The complaint requirement differs by type of offence
Under TCK Article 102/1, the basic offence requires the victim’s complaint; Article 102/2 contains a special complaint rule for certain acts committed against a spouse. In the sexual abuse of children under TCK Article 103, the general prosecution regime is different; there is also a separate special complaint provision for a child perpetrator’s molestation. TCK Article 104/1 depends on a complaint, whereas Article 104/2–3 contain special rules on prosecution ex officio. The basic and aggravated forms of TCK Article 105 must be distinguished from one another.
Related guide: Offences against Sexual Inviolability: TCK Articles 102–105, Elements of the Offences, Penalties, Evidence and Court of Cassation Case Law.
When the complaint period starts
For offences that depend on a complaint, TCK Article 73/1 and the following provisions make the discovery of the act and of the perpetrator important for calculating the period. The six-month period cannot be generalised as starting from the date of the offence in every case. The legal representative of a child victim and situations involving a conflict of rights must be assessed separately. The calculation of the period must rest on the facts in the file concerning service of notice, discovery and representation.
The limit of withdrawing a complaint
The effect of withdrawing a complaint depends on whether the offence truly depends on a complaint and on the relevant statutory conditions. Where an act is prosecuted ex officio, a statement by the victim that she or he no longer wishes to pursue the complaint does not by itself terminate the public prosecution. Separate prosecution conditions may apply to different offences that are connected with one another.
An example of the Court of Cassation’s approach to digital sexual harassment
In its decision of 21.03.2023, E.2021/15534, K.2023/1566, the 9th Criminal Chamber of the Court of Cassation (Yargıtay) found that no complaint requirement applies to aggravated sexual harassment committed by taking advantage of the ease offered by electronic communication tools. It is therefore wrong to resolve an allegation of the aggravated act solely on the basis of the complaint rule laid down for the basic offence.
Limitation of prosecution and special periods
Under TCK Articles 66 and 67, the limitation period for prosecution is linked to the upper limit of the penalty for the offence, the age of the perpetrator and the special provisions of the law. The acts that suspend or interrupt the limitation period, and the law in force on the date of the offence, must be examined separately. Stating a single period for all sexual offences is incorrect. The temporal applicability of provisions specific to a child victim or to a particular perpetrator must also be addressed separately.
Practical checklist
First, the paragraph of the offence is determined; second, the complaint requirement, the person entitled to complain and the start of the period are established; then the complaint, the withdrawal, the filing of the action and the acts that interrupt or suspend limitation are listed in chronological order. No application should be made in reliance on a general period that does not apply to the act in question.
The same filing period cannot be assumed for different acts
If a file contains an allegation of sexual harassment together with an allegation of threat or deprivation of liberty, the prosecution condition for each offence must be determined separately. The expiry of the complaint period may prevent action in respect of one offence while the other offence can still be investigated ex officio. The acts and their legal characterisation in the investigation file must therefore be examined on a separate chronology.
The child victim: discovery and representation
Who may exercise the right to complain, and under what age or representation conditions, is determined by the applicable provisions of the law. A conflict of rights may arise in particular where a family member is in the position of a suspect. Taking a statement on behalf of the child victim and duly exercising the right to complain may not be the same procedural step. In the investigation this distinction must be verified against the documents.
Interruption and suspension of limitation
TCK Article 67 regulates the acts that may affect limitation. It must be established on what date, and in respect of which defendant, a statement was taken, an interrogation held, an indictment filed, a conviction pronounced or any other act listed in the law carried out. In the calendar calculation, the distinction between interruption and suspension, transitional legislation and the upper limit of the penalty on the date of the offence must be reviewed. A definitive loss of rights must not be inferred from a general online calculator.
A limitation period cannot be calculated before the correct paragraph of the offence is identified
Not every act within TCK Articles 102–105 depends on a complaint. TCK Article 104/1 differs from Article 104/2–3, and the basic and aggravated forms of Article 105 and the special condition for an abuse offence by a child perpetrator at the level of molestation are likewise different. For this reason, the acts in the same file must first be characterised independently, and only then must it be determined whether a right to complain exists and within what period it must be exercised.
Learning of the complaint, representation and conflict of interest
For the start of the complaint period under TCK Article 73, the discovery of the act and of the perpetrator and the special provisions are important. Where, in representing a child victim, the legal representative is a party to the act in question or has a conflict of interest, procedural protection must be assessed separately. The date on which the intention to file a complaint was declared, by which authorised person, and in respect of which act, must be established from documents.
Withdrawal does not automatically end every offence
Where a file contains both offences that depend on a complaint and offences investigated ex officio, withdrawal of the complaint has an effect only in accordance with the statutory prosecution conditions of the offence concerned. The reasoning accessed for the decision of the 9th Criminal Chamber of the Court of Cassation of 21.03.2023, E.2021/15534, K.2023/1566, on the effect of a complaint in aggravated digital sexual harassment, points to the importance of this distinction. Decision record.
Building the limitation timetable document by document
For the limitation of prosecution, the upper limit of the penalty on the date of the act, the applicable special provisions and the conditions for interruption and suspension listed in TCK Articles 66–67 must be entered in the chronology. The complaint period and the limitation period for prosecution are not the same concept. It must be shown separately when an incident was reported and which investigation or prosecution step affected the period.
The difference between the preclusive complaint period and the limitation period for prosecution
The period provided for a complaint relates to the condition for prosecuting the offence. The limitation period for prosecution, by contrast, relates to the State’s power to punish under the conditions set by law. In the same incident the complaint period may have expired while the investigation of another offence, prosecuted ex officio, remains possible. In addition to the date of the offence, the dates of discovery, complaint, statement, indictment and decision must each be listed.
Representation in family incidents involving a conflict of interest
Where the suspect is a family member, or the interests of the victim and the legal representative conflict, who will exercise the complaint and the procedural rights must be examined separately. Taking the child’s statement and making a legally valid complaint do not replace one another. The competent authority must, where necessary, consider special representation and protective measures.
A separate complaint matrix must be built for each paragraph
TCK Article 102/1, certain acts against a spouse under Article 102/2, a child perpetrator’s molestation under Article 103/1, Articles 104/1 and 104/2–3, and the basic and aggravated forms of Article 105 are not subject to the same complaint condition. It cannot be said “there is no complaint, so the case lapses” without first clearly establishing the statutory characterisation of the act. In its decision of 21.03.2023, E.2021/15534, K.2023/1566, the 9th Criminal Chamber of the Court of Cassation found that no complaint requirement applies to aggravated sexual harassment committed through electronic communication. Decision.
Disputes over the date of discovery and the power of representation
In assessing the complaint period, the discovery of the act and of the perpetrator, the person who may exercise the right to complain and the victim’s age must be examined together. Where a child victim and the legal representative have a conflict of interest, questions of capacity to complain and of representation must be resolved separately. What was learned and when must be compared against the first application, the statements and the communication records in the file. The complaint period and the limitation period for prosecution are different institutions; the expiry of one does not necessarily mean that the other has also expired.
Limitation by date of offence and application of an amended law
In calculating limitation of prosecution, in addition to the upper limit of the penalty, the age of the perpetrator and TCK Articles 66–67, the law in force on the date of the offence and any later discussion of a more favourable law must be taken into account. The steps taken at the stages of the offence date, discovery, complaint, indictment, decision and appeal should be transferred to a chronological table. Extended or interrupted periods must not be added together into a single total without reasons. A general statement such as “limitation in sexual offences is this long” is no substitute for a reliable calculation of the period.
Conclusion
In assessing complaint, withdrawal of the complaint and limitation in sexual offences, the relationship between the statutory elements of the offence or procedural act and the concrete evidence must be clearly established. The reasoning of the court’s decision must address the decisive points of the prosecution and the defence, and the law applicable on the date of the event must be observed. Protection of the victim and the guarantees of a fair trial are not opposed to one another but are complementary obligations of a State governed by the rule of law.
Frequently Asked Questions
Do sexual offences always depend on a complaint?
No; the types of offence and the aggravated forms differ.
Does the complaint period always start from the date of the offence?
No; the discovery of the act and of the perpetrator and the special provisions are important.
Does every case lapse once the complaint is withdrawn?
No; withdrawal does not have the same effect for offences prosecuted ex officio.
Is there a single limitation period for sexual offences?
No; the act, the upper limit of the penalty and the law on the date of the event are decisive.