For Which Crimes Is Withdrawal of Complaint Effective?

For Which Crimes Is Withdrawal of Complaint Effective? In Turkish Criminal Law, “withdrawal of a complaint” refers to the victim’s or the person harmed by the crime’s declaration of intent to halt criminal proceedings against the perpetrator. The “effectiveness” of this legal institution, that is, its ability to terminate a criminal trial, applies only to crimes explicitly defined in the law as “dependent on the investigation and prosecution of a complaint” (e.g., simple intentional wounding, simple insults, violation of the inviolability of the home, simple sexual harassment, etc.). For crimes that constitute a serious violation of public order and are prosecuted “ex officio” (aggravated fraud, premeditated murder, insulting a public official, etc.), the victim’s withdrawal of a complaint does not halt the proceedings and has no legal effect. In a crime subject to complaint, a valid declaration of renunciation results in a “declaratory decision of non-prosecution” (KYOK) during the investigation phase, and if a public lawsuit is filed (prosecution phase), the case is “dismissed” provided that the defendant accepts this renunciation, and as a rule, this declaration cannot be withdrawn.

The legal nature and scope of the “waiver of complaint” concept in criminal procedure

A.1. Conceptual Definition and Legal Nature

In Turkish Criminal Procedure Law, “waiver of complaint” (also known as withdrawal of complaint) is a critical legal institution that, by its nature, has the power to directly determine the outcome of criminal proceedings in specific crime categories. This concept, regulated in Article 73, paragraph 4 (TPC Art. 73/4) of the Turkish Penal Code (TPC) No. 5237, titled “Crimes Subject to Investigation and Prosecution upon Complaint,” is, in its most basic definition, the declaration of intent by the victim of an offense subject to complaint, or the person harmed by the crime, to stop the criminal process initiated against the perpetrator.

In terms of its legal nature, a waiver of complaint is a unilateral procedural act that, during the investigation phase, leads to the termination of the investigation and the issuance of a “Decision of Non-Prosecution” (DNP), or, if a public lawsuit has already been filed (prosecution phase), to the “dismissal” of the case. The right to complain itself is a demand for the punishment of the perpetrator and is a non-transferable right strictly attached to the person. The person holding this right likewise possesses the will to renounce this right or to withdraw a complaint already made (waiver).

A.2. The Irrevocability of the Waiver (Principle of Non-Reversal)

The most distinct legal characteristic of a waiver declaration is its “irrevocability.” As a requirement of the principle of legal certainty and stability, once the victim or the person harmed by the crime declares their waiver to the competent authorities, they cannot reverse this declaration of intent and file a complaint again for the same act and perpetrator.

In practice, this is expressed as the impossibility of “waiving the waiver.” The waiver declaration immediately produces its legal consequences and exhausts the right to complain regarding that specific act. The irrevocable and serious legal consequences of this action necessitate that the victim, before making such a declaration, comprehensively evaluates all aspects of the situation (compensation rights, effect on other perpetrators, etc.), particularly by seeking legal support from criminal lawyers.

A.3. The Holder of the Right to Waive Complaint and Method of Use

The right to waive a complaint primarily belongs to the persons who hold the right to complain. These individuals are defined as; the victim of the crime, real persons directly harmed by the crime, legal entities (companies, associations, etc.), or their duly authorized representatives (lawyers).

In terms of procedure, although the waiver declaration is not subject to any specific form, making it in writing is preferred for ease of proof.

During the Investigation Phase: The waiver declaration can be made via a petition addressed to the Public Prosecutor’s Office conducting the investigation or verbally, by having it recorded in the minutes during testimony at the prosecutor’s office.
During the Prosecution (Trial) Phase: The waiver declaration can be made by submitting a petition to the competent court hearing the case (e.g., Criminal Court of First Instance, High Criminal Court) or by attending the hearing in person and stating the waiver verbally, ensuring it is recorded in the hearing minutes.

In both situations, it is essential that the intent to waive is expressed “clearly, precisely, and without ambiguity.”

The Situation of Minors with Discretion (Children with Capacity to Distinguish)

When the victim is a minor, the exercise of the right to complain and waive complaint has special characteristics. Minors who have the capacity to distinguish (generally those over 15 years of age), according to the Turkish Civil Code, can typically exercise their rights strictly attached to the person themselves.

However, Court of Cassation (Yargıtay) precedents and some doctrinal views argue that for a waiver declaration made solely by a minor with discretion to be legally effective, the consent or approval of their legal representative (parent or guardian) should also be sought. There are Court of Cassation rulings stating that, especially in cases where custody is exercised jointly by the mother and father, the waiver declaration made by one parent requires the consent of the other; otherwise, the waiver is not considered legally valid.

The fundamental condition for a waiver of complaint to be “effective”: Classification of the crime

B.1. The Basic Distinction in Penal Policy: Offenses Prosecuted Ex Officio and Offenses Subject to Complaint

The legal answer to the question, “In which crimes is a waiver of complaint effective?” is based on the fundamental distinction adopted by Turkish criminal law regarding the prosecution (investigation and prosecution) of crimes. Criminal law divides offenses into two main categories regarding prosecution procedure:

Offenses Prosecuted Ex Officio (Automatically): These are acts that, by their nature, severely violate not only the rights of the individual but also the public order (public interest). For example, in crimes such as intentional homicide, extortion (robbery), bribery, aggravated fraud, insult to a public official, or drug trafficking, the state’s duty to establish criminal justice is independent of the victim’s will. The prosecutor’s office must investigate these crimes automatically (ex officio) as soon as it becomes aware of them, and, if evidence is found, must file a public lawsuit.
Offenses Subject to Complaint (Contingent Crimes): These are offenses where the legislator, as a matter of penal policy, has left the prosecution to the victim’s discretion. They are generally milder acts or acts more closely related to the personal sphere of the parties. For example, in crimes like simple intentional injury, simple threat, insult (with exceptions), or violation of domicile, the victim’s complaint is required as a “condition for prosecution.” If the victim does not file a complaint, the state cannot prosecute that act.

B.2. What Does “Being Effective” Mean? (The Outcome of the Investigation and Prosecution)

For a waiver of complaint to be “effective,” it means the waiver declaration has the power to terminate an ongoing criminal procedure (investigation or prosecution).

This “effect” exists only for offenses subject to complaint. In such a crime, the victim’s waiver of their complaint means a condition for prosecution has been eliminated, which legally stops the process; it terminates the investigation or dismisses the case.

In contrast, in an offense prosecuted ex officio (e.g., aggravated fraud), the victim’s waiver of complaint is legally “ineffective.” This is because, in these crimes, the complaint is not a condition for prosecution. The prosecutor’s office and the court are obligated to continue the proceedings on behalf of the public, despite the victim’s waiver. In this case, the victim’s waiver may only be considered by the judge as a “reason for discretionary reduction” in favor of the perpetrator under TPC Art. 62, but it never dismisses the case.

B.3. The Time Limit for Exercising the Right to Complain (Forfeiture Period)

For a waiver of complaint to be effective, there must first be a valid complaint. The legislator has not recognized the right to complain as an indefinite authority but has tied it to a specific forfeiture period.

According to TPC Art. 73/1, the authorized person (victim or person harmed) must file a complaint within six (6) months “from the day they learn of the act and the identity of the perpetrator.” This is a forfeiture period (hak düşürücü süre); meaning, if the complaint is not filed within this period, the right to complain is lost and cannot be exercised again for the same act.

For this period to begin, the victim must have learned both the act committed (e.g., that they were insulted) and the identity of the person who committed the act (or have sufficient suspicion of their identity).

Presence of Multiple Victims

If a crime has more than one victim (e.g., multiple people were insulted simultaneously), according to TPC Art. 73/3, one victim’s failure to meet the 6-month complaint deadline does not affect (does not nullify) the complaint rights of the other victims. Each victim’s complaint period runs independently from the date they learned of the act and the perpetrator.

Special Regulation (Crime of Insult)

With Law No. 7531 (9th Judicial Package) dated November 7, 2024, an important addition was made to TPC Art. 73/2. Accordingly, while the general 6-month “learning of the act and perpetrator” rule continues, a special maximum time limit has been introduced for the crime of insult (TPC Art. 125). According to this regulation, the complaint period for the crime of insult cannot, under any circumstances, exceed two (2) years “from the date the act was committed.” This means that even if the perpetrator’s identity is learned years later, if 2 years have passed since the act, the right to complain cannot be exercised.

Legal consequences of waiving a complaint (an analysis by stage)

The “effect” of waiving a complaint results in a different legal decision depending on the stage of the criminal proceedings at which it is made.

C.1. Effect During the Investigation Phase: Decision of Non-Prosecution (DNP/KYOK)

The investigation phase refers to the period from learning of the suspicion of a crime until the acceptance of the indictment. In an offense subject to complaint, if the victim waives the complaint during this phase, the “condition for prosecution” (the complaint) required for the continuation of the criminal proceedings is eliminated.

In this situation, the Public Prosecutor issues a Decision of Non-Prosecution (KYOK) (colloquially known as Takipsizlik Kararı) due to the “Lack of Grounds for Prosecution” under Article 172, paragraph 1 of the Code of Criminal Procedure (CMK). Even if evidence has been collected or the perpetrator’s guilt seems apparent, a case cannot be opened due to the absence of the complaint condition.

C.2. Effect During the Prosecution (Trial) Phase: Decision of Dismissal

The prosecution phase is the trial stage that begins with the court’s acceptance of the indictment and continues until the judgment becomes final. If a public lawsuit has been filed for an offense subject to complaint (i.e., the trial has begun), the victim’s (now referred to as the “complainant” or “participant”) waiver of the complaint at this stage leads to the “dismissal” of the case, as per TPC Art. 73/4.

The court, after evaluating the waiver declaration (and the defendant’s stance on the matter), issues a “decision of dismissal” pursuant to CMK Art. 223/8. This decision terminates the proceedings for a procedural reason without entering into the merits (i.e., without discussing whether the defendant is guilty).

C.3. Time Limit for Waiver: Ineffectiveness After the Judgment Becomes Final

The right to waive a complaint must be exercised within a specific time frame to be “effective.” TPC Art. 73/4 clearly draws this line: a waiver of complaint can be exercised at the latest “until the judgment becomes final.”

This means that even after the local court has issued its decision, while the file is at the appeal (Regional Court of Justice) or cassation (Court of Cassation) stage, the victim can still waive the complaint, and this waiver will be legally valid.

However, if the judgment becomes final after all legal remedies have been exhausted (the decision is finalized), the victim’s waiver of complaint at this stage does not prevent the execution of the sentence. For example, for a perpetrator who received a 1-year prison sentence that has become final, the victim’s subsequent waiver does not prevent the perpetrator from going to prison or secure their release from prison. A waiver at this stage remains legally “ineffective.”

Crimes where a waiver of complaint is “effective” (a comprehensive analysis under the TPC)

The crimes where a waiver of complaint is effective are those explicitly stated in the law as being “contingent on complaint.” However, when conducting this analysis, attention must be paid to the distinction between the “simple form” of a crime and its “qualified form” (which requires a heavier penalty). Often, the simple form of a crime is subject to complaint, while its qualified form may be subject to ex officio prosecution on the grounds that it more severely violates public order.

The following table details the primary offenses within the Turkish Penal Code system where a waiver of complaint is “effective” and the exceptional (qualified) forms where it is “ineffective” (prosecuted ex officio).

Crime Name (TPC Article)	Form Subject to Complaint (Waiver is Effective)	Exception / Ex Officio Prosecution (Waiver is Ineffective)
Intentional Injury(Art. 86)	Simple intentional injury(TPC Art. 86/2). Injuries “resolvable with simple medical intervention” (BTM).	TPC Art. 86/1 (Injury not resolvable with BTM) and all qualified forms in TPC Art. 86/3 (e.g., committed against an ascendant, child, public official, or with a weapon).
Negligent Injury(Art. 89)	The basic form of the crime (Art. 89/1-2-3-4). Prosecution cannot proceed without the victim’s complaint.	If the act is committed with “conscious negligence”(Art. 89/1, last sentence), it is prosecuted ex officio.
Threat (Art. 106)	Threats of causing significant property damage or of “other harm” (Art. 106/1, second sentence).	Threats against life, bodily integrity, or sexual immunity (Art. 106/1, first sentence) and all qualified forms (Art. 106/2) (e.g., committed with a weapon, anonymous letter).
Insult (Art. 125)	The basic forms of the crime (Art. 125/1, 2, 3). Public or non-public insult.	Committed against a public official due to their duty(Art. 125/3-a). Insulting the President (Art. 299).
Violation of Domicile (Art. 116)	Simple forms of the crime (Art. 116/1, 2). (Entering a home or its extensions without permission).	Qualified forms (TPC Art. 119) (e.g., committed with a weapon, by more than one person, at night).
Sexual Harassment (Art. 105)	The simple form of the crime (Art. 105/1). (Harassing sexual behavior not involving physical contact).	Qualified forms (Art. 105/2) (e.g., committed using hierarchy, abuse of public office, or against a child).
Sexual Assault(Art. 102)	The simple form of the crime (Art. 102/1) and the form limited to “molestation/groping” (Art. 102/2, second sentence).	Aggravated sexual assault (Art. 102/2, first sentence – penetration of an organ or object into the body) and all other qualified forms (Art. 102/3).
Sexual Intercourse with a Minor (Art. 104)	The simple form of the crime (Art. 104/1). (Intercourse with a minor aged 15-18 without force/threat).	Qualified forms (Art. 104/2, 3).
Disturbing the Peace and Tranquility of Persons (Art. 123)	The entire crime is subject to complaint.	None.
Stalking (Art. 123/A)	The entire crime is subject to complaint.	None.
Damage to Property (Art. 151)	The simple form of the crime is subject to complaint.	Qualified forms (Art. 152) (e.g., damaging public property, places of worship) are prosecuted ex officio.
Property Crimes(Theft Art. 141, Fraud Art. 157, Breach of Trust Art. 155, etc.)	These crimes are generally prosecuted ex officio.	EXCEPTION (TPC Art. 167/2): If these crimes are committed against specific relatives listed in the law (e.g., a sibling not living in the same residence, aunt, uncle, niece, nephew), they become subject to complaint.
Abuse of a Blank Signature (Art. 209)	The simple form (Art. 209/1) is subject to complaint.	Qualified form (Art. 209/2).
Violation of Obligations Arising from Family Law (Art. 233)	Art. 233/1 (Abandonment or violation of assistance obligation) is subject to complaint.	None.

Special conditions and legal nuances of waiving a complaint (analysis of TPC art. 73)

The legal effect of waiving a complaint is subject to certain special conditions and nuances regulated in TPC Art. 73. These conditions determine the waiver’s effect on multiple perpetrators, the role of the defendant in this process, and the fate of the victim’s compensation rights.

E.1. Effect in Case of Complicity (Partnership in Crime): The Extension (Spreading) of the Waiver (TPC Art. 73/5)

One of the most important features of the waiver institution is the “extension” (or sirayet) rule. According to TPC Art. 73/5, a waiver of complaint regarding one of the defendants who committed an offense subject to complaint in complicity (jointly) also covers all other accomplices and produces legal consequences for them as well.

This rule is also known as the “principle of indivisibility.” The legislator has prevented the victim from discriminating between accomplices. The victim cannot make a partial waiver, such as, “I am only waiving my complaint against defendant A, but my complaint against defendant B continues.” One who forgives one perpetrator is deemed to have forgiven all perpetrators, and a decision of dismissal is issued for all defendants.

The Critical Exception in Negligent Crimes

However, this “extension” rule is not absolute. The text of TPC Art. 73/5 specifies that this rule applies to crimes committed “in complicity.” From a technical criminal law perspective, “complicity” (suç ortaklığı) is only possible in intentionally committed crimes.

In negligent crimes (e.g., negligent injury resulting from a traffic accident where multiple vehicles are at fault), there is no “complicity” in the legal sense, but rather a “multiplicity of perpetrators” (or sharing of fault). According to the established precedents of the Court of Cassation, since complicity is not possible in negligent crimes, the extension rule in TPC Art. 73/5 does not apply.

The practical consequence of this is: In a negligent crime (e.g., negligent injury, Art. 89), the victim can waive their complaint against one of the faulty perpetrators (Driver A) while continuing their complaint against the other perpetrator (Driver B). In this case, the trial continues only for Driver B; the waiver does not extend to the other perpetrator. This is the most significant exception to TPC Art. 73/5.

E.2. The Defendant’s Right of Veto: Refusing to Accept the Waiver (TPC Art. 73/6)

A waiver of complaint leading to the dismissal of the case is not an automatic process. TPC Art. 73/6 mandates that, “Unless otherwise provided in the law, the waiver does not affect the defendant who does not accept it.” This means that the legal effectiveness of the waiver is contingent upon the suspect or defendant “accepting” this waiver.

This can be seen as a “right of veto” granted to the defendant. The basis for the defendant exercising this right lies in the presumption of innocence and the “right not to be stigmatized.”

A “Dismissal” decision makes no determination as to whether the defendant committed the crime; it closes the file for a procedural reason.
An “Acquittal” decision legally confirms that the defendant did not commit the crime or that there was insufficient evidence they did.

The defendant may aim to be cleared by receiving an “acquittal” at the end of the trial, believing they did not commit the alleged crime. In this case, the defendant can reject the waiver by stating, “I do not accept the dismissal, I want the trial to continue so I can be acquitted.”

If the defendant does not accept the waiver, the trial continues (even though the complainant/participant is no longer a party). At the end of the trial, the defendant may be acquitted.

E..3. Effect of Waiver on Civil Lawsuits: The Issue of Compensation and Personal Rights (TPC Art. 73/7)

The effect of waiving a complaint in a criminal case on the victim’s right to file a civil lawsuit for material and non-material damages is one of the most confused issues and one that leads to the most significant loss of rights.

The Rule (Independence): Criminal law (punishment) and private law (compensation) claims are independent of each other. As a rule, the fact that the victim waived their complaint in the criminal case does not extinguish their right to file a lawsuit for material and non-material damages (personal rights) in a civil court. The victim can say, “I do not want the defendant to be punished, but I want the damages I suffered to be compensated.”

The Exception (TPC Art. 73/7): There is only one exception to this rule. According to TPC Art. 73/7, if the victim, while declaring their waiver of complaint, “…also explicitly stated at the time of waiver that they also waived their personal rights…” then they can no longer file a lawsuit in civil court.

This regulation contains a significant difference from the former TPC No. 765 (Art. 111). Under the old code, a victim who did not “reserve” their personal rights (right to compensation) lost this right. The new TPC No. 5237, adopting an approach that protects individuals without legal knowledge, establishes that the right to compensation is preserved unless the victim “explicitly and additionally” waives it.

Comparative analysis: The institutions of “Waiver of complaint” (TPC art. 73) and “Conciliation” (CMK art. 253)

Nearly all offenses subject to complaint (e.g., simple injury, insult, threat, damage to property) are also within the scope of “conciliation” (uzlaşma) under CMK Art. 253. Both institutions serve the purpose of terminating the criminal investigation or prosecution (resulting in a non-prosecution or dismissal decision).

However, the effect of these two institutions on the victim’s “compensation rights” (personal rights) is diametrically opposed, and ignorance of this distinction leads to irrecoverable losses of rights in practice.

Waiver of Complaint (TPC Art. 73/7):
- Legal Nature: It is a unilateral declaration of intent. It does not require receiving a consideration (money, compensation) in return.
- Compensation Result (Default): The victim’s right to compensation is PRESERVED. The right to compensation is lost only if the victim “explicitly and additionally states, I also waive my personal rights.”
Conciliation (CMK Art. 253):
- Legal Nature: It is a bilateral “agreement” or “contract.” It is generally achieved in exchange for the perpetrator compensating the victim’s damages (paying a certain amount of compensation or apologizing).
- Compensation Result (Default): According to CMK Art. 253/19, when conciliation is reached (the conciliation report is signed), the victim’s “right to file a compensation lawsuit” regarding that crime TERMINATES; if they have already filed a lawsuit, they are “deemed to have waived” that lawsuit.

This legal pitfall often arises in cases with high compensation potential (such as workplace accidents, which are subject to conciliation due to negligent injury). When the victim (employee), at the conciliation bureau, accepts a low amount offered by the perpetrator (employer)—an amount likely far below their actual damages (e.g., permanent disability damages)—and signs the conciliation report, they not only close the criminal file but also irrevocably lose their right to file a civil lawsuit for much higher material and non-material damages. This situation raises claims of “lesion” (aşırı yararlanma or excessive exploitation) in practice.

It is imperative for the victim to know this vital difference between waiver of complaint (TPC 73) and conciliation (CMK 253) to protect their rights.

Conclusion and assessment

Waiver of complaint is an important legal institution in the criminal justice system that gives precedence to the victim’s will. However, the “effectiveness” of this institution—its ability to terminate criminal proceedings—is not absolute or unlimited.

Limited Scope of Effect: A waiver is “effective” only for crimes explicitly designated in the TPC as “subject to complaint,” where the legislator prioritizes the individual’s will over the public interest. In offenses prosecuted ex officio (crimes that severely violate public order), the victim’s waiver does not dismiss the criminal case and is legally ineffective.
Conditional Effect: Even in crimes subject to complaint, the “effectiveness” of the waiver is contingent upon the defendant’s acceptance of it, per TPC Art. 73/6. The defendant has the right (right of veto) to demand the continuation of the trial to seek “acquittal” and prove their innocence.
Procedural Nuances: The effect of the waiver varies depending on the mens rea (mental element) of the crime. In intentionally committed crimes (complicity), a waiver for one perpetrator extends to the others (TPC Art. 73/5). However, in negligent crimes (where complicity is not possible), it does not extend.
Statute of Limitations: A waiver only produces legal consequences until the judgment becomes final (including appeal and cassation stages); it does not prevent the execution of a finalized conviction.
Right to Compensation: The most critical point is the effect of a waiver of complaint (TPC Art. 73/7) on compensation rights. A waiver does not extinguish the right to file a compensation lawsuit in civil court, unless the victim “explicitly and additionally” waives their personal rights. This must be meticulously distinguished from the “conciliation” (CMK Art. 253) institution, which produces similar results but automatically terminates compensation rights. Knowledge of the difference between these two institutions is vital to prevent the loss of rights.

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