evidence gathered at the end of the investigation stage creates sufficient suspicion that the offense was committed, the public prosecutor shall prepare an indictment." (CMK 170/2). However, even where the evidence gathered at the end of the investigation creates sufficient suspicion, the public prosecutor may, where the conditions exist, resort to one of the alternative dispute resolution methods to prosecution by deferring the initiation of public prosecution.
For offenses whose upper limit is a term of imprisonment of three years or less, the public prosecutor may decide to defer the initiation of public prosecution for a period of five years, notwithstanding the existence of sufficient suspicion. As is also understood from the wording of the provision, the decision lies within the discretion of the public prosecutor, and no requirement of consent by the complainant or the suspect has been included.
In order for a decision to defer the initiation of public prosecution to be rendered, the suspect must not have been previously convicted of and sentenced to imprisonment for an intentional offense. As is also understood from the wording of the provision, negligent offenses previously committed by the suspect do not constitute a breach of this condition. The acceptance that the suspect has been convicted of an intentional offense is possible only once the relevant judgment becomes final. In other words, if the suspect has been sentenced to imprisonment for an intentional offense, but the relevant conviction has not become final because, for example, a legal remedy has been sought or the period for seeking such a remedy is still running, the public prosecutor may nonetheless decide to defer the initiation of public prosecution. At this point, it is necessary to evaluate the possibilities that a decision to defer the initiation of public prosecution or a decision to suspend the announcement of the verdict may have previously been rendered against the person in respect of an intentionally committed offense. It should be noted that, since the institution of suspension of the execution of a prison sentence necessarily requires that a conviction be entered against the defendant, what is deferred is not the conviction itself but the serving of the sentence in a penal execution institution. Accordingly, since a final decision suspending execution constitutes a conviction rendered against the person, a final decision suspending the execution of a prison sentence previously imposed on the person for an intentionally committed offense constitutes an obstacle to a decision deferring the initiation of public prosecution. That being the case, a decision to suspend the announcement of the verdict previously rendered against the person for an intentionally committed offense does not constitute an obstacle to deferral of the initiation of public prosecution. This is because suspension of the announcement of the verdict prevents the conviction from acquiring legal existence. As stated in the last sentence of Article 231/5 of the CMK, "Suspension of the announcement of the verdict means that the verdict rendered, except for provisions relating to confiscation, does not produce any legal consequence with respect to the defendant." As also stated in the decision of the Court of Cassation's 11th Criminal Chamber, Case No. 2012/12249, Decision No. 2013/17314, dated 20.11.2013, "Given that the said statutory provision expressly states that 'suspension of the announcement of the verdict means that the verdict rendered does not produce any legal consequence with respect to the defendant,' it cannot be said that a previously rendered decision to suspend the announcement of the verdict, by its nature, violates the condition of 'not having been convicted of an intentional offense.'"
Another condition sought for a decision to defer the initiation of public prosecution is that the investigation conducted must give rise to the conviction that the suspect will refrain from committing an offense if the initiation of public prosecution is deferred. Accordingly, in order for the deferral institution to be applied, the suspect will be required to demonstrate good conduct during the investigation process (İzzet ÖZGENÇ, "Deferral as a Regime of Execution of Sentences," Journal of Constitutional Review, Vol. 18, Papers Presented at the Symposium Held on the Occasion of the 39th Anniversary of the Establishment of the Constitutional Court, (25-26 April 2001), Ankara, p. 103.). If the suspect's statements, attitude, or conduct give rise to doubt as to whether he or she will refrain from committing an offense, the public prosecutor will not defer the initiation of public prosecution. In addition, another condition sought for deferral is that deferring the initiation of public prosecution must be more beneficial than the benefit that would be obtained if public prosecution were initiated.
The condition that most reflects the spirit of the restorative justice approach within the institution of deferral of the initiation of public prosecution is that the harm suffered by the victim or the public as a result of the commission of the offense must be fully remedied, whether by restitution in kind, restoration to the state prior to the offense, or compensation. Accordingly, to the extent that the harm suffered by the victim or the public as a result of the alleged offense can be determined, the suspect, once notified by the public prosecutor, will be expected to remedy such harm.
While the decision to defer the initiation of public prosecution lies within the discretion of the public prosecutor -where the conditions exist- this decision has been made mandatory with respect to certain offenses and circumstances:
1. Although the conditions required for a decision to defer the initiation of public prosecution are set out in Article 171 of the CMK, a decision to defer the initiation of public prosecution may be rendered, without the conditions listed in Article 171 of the CMK being required, within the scope of an investigation conducted for the offense defined in Article 191 of the Turkish Criminal Code (TCK), namely "purchasing, accepting, or possessing narcotic or stimulant substances for use, or using narcotic or stimulant substances." Moreover, Article 191/2 of the TCK provides that "In an investigation initiated for this offense, a decision shall be rendered deferring the initiation of public prosecution against the suspect for a period of five years, without the conditions in Article 171 of the Code of Criminal Procedure No. 5271 dated 4/12/2004 being required," thereby making this decision mandatory rather than leaving it to the discretion of the public prosecutor. Likewise, within investigations conducted for the relevant offense, the deferral period is -consistent with the general rule- five years. However, during the deferral period, a probation measure is applied to the suspect for a minimum period of one year, and this period may be extended by the decision of the public prosecutor, either upon the proposal of the probation directorate or ex officio, for further periods of six months each, up to a maximum of two additional years. During the supervision period, the suspect may be subjected to treatment by decision of the public prosecutor where deemed necessary. As a reflection of the restorative justice approach, the public prosecutor decides to refer the suspect to the relevant institution at least twice a year during the deferral period in order to determine whether the suspect has used narcotic or stimulant substances. Public prosecution will be initiated against the person if, during the deferral period, the person uses narcotic substances, purchases, accepts, or possesses narcotic or stimulant substances for use, or persists in failing to comply with the obligations imposed on him or her or with the requirements of the treatment applied. Following the initiation of the relevant public prosecution, a decision to again defer the initiation of public prosecution cannot be rendered in investigations opened on the allegation that the offense of "purchasing, accepting, or possessing narcotic or stimulant substances for use, or using narcotic or stimulant substances" has been committed again. We wish to draw attention to the fact that, whereas the general rule under Article 171 of the CMK for setting aside the deferral and initiating public prosecution is "the commission of a new offense during the deferral period," with respect to the offense of "purchasing, accepting, or possessing narcotic or stimulant substances for use, or using narcotic or stimulant substances," a final conviction establishing that an offense was committed during the deferral period is not required, and the mere determination of the violation is deemed sufficient. Indeed, Article 191/5 of the TCK expressly provides that the person's purchasing, accepting, or possessing narcotic or stimulant substances for use again, or using narcotic or stimulant substances, during the deferral period shall be deemed a ground for violation and shall not be made the subject of a separate investigation or prosecution.
2. Another matter for which a decision to defer the initiation of public prosecution is made mandatory is the situation where reconciliation has been reached between the parties under Article 253 of the CMK, but the reconciliation obligation is not of a nature that can be performed at once. Where performance of the reconciliation obligation undertaken by the suspect is deferred to a later date, structured in installments, or of a continuing nature, a decision deferring the initiation of public prosecution will be rendered against the suspect without the conditions set out in Article 171 of the CMK being required. Following the decision deferring the initiation of public prosecution, if the requirements of the reconciliation are fulfilled, a decision of no grounds for prosecution will be rendered; if the obligation is not fulfilled, public prosecution will be initiated without the condition set out in Article 171/4 of the CMK being required.
3. Likewise, under Provisional Article 1 of Law No. 6352 on the Deferral of Trials and Sentences for Offenses Committed through the Press and Broadcasting, it is provided that, within investigations initiated for an offense committed through the press and broadcasting or other means of expressing thoughts and opinions up until 31.12.2011, and which, in its basic form, requires a judicial fine or a term of imprisonment whose upper limit does not exceed five years, a decision deferring the initiation of public prosecution shall be rendered without the conditions set out in Article 171 of the CMK being required, and this decision has been made mandatory rather than left to the discretion of the public prosecutor. It should be importantly noted that threats and hate speech that are made under the guise of press and broadcasting but do not serve the purpose of informing the public and do not contribute to public debate cannot benefit from this protection (Ceylan AYANOĞLU, Supervisor: Prof. Dr. Ayşe NUHOĞLU, Deferral of the Initiation of Public Prosecution, Master's Thesis, Bahçeşehir University, 2022, p.70). In this context, if the person against whom a deferral decision has been rendered does not commit a new offense through the press and broadcasting or other means of expressing thoughts and opinions within three years from the date of the decision, a decision of no grounds for prosecution will be rendered in respect of that person. In the decision deferring the initiation of public prosecution rendered with respect to offenses committed within the scope of Provisional Article 1 of Law No. 6352, an exception has been introduced to the general rule and practice, providing that the provisions of this article shall apply even where a decision to suspend the announcement of the verdict has been rendered for offenses falling within the scope of the article.
4. Investigations or prosecutions conducted for offenses whose upper limit requires imprisonment of one year or more may be transferred to a foreign state where the suspect or defendant cannot be brought before the authorities in Turkey because he or she is a national of a foreign state, or his or her defense cannot be obtained through judicial assistance, or where the suspect or defendant, being a Turkish citizen, habitually resides in a foreign state, or the evidence is located in that state, such that the transfer would allow the truth to be established. Where the transfer request is accepted by the foreign state upon the request of the relevant judicial authority and the favorable opinion of the Ministry of Justice, a decision deferring the initiation of public prosecution shall be rendered regardless of the conditions and consequences. If a case is brought by the foreign judicial authority in relation to the offense, a decision of non-prosecution shall be rendered with respect to the person; if no case is brought, the investigation may continue. Where the foreign state does not accept the transfer, or withdraws its decision accepting the transfer, the investigation shall definitively continue.
While the general rule regarding offenses for which a decision deferring the initiation of public prosecution may be rendered is that the upper limit of the offense must require imprisonment of three years or less, certain types of offenses exceptionally designated by the legislature fall outside the scope of this provision. Accordingly, a decision deferring the initiation of public prosecution cannot be rendered, even if the conditions are met, within the scope of investigations conducted for the offenses of establishing, managing, or being a member of an organization for the purpose of committing offenses, and offenses committed within the framework of the organization's activities; offenses committed by a public official by reason of his or her duty or against a public official because of his or her duty; military offenses committed by military personnel; and offenses committed against sexual inviolability.
If, during the five-year deferral period following the deferral of the initiation of public prosecution, the suspect does not commit an intentional offense during the deferral period, the public prosecutor shall render a decision of no grounds for prosecution. At this point, it should be recalled that if the periods prescribed in Article 66 of the TCK elapse from the date the offense was committed, the statute of limitations for prosecution expires, and a decision of no grounds for prosecution is rendered at the investigation stage, while a decision dismissing the case is rendered at the prosecution stage. However, since deferral of the initiation of public prosecution is a circumstance that suspends the statute of limitations for prosecution, the statute of limitations does not run during the deferral period. In this way, it is intended, as an alternative dispute resolution method, to prevent the decision deferring the initiation of public prosecution from causing a temporal detriment. Indeed, as a reflection of the restorative justice approach that aims to strike a balance between interests, it would be appropriate to regard the institution of deferral of the initiation of public prosecution not merely as a tool that reduces the workload of criminal proceedings, but also as a mechanism that serves the individualization of criminal justice, the remedying of the victim's harm, the prevention of the commission of offenses, and, through this, the reintegration of individuals into society.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
