OBJECTION TO PERMISSION TO INVESTIGATION

The last paragraph of Article 129 of our Constitution; “The criminal prosecution of civil servants and other public officials for the crimes they are alleged to have committed depends on the permission of the administrative authority indicated by the law, except for the exceptions determined by the law”, Article 24 of our Law on Civil Servants No. 657, titled "prosecution and trial"; It carries the provisions of "Investigation and prosecution and filing a lawsuit against civil servants for crimes related to or during their duties are subject to special provisions".

LAW NUMBER 4483 ON THE TRIAL OF OFFICERS AND OTHER PUBLIC OFFICIALS

1- Authorities authorized to give permission for civil servants and other public officials to be tried for the crimes they have committed due to their duties and the procedure to be followed are regulated in the Law No. 4483 on the Trial of Civil Servants and Other Public Officials. According to the law;

2- When the Chief Public Prosecutors, civil servants and other public officials receive any notice or complaint regarding their crimes within the scope of Law No. 4483, or when they learn about such a situation, they do not take any action other than detecting the evidence that must be collected immediately and that may be lost, and the officer or other officer against whom the notice or complaint is made. They request permission to investigate by sending a copy of the document to the relevant authority without resorting to the statement of the public official.

3-Other authorities, civil servants, and public officials, when they learn that a crime within the scope of this Law has been committed, based on denunciations, complaints, information, documents or findings, forward the situation to the authorized authority.

4- When the authority authorized to give permission learns that he has committed a crime within the scope of this Law, personally or as stated above, he initiates a preliminary investigation.

5- The person or persons assigned with the preliminary examination, by taking the statement of the officer or other public official, collect the necessary information and documents within their authority, prepare a report containing their opinions and submit the situation to the authorized authority.

6- The competent authority decides whether or not to grant an investigation permission based on this report. It is obligatory to give reasons for these decisions.

7- The competent authority notifies the Chief Public Prosecutor's Office, the officer or other public official under investigation, and the complainant, if any, of its decision regarding granting or not granting an investigation permit.

8- The officer or other public official who is being investigated against the decision regarding the granting of an investigation permit; Against the decision not to grant permission for investigation, the complainant may appeal against the decision not to take action given by the Office of the Chief Public Prosecutor or the complainant, the authorities authorized to give permission. The objection period is ten days from the notification of the decision of the competent authority.

9-Depending on the status of the relevant public personnel, the objection is heard by the Second Chamber of the Council of State or the regional administrative court in which the competent authority is located. Objections are first examined and decided within three months at the latest. Decisions made are final.

10- Upon the approval of the investigation permission without objection or the rejection of the objection, or the acceptance of the objection made against the decision not to grant the investigation permission, the file is immediately sent to the authorized and responsible Chief Public Prosecutor's Office. Upon permission, the relevant Chief Public Prosecutor's Office conducts and concludes the preliminary investigation by using its powers in the Code of Criminal Procedure and other laws.

11- Decisions to authorize or not to grant an investigation may lead to violations of rights and disruption of public order by going unpunished for a committed crime, or, on the contrary, may lead to the violation of the right of public officials not to be defamed by being unjustly accused, and their records to be adversely affected. For this reason, the process should be carried out in accordance with the law and the relevant public officer, victim and complainant should follow the issue with sensitivity, as well as the prosecutor's office and the authorized administrative authorities.

OBJECTION TO PERMISSION TO INVESTIGATION

1- The public official, who is alleged to have committed a crime related to his duty and who has been given an investigation permission by the competent authority, can also appeal to the Second Chamber of the Council of State or the Regional Administrative Court against the decision to grant an investigation permission, within ten days from the notification of this decision. The objecting public official must demonstrate the unlawfulness of the decision to authorize the investigation against him. As the allegations against him are unfounded and untrue, unlawful denunciations or complaints are made, the alleged acts do not constitute a crime or cause harm, the victim and the complainant are not harmed, their defense is not taken or their knowledge is not sought.

2- In addition to these, if there is information and documents, the illegality in the procedural and preliminary examination process should also be stated. For example, not starting a preliminary investigation on the subject, not conducting the preliminary examination in a proper manner, for example iFailure to take the statements of the relevant persons, not collecting the necessary information and documents, not expressing the opinions of the reporters in the report, preparing an incomplete, insufficient or non-objective biased report or not preparing a report are unlawful and are grounds for objection. Likewise, in decisions regarding granting or not granting an investigation permit, it is obligatory to provide a justification, and the decision to grant an investigation permit given without any justification is against the Law. Since the relevant decision against granting an investigation permit is of an administrative nature, if an objection is to be made against the decision, it is necessary to apply to the administrative jurisdiction.