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Rights of Legal Remedies, Petition, Complaint and Objection in Criminal Procedure

BURAK KARAKAS AFRA ESKICIRAK ZEYNEP TURAL

Table of Contents

What Are The Legal Remedies, Petition, Complaint and Objection in The Code of Criminal Procedure?

Code of Criminal Procedure No. 5271 is a code regulated according to the Civil Law System.

Code of Criminal Procedure No. 5271 determines the implementation of the criminal procedure in Turkey, the rights and obligations of those participating, protection measures and control over the court’s decisions on investigation and prosecution phases.

Code of Criminal Procedure (CCP) is a branch of law that is directly related to personal rights and freedom. Therefore, legality is an important principle.

A relationship with different phases between the offender and the state occurs by committing a crime. CCP contains binding legal rules based on the right to have a fair trial. Therefore, the right to legal remedies, petition, complaint, and objection is important in the criminal procedure.

What is The Right to Legal Remedies?

According to the Turkish Constitution Article 36. titled ‘Right To Legal Remedies’: “Everyone has the right of allegation and defence as complainant or defendant in front of judicial authorities within rightful means.”

Right to legal remedies has become a constitutional assurance with the article regulated.

According to Article 40 titled `Protection of Fundamental Rights and Freedoms`: “The state has to specify which legal remedies and authorities’ individuals will apply to with deadlines in its proceedings.”

Therefore, in a state of law, everyone may use legal means, may apply to the authorities and make claims and defences based on the constitution.

Conceptually legal remedies can be defined as the right to demand a decision about the alleged crime in criminal proceedings. It contains the freedom to claim rights and remedies of the violation when a violation occurs. The physical and moral existence of the person seeking justice has a lot to do with the concept of personal dignity. For that reason, there are legal measures to protect the person’s dignity, and legal remedies are envisioned.

Many of the Constitutional Court’s decisions have mentioned that the right to legal remedies is an essence of the constitutional state and an indispensable condition of democracy. Article 40 has regulated the right to apply for authorities without delays for those whose rights and freedoms had been violated. Petitioning the assembly, freedom of information act and complaining to an ombudsperson has been regulated in Article 74 of Constitution are protected by the constitution.

The freedom to seek right in front of the authorities guaranteed in Article 36 of the Constitution is one of the most important rightful and effective ways to protect rights. Specifying the extent of the legal remedies must include principles such as justice and state of law. Legal remedies aim to prevent rights violations and ensure people’s rights in this direction. However, the judges may fall into errors while evaluating the material facts. Consequently, the requirement to be audited by another judicial authority took place.

What is The Right to Petition?

Individuals applying to the administrative authorities about the requests and complaints and their right to obtain information on matters related to their fields of activity are based on equality, impartiality, and openness, which requires a democratic and transparent administration.

Right to petition is submitting requests or complaints of individuals regarding personal or public matters to government agencies and authorities other than judicial authorities. The petition can be described as “Articles written with the purpose of proclaiming a request, a complaint or any info to government agencies.”

Claiming a right with a petition is an obligation and a right for every individual. According to Article 74 of the Constitution, Citizens of the Turkish Republic and Foreign Residents of Turkey have the right to petition competent authorities and the Grand National Assembly of Turkey about their and general requests and complaints within the reciprocity principle. The petition is very important for both criminal and civil proceedings. A petition is necessary for the commencement of judicial or administrative action.

What is The Right to Lodge a Complaint?

If another person violates a person’s legally protected right, the person whose right is violated should notify the authorized authorities of the violation. The violation must be notified by a lawsuit on civil law procedures and by complaint on public law procedures. The complaint is a statement of a person offended by a crime, which includes the will about investigation and prosecution of the offender about offences prosecuted on the complaint.

Offences prosecuted on the complaint are exceptional; therefore, the article of the relevant law must definitely include the words ‘prosecuted on complaint’.

The right to complain about crime must be used within a certain period of time. This period has been regulated as a period of prescription. The complaint period is six months from the moment of learning the act and the offender. Suppose there is sufficient suspicion about the crime that it has been committed. In that case, the public prosecutor files a criminal lawsuit against the suspect upon collecting evidence with the relevant notice. If the complaint has not been made in time, the crime cannot be prosecuted.

If more than one person has been offended by the crime, the time of 6 months will be calculated and proceeded differently for every one of them. Therefore, if the time expires for one of the injured parties, the other’s right to complain will remain.

The right to a complaint can be withdrawn, or the charges can be dropped. For the dropping of charges, the withdrawal is made by unilateral declaration. Offenders must be notified about the will. These can only be done once. If dropping of the charges made in the investigation phase, the prosecutor will decide non-prosecution. But in the prosecution phase, the court will drop the lawsuit.

What is The Right of Objection?

It is possible to object to the judges’ decisions, and it is possible to appeal against court decisions. Objection against a judge’s decision or appeal against a court decision can be made by article 35^th of CCP with reference to Article 268^th.

According to the article, seven days from the day the relevant person learns the decision, the objection can be done with a petition or verbally in front of the reporting officer. The president of the court or the judge approves the statement and also signature identified in the report.

If the judge or court sees the objection is appropriate, it will correct its decision; if he does not see it on the spot, within three days at the most, he sends it to the authority authorized to examine the objection. Objection to rescind the execution of the decision does cause abandonment of the execution. However, the appealed authority or the authority that will review the decision can decide that.

The authority to examine the objection may notify the public prosecutor and the other party. If the prosecutor has been consulted, the suspect, defendant and defender will be notified. They can give their opinion in three days. Except for the states regulated in the code, the objectionable state will be given without a hearing.

If necessary, the prosecutor, the defender, and the counsellor can be heard. If the object has been seen on site, the decision will be made about the objection too. The decision will be given as soon as possible. Authorities’ decisions about objections are exact decisions. However, an objection can be made about an arrest for the first time.

References and Applicable Legislation

<https://www.hukukihaber.net/ceza-muhakemesinde-hak-arama-dilekce-sikyet-ve-itiraz-haklari-makale,9482.html>.
Code of Criminal Procedure No. 5271.

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