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Anasayfa Türk ADR Mevzuatı Ceza Hukukunda Uzlaşma Mevzuatı DIRECTIVE ON PRACTICE OF MEDIATION PROCEDURE ACCORDING TO THE CODE OF CRIMINAL PROCEDURE

DIRECTIVE ON PRACTICE OF MEDIATION PROCEDURE ACCORDING TO THE CODE OF CRIMINAL PROCEDURE

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GENERAL JUSTIFICATION

With Turkish Criminal Code No. 5237 and Criminal Procedure Code No. 5271, a new institution titled “reconciliation” has been adopted in our justice system, which enables “settlement of disputes outside the penal justice system”. This institution has first emerged in the United States of America under the name “mediation”.  Basic purposes of this institution can be briefly stated as follows;

· Settling the cases, which have accumulated at the courts, outside the justice system, and thus decreasing the work burden of criminal courts,

· Accelerating criminal adjudication,

· Remedying the damage of the victim arising from the crime within a short period,

· Effecting a reconciliation between the parties through an “impartial and independent” reconciler.

It can be seen that in the world a sensitivity which aims at protecting the benefits of the victims of crime has been emerging with increasing strength.  In our country, as in the whole world, the care shown for the victims in the area of criminal justice has been at a very limited extent up to now.  Today, however, in Europe and the US, high importance is placed upon protecting the victims of crime and developing their rights within the justice system. While fulfilling the criminal justice in the justice system of XXI. century, satisfying the victim is also highlighted.  Criminal sanction against crime is not sufficient; remedying and repairing the damage should be considered as the leading purpose.  In this context, reconciliation has a potential to fulfill a significant function for the victims by remedying the damage of the victim arising from crime within short period.

On the other hand, it is among the targets of the criminal justice to settle the conflict arising between the offender and the victim after committing a crime through the attempts of a judge or public prosecutor or a reconciler to be appointed by them, and thus to ensure both justice and satisfy the victim.   Eliminating the damage will lead peace between the perpetrator and victim of the crime.  Reconciliation also has a morale element in addition to remedying the damage.  In reconciliation, the perpetrator undertakes the responsibility of the crime he/she commits, and the consequences of the crime are eliminated and the possibility of reintegration emerges.  Since what is required for determining the criminal responsibility of the perpetrator and overcoming the damage will be fulfilled, the justice will be realized, validity of the legal rules that are violated with the action will be emphasized and thus a service will be rendered to reestablish the public peace, and also the state  will be saved from many costs which it would have otherwise borne.

In addition, since the reconciliation will end the conflict without resorting to a criminal trial, the already heavy work burden of criminal courts will be decreased, and the justice will take place more rapidly for both parties.  As a result of these, the reconciliation will decrease the costs of the criminal justice system.

This institution, which emerged in the United Stated of America, has quickly spread through European countries and it has been adopted by the European Council, which we are a member of, and it has found its place in the international law with the Recommendation R(99) No. 19.  The recommendation considers reconciliation as a flexible, comprehensive, problem-solving, participatory procedure, emphasizes the importance of increasing the active participation of the persons who are affected from the case, such as the victim and the perpetrator, as well as the society, and encouraging the feeling of responsibility towards rehabilitation and more integration of perpetrators to the society, and providing practical opportunities to remedy their conditions, and considers reconciliation as an efficient procedure, and considers reconciliation as an efficient procedure to prevent crime, to struggle against crime  and to resolve the conflicts created by the crime.  Furthermore, this Recommendation suggests that,  while developing reconciliation in their criminal justice systems, the member states should take into consideration the principles indicated in this Recommendation.

The reconciliation institution, which is an alternative way of conflict resolution in the field of criminal law, has been included into our practices with Turkish Criminal Code No. 5237 and Criminal Procedure Code No. 5271.  It is not included in the Turkish Criminal Code No. 765 and Criminal Procedure Code No. 1412.  Reconciliation is a brand new institution in terms of our criminal law, and the aim is to eliminate the injury arising from crime.

However, the institution of reconciliation, which has entered to our laws as a new concept and has been regulated under the Eighth Paragraph of Article 73 sub-heading "crimes, whose investigation and prosecution are contingent on complaint, reconciliation" of the Turkish Criminal Code No. 5237 which entered into force on  June 1st, 2005 and under Article 253 with the sub-heading  “Reconciliation” of Criminal Procedure Code No. 5271, and under Article 24 of Child Protection Code No. 5395 which entered into force on July 15, 2005, has been completely changed with an amendment made in Article 253 of Code of criminal procedure No. 5271  with Law No. 5560 dated 9/12/2006 due to such facts that it extends the procedure of investigating  of articles foreseen under the law in practice, increases the work burden and makes reconciliation impossible to implement,  and that those who implement it failed to adopt the concept sufficiently, and in the last paragraph of Article 253 of the Law it was stipulated that a Directive would be issued to regulate the issues pertinent to the implementation of reconciliation.

This amendment which was brought under Article 24 of the Law No. 5560 had made the institution of reconciliation more practical.  The Directive particularly extended some issues which were left vague in the Law and thus aimed at directing implementation.

The Directive explains in detail such issues as the basic principles and general provisions pertinent to reconciliation, nature of the reconciliation and the legal consequences of accepting or rejecting the reconciliation, the procedure for appointing a reconciler, reconciler with law education, confidentiality, reconciliation negotiations, the subject of the action, reconciliation report and reconciliation certificate, the legal consequences of reconciliation at the stage of prosecution, obligations of the reconciler, the place where the reconciliation is to take place, training of the reconciler, fees and expenses of the reconcilers.


DIRECTIVE ON PRACTICE OF MEDIATION PROCEDURE

ACCORDING TO THE CODE OF CRIMINAL PROCEDURE

SECTION ONE

Purpose, Scope, Basis and Definitions

Purpose

ARTICLE 1 - (1) The purpose of this Directive is to regulate the principles and procedures related to mediation.

Scope

ARTICLE 2 – (1) This Directive covers the provisions pertinent to the enforcement of mediation transactions among the suspect or the accused and the natural person or private law legal entity who has been harmed as a result of any crime specified to be within the scope of mediation in Article 253 of Code of Criminal Procedure No. 5271 and in other laws.

Basis

ARTICLE 3 – This Directive has been prepared based on Articles 253, 254 and 255 of the Code of Criminal Procedure No. 5271 dated 4/12/2004.

Definitions

ARTICLE 4 – (1) The following terms as used in this Directive shall have these meanings;

a) Law:  Code of Criminal Procedure No. 5271 dated 4/12/2004,

b) Mediation:  Agreement reached or caused to be reached between the suspect or accused and the victim or the person who has been harmed as a result of the crime included under the scope of mediation as a result of a mediation process in accordance with the procedures and provisions in this Law and this Directive,

c) Reconciling: The process of settling a dispute between the suspect or accused and the victim or the person who has been harmed as a result of the crime due to a crime included under the scope of mediation as a result of a mediation process in accordance with the procedures and provisions in this Law and this Directive, or with the mediation of a mediator or a judge or a public prosecutor,

ç) Mediator (conciliator): The person who manages the mediation negotiations between the suspect or the accused and the victim or the person who has been harmed as a result of the crime, who is appointed by a public prosecutor or the court, and who has received law education, or the attorney appointed by the bar upon the request of the public prosecutor or the court.

SECTION TWO

Basic Principles and General Provisions

Basic Principles

ARTICLE 5 - (1) Mediation shall be realized if the suspect or the accused and the victim or the person who has been harmed as a result of a crime give their consent with their free will.  These people may withdraw their consent until an agreement is reached.

(2) The mediation shall be executed in accordance with the basic rights and freedoms   of the suspect or the accused and the victim or the person who has been harmed as a result of the crime, by respecting the principle of protecting interests

(3) The suspect or the accused and the victim or the person who has been harmed as a result of the crime, who participate in the mediation have the basic guarantees granted by the Law.

(4) If the suspect or the accused and the victim or the person who has been harmed as a result of the crime do not know Turkish or are handicapped, provisions of Article 202 of the Law shall be applicable.

(5) Before starting the mediation process, the suspect or the accused and the victim or the person who has been harmed as a result of the crime shall be informed of the nature of the mediation and the legal consequences of the decisions they will make.

(6) Such factors as age, maturity, education, social and economic status of the suspect or the accused and the victim or the person who has been harmed as a result of the crime shall be taken into consideration in the mediation process.

(7) Those provisions of the Law and the Directive that are pertinent to mediation shall also be applicable for the children who are the victims of a crime which is subject to mediation as well as the children who are drawn to crime.  In case of mediation related to children, the process to be followed shall be in accordance with the provisions of Children Protection Law No. 5395 dated 3/7/2005, and Directive on Principles and Procedures Pertinent to Enforcement of Child Protection Law which came into force after being published in the Official Gazette No. 26386 dated 24/12/2006, and Directive on the Enforcement of Protective and Supportive Action Decisions Taken as per Children Protection Law which came into force after being published in the Official Gazette No. 26386 dated 24.12.2006.

(8) The attorney who is the mediator shall not undertake any task as proxy or defender subsequently in relation to the case which he/she took served under such title.

General provisions

ARTICLE 6 - (1) In order to use the mediation process, it is required that the victim or the person who is harmed as a result of the crime be a natural person or private law legal entity.

(2) In case of crimes committed by several persons, regardless of whether there is any relation of partnership between them, only the suspect or the accused who are urged to reach a mediation shall benefit from the mediation.

(3) In order to resort to a mediation process due to a crime which leads to injury or grievance of several people, all of the victim or those who are injured from the crime should accept mediation.

(4) If a mediation effort fails to yield any result, mediation attempt shall not be repeated.

(5) Proposing mediation or acceptance of any such proposition shall not constitute an obstacle for collecting the evidences pertinent to investigation or prosecution and for the implementation of precautionary measures.

(6) In crimes that are subject to mediation, no decision shall be taken for postponing the opening of a public lawsuit or proclamation of the judgment thereof without making an attempt at mediation.

Crimes under the scope of mediation and exemptions

ARTICLE 7 - (1) In case of crimes mentioned under the first clause of Article  253 of the Law, the suspect or the accused and the victim or the natural person or private law legal entity, who are harmed as a result of the crime, an attempt shall be made for mediation.

(2) In order to seek mediation in relation to crimes included in other laws, excluding those for which investigation and prosecution are dependent upon complaint, there must be clear provision in the law.

(3)Mediation shall not be applied in crimes, for which effective repentance provisions are applicable, and crimes against immunity from sexual violation, even if investigation and prosecution of these are dependent upon complaint.

(4) If a crime, which is included within the scope of mediation, is committed in order to commit another crime which is not included in this scope, or together with any such crime, mediation shall not be applied.

SECTION THREE

Mediation at the Stage of Investigation

Proposal for Mediation

ARTICLE 8 – (1) If a crime, which is the subject of the investigation, is subject to mediation and there is sufficient suspicion that it is committed, a public prosecutor shall propose mediation for the suspect and victim or the person who has been harmed as a result of the crime. Upon the written, or in emergency conditions, verbal instruction of a public prosecutor, the judicial security officer may also propose mediation for the suspect and the victim or the person who has been harmed as a result of the crime. The verbal order shall also be notified in writing at the earliest possible time.

(2) If a suspect, victim or a person who has been harmed as a result of a crime is a minor or is restricted, or the victim or the person who has been harmed as a result of the crime do not have the judicial faculty, proposal for mediation shall be made to their legal representatives.   After the fact that these persons do not have the judicial faculty is examined by a public prosecutor, the party that will receive the mediation proposal shall be determined.

(3) The proposal for mediation to be made by a public prosecutor or the judicial security officer, shall be made through signing by and delivery to the relevant person of the Mediation Proposal Form in which there are Attachment No. 1.a and Attachment No. 1.b of this Directive and which states the nature of mediation mentioned in  of this Directive, as well as the presence of legal consequences of accepting or rejecting the mediation, and through explaining the information mentioned in the form.  A signed copy of the form, which indicates that the responsibility of informing is fulfilled by the chief public prosecutor or judicial security officer,  and that mediation is proposed, shall be put into the investigation documents.

(4) Call for proposing mediation may also be made by using such means of communication as phone, telegraph, fax, electronic mail.  However, such calls shall not be deemed as proposal for mediation.

Proposal through an explanatory notice or letter rogatory

ARTICLE 9 – (1) When required, a public prosecutor may propose mediation through explanatory notice or through a letter rogatory.

(2) Explanatory notice  shall be served through the delivery of the Mediation Proposal Form in which there are Attachment No. 1.a and Attachment No. 1.b of this Directive and which states the nature of mediation of this Directive, as well as the presence of legal consequences of accepting or rejecting the mediation,  in an envelope containing delivery report in accordance with the provisions of the Notifications Law  No. 7201 dated 11.2.1959, and Notification Law, which was put into force pursuant to Cabinet Decision No. 4/12059 dated 20.8.1959, reserving the special provisions mentioned in the Law.  However, under conditions where the notification cannot be served, provisions of Article 11 of this Directive shall be applied.

(3) In the proposal to be submitted through letter rogatory, provisions of clauses one and two of Article 8 of this Directive shall be applied.

Period of decision in the mediation proposal

ARTICLE 10 - (1) Unless any of those who propose mediation notify the judicial security officer or the public prosecutor in charge who made the proposal about his /her decision within three days, the mediation proposal shall be deemed to have been rejected.  In this case, reserving the provisions of Article 255 of the Law, no separate mediation proposal shall be made to others.

Consequences of not being present at the address

ARTICLE 11 – (1) In case of being not present at the address mentioned in the investigation file despite being declared to official authorities, or in case that the victim, the person who has been harmed as a result of the crime, the suspect or the legal representatives of these cannot reached due to being abroad or the address being not identified, the investigation shall be concluded without mediation process.

Obligation to inform during the investigation

ARTICLE 12 – (1) In case that a proposal of mediation is made, information included in the form, attached to this Directive, which mentions the nature of mediation and the legal consequences of accepting or rejecting the mediation, shall be  announced to the victim, or the person who has been harmed as a result of the crime , or their legal representatives.

Appointment of a mediator

ARTICLE 13 – (1) In case that the suspect and the victim or the person who has been harmed as a result of the crime accept the mediation proposal, the public prosecutor may perform the mediation himself/ herself, and or he/she may also request the bar to appoint an attorney as mediator, or may appoint any other person who had law training with qualifications indicated in this Directive.

(2) (The execution of this paragraph was suspended[2]) In the appointment of mediator, an attorney or a person with law education, whom the parties have agreed upon may be preferred.

(3) Number of mediators is determined by the public prosecutor by taking into account the nature of the conflict.

(4) (The execution of this paragraph was suspended[3]) Conditions as set forth in this Law which require the rejection of the judge due to the fact that he/she may not work in the case or due to any reasons that create suspicion about the impartiality shall be taken into consideration in relation to the appointment of mediator. The mediator shall inform the public prosecutor about the existence of these conditions, however he/she may only take the task upon the consent of the parties.

Procedure of appointment of an attorney as mediator

ARTICLE 14 - (1) The bar shall as a priority appoint an attorney who has received education on mediation.

(2) The attorney whom the parties have agreed upon is not required to be registered in the bar of the place where the investigation is held.  In this case, the appointment shall be made by the bar at which the attorney is registered.

Qualifications required of the mediator who received law training and the procedure of appointment

ARTICLE 15 – (1) The following conditions shall be required in the appointment of mediators who received law training.

a) Being a graduate of law faculties of universities,

b) (The execution of this subparagraph was suspended[4]) Being a graduate of a four-year school in the fields of political sciences, administrative sciences, economics and finance which include a sufficient level of law or law knowledge in their programs,

c) (The execution of this subparagraph was suspended[5]) Having a masters or PhD degree in law,

ç)  Being a registered attorney of the bar,

d) Having not been sentenced to any of crimes such as those committed against the security of State, constitutional order or the processing of such order, national defense, secrets of the State, espionage crimes, as well as crimes against relations with foreign states, or misappropriation, extortion, bribery, theft, depredation,  fraud, forgery, misuse of trust, fraudulent bankruptcy, rigging an tender, rigging the performance of an acquisition, laundering the property assets arising from crime, smuggling, tax smuggling, acting as false expert, perjury and unjustified benefit, excluding negligent offences, even if these crimes have been subjected to expiry of time mentioned under Article 53 of Turkish Criminal Law dated 26.9.2004 No. 5237,  and to amnesty, or has been deferred or converted into money.

e) Having not been expelled, or provisionally prohibited from the profession or civil service for discipline purposes

(2) Mediators who have received law training shall be elected from among those registered in the list determined by the offices of the central criminal public prosecutor’s.   Mediators, who are registered in this list, may take office throughout the country, and not only within the borders of the province where they are registered.

(3) Those who received law education shall apply through a petition to the public prosecutor's office by the end of November each year in order to be registered in the list so as to be appointed as a Mediator in the Criminal Court.  The applications may be made in person, or through the chamber where the person is registered, or the institution and organization where he/ she works.

(4) the following shall be attached to the application petition which contains the communication information;

a) Copy of the national ID card,

b) Republic of Turkey ID number,

c) Certified copy of the graduation certificate,

ç) Criminal record,

d) Two portrait photos,

e) A petition declaring that he /she will participate in the trainings to be conducted pursuant to Article 30 of this Directive,

f) Names of the chamber where the person is registered, if any, or the institution and organization where he/ she works.

(5) Application requests are registered and assessed by the office of the central criminal public prosecutor within thirty days following the date of application.

(6) In case that the applicant does not bear the conditions under first clause or if any of the documents in the fourth clause is missing, the request shall be ruled to be rejected.  The relevant person shall be notified of the decision related to the rejection.

(7) The list, which is prepared by writing the names and surnames, open addresses and phone numbers of those whose requests are found to be appropriate, shall be posted in the judicial court at place visible by all in January of each year for a minimum of seven days.  In addition, it shall be announced in the internet address of the public prosecutor’s office.  A copy of the list prepared shall be submitted to the judges and public prosecutors at the center, as well as the courts and public prosecutor offices of the jurisdiction.

(8) The list shall also be prepared in printed and electronic media and sent to the Training Department of the Ministry of Justice by the end of January of each year.  The submitted lists shall be published by this unit.

(9) The mediator in the list shall be excluded from the list if:

a) it is subsequently understood that he/she has lost the conditions of acceptation in the list,

b) it is subsequently understood  that he/she lacks any of the conditions indicated in this Directive,

c) he/she requests to be excluded from the list,

ç) he/she has the attitudes or engages in behavior which is not appropriate for the job of a mediator,

d) he/she does not participate in the trainings held pursuant to Article 30 of this Directive,

(10) The relevant person shall be notified of the decision regarding being removed from the list, and also sent to the places mentioned in seventh and eighth clauses

(11) In case of necessity, appointment may also be made from among people who received law education and who bear the conditions mentioned in this article, though they might not be registered in the list.

Issuance of documents and confidentiality notification

ARTICLE 16 – (1) A copy of the documents regarding the crime or crimes, which are the subject of mediation that is included in the investigation file, and that are required for mediation and approved by the public prosecutor, shall be submitted to the mediator.

(2) The public prosecutor shall notify to the mediator that he/she is obliged to act in compliance with the principle of confidentiality of investigation.

(3) Notification on which documents are submitted, date of submission and on the confidentiality of the investigation shall be established on a protocol containing the signature of the public prosecutor and the mediator.

Term

ARTICLE 17 – (1) The mediator shall conclude the mediation transactions within thirty days maximum following the submission of copies of documents in the file.  The chief public prosecutor may extend this period of his/her own motion or upon demand, for twenty days maximum. The public prosecutor shall notify the mediator about his/her decision regarding the extension of the mediation term.

(2) Despite the rejection of the mediation proposal, the suspect and the victim or the person who has been harmed as a result of the crime may declare by applying to the Chief public prosecutor that they have come to mediation through a document verifying this until the date of issuance of the indictment at the latest.

(3) Even in cases where the mediation is conducted by a public prosecutor or a judge, periods mentioned in the first article shall be applied.

Mediation negotiations

ARTICLE 18 – (1) The suspect, victim, the person who has been harmed as a result of the crime, his/her legal representative, the defender and the attorney may attend the mediation negotiations.  If the suspect, victim, the person who has been harmed as a result of the crime, his/her legal representative, or his/her attorney  refrain from attending the negotiations without any justifiable reason, the relevant party shall be deemed not to have accepted the mediation.

(2) Several negotiations may be held in order to ensure mediation.  The mediator may meet with the public prosecutor in relation to the method to be followed during negotiations; the public prosecutor may instruct the mediator to execute the mediation negotiations in accordance with the law.

(3) The negotiations may be executed through meetings to be held jointly with the parties or separately.

(4) Negotiations may also be held by using the audio-visual communication technique.

Confidentiality of the mediation negotiations

ARTICLE 19 – (1) Mediation negotiations shall be executed confidentially.  The mediator is obliged to keep confidential any statements made throughout the mediation process as well as the facts transferred to him /her or he /she becomes aware of in any other manner.

(2) Explanations made throughout the mediation period shall not be used as evidence in any investigation, prosecution or lawsuit.  Attendees of the negotiations shall not be required to testify as a witness in relation to such information.

(3) If required by the mediator, the minutes or notes kept shall be submitted to the public prosecutor in a closed envelope.  The closed envelope, which is sealed and signed by the public prosecutor, shall be kept in the file.  This envelope may only be opened to be used as evidence in order to resolve the dispute to arise due to a claim as to the falseness of the report which is prepared by the mediator and sealed and signed by the chief public prosecutor.

(4) The fact that a document or fact, which existed previously, is asserted during the mediation negotiations shall not prevent them from being used as evidence in the investigation and prosecution process or in a case.

Subject matter of restitution

ARTICLE 20 – (1) In case that the parties agree on performing a certain action at the end of the mediation, they may agree on any or several of the following actions (obligations), or on any action (obligation) other than these in accordance with law:

a) Providing full or partial compensation or recovery of pecuniary or immaterial damages arising from the action,

b) Providing full or partial compensation or recovery of pecuniary or immaterial damages of a third person (party) or persons (parties) who succeed the rights of the victim or the person injured from the crime,

c) Performing actions such as making donation to a public institution or a private organization serving public interest, or to person(s) in need of help,

ç) Undertaking some obligations undertaken by the victim, the person who has been harmed as a result of the crime, or a third person to be appointed by them, such as provisional fulfillment of certain services of a public institution or a private organizations serving for public benefit, or participating in a program which will ensure them to be beneficial individuals for the society,

d) Apologizing from the victim or the person who has been harmed as a result of the crime.

Mediation report

ARTICLE 21 – (1)  The mediator shall, from the date on which the mediation transactions are finalized, provide the public prosecutor without any delay with a report reproduced one more than the number of parties, prepared in accordance with the Mediation Report Sample in Attachment 2 of this Directive, copies of documents issued to him / her, and documents, expense bill which demonstrates the costs incurred, or a statement prepared in accordance with the market price, as well as the self employment receipt.

(2) In case that the mediation is realized, the manner of mediation shall be explained in the report containing the signatures of the parties.  However, the report shall not include the explanations made in relation to the committing of the crime during the mediation negotiations.

(3) If the public prosecutor determines that the mediation is based on the free will of the parties and that the action is in compliance with law, he/she seals and signs the report and keeps it in the investigation file.

(4) If the chief public prosecutor determines that the mediation does not rely on free will of the parties and that the action is not in compliance with law, he/she shall not approve the report.  The reason for not approving shall be written in the report.  In this case the mediation shall be deemed not to have been realized.

(5) In cases where the mediation is made by the public prosecutor; parts of the report that are compliant with the nature of this process shall be completed, the report shall be sealed and signed and kept in the investigation file.

Mediation certificate

ARTICLE 22 – (1) If the suspect and the victim or the person who has been harmed as a result of the crime come to a mediation between themselves before the appointment of mediator or following the rejection of mediation, a mediation certificate, which is compliant with the Mediation Report Sample in Attachment No. 2 of this Directive shall be prepared, to the extent this is found to be suitable by the parties.  The public prosecutor shall examine and assess this certificate according to the criteria indicated in third and fourth clauses of Article 21.

(2) In case of crimes whose prosecution is dependent on complaint, this document shall not be issued if the victim or the person who has been harmed as a result of the crime withdraws from complaint after agreement with the suspect.

Legal consequences of mediation at the stage of investigation

ARTICLE 23 - (1) In case that the suspect fulfills his/her action all at once at the end of mediation, it shall be ruled that there is no ground for prosecution against him/her.

(2) In case that the fulfillment of the action is deferred to a future date, put into installments or has continuity, it shall be ruled to postpone opening of a public lawsuit about the suspect without seeking the conditions under Article 171 of the Law.

(3) Statute of limitations shall not be applicable during the period of postponement.

(4) After it is ruled to postpone opening a public lawsuit, if the requirements of mediation are fulfilled, it shall be ruled that there is no ground for prosecution.

(5) After it is ruled to postpone opening of a public lawsuit, if the requirements of mediation are not fulfilled, the criminal case is opened, without seeking the conditions under Article 171 of the Law.

(6) In case that the suspect fails to fulfill his/her action, the mediation report or certificate shall be considered as the documents having the nature of verdict as indicated under Article 38 of Enforcement and Bankruptcy Law dated 9/6/1932.

(7) In case mediation is ensured, no lawsuit shall be (filed, litigated) opened for damages due to the crime which is the subject of investigation; and any case (filed, litigated) opened shall be deemed to have been relinquished.

Statute of Limitations

ARTICLE 24 – (1) The case statute of limitations and case period, which is the condition for prosecution, shall not be deemed to be valid from the date when the first mediation is proposed to any of the suspect, victim or the person who has been harmed as a result of the crime, until the date when the mediation attempt turns out to be futile and when the mediator prepares his/her report and submits it to the chief public prosecutor at the latest.

(2) In case that the proposal for mediation is not responded to or the proposal is rejected within due period, the mediation attempt shall be deemed to have given no result.

(3) Upon refraining of the parties or their legal representatives or proxies from participating in the mediation negotiations, notification in writing or verbally by any of the parties during negotiation that the party has withdrawn from mediation, the case statute of limitations and the case period, which is the condition of prosecution, shall restart from the date of submittal of he report to the public prosecutor.

(4) In cases where the mediation is directly conducted by the public prosecutor, if the reasons under the third article occur, the case statute of limitations and the case period, which is the condition of prosecution, shall restart from this date.  The chief public prosecutor shall establish the situation with a minute.

SECTION FOUR

Mediation at Court Stage

Mediation procedure at Court Stage

ARTICLE 25 – (1) In the occurrence of the following conditions following the opening of a public lawsuit, the mediation transactions shall be conducted by the court in accordance with the principles and procedures indicated at the investigation stage.

a) It is understood that the crime is within the scope of mediation due to the change of the legal nature of the crime, which is the subject of prosecution.

b) It is understood initially at the court stage that it is required to propose mediation at the investigation stage,

c) Presence of an action subject to mediation which is referred directly to the court without the indictment prepared by the public prosecutor,

ç) The action is included within the scope of the mediation due to a change in law at the court stage.

(2) The court may execute the notifications and correspondence regarding the mediation transactions on the   file without waiting for the trial day.

(3) (The execution of this paragraph was suspended[6]) Despite the rejection of the mediation proposal sent at the court stage, the parties may apply to the court before the ruling is made and the trial is announced to end at the latest, with a document declaring that they have reconciled.

Obligation of information in prosecution

ARTICLE 26 – (1) Proposal of mediation by the court shall be made by having the Mediation Proposal Form with the number Attachment 1/c of this Directive and which states the nature of mediation as well as the presence of legal consequences of accepting or rejecting the mediation, having it signed by the relevant person and explaining the information contained in the form.  This matter shall be recorded and the obligation of information shall be fulfilled, and the signed copy of the form verifying that a mediation proposal was made shall be put into the prosecution file.

Legal consequences of mediation at the stage of prosecution

ARTICLE 27 – (1) If mediation takes place, the court shall decide to drop the case if the accused performs its action immediately as a result of mediation.

(2) In case that the fulfillment of the action is deferred to a future date, put into installments or has continuity, it shall be ruled to withhold the announcement of ruling about the accused without seeking the conditions under Article 231 of the Law.

(3) The statute of limitations shall not be applicable during the period of withholding.

(4) After it is ruled to withhold the announcement of the judgment, if the requirements of mediation are fulfilled, a decision shall be taken to drop the case by abolishing the judgment which is held over.

(5) After it is ruled to withhold the announcement of the judgment, if the requirements of mediation are not fulfilled, then the court shall announce the judgment without seeking the conditions under eleventh clause of Article 231 of the Law.

(6) If the accused fails to fulfill his/her action, the mediation report or certificate shall be considered as one of the documents having the nature of verdict as indicated under Article 38 of Enforcement and Bankruptcy Law no. 2004.

(7) In case mediation is ensured, no lawsuit shall be opened for damages due to the crime which is the subject of prosecution; and any case opened shall be deemed to have been relinquished.

SECTION FIVE

Miscellaneous and Final Provisions

Obligations of the mediator

ARTICLE 28 – (1) The Mediator;

a) shall act independently and impartially, and observe the common benefits of the parties.  He /she shall pay attention to the fact that the parties have sufficient and equal opportunities in the negotiations.  He/ she shall not be prejudiced regarding the guiltiness of the suspect or the accused pursuant to the presumption of innocence, nor shall he/ she shall have an attitude against the suspect or the accused.

b) shall explain to the parties before the commencement of the negotiations the basic principles of mediation, his /her impartiality, the process and consequences of mediation, functions of the mediator and the parties in the mediation, as well as the confidentiality obligation, and shall ensure that they understand the process.

c) shall inform the parties that they should behave respectfully to one another, participate in the negotiations with goodwill, and explain the issues they know.

ç) shall assist the parties in resolving the dispute and encourage the agreements, however shall not exert any pressure.  He/she may not provide any opinion in favor or against any party, and shall not give any ruling which will bind the parties.

d) shall take the appropriate measures to ensure that the parties come to an agreement with their free will and fully knowledgeable about the judgment and consequences thereof.

Place of mediation

ARTICLE 29 – (1) The mediation negotiations may be held;

a) in parts of public institutions and organizations allocated for such purpose,

b) in the office where the mediator performs its activities provided that the parties accept this,

c) in a safe environment which is suitable for the interests of the parties and where they will feel themselves comfortable, or in any other place acceptable by the parties,

(2) Meeting rooms may be allocated to the extent the opportunities permit in order to hold the mediation negotiations in courthouse buildings. Arrangement of meeting rooms, providing office services and security if required, and the allocation order and hours for mediation meetings shall be undertaken by the chief public prosecutor’s office.

Training of the mediators

ARTICLE 30 – (1) Persons to be appointed shall be ensured to receive training before starting their tasks, and to be trained during their appointment.

(2) The training should aim at developing alternative skills and methods for settling disputes and for negotiations, and at providing qualifications to ensure that the victim, the person who has been harmed as a result of crime, the suspect or the accused are informed about the special conditions of working together, as well as the criminal justice system.

(3) The subject of the training shall be comprised of minimum qualifications that the persons to be in charge should bear, as well as the developing the knowledge level and personal capabilities.   Persons to be appointed as mediator shall be trained in the following issues:

a) Legal nature and consequences of mediation,

b) Fields of application of mediation,

c) Communication principles, question and negotiation techniques, negotiation method, mediation report,

ç) Conflict analysis,

d) Crimes subject to mediation,

e) Ethical rules,

(4) Training of the persons to be appointed as mediator shall be fulfilled in collaboration with Turkey Justice Academy, Training Department of the Ministry of Justice, Turkish Unions of Bars, relevant bars and universities providing training in this issue.

(5) Principles and procedures setting forth the selection, training, ethical rules and standards that the attorney to be appointed as mediator shall be assessed by Turkish Union of Bars.

Mediator fee and expenses

ARTICLE 31 – (1) A reasonable fee, excluding the costs, shall be determined by the public prosecutor at the stage of investigation, and by the court at the stage of prosecution for the mediator, which fee shall not exceed twice the amount determined for the investigation stage in the Tariff of Fees To Be Paid to Defenders and Attorney Appointed Pursuant to Code of Criminal Procedure, and which fee shall be proportional to the effort of the mediator to assess certain differences between the suspect or the accused and the victim or the person who has been harmed as a result of the crime such as age, maturity, education, social and economic status, taking into account such factors as the effort and work exerted by him/her as well as the scope and nature of the conflict.  Any costs incurred by the mediator, including the necessary traveling expenses, shall be paid separately so as not to exceed the amount determined in the said fee tariff for the investigation stage.

(2) The fee to be determined for the appointed mediator shall be paid by the public prosecutor or the judge upon the decision of spending within a reasonable period following the presentation of the report to be issued at the end of mediation transaction.

(3) In cases where several mediators are appointed, the fee shall be shared among these persons proportional to their contributions.

(4) Mediator fee and other mediation expenses shall be considered as trial costs, and these expenses shall be covered using the relevant allowance.

(5) If mediation is not realized, provisions of the Law relevant to adjudication expenses shall be applied for the mediator fee and other mediation costs.

(6) In case that mediation is realized, the mediator fee and other mediation costs shall be left to State Treasury.

(7) In cases where the mediator does not demand any mediation fee in exchange of his/her work, provisions of this article shall not be applicable.

Folders to be kept

ARTICLE 32 - (1) A copy of the decrees on absence of any ground for prosecution or on postponement of opening the criminal case ruled as a result of mediation in chief public prosecutor's office,  and of decrees at courts regarding the decisions of dropping the case or withholding the announcement of the judgment shall be kept in a special folder.  Copies of decrees to be put into these folders shall necessarily bear the signature of the public prosecutor or the judge as well as the seal of the chief public prosecutor’s office or the court as relevant.

Printing and distribution of forms

ARTICLE 33 – (1) Forms other than the Mediation Proposal Form in Attachment 1/a of this Directive shall be printed in sufficient number by spending by the chief public prosecutor’s offices from relevant allowance item, and distributed to courts and public prosecutors.

(2) Printing and distribution of the proposal forms of mediation to be performed by judicial security forces shall be undertaken by relevant judicial security force.

Informing the public

ARTICLE 34 – (1) The public shall be informed through guidebook containing guiding information about the nature, conditions and consequences of mediation, crimes which are subject to mediation and the mediation process, as well as through other methods.

Effective date

ARTICLE 35 – (1) - This Directive shall come into force on the date of publishing.

Execution

ARTICLE 36 – (1) Provisions of this Directive shall be executed by the Minister of Justice.


(APPROPRIATE JUDICIAL POLICE UNIT)

MEDIATION PROPOSAL FORM

A. As part of Article 253 of the Criminal Procedure Code numbered 5271, since the crime ..................................................... is subject to investigation, and in line with instructions of the Public Prosecutor ........................................., the nature of mediation under Section D of this form and the legal consequences of accepting or rejecting the mediation were explained to the person, whose clear identity is provided below, and he/she was offered mediation.   …/…./20…. Hour:  ……..

Judicial Police Officer

Name, Surname

Rank and Employee Number

B. THE PERSON TO WHOM MEDIATION IS PROPOSED

1. (….) Victim

2. (….)Victim’s Legal Representative

3. ( ....) Person who was Harmed as a Result of the Crime

4. (….) Legal Representative of the Person who was Harmed as a Result of the Crime

5. (….) Suspect

6. (….)Suspect’s Legal Representative

C. INFORMATION ON THE PERSON TO WHOM MEDIATION IS PROPOSED

1. Republic of Turkey ID No.

2. Name, Surname

3. Father’s Name

4. Mother’s Name

5. Place and Date of Birth

6. Address and Contact Information

D. Nature of mediation and the legal consequences of accepting or rejecting mediation:

a) Mediation is an agreement of both parties in exchange for partial or whole remedy of the damage arising from a crime, restoring of the former situation or any other material or immaterial act, or through any other procedure ensuring the mediation. In case a settlement reached, the criminal prosecution against the suspect shall end under the following conditions, in exchange for the termination of any type of legal claim and prosecution rights of the victim or the person injured from the crime.

b) Accepting the mediation proposal and negotiating with the other party on the issue shall not mean accepting the crime or waiving any of one’s rights. This situation shall not lead to any loss of right enjoyed by the parties.

c) Even if parties accept the mediation proposal, they shall not be required to reconcile as a result of negotiations, and they may change what they want to do until the mediation is ensured. Waiving shall not lead to any loss of right.

ç) The proposal shall be deemed to have been rejected if  the legal enforcement officer or the Public Prosecutor in charge who has made a mediation proposal is not notified of the decision within three days following the proposal thereof.

d) Despite the rejection of the mediation proposal, parties may declare by applying to the Public Prosecutor that they have reached a settlement through a document demonstrating this by the date of issuance of the indictment at the latest.

e) If the attempt at mediation fails to be successful despite the acceptance of the offer, the Public Prosecutor shall not use the process of mediation once again.

f) Proposing mediation or the acceptance of such a proposal shall not constitute an obstacle for collecting the evidence pertaining to the crime that is the subject of the investigation and the implementation of  precautionary measures.

g) Parties may be mediated by a Public Prosecutor, and they may also request the assignment of an attorney from the bar by a Public Prosecutor, or a person who has had law training and whose qualifications are provided under the Directive may be assigned. If there is any attorney or a person who has received law training or on whom the parties have agreed, they may be preferred at their discretion.

ğ) Statements which are made by parties during negotiations of mediation in relation to the subject, including those which are related to discipline, shall not be used in the current investigation or in any investigation and prosecution or lawsuit.

h) Negotiations of mediation shall be conducted confidentially. A suspect, victim, a person who is harmed as a result of a crime and the legal representative, defender and attorney of these persons may participate in  mediation negotiations. 

ı) In case a suspect, victim or a person harmed as a result of the crime himself or his/her legal representative or attorney refrains from attending negotiations without any justifiable reason, he/she shall be deemed to have accepted the mediation.

i) If it is determined by the Public Prosecutor that the mediation is based on parties’ free will and that the act is in accordance with the law, the report or certificate of mediation shall be valid.

j) If a mediation is realized and the action is fulfilled in all at once, a ruling shall be made that there is no basis for prosecuting the suspect.  This issue shall not be recorded in the criminal record.

k) In case the fulfillment of an act is postponed to a future date or set up to be carried put in installments or in case the fulfillment has continuity, then a decision shall be taken to postpone initiating a public lawsuit against the suspect without seeking conditions under Article 171 of the Law. The Statute of Limitations shall not be applicable throughout the period of postponement.

l) After a ruling is made to postpone initiating a public lawsuit, if requirements of mediation are fulfilled, it shall be ruled that there is no ground for prosecution.

m) After it is ruled to postpone initiating a public lawsuit, if requirements of mediation are not fulfilled, a public lawsuit shall be initiated by the office of the Chief Public Prosecutor, without seeking conditions under the fourth clause of  Article 171 of the Law.

n) In case a mediation is reached, no lawsuit shall be started for damages due to the crime which is the subject of the investigation or for restoring the previous situation; and any lawsuit which had been brought shall be deemed to have been waived.

o) The mediator fee and other expenses pertaining to mediation shall be considered as trial expenses, and shall be covered by the relevant allowance. In case a mediation is realized, this fee and other expenses pertaining to the mediation shall be left to the State Treasury.

ö) In case a mediation is not realized, provisions of the Law pertaining to trial costs shall be applied in relation to the mediator fee and other mediation costs.

p) If a suspect fails to fulfill his/her action, the report or certificate of mediation shall be considered documents having the nature of a written verdict, as provided under Article 38 of Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932.

r) As from the date of making the first mediation proposal to any suspect, victim or a person who was harmed as a result of a crime, case Statute of limitations and the period of lawsuit, which is the condition of prosecution, shall not be applicable, until the date on which the attempt at mediation fails and the mediator prepares a report and submits it to the Public Prosecutor at the latest.

s) If a mediation cannot be reached, a public prosecutor may, despite the existence of sufficient doubt, rule for the postponement of opening a public lawsuit if the conditions under the third clause of Article 171 of the Law occur concurrently, due to the crimes for which investigation and prosecution are contingent on complaint, and which require imprisonment for a maximum of one year or less.

E. As part of Article 253 of Criminal Procedure Code numbered 5271 under Section D of this form, I have fully understood the nature of mediation, and the legal consequences of accepting or rejecting it. I have received a copy of the form.

Concerning this proposal of mediation which was offered to me;

I would like to examine it and make a declaration in three days

…./…./20…  Time: …….  Signature:

I accept it.

…./…./20…  Time: …….  Signature:

I reject it.

…./…./20…  Time: …….  Signature:


REPUBLIC OF TURKEY

……………… CHIEF PUBLIC PROSECUTOR'S OFFICE

A. As part of Article 253 of the Criminal Procedure Code numbered 5271, since the crime ..................................................... is subject to investigation, and in line with instructions of the Public Prosecutor ........................................., the nature of reconciliation under Section D of this form and the legal consequences of accepting or rejecting the reconciliation were explained to the person, whose clear identity is provided below, and he/she was offered reconciliation.   …/…./20…. Hour:  ……..

Proposing Public Prosecutor

Name, Surname

Rank and Employee Number

B. THE PERSON TO WHOM RECONCİLİATİON IS PROPOSED

1. (….) Victim

2. (….)Victim’s Legal Representative

3. ( ....) Person who was Harmed as a Result of the Crime

4. (….) Legal Representative of the Person who was Harmed as a Result of the Crime

5. (….) Suspect

6. (….)Suspect’s Legal Representative

C. INFORMATION ON THE PERSON TO WHOM RECONCILIATION IS PROPOSED

1. Republic of Turkey ID No.

2. Name, Surname

3. Father’s Name

4. Mother’s Name

5. Place and Date of Birth

6. Address and Contact Information

D. Nature of reconciliation and the legal consequences of accepting or rejecting reconciliation:

c) A reconciliation is an agreement of both parties in exchange for partial or whole remedy of the damage arising from a crime, restoring of the former situation or any other material or immaterial act, or through any other procedure ensuring the reconciliation. In case a reconciliation is reached, the criminal prosecution against the suspect shall end under the following conditions, in exchange for the termination of any type of legal claim and prosecution rights of the victim or the person injured from the crime.

d) Accepting the reconciliation proposal and negotiating with the other party on the issue shall not mean accepting the crime or waiving any of one’s rights. This situation shall not lead to any loss of right enjoyed by the parties.

c) Even if parties accept the reconciliation proposal, they shall not be required to reconcile as a result of negotiations, and they may change what they want to do until the reconciliation is ensured. Waiving shall not lead to any loss of right.

ç) The proposal shall be deemed to have been rejected if  the legal enforcement officer or the Public Prosecutor in charge who has made a reconciliation proposal is not notified of the decision within three days following the proposal thereof.

g) Despite the rejection of the reconciliation proposal, parties may declare by applying to the Public Prosecutor that they have reached a reconciliation through a document demonstrating this by the date of issuance of the indictment at the latest.

h) If the attempt at reconciliation fails to be successful despite the acceptance of the offer, the Public Prosecutor shall not use the process of reconciliation once again.

i) Proposing reconciliation or the acceptance of such a proposal shall not constitute an obstacle for collecting the evidence pertaining to the crime that is the subject of the investigation and the implementation of  precautionary measures.

g) Parties may be reconciled by a Public Prosecutor, and they may also request the assignment of an attorney from the bar by a Public Prosecutor, or a person who has had law training and whose qualifications are provided under the Regulation may be assigned. If there is any attorney or a person who has received law training or on whom the parties have agreed, they may be preferred at their discretion.

ğ) Statements which are made by parties during negotiations of reconciliation in relation to the subject, including those which are related to discipline, shall not be used in the current investigation or in any investigation and prosecution or lawsuit.

h) Negotiations of reconciliation shall be conducted confidentially. A suspect, victim, a person who is harmed as a result of a crime and the legal representative, defender and attorney of these persons may participate in  reconciliation negotiations.

ı) In case a suspect, victim or a person harmed as a result of the crime himself or his/her legal representative or attorney refrains from attending negotiations without any justifiable reason, he/she shall be deemed to have accepted the reconciliation.

i) If it is determined by the Public Prosecutor that the reconciliation is based on parties’ free will and that the act is in accordance with the law, the report or certificate of reconciliation shall be valid.

j) If a reconciliation is realized and the action is fulfilled in all at once, a ruling shall be made that there is no basis for prosecuting the suspect.  This issue shall not be recorded in the criminal record.

k) In case the fulfillment of an act is postponed to a future date or set up to be carried put in installments or in case the fulfillment has continuity, then a decision shall be taken to postpone initiating a public lawsuit against the suspect without seeking conditions under Article 171 of the Law. The Statute of Limitations shall not be applicable throughout the period of postponement.

l) After a ruling is made to postpone initiating a public lawsuit, if requirements of reconciliation are fulfilled, it shall be ruled that there is no ground for prosecution.

m) After it is ruled to postpone initiating a public lawsuit, if requirements of reconciliation are not fulfilled, a public lawsuit shall be initiated by the office of the Chief Public Prosecutor, without seeking conditions under the fourth clause of  Article 171 of the Law.

n) In case a reconciliation is reached, no lawsuit shall be started for damages due to the crime which is the subject of the investigation or for restoring the previous situation; and any lawsuit which had been brought shall be deemed to have been waived.

o) The reconciler fee and other expenses pertaining to reconciliation shall be considered as trial expenses, and shall be covered by the relevant allowance. In case a reconciliation is realized, this fee and other expenses pertaining to the reconciliation shall be left to the State Treasury.

ö) In case a reconciliation is not realized, provisions of the Law pertaining to trial costs shall be applied in relation to the reconciler fee and other reconciliation costs.

p) If a suspect fails to fulfill his/her action, the report or certificate of reconciliation shall be considered documents having the nature of a written verdict, as provided under Article 38 of Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932.

r) As from the date of making the first reconciliation proposal to any suspect, victim or a person who was harmed as a result of a crime, case Statute of limitations and the period of lawsuit, which is the condition of prosecution, shall not be applicable, until the date on which the attempt at reconciliation fails and the reconciler prepares a report and submits it to the Public Prosecutor at the latest.

s) If a reconciliation cannot be reached, a public prosecutor may, despite the existence of sufficient doubt, rule for the postponement of opening a public lawsuit if the conditions under the third clause of Article 171 of the Law occur concurrently, due to the crimes for which investigation and prosecution are contingent on complaint, and which require imprisonment for a maximum of one year or less.

E. As part of Article 253 of Criminal Procedure Code numbered 5271 under Section D of this form, I have fully understood the nature of reconciliation, and the legal consequences of accepting or rejecting it. I have received a copy of the form.

Concerning this proposal of reconciliation which was offered to me;

I would like to examine it and make a declaration in three days

…./…./20…  Time: …….  Signature:

I accept it.

…./…./20…  Time: …….  Signature:

I reject it.

…./…./20…  Time: …….  Signature:


REPUBLIC OF TURKEY

……………… CRIMINAL COURT

A. As part of Article 253 of the Criminal Procedure Code numbered 5271, since the crime ..................................................... is subject to investigation, and in line with instructions of the Public Prosecutor ........................................., the nature of reconciliation under Section D of this form and the legal consequences of accepting or rejecting the reconciliation were explained to the person, whose clear identity is provided below, and he/she was offered reconciliation.   …/…./20…. Hour:  ……..

Judicial Police Officer

Name, Surname

Rank and Employee Number

B. THE PERSON TO WHOM RECONCİLİATİON IS PROPOSED

1. (….) Victim

2. (….)Victim’s Legal Representative

3. ( ....) Person who was Harmed as a Result of the Crime

4. (….) Legal Representative of the Person who was Harmed as a Result of the Crime

5. (….) Suspect

6. (….)Suspect’s Legal Representative

C. INFORMATION ON THE PERSON TO WHOM RECONCILIATION IS PROPOSED

1. Republic of Turkey ID No.

2. Name, Surname

3. Father’s Name

4. Mother’s Name

5. Place and Date of Birth

6. Address and Contact Information

D. Nature of reconciliation and the legal consequences of accepting or rejecting reconciliation:

e) A reconciliation is an agreement of both parties in exchange for partial or whole remedy of the damage arising from a crime, restoring of the former situation or any other material or immaterial act, or through any other procedure ensuring the reconciliation. In case a reconciliation is reached, the criminal prosecution against the suspect shall end under the following conditions, in exchange for the termination of any type of legal claim and prosecution rights of the victim or the person injured from the crime.

f) Accepting the reconciliation proposal and negotiating with the other party on the issue shall not mean accepting the crime or waiving any of one’s rights. This situation shall not lead to any loss of right enjoyed by the parties.

c) Even if parties accept the reconciliation proposal, they shall not be required to reconcile as a result of negotiations, and they may change what they want to do until the reconciliation is ensured. Waiving shall not lead to any loss of right.

ç) The proposal shall be deemed to have been rejected if  the legal enforcement officer or the Public Prosecutor in charge who has made a reconciliation proposal is not notified of the decision within three days following the proposal thereof.

j) Despite the rejection of the reconciliation proposal, parties may declare by applying to the Public Prosecutor that they have reached a reconciliation through a document demonstrating this by the date of issuance of the indictment at the latest.

k) If the attempt at reconciliation fails to be successful despite the acceptance of the offer, the Public Prosecutor shall not use the process of reconciliation once again.

l) Proposing reconciliation or the acceptance of such a proposal shall not constitute an obstacle for collecting the evidence pertaining to the crime that is the subject of the investigation and the implementation of  precautionary measures.

g) Parties may be reconciled by a Public Prosecutor, and they may also request the assignment of an attorney from the bar by a Public Prosecutor, or a person who has had law training and whose qualifications are provided under the Regulation may be assigned. If there is any attorney or a person who has received law training or on whom the parties have agreed, they may be preferred at their discretion.

ğ) Statements which are made by parties during negotiations of reconciliation in relation to the subject, including those which are related to discipline, shall not be used in the current investigation or in any investigation and prosecution or lawsuit.

h) Negotiations of reconciliation shall be conducted confidentially. A suspect, victim, a person who is harmed as a result of a crime and the legal representative, defender and attorney of these persons may participate in  reconciliation negotiations.

ı) In case a suspect, victim or a person harmed as a result of the crime himself or his/her legal representative or attorney refrains from attending negotiations without any justifiable reason, he/she shall be deemed to have accepted the reconciliation.

i) If it is determined by the Public Prosecutor that the reconciliation is based on parties’ free will and that the act is in accordance with the law, the report or certificate of reconciliation shall be valid.

j) If a reconciliation is realized and the action is fulfilled in all at once, a ruling shall be made that there is no basis for prosecuting the suspect.  This issue shall not be recorded in the criminal record.

k) In case the fulfillment of an act is postponed to a future date or set up to be carried put in installments or in case the fulfillment has continuity, then a decision shall be taken to postpone initiating a public lawsuit against the suspect without seeking conditions under Article 171 of the Law. The Statute of Limitations shall not be applicable throughout the period of postponement.

l) After a ruling is made to postpone initiating a public lawsuit, if requirements of reconciliation are fulfilled, it shall be ruled that there is no ground for prosecution.

m) After it is ruled to postpone initiating a public lawsuit, if requirements of reconciliation are not fulfilled, a public lawsuit shall be initiated by the office of the Chief Public Prosecutor, without seeking conditions under the fourth clause of  Article 171 of the Law.

n) In case a reconciliation is reached, no lawsuit shall be started for damages due to the crime which is the subject of the investigation or for restoring the previous situation; and any lawsuit which had been brought shall be deemed to have been waived.

o) The reconciler fee and other expenses pertaining to reconciliation shall be considered as trial expenses, and shall be covered by the relevant allowance. In case a reconciliation is realized, this fee and other expenses pertaining to the reconciliation shall be left to the State Treasury.

ö) In case a reconciliation is not realized, provisions of the Law pertaining to trial costs shall be applied in relation to the reconciler fee and other reconciliation costs.

p) If a suspect fails to fulfill his/her action, the report or certificate of reconciliation shall be considered documents having the nature of a written verdict, as provided under Article 38 of Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932.

r) As from the date of making the first reconciliation proposal to any suspect, victim or a person who was harmed as a result of a crime, case Statute of limitations and the period of lawsuit, which is the condition of prosecution, shall not be applicable, until the date on which the attempt at reconciliation fails and the reconciler prepares a report and submits it to the Public Prosecutor at the latest.

s) If a reconciliation cannot be reached, a public prosecutor may, despite the existence of sufficient doubt, rule for the postponement of opening a public lawsuit if the conditions under the third clause of Article 171 of the Law occur concurrently, due to the crimes for which investigation and prosecution are contingent on complaint, and which require imprisonment for a maximum of one year or less.

E. As part of Article 253 of Criminal Procedure Code numbered 5271 under Section D of this form, I have fully understood the nature of reconciliation, and the legal consequences of accepting or rejecting it. I have received a copy of the form.

Concerning this proposal of reconciliation which was offered to me;

I would like to examine it and make a declaration in three days

…./…./20…  Time: …….  Signature:

I accept it.

…./…./20…  Time: …….  Signature:

I reject it.

…./…./20…  Time: …….  Signature:


ARTICLE 253 OF TURKISH CODE OF CRIMINAL PROCEDURE NO. 5271

ARTICLE 253 – (1) In the existence of the following crimes, an attempt for reconciliation shall be affected between the suspect and the victim or the real or private law legal entity who is injured as a result of the crime:

a) Those crimes whose prosecution and investigation are dependent on complaint.

b) The following crimes included in Turkish Criminal Code, regardless of whether they are dependent on any complaint;

1. Causing injury deliberately (Article 86 excluding third clause; article 88),

2. Causing injury as a result of negligence (Article 89),

3. Violation of domestic immunity (Article 116),

4. Kidnapping and detainment of a child (Article 234)

5. Disclosure of information and documents which have the nature of commercial secret, banking secret or customer secret (Article 239, excluding the fourth clause).

.

(2) In order to seek reconciliation in relation to crimes included in other laws, excluding those for which investigation and prosecution are dependent upon complaint, there should be a clear provision in the law.

(3) Reconciliation shall not be applied in crimes for which effective repentance provisions are applicable, and crimes against immunity from sexual violation, even if  the investigation and prosecution of these are dependent upon complaint.

(4) If the crime, which is the subject of investigation, is subject to reconciliation, the public prosecutor, or the judicial security officer upon his/her instruction, shall propose reconciliation to the suspect and the victim or the person who has been harmed as a result of the crime. In case that the suspect, victim or the person who has been harmed as a result of the crime is not of legal age, the proposal shall be made to his/her legal representative. The public prosecutor may propose reconciliation through annotated notification or through rogatory means. The proposal shall be deemed to have been rejected if the suspect, victim or the person who has been harmed as a result of the crime do not notify the public prosecutor about his/her decision within three days following the proposal of reconciliation.

(5) If reconciliation is proposed, the nature of reconciliation and the legal consequences of acceptance or rejection of reconciliation shall be explained to the person.

(6) In case that the victim, the person who has been harmed as a result of from the crime, the suspect or their legal representatives cannot reached due to not being present at the address which was declared to the official authorities and mentioned in the investigation file, or due to being abroad, the investigation shall be concluded without a reconciliation process.

(7) In order to resort to a reconciliation process due to a crime which leads to the grievance or harming of several people, all of the victims or those who are harmed as a result of the crime must accept reconciliation.

(8) Proposing reconciliation or acceptance of any such proposition shall not constitute an obstacle for collecting the evidence pertinent to the investigation or prosecution and for taking precautionary measures.

(9) In case that the suspect and victim or the person harmed as a result of the crime accept the proposal for reconciliation, the public prosecutor may realize the reconciliation himself/herself, or request from the bar to assign an attorney as reconciler, or may assign a reconciler from among persons who have received law education.

(10) The conditions under which it is stipulated in this Law that the judge may not work in the case and the reasons for rejection shall be taken into consideration in relation to the assignment of a reconciler.

(11) A copy from each of the documents included in the investigation file and approved by the public prosecutor shall be delivered to the assigned reconciler.  The public prosecutor reminds the reconciler of the fact that he/she is obliged to act in compliance with the principle of the confidentiality of investigation.

(12) The reconciler shall conclude the reconciliation transactions within thirty days maximum following the submission of the copies of the documents in the file. The public prosecutor may extend this period for twenty days maximum.

(13)  Reconciliation negotiations shall be executed confidentially.  The suspect, victim, the person who has been harmed as a result of the crime and the legal representative, defender and attorney of these persons may participate in the reconciliation negotiations.   In case that the suspect, victim, the person who has been harmed as a result of from the crime, his/her legal representative, or his/her attorney  refrain from attending the negotiations without any justifiable reason, the relevant party shall be deemed to have accepted the reconciliation.

(14) The reconciler may meet with the public prosecutor in relation to the method to be followed during negotiations; and the public prosecutor may give instruction to the reconciler.

(15) At the end of the reconciliation negotiations, the reconciler shall prepare a report and deliver this to the public prosecutor together with the copies of documents given to him/her. In case that a reconciliation is realized, how the reconciliation was reached shall be explained in detail in the report containing the signatures of the parties.

(16) Despite the rejection of the reconciliation proposal, the suspect and the victim or the person who has been harmed as a result of the crime may declare by applying to the Public Prosecutor that they have come to a reconciliation through a document demonstrating this by the date of issuance of the  indictment at the latest.

(17) If the public prosecutor determines that the reconciliation is based on the free will of the parties and that the action is in compliance with law, he/she shall seal and sign the report and shall keep it in the investigation file.

(18) If the reconciliation effort fails to produce any result, the reconciliation attempt shall not be repeated.

(19) In case that the suspect fulfills his/her action all at once at the end of reconciliation, it shall be ruled that there is no ground for prosecution against him/her.  In case that the fulfillment of the action is deferred to a future date, put into installments or has continuity, it shall be ruled to postpone opening of a public lawsuit about the suspect without seeking for the conditions under Article 171.  The Statute of Limitations shall not be valid throughout the period of postponement. In case that the requirements of reconciliation are not fulfilled after the decision to postpone opening law case, a publish lawsuit shall be opened without seeking  the conditions under the fourth clause of Article 171. In case reconciliation is ensured, no lawsuit can be opened for damages due to the crime which is the subject of investigation; and any case opened shall be deemed to have been renounced.   In case that the suspect fails to fulfill his/her action, the reconciliation report or certificate shall be considered as the documents having the nature of verdict as indicated under Article 38 of Execution and Bankruptcy Law dated 9/6/1932.

(20) No remarks made during the reconciliation negotiations may be used as evidence in any investigation and prosecution or lawsuit.

(21) The case statute of limitations and case period, which is the condition for prosecution, shall not start from the date when the first reconciliation is proposed to any of the suspect, victim or the person who has been harmed as a result of the crime, until the date when the reconciliation attempt turns out to be futile and when the reconciler prepares the report and submits it to the public prosecutor at the latest.

(22) A fee, which is to be assigned by the public prosecutor proportional to his/her works and costs, shall be paid to the reconciler. Fee of the reconciler and other reconciliation costs shall be considered as trial expenses. In case that reconciliation is effected, these costs shall be covered from the State Treasury.

(23) Legal means stipulated under this Law may be applied in relation to the decisions to be taken as a result of reconciliation.

(24) The matters regarding to the enforcement of reconciliation shall be regulated through a regulation.”

ARTICLE 254 – (1) In case that, after the criminal case is opened, it is understood that the crime, which is the subject of prosecution, is under the scope of reconciliation, reconciliation processes shall be conducted by the court in accordance with the principles and procedures stipulated under Article 253.

(2) If the reconciliation takes place, it shall be the court shall rule to drop the case if  the accused performs its action immediately as a result of reconciliation.   In case that the fulfillment of the action is deferred to a future date, put into installments or has continuity, a decision shall be taken to postpone the announcement of ruling about the accused without seeking the conditions under Article 231.  The Statute of Limitations shall  not be valid throughout the period of withholding.  After it is ruled to withhold the announcement of the judgment, if the requirements of reconciliation are not fulfilled, the court shall announce the judgment without seeking the conditions under eleventh clause of Article 231.

ARTICLE  255 – (1) In case of crimes committed by several persons, regardless of whether there is any relation of partnership between them, only the person who agrees to reach a reconciliation shall benefit from the reconciliation.  

 



[1] Directive on Practice of Mediation Procedure According to the Code of Criminal Procedure,  promulgated in Turkey Official Gazette Nr 26594, 26 July 26, 2007.

* Başkent University Faculty of Law, Civil Procedure Law, Enforcement and Bankruptcy Law Department. The author may be contacted at or .

[2] The Plenary of Administrative Chambers of the Council of State 15.05.2008, Suspension of the Execution Objection No: 2008/463. See Özbek p. 776-780.

[3] The Plenary of Administrative Chambers of the Council of State 15.05.2008, Suspension of the Execution Objection No: 2008/463.

[4] The Plenary of Administrative Chambers of the Council of State 15.05.2008, Suspension of the Execution Objection No: 2008/463.

[5] The Plenary of Administrative Chambers of the Council of State 15.05.2008, Suspension of the Execution Objection No: 2008/463.

[6] The Plenary of Administrative Chambers of the Council of State 15.05.2008, Suspension of the Execution Objection No: 2008/463.

 

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