The Department of Victims’ Rights was established in the Ministry of Justice.
CMK 234 rights of victims and complainants during investigation and prosecution and CMK 52, 66, 76, 78, 84, 100, 109, 114, 127, 131, 146, 153, 158, 171, 172, 173, 181, 202, 209, The rights in articles 211, 233, 236, 237, 253 have been regulated.
In the Turkish Penal Code, TCK 50, as an alternative sanction to a short-term prison sentence, the victim’s damage is completely eliminated, TCK 51 is the condition for the postponement of the prison sentence, the victim’s damage is compensated, TCK 55 cannot return the financial benefit to the victim of the crime for confiscation, TCK 74 fines and the dismissal of the case, It will not affect the personal rights lawsuit filed for the compensation of the damage, and there are provisions regarding the reduction of the penalty in case the damage is remedied by repentance, as in the TCK 168, 245, 248 and 254.
Other legislation: Law on Execution of Criminal and Security Measures, Child Protection Law, Probation Services Law, Witness Protection Law, Law on Protection of Family and Prevention of Violence Against Women, Press Law, Anti-Terror Law Article 20/A amended by “671 Decree Law” Compulsory traffic insurance in the Law on Compensation of Damages Arising from the Fight Against Terrorism, the Law on Cash Compensation and Pensions, and the Highway Traffic Law.
Everyone who has the right to seek rights should also know and learn what their rights are in order to exercise this right.
In Article 234/1-2 of the CMK, after the rights of the victims in the criminal procedure march are counted one by one, it is stated in the 3rd paragraph that “these rights are explained and explained to the victims of the crime and the complainant and this issue is written in the minutes”.
The victim of the crime also has the right to request the collection of evidence in parallel with the investigation of the Public Prosecutor during the investigation phase. In the 1/a-1 provision of Article 234 of the CMK, it is stated that the victim and the complainant have the right to demand the collection of evidence. Since the collection of evidence is a duty to be fulfilled during the investigation phase, this right is also accorded to the victim and the complainant at this stage in the law. However, this right granted during the investigation phase can also be exercised during the prosecution phase.
According to Article 234/l-a-2 of the CMK, the victim and the complainant have the right to request a copy of a document from the Public Prosecutor, provided that they do not violate the confidentiality and purpose of the investigation.
According to Article 153/2 of the CMK, if examining the content of the file or taking samples from the documents is restricted by a judge’s decision upon the request of the C. Prosecutor, then it is not possible for the victim and his/her representative to examine the file and take a copy of the document, just like his/her counsel.
The right to “request a document from the C. Prosecutor on the condition that it does not violate the confidentiality or purpose of the investigation” in Article 234 of the CMK is different, and here the C. Prosecutor has the discretion.
The victim and the complainant can benefit from the assistance of a lawyer they want within the framework of the power of attorney agreement. This right applies to both the investigation phase and the prosecution phase. If the victim chooses an attorney in this way, he/she will pay the attorney’s fee arising from the attorney agreement.
Apart from this, the CMK also granted the victim and the complainant the right to request the appointment of a lawyer by the bar association granted to the suspect or the accused (CMK Article 150). The right to request the appointment of a lawyer is of two types, one optional and the other compulsory.
There is a mandatory power of attorney appointed here.
If the victim-complainant elects a proxy, the duty of the compulsory attorney automatically ends.
CMK 153/1 regulates the right of the defense counsel to examine the file and to obtain a copy of the document from the file without any fee, and in its 5th paragraph, the same rights are granted to the attorney with the provision that “the representative of the person injured by the crime also benefits from the rights contained in this article”.
On the other hand, in Article 234/l-a-4 of the CMK, in parallel with Article 153, the victim and the complainant are given the right to inspect the investigation documents and the confiscated and stored goods through their attorney. However, this right was not recognized during the investigation phase of the suspect and his defense counsel.
Pursuant to CMK172/1, at the end of the investigation phase, the C. Prosecutor decides that there is no ground for prosecution in cases where there is insufficient evidence to raise suspicion for a public action to be initiated or if there is no possibility of prosecution.
C. If the prosecutor decides that there is no place for prosecution in this way, the victim and the complainant may appeal against this decision as specified in Article 173, pursuant to CMK 234/l-a-5. We call this objection a prosecution case.
CMK 234/b-l regulates the right of the victim and the complainant to be informed of the hearing. Pursuant to CMK 175, when the decision to accept the indictment is made, the prosecution phase begins. Pursuant to CMK 233, “the victim and the complainant are called and heard by the public prosecutor or the head of the court or the judge with a summons paper”.
The right to be informed of the hearing is absolute, and the president of the court or the judge has no discretion in this matter.
Victims, victims of crime and those who are financially responsible can participate in the public action by declaring that they are complaining at every stage of the prosecution phase in the first instance court, until the verdict is rendered, according to Article 237 of the CMK.
In addition to this article, which determines the right to participate in the lawsuit, provisions regarding the rights of the participant, the effect of participation, objection to the decisions before participation, the application of the participant to legal remedy and the invalidation of participation are also shown in articles 238 to 243. However, apart from these provisions and as a right, CMK 234/l-b-2 has included a provision regarding the right of the victim and the complainant to participate in the public lawsuit.
Participation in the lawsuit is realized by expressing or implicitly explaining the request of the victim-victim during the prosecution phase and recording this in the report. For this reason, being the victim of a crime or the victim of a crime does not legally qualify as a direct participant.
This title is acquired with the acceptance of the request.
Although the prosecution phase also includes the legal remedy phase, it is not possible to participate in the lawsuit at the legal remedy stage, in the face of the provision “no request to participate in the legal action proceedings” in Article 237/2.
However, the requests for participation that are put forward but rejected or not decided by the court of first instance, are examined and decided if it is clearly stated in the legal remedy application. If there is a representative of the victim and the injured person, it is decided that the attorney also participates in the case in the capacity of the attorney participating in the case.
CMK 234/1-b-3; While it was in the form of “requesting examples from the minutes and documents through his/her representative”, the phrase “through his/her representative” was canceled and removed from the text in the decision of the Constitutional Court dated 17.05.2012 and numbered 2011/E., 2012/69 K.
Therefore, the victim and the complainant now have the right to ask for samples directly from the minutes and documents.
Evidence in criminal procedure; It is any tool that represents and reflects the event that is the subject of the criminal dispute as a means of proof. One of the most important pieces of evidence is the statements of witnesses. The witness is defined as the third person who tells the judge what he has learned about the incident through his five senses.
Testimony is a social duty arising from public law. The witness is heard by the C. Prosecutor during the investigation phase, and by the court during the prosecution phase, according to the provisions of CMK 43. In this context, he is invited by the Prosecutor C and the court with a summons. CMK 234/l-b-4 gave the victim and the complainant the right to request the invitation of a witness.
However, in accordance with CMK 178 provision, if the president of the court or the judge rejects the petition for the summoning of the witness or expert shown by the accused or the participant, the accused or the participant may bring those persons to the court. These persons will be heard at the hearing.
It has been explained above that the victim and the complainant have the right to benefit from the assistance of a lawyer both in the investigation phase and in the prosecution phase.
In sub-paragraph (b) of paragraph 1 of Article 234 of the CMK, the rights of the victim and the complainant during the prosecution phase are listed, and in the sub-paragraph (5), “in the absence of a representative, the bar association may be charged with the crime of sexual assault and crimes requiring a prison sentence of more than five years. It has the right to request that a lawyer be appointed by the Company”.
CMK m. Mandatory attorneyship included in 234/2 is also valid for the prosecution phase.
However, it should not be forgotten that the right to benefit from the assistance of a lawyer during the prosecution phase will first emerge in the form of recourse to legal action against the judgment, with issues such as representing the victim at the hearing and requesting the invitation of witnesses. If he does not participate in the case, he will not be able to benefit from some of these rights, since he cannot gain the title of subject.
The right to apply to legal remedy is a right granted to those who participated in the first trial as a subject. Legal ways; Those who have taken the title of participating in the first instance court, and those whose request to join has not been decided, rejected or who have been harmed by the crime that could take the title of participating can apply (CMK 260/1).
As can be seen, if a person remains inactive during the first trial, but is acquitted about the accused who has harmed herself, she is not accepted to participate in the case by applying for the first time.
VICTIM RIGHTS