Decision of no prosecution (decision of non-prosecution)

As it is known, the authority to file a public lawsuit is given only to the public prosecutor. For this reason, as regulated in Article 160 of the Criminal Procedure Code, "As soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed, through denunciation or any other means, he immediately begins to investigate the facts of the matter in order to decide whether there is a need to file a public lawsuit."

The public prosecutor is obliged to collect and preserve evidence in favor of and against the suspect, and to protect the rights of the suspect, through the judicial law enforcement officers under his command, in order to investigate the material truth and conduct a fair trial."

As a result of this investigation, the public prosecutor who obtains sufficient suspicion that the crime has been committed must file a public lawsuit. Because the principle of the obligation to file a public lawsuit has been adopted in our criminal procedure law. (There are exceptions.) In the article of the law we shared above, the situation where the prosecutor learns of a situation that gives the impression that a crime has been committed is considered simple suspicion. The existence of simple suspicion is sufficient for the investigation to begin. In addition, in order to open a public case, which is under the monopoly of the prosecutor, the public prosecutor must immediately start investigations, collect evidence, and the collected evidence must reach a sufficient level of suspicion that the crime has been committed. Sufficient doubt refers to suspicion that is more than simple doubt but less than certain doubt. So here it is necessary to conclude that doubt does not reach certainty but requires judgment. Because one of the most basic principles of Criminal Law is the principle of "the defendant benefits from doubt". If sufficient suspicion is not eliminated as a result of the trial, a decision of acquittal is given for the defendant. However, during the investigation phase, it is not possible for the public prosecutor to avoid filing a lawsuit against the defendant by applying the principle that the defendant gets the benefit of doubt, despite sufficient suspicion. If there is sufficient suspicion, the investigating prosecutor prepares an indictment and sends it to the competent court.

If sufficient suspicion cannot be obtained, Article 172 of the CMK will be applied this time. According to the relevant article; "At the end of the investigation phase, the public prosecutor decides that there is no need for prosecution if there is no evidence that will create sufficient suspicion for the opening of a public case or if there is no possibility of prosecution."

As can be seen, in cases where the suspicion has not reached a sufficient level, the prosecutor is obliged to make a decision of no prosecution (KYOK), also known as a decision of non-prosecution. It should be emphasized that the public prosecutor has no discretion here. Situations in which the public prosecutor is granted exceptional discretion are regulated in Article 171 of the CMK. Here, in the presence of conditions that require the application of effective remorse provisions as a personal reason that lifts the penalty or a personal impunity reason and in cases where the conditions for the postponement of the opening of a public case are met, the public prosecutor may use his discretion. You can find our evaluations on the subject in our article titled "Postponement of the Opening of a Public Case".

KYOK decision is a type of decision that can be given not only in cases where sufficient suspicion cannot be reached, but also in cases where there is no possibility of prosecution. Situations where there is no possibility of prosecution should be considered as a lack of litigation conditions. Details of the subject will be discussed below.

1- DECISION OF NO PROSECUTION DUE TO NOT OBTAINING SUFFICIENT EVIDENCE TO CREATE SUSPICION – EFFECTIVE INVESTIGATION

As we stated above, the first situation in which a KYOK decision can be made is the situation where there is not enough suspicion despite the investigations carried out by the public prosecutor. As it is known, the investigation begins with suspicion of a crime and this suspicion is called "simple suspicion". After this stage, the public prosecutor will immediately begin to investigate the truth of the matter. The public prosecutor makes use of the law enforcement officers under his command while conducting investigations. In cases where, as a result of the investigation, the possibility of the suspect being convicted is higher than the possibility of being acquitted - which is called sufficient suspicion - an indictment is prepared by the prosecutor.

The public prosecutor who receives news of the crime must conduct an investigation. KYOK's decision given without any investigation will not be a lawful decision. In a Supreme Court decision on the subject, the following provision was made:

"Although it was decided that there was no need for prosecution on the grounds that the IP address and the suspect could not be determined since the USA did not respond to the letters rogatory requests regarding insult crimes, this decision was made without any investigation within the scope of the investigation file. The cases of not being able to prosecute in Article 172/1 of the Criminal Code do not exist in the concrete case, therefore, after all the necessary investigation procedures are carried out to identify the suspect, if the suspect is detected, an indictment is issued, and if the suspect cannot be identified, "It was understood that a permanent search warrant should be obtained and the investigation should be continued within the statute of limitations, and it was deemed unlawful for the authority to reject the objection instead of deciding to accept it." Y4. CD. 2021/4361 K.

According to the following decision of the Supreme Court, a decision of non-prosecution cannot be given if the suspect's statement is not taken:

"There is no evaluation regarding the suspect in the expert report, which is within the scope of the file and which is used as the basis for the decision that there is no need for prosecution, and within the scope of the investigation, the legal status of the suspect should be determined and evaluated after obtaining a new expert report regarding the fault status of the suspect by first taking his statement and determining whether he has the title of employer representative or not, if it is understood that he is not an employer representative, adding all information and documents regarding this issue to the file and providing a new expert report regarding the suspect's fault status, based on incomplete investigation. Since it was understood that the Gaziosmanpaşa Chief Public Prosecutor's Office decided that there was no need for prosecution, the decision to reject the objection against the said decision instead of finalizing it after the examination was carried out as stated was not correct." Y12. CD. 2021/7364 K.

In cases where the suspect cannot be identified, the investigation continues during the statute of limitations.

Obligation of Effective Investigation

ECHR Convention, ECHR jurisprudence and other international agreements to which Türkiye is a party impose an obligation on the prosecutor to conduct an effective investigation. Finally, in 2013, this issue was added to the CMK. 172/3 of the CMK. According to the article; If it is determined by the final decision of the European Court of Human Rights that the decision not to prosecute was made without an effective investigation, "or if the application made to the European Court of Human Rights against this decision is given a decision to dismiss as a result of a friendly solution or a unilateral declaration", a new investigation is opened if requested within three months after the decision becomes final. According to ECHR jurisprudence, the following conditions are required for the existence of an effective investigation:

1. The investigation must be independent
2. The investigation must be impartial.
3. The investigation must be open to public scrutiny.
4. Competent authorities must work carefully and quickly in the investigation.
5. The investigation must be capable of identifying those who committed the violation.

ECHR Convention, ECHR jurisprudence and other international agreements to which Türkiye is a party impose an obligation on the prosecutor to conduct an effective investigation. Finally, this issue was added to the CMK. 172/3 of the CMK, whose scope was further expanded with the legislative amendment made in 2019. According to the article; If it is determined by the final decision of the European Court of Human Rights or the Constitutional Court that the decision not to prosecute has been made without an effective investigation, or if the application to the ECHR is given a decision to dismiss the application as a result of a friendly solution or a unilateral declaration, a new investigation will be opened if requested within three months from the finalization of the decision.

There are many decisions given by the Supreme Court regarding the obligation of effective investigation. The importance of effective investigation was emphasized in the following decision:

"In the file examined; in the investigation initiated upon the complaint of the complainant, conducting an investigation into the social media account in question, ensuring that the identity information of the suspects are determined by law enforcement, taking their defense in case of detection, continuing the investigation by constantly searching for the investigation documents if it cannot be determined who committed the crime, deciding that there is no need for prosecution without an effective investigation when necessary, and deciding to reject the objection to this decision instead of accepting it, is contrary to the law. "It was necessary to decide to accept the request for annulment for the benefit of the court." Y4CD. 2021/6603 K.

2- DECISION OF NON-PROCEEDING DUE TO THE LACK OF THE OPPORTUNITY OF PROSECUTION

What should be understood from the lack of possibility of prosecution is that there is a deficiency in the conditions of the case or the existence of reasons for dismissal. These situations are generally as follows:

• Missing the complaint period or abandoning the complaint in crimes subject to complaint
• Expiration of the statute of limitations for litigation
• Failure to fulfill the requirement for permission to investigate or prosecute
• No demand condition
• The suspect's young age (age group without criminal liability)
• Presence of a lawsuit filed against the same person and the same act (Prohibition of duplicate lawsuits / Non bis in idem)
• Previous final judgment regarding the same act
• Fulfillment of prepayment in crimes subject to prepayment
• Achieving reconciliation between the parties in crimes subject to mediation
• Declaration of general amnesty or death of the suspect

In cases where the above conditions are met (or the case conditions are missing), a KYOK decision is given by the prosecutor's office. In addition, a decision of non-prosecution is given in cases such as diplomatic immunity."

OBJECTION TO THE DECISION OF NO PROSECUTION (NO PROSECUTION)

The decision on non-prosecution is open to objection. 172/1 of the CMK. According to the article; At the end of the investigation phase, the public prosecutor decides that there is no need for prosecution if there is no evidence sufficient to create suspicion for the opening of a public case or if there is no possibility of prosecution. This decision is notified to the victim of the crime and the suspect whose statement has been taken or interrogated beforehand. The right to appeal, its duration and authority are indicated in the decision.

It is regulated that the decision will be notified to the injured party and the suspect. The right to object to the decision belongs to the person harmed by the crime. If more than one person is harmed by the crime, each of them has the right to object separately.

The objection period is 15 days. This period starts from the notification of the decision.

The appeal authority is the criminal judgeship of peace in the location of the high criminal court in which the public prosecutor who made this decision works.

In the objection petition, events and evidence that may require the filing of a public lawsuit are stated.

Objection review is carried out on the file without a hearing.

RESULTS OF THE OBJECTION TO THE DECISION OF NON-PROCEEDING

The consequences of objecting to the decision are regulated in Article 173 of the CMK. Accordingly:

If the criminal judgeship of peace deems it necessary to expand the investigation in order to make its decision, it may request the Chief Public Prosecutor's Office of that place by clearly stating this issue; If there are not sufficient reasons for filing a public lawsuit, it rejects the request with justification; sentences the appellant to costs and sends the file to the public prosecutor. The public prosecutor notifies the decision to the objector and the suspect.

If the criminal judgeship of peace finds the request appropriate, the public prosecutor prepares an indictment and submits it to the court.

FINALIFICATION OF THE DECISION OF NON-PROCEEDING

The decision of non-prosecution becomes final if no objection is made to the decision within the specified period or if the objection is rejected. There is no other ordinary legal remedy against the rejection of the objection.

After the objection is accepted, the prosecutor must prepare an indictment. No legal remedy is provided against this decision.

It should not be forgotten that if the conditions are met, an overturn may be made for the sake of the law.

Once the decision of non-prosecution is finalized, the person injured by the crime can make an individual application to the Constitutional Court.

If this application is also rejected, the right to apply to the ECHR arises.

CAN A RE-INVESTIGATION BE OPENED AFTER THE DECISION OF NON-PROCEEDING IS FINALIZED? - DEFINITIVE JUDGMENT EFFECT

There are different opinions about whether the decision not to prosecute constitutes a final judgment in nature. According to one opinion, "KYOK decision is a judicial-administrative action. On the other hand, it should be said that the decision in question is not an ordinary administrative action in terms of its aspect that concerns human rights. Since the decision that there is no need for prosecution does not constitute a final judgment, the case terminated by the KYOK decision can be reconsidered and investigated when necessary." (Özbek, Doğan, Bacaksız Criminal Procedure Law Seçkin Publications 13th Edition p.520)

According to another view, "The Code of Criminal Procedure has given the effect of final judgment to the decision made by the public prosecutor stating that there is no need for prosecution. Especially according to the regulation changed by the Law No. 2018-7072, after the KYOK decision is made, unless new evidence that will create sufficient suspicion for the opening of a public case is obtained and a decision is made by the criminal judgeship of peace on this matter, a public case cannot be filed for the same act (CMK 172/2) By emphasizing, the effect of final judgment has been demonstrated." (Yenisey, Nuhoğlu Criminal Procedure Law Seçkin Publications 9th Edition p.704)

The Supreme Court is of the opinion that the KYOK decision has no final judgment effect. (The decision is shared below under the concept of new evidence.)

No matter which opinion is accepted, a new investigation can be opened and prosecution can be carried out if the conditions set out in the law are met. Because the legislator has accepted the possibility of re-opening an investigation on a limited basis in the presence of certain circumstances. Therefore, a re-investigation will only be possible in the following cases:

1. After the decision that there is no need for prosecution, a public lawsuit cannot be filed for the same act unless new evidence that will create sufficient suspicion for the filing of a public lawsuit is obtained and a decision is made by the criminal judgeship of peace in this regard. (CMK 172/2)
2. As we stated above, a new investigation is opened in cases where the application is accepted in the interest of law.
3. Finally, it should be noted that; If it is determined by the final decision of the European Court of Human Rights or the Constitutional Court that the decision not to prosecute was made without an effective investigation, or if a decision to dismiss is made as a result of a friendly solution / unilateral declaration in the ECHR process, a new investigation will be opened if requested within three months from the finalization of the decision.

What is New Evidence to Create Sufficient Suspicion?

"As for what should be understood from the concept of "new evidence" in Article 172/2 of the Criminal Procedure Code; evidence that existed before the decision not to prosecute, but could not be seized, was in the file but was not seen and evaluated by the public prosecutor, is new evidence. In order for a new investigation to be initiated, the evidence must be new, as well as being sufficient to create sufficient suspicion for the opening of a public case. A decision is made that there is no need for prosecution, and an objection or objection is made. In case it is finalized without any legal action, it is not enough for the public prosecutor to take up the same case again and file a lawsuit, and it is not enough to have new evidence that will create sufficient suspicion to open a public lawsuit, and the criminal judgeship of peace must decide to open a public lawsuit.

In order to prevent the decision stating that there is no need for prosecution from posing a threat during the statute of limitations, the legislator introduced the requirement of new evidence to initiate a new investigation against the same person for the same act, and although it does not give the status of a "final judgment" to the decisions stating that there is no need for prosecution, it has regulated it as a "situation that creates the preventive effect of a final judgment" by creating a legal safe area for individuals. In this way, an important judicial guarantee was brought to the suspect due to its human rights-related aspect, and the decision stating that there was no need for prosecution became a decision that produced results similar to the preventive effect of the final judgment. Thus, with the legal guarantee given to individuals, the concern that the investigation phase can be resumed has been eliminated. As a matter of fact, the Supreme Court practices have also gained stability in this direction. There is no difference in terms of preventive effect between the decision of no prosecution, which is given by the public prosecutor and becomes final without being reviewed, and the decision of no prosecution, which becomes final after the objection is rejected by the authority." Y4. CD. 2018/21804K.

WHAT IS THE ADDITIONAL DECISION OF NON-PROCEEDING?

Additional decision not to prosecute comes to the agenda in cases where there are more than one criminal charge against the same suspect. As we tried to explain above, the prosecutor's office conducts the necessary investigations after the news of the crime and issues an indictment for that crime when it reaches sufficient suspicion.

In cases where there are more than one criminal charge against the same person, it may not be possible to obtain sufficient evidence to create suspicion for some crimes. Then, an additional KYOK decision is given for the suspect in terms of that crime.

The dissenting vote of the Supreme Court Criminal General Assembly's decision numbered 2015/241 contains very useful explanations in terms of understanding the entire issue. The Supreme Court has jurisprudence that an additional KYOK decision can be given. However, the evaluations in the dissenting article we shared are quite valid in legal terms in opposing this practice. For this reason, we deem it appropriate to share the relevant parts of the decision as they are. According to the decision:

"Decisions not to prosecute are administrative decisions and can be withdrawn at any time, except in the case of Article 173/6 of the CMK. Decisions that are approved and finalized by a court/judge decision within the scope of Article 173/6 of the CMK have a judicial nature. After decisions that become final in this way, the investigation cannot continue without obtaining new evidence and obtaining the consent of the court/judge who approved the previous decision. However, it should not be forgotten This situation is valid for the decisions of no prosecution made based on the reasons listed as limiting within the scope of Article 172 of the CMK, which terminates the investigation. The aim is not to keep the suspect under constant threat of prosecution in accordance with the principle of 'the same act is tried once'. There is no regulation in the CMK about how to act in case the act subject to investigation is divided into two and an indictment is issued for the other. Since it has to resolve the dispute, the principle of 'legality' is not applied in the law of trial except for exceptional and restrictive provisions, and the problem is solved by using all kinds of interpretation tools, including analogy. The aim of the criminal trial, which has left behind the phases of 'punishing the criminal' and 'protecting the defendant' as of the historical process, is 'revealing the material truth'. For this reason, there is no such type of interpretation as 'interpretation in favor of the defendant', which is understood to remain from the phase of protecting the defendant.In this respect, the current problem should be solved in the light of stabilized practices, especially regarding Article 44 of the Turkish Penal Code and Articles 225 and 226 of the CMK. It is not legally possible to divide the act that is the subject of the investigation into two, to decide that there is no need for prosecution on one aspect and to issue an indictment on the other. However, in such a case, the action taken and continued regarding the origin of the act should be given priority. Because it is clear that the will of the institution issuing the transaction is in this direction."