The return of the indictment as per the Code of Criminal Procedure no. 5271

This thesis examines the historical development, purpose, grounds for return, non-returnable situations, and legal remedies available against decisions to return an indictment under Article 174 of the Turkish Criminal Procedure Code (Law No. 5271). In the first chapter, the investigation phase of criminal procedure is discussed. Initially, the concept and characteristics of the investigation phase are explained, followed by a discussion of the duties of the Public Prosecutor, who is responsible for managing this phase. The chapter concludes with an examination of the circumstances leading to the end of the investigation phase and the initiation of a public prosecution. The second chapter focuses on the indictment, which serves as the primary document for initiating a public prosecution. The essential elements of the indictment, as outlined in Article 170 of the Criminal Procedure Code, are detailed. The process of the indictment being reviewed by the competent court, the time of this review, and the proceedings that begin if the indictment is accepted are also briefly discussed. The third and final chapter addresses the main subject of the thesis: the institution of the return of the indictment. It begins with an exploration of the historical development of this institution within Turkish criminal procedure law, examining the periods under the former Criminal Procedure Code (Law No. 1412) and the current Criminal Procedure Code (Law No. 5271) separately. The chapter then discusses the purpose of the return of the indictment, the authority responsible for making such a decision, and the debate over whether the period during which an indictment may be returned constitutes an "intermediate phase" of the criminal procedure. The specific grounds for the return of an indictment, as set out in the first paragraph of Article 174 of the Criminal Procedure Code, are examined individually. The chapter concludes with a discussion of situations in which the return of the indictment is not possible and the legal remedies available against a return decision. The numerous amendments to the Criminal Procedure Code (Law No. 1412) during its years in force highlighted the need for an updated and modern criminal procedure code, leading to the creation of the new Criminal Procedure Code (Law No. 5271). This new code introduced several reforms, including the addition of new articles to the criminal procedure system for the first time. The transition from practices under the former code was challenging, and many errors occurred in the early years of the new code's implementation. However, the guidance provided by legal doctrine and the precedent-setting decisions of the Court of Cassation have helped on the practicing judges, prosecutors and lawyers and establish the new system and its principles. This thesis frequently references both doctrinal views and Court of Cassation decisions on the topic of the return of the indictment. One of the most significant changes introduced by the Criminal Procedure Code (Law No. 5271) was the designation of Public Prosecutors as the "heads" of the investigation phase. According to Article 160 of the Code, upon receiving information about a potential crime, the Public Prosecutor is responsible for investigating the matter to determine whether to initiate a public prosecution. During the investigation phase, from the receipt of a crime report to the acceptance of the indictment, the Public Prosecutor and the judicial police under their command must conduct the investigation with great care and diligence. If the Public Prosecutor finds sufficient suspicion and the conditions for initiating a public prosecution are met, they prepare an indictment in accordance with Article 170 of the Criminal Procedure Code and submit it to the court. Another significant change introduced by the Criminal Procedure Code (Law No. 5271) was the granting of discretionary power to Public Prosecutors regarding whether to initiate a public prosecution. At the end of the investigation phase, if the Public Prosecutor does not obtain sufficient evidence to raise a reasonable suspicion that the suspect committed the crime, they may decide not to initiate a prosecution under Article 172 of the Code. The institution of "returning the indictment", which is the focus of this thesis, was another significant innovation introduced by the Criminal Procedure Code (Law No. 5271). The lack of understanding of this new provision by the legal practitioners in the early years of its implementation led to numerous erroneous decisions to return indictments. Several decisions by the Court of Cassation, particularly between 2005 and 2007, clarified the essential elements of an indictment and the grounds on which it could or could not be returned, providing valuable guidance to judges and prosecutors. During this period, many books and articles were also written by criminal law scholars, offering their perspectives on the newly introduced institution of "returning the indictment" and contributing to the functioning of the system. This thesis extensively references both doctrinal views and Court of Cassation decisions regarding the institution of returning the indictment since its inception. When a Public Prosecutor concludes the investigation phase and prepares an indictment summarizing the investigation and discussing the evidence, this document must legally include the elements of the crime alleged against the suspect and the legal provisions sought to be applied. Otherwise, an indictment that lacks these essential elements or fails to clearly present the charges and evidence against the suspect is subject to return under Article 174 of the Criminal Procedure Code. Unlike the former Criminal Procedure Code (Law No. 1412), the new Criminal Procedure Code (Law No. 5271) divides criminal proceedings into two main phases: investigation and prosecution. The investigation phase begins with becoming aware the crime by the authorities and continues until the acceptance of the indictment. Upon acceptance of the indictment, the prosecution phase commences and continues until the court delivers a final judgment on the charges. Some legal scholars refer to the period during which an indictment is reviewed by the court, errors or omissions are identified, and the indictment is returned to the Public Prosecutor, who may appeal the return decision, as an "intermediate phase" of the criminal procedure. According to the other opinion we also share, that based on the systematic structure of the Criminal Procedure Code (Law No. 5271) and the provisions regarding the return of the indictment, the return of the indictment is part of the investigation phase. According to Article 170 of the Criminal Procedure Code No. 5271, the essential elements that must be included in an indictment are as follows: sufficient suspicion that a crime has been committed; the indictment must be addressed to the court that has jurisdiction and authority to hear the case; the indictment must include the identity of the suspect, if available, the information of their attorney, the identity of the victim, injured party, or any person harmed by the crime, if available, the information of their legal representative or attorney; identity information of the individual who placed the complaint or made the notification; the date of the complaint, the location, and time of the crime must be included; details regarding the suspect's detention and arrest status, along with the duration of such measures; the legal provisions applicable to the alleged crime must be specified; and the evidence of the crime must be presented. The absence of any of these elements constitutes grounds for the return of the indictment under the first paragraph, subparagraph (a) of Article 174. Subparagraph (b) of the first paragraph of Article 174 provides that if the indictment is prepared without collecting existing evidence that is considered to absolutely impact the crime, this is another ground for return. This provision ensures that the court, by returning the indictment, compels the Public Prosecutor to rectify any deficiencies during the investigation phase. Another ground for returning the indictment, under subparagraph (c) of the first paragraph of Article 174, arises when the crime is subject to reconciliation, prepayment, or accelerated trial procedure, but the indictment is prepared without applying these procedures. The discretion to determine whether a crime falls under these procedures lies with the Public Prosecutor. Another ground for the return of the indictment is specified in Article 174, Paragraph 1 (d) of the Turkish Code of Criminal Procedure (Law No. 5271). According to this provision, if the crime is subject to investigation or prosecution requiring permission or request, the indictment must be returned if it has been prepared without obtaining the necessary permission or without a request being made. When an investigation is initiated without obtaining the required authorization from the competent authorities or without a request to the Ministry of Justice, the court reviewing the indictment will decide to return the indictment. A further significant change introduced by the Criminal Procedure Code (Law No. 5271) is the requirement that Public Prosecutors, during the investigation phase, collect not only evidence against the suspect but also any evidence in their favor. This provision is found in the fifth paragraph of Article 170, and failure to present evidence in favor is grounds for returning the indictment. If the court, upon reviewing the indictment, determines that it disagrees with the legal characterization provided by the Public Prosecutor, this does not constitute grounds for returning the indictment. Under the second paragraph of Article 174, the indictment cannot be returned based on the legal characterization of the crime. Such a return would constitute undue interference with the Public Prosecutor's discretion. An indictment that is not returned within 15 days of being submitted to the competent court is considered accepted. The 15-day period is peremptory term, and failure to return the indictment within this time precludes the court from later returning it. If the indictment is returned, the Public Prosecutor may address the deficiencies and prepare a new indictment if they do not decide to issue a not to prosecute decision. Since this new indictment differs from the first, it too may be returned if it contains deficiencies. However, under the fourth paragraph of Article 174, the court cannot base its return of the second indictment on a reason not cited in the return of the first indictment. Article 174, Paragraph 5 of the Turkish Code of Criminal Procedure (Law No. 5271) stipulates that the Public Prosecutor may appeal the decision to return the indictment within two weeks. If the court reviewing the appeal decides to accept it, the court will first approve the indictment and then forward the case file to the relevant court for prosecution to commence. If the appeal by the Public Prosecutor is rejected, the Public Prosecutor has the options of issuing a not to prosecute decision, rectifying the deficiencies, or appealing for the sake of law. The purpose of the institution of returning the indictment, as introduced by the Criminal Procedure Code (Law No. 5271), is to prevent individuals from unjustly becoming "defendants" and undergoing lengthy trials, to ensure that prosecutions are conducted efficiently and swiftly based on complete indictments, to avoid delays in the administration of justice, and to uphold the right to trial within reasonable time by promoting "one-session trials". This thesis provides a detailed analysis of the changes that the institution of returning the indictment has undergone since its introduction into the criminal procedure system and its current state in the legal framework. The thesis also frequently contrasts different doctrinal views and Court of Cassation decisions to enhance the understanding of the topic. In addition to doctrinal views from scholars specializing in criminal procedure law, this thesis includes perspectives from judges, prosecutors, and lawyers in its analysis, offering a well-rounded examination of the subject.