Türk Ceza Muhakemesi Hukukunda Uzlaştırma

This work provides a detailed treatment of victim–offender reconciliation (uzlaştırma), an important alternative dispute-resolution mechanism in Turkish criminal procedure law. Beginning with the philosophical and historical foundations of reconciliation, the book comprehensively examines its place in the criminal justice system, its legal nature, the conditions of its application and its consequences.

Models of Criminal Justice and the Philosophical Basis of Reconciliation

The first part addresses the struggle of criminal law with crime and the offender across history. It emphasises that criminal justice systems, offender-centred until recent times, neglected the victim, and that this eroded the public perception of justice. The different justice models developed to remedy this deficiency are examined:

• Retributive justice: the classical model in which the offence is deemed committed against the state and the principal aim is punishment of the offender. The victim's loss and the offender's rehabilitation are secondary.
• Compensatory (corrective) justice: centred on the victim, it requires the offender to make good the harm caused. It remains inadequate, however, in repairing non-pecuniary harm and damaged social relations.
• Restorative justice: the model underlying the institution of reconciliation, aiming to repair the harm caused by the offence. The process seeks a solution through communication and negotiation, balancing the needs of victim, offender and society. Its implementation models include victim–offender mediation, conferencing and sentencing circles.
• Transformative justice: an approach focusing on the social and structural problems at the root of crime and offering alternatives to punishments such as imprisonment.

Development and Legal Nature of Reconciliation in Turkish Law

Reconciliation first entered the Turkish legal system with the Turkish Criminal Code (Law No. 5237) and was later moved entirely into the Code of Criminal Procedure (Law No. 5271) by Law No. 5560. Because it both enables the offender to avoid punishment (its substantive criminal-law aspect) and constitutes a condition of prosecution (its procedural aspect), the institution is regarded as being of "mixed legal nature". Owing to this mixed nature, favourable statutory amendments expanding the scope of reconciliation can also be applied to offences committed in the past.

The Reconciliation Process and Its Conditions

Under Article 253 of the Code of Criminal Procedure, certain conditions must exist for reconciliation to apply:

• The offence must fall within scope: offences whose investigation and prosecution depend on a complaint, and certain offences listed in a statutory catalogue (simple bodily harm, threat, violation of the inviolability of the dwelling, theft, fraud, etc.), are within the scope of reconciliation. Some offences — such as offences against sexual inviolability and stalking — are excluded even if subject to complaint. For children driven to crime there is a wider field of application, covering offences requiring imprisonment with an upper limit not exceeding three years or a judicial fine.
• Sufficient suspicion: there must be suspicion sufficient for the filing of a public prosecution in respect of the offence under investigation.
• The character of the victim: the victim or person harmed must be a natural person or a private-law legal entity. Reconciliation is unavailable for offences whose victim is a public-law entity.
• Voluntariness: the process rests entirely on the free will of the parties, who may withdraw until the reconciliation report is approved.
• Confidentiality: negotiations are conducted in confidence, and statements made in them cannot be used as evidence in any other investigation or case.

Where the public prosecutor finds during the investigation that the conditions for reconciliation exist, the file is sent to the reconciliation bureau. The reconciliator appointed by the bureau makes an offer to the parties and, if accepted, conducts the negotiations. At the prosecution stage, if it emerges that the offence falls within the scope of reconciliation, the court sends the file to the bureau.

Consequences of Reconciliation

• If agreement is reached:
• where the performance is rendered at once (in a single act): at the investigation stage a decision of non-prosecution is given; at the prosecution stage the case is dismissed;
• where performance is by instalments or deferred: at the investigation stage the opening of the public prosecution is postponed; at the prosecution stage a stay is ordered. If performance is not rendered in time, the public prosecution is filed.
• If no agreement is reached: the investigation continues, an indictment is drawn up, and reconciliation cannot be attempted again in the same file.

The report drawn up upon agreement and approved by the prosecutor or judge is deemed a document in the nature of a judgment under the Enforcement and Bankruptcy Law. The victim may thus pursue enforcement based on a judgment if the agreed performance is not rendered. A successful reconciliation is not entered in the offender's criminal record.