Introduction

This study has been prepared with an analysis of Supreme Court and Council of State decisions presented in response to the question “How to delete or clear a criminal record (judicial record)?”. The study examines the processes of deleting judicial and archive records in detail, within the framework of the basic legislation governing these processes, Law No. 5352 on Criminal Records, by taking into account critical elements such as the date and nature of the crime, and the competent authorities.

The judicial decisions examined reveal that the process of deleting a criminal record is not a single-stage operation. The process essentially consists of two main steps:

Deletion of the Criminal Record and Transfer to Archive Record: Upon the fulfillment of certain legal conditions, conviction information is removed from the active criminal record and transferred to the archive record.

Complete Deletion of the Archive Record: The complete elimination of information transferred to the archive record is subject to different conditions and longer periods.

The operation of the process varies significantly depending on factors such as the date the crime was committed (especially the distinction between before and after 01.06.2005), the nature of the crime (crimes listed in Article 76 of the Constitution and special laws), and the competent authority to be applied to (General Directorate of Criminal Records and Statistics or courts). Furthermore, the institution of “restoration of prohibited rights” (restitution of restricted rights) appears as a prerequisite for the deletion of some archive records.

1. Deletion of Criminal Record and Transfer to Archive Record

The most frequently referenced regulation in judicial decisions is Article 9 of the Criminal Records Law No. 5352. According to this article, information in the criminal record is automatically deleted and transferred to the archive record upon the fulfillment of certain conditions. The competent authority for this process is the General Directorate of Criminal Records and Statistics. These conditions are summarized as follows in the decision of the 18th Criminal Chamber of the Supreme Court of Appeals, numbered 2016/9354: “…’completion of the execution of the sentence or security measure’, ‘waiver of complaint or effective repentance that abolishes the criminal conviction with all its consequences’, ‘expiration of the statute of limitations for the penalty’, and ‘general amnesty’ are present. In these cases, ‘it is deleted by the General Directorate of Criminal Records and Statistics and transferred to the archive record.'” This stage does not mean the complete destruction of the record, but merely its transfer from an active record to an archive, which is a passive record.

2. Deletion of Archive Record

The deletion of information recorded in the archive is subject to stricter conditions in Article 12 of the Law. These conditions stipulate periods that vary according to the nature of the crime. According to the decision numbered 2018/9412 of the 10th Criminal Chamber of the Supreme Court of Appeals: “…Regarding convictions that result in deprivation of rights under Article 76 of the Constitution and laws other than the Turkish Penal Code, the record is completely deleted fifteen years after the date on which the conditions for archiving the record were met, provided that a decision for the restoration of prohibited rights is made, or thirty years if this condition is not required. For other convictions, this period is five years.” Furthermore, as stated in the decision numbered 2013/6535 of the 6th Criminal Chamber of the Supreme Court of Appeals, the archive record can also be deleted in exceptional circumstances such as the death of the person concerned or the passage of eighty years from the date the record was entered.

3. Differentiated Practices According to the Date and Nature of the Crime

One of the most significant distinctions highlighted in the decisions is the variation in the procedure applied based on the date and nature of the crime.

Date of Crime: For crimes committed before June 1, 2005, the effective date of Law No. 5352, the provisions of Provisional Article 2 of the Law and the abrogated Law No. 3682 are applied. According to the decision numbered 2010/93 of the General Criminal Assembly of the Supreme Court of Appeals, the authority for deleting archive records related to crimes committed before this date lies with the courts. For crimes committed after June 1, 2005, the authority is, as a rule, with the General Directorate of Judicial Registry and Statistics. The decision numbered 2019/579 of the 18th Criminal Chamber of the Supreme Court of Appeals explained this situation as, “…given that the date of the crime is after 01/06/2005, the petition should be sent to the General Directorate of Judicial Registry and Statistics for the evaluation of the convict’s request.”

Nature of the Crime: Another point consistently emphasized in judicial decisions is that records related to certain crimes are almost impossible to delete. Crimes listed in Article 76 of the Constitution (such as embezzlement, bribery, theft, fraud, forgery, etc.) and specified in special laws like Law No. 657 on Civil Servants are entered into the archive record even if they have been pardoned, and they are not deleted unless the very long-term conditions in Article 12 of the Law are met. In the decision numbered 2012/13348 of the 8th Criminal Chamber of the Court of Cassation, this situation, “…even if pardoned, crimes and penalties listed primarily in Article 76 of the Constitution and in special laws are entered into the archive record to be provided upon request according to Article 10 of Law No. 5352, and there is no legal provision for their deletion other than the conditions specified in Article 12 of the same Law.” şwas expressed.

4. Restoration of Prohibited Rights (Restitution of Forbidden Rights)

Article 13/A of Law No. 5352, referenced in decisions of the Constitutional Court and the Court of Cassation, regulates the institution of “restoration of prohibited rights.” This is a different legal remedy from the deletion of a criminal record. However, this decision, which is subject to conditions such as the passage of three years after the execution of the sentence and the person’s good conduct during this period, constitutes a prerequisite for the deletion of certain archive records (especially those leading to deprivation of rights).

Conclusion

A comprehensive analysis of judicial decisions shows that the process of deleting a criminal record is not concluded with a simple administrative application; rather, it is a strict, phased, and complex procedure determined by law. While Law No. 5352 on Criminal Records forms the basis of the process, whether a record can be deleted;

Whether the record is in the criminal register or in the archive,

Whether the crime was committed before or after 01.06.2005,

Whether the nature of the crime falls within the scope of Article 76 of the Constitution or special laws

varies depending on factors such as. Especially, the complete deletion of records related to crimes of moral turpitude and crimes that constitute an obstacle to certain public duties from the archive is subject to very long periods and special conditions, and is often not legally possible. Therefore, it is essential that each case be evaluated individually in light of the relevant articles of law and current judicial precedents. A writing suggestion.

Why Is Expert Lawyer Support Needed in Tuzla?

The process of deleting a criminal record or completely removing it from the archive is not a simple procedure that can be completed with just a petition or an application. Considering the conditions stipulated by Criminal Records Law No. 5352, the date of the crime, its nature, and the restoration of related rights, the process becomes a phased procedure requiring technical and legal expertise.

In Tuzla, especially due to Istanbul’s dense population and business volume, differences in practice can be observed in criminal record applications. Therefore, the contribution of a lawyer with regional experience is important. Tuzla expert lawyers:

Clearly determine to which authorities the application should be made and which documents should be attached.

Correctly apply the timeframes and procedures to be followed based on the type of criminal record (active record or archive record) and the nature of the crime.

It ensures the monitoring of preconditions or long-term processes, such as the restoration of prohibited rights, and prevents loss of rights.

In light of judicial decisions and legislation, it develops preventive strategies for applications with a risk of rejection.

Therefore, obtaining professional support from an experienced lawyer in Tuzla during the process of deleting a criminal record or completely removing it from the archive ensures the correct execution of the process and minimizes possible legal risks.