Decision On Non-Prosecution (Kyok)
WHAT IS A DECISION OF NON-PROSECUTION (KYOK) (CMK ART. 172)
The decision on non-prosecution is issued by the Public Prosecutor if, at the end of the investigation phase, there is no evidence that would constitute sufficient suspicion for the opening of a public case or there is no possibility of prosecution. Prosecution is the court process starting from the acceptance of the indictment. The person against whom a decision of non-prosecution is made ceases to be a suspect and the investigation file opened against him/her is closed. In this case, the investigation phase ends without filing a lawsuit against the person. When a decision on non-prosecution is made, the decision is notified to the person harmed by the crime and the suspect in the investigation file.
WHAT IS A DECISION OF NON-PROSECUTION?
The decision of non-prosecution has the same meaning as the decision of no prosecution. The term non-prosecution was used in the abrogated law, CUMK. For this reason, the decision on non-prosecution is popularly known as “non-prosecution decision”.
IN WHICH CASES IS A DECISION ON NON-PROSECUTION MADE?
The cases where a decision on non-prosecution can be made are explained in Article 172/1 of the CPC. These situations are;
-Failure to obtain evidence that will create sufficient suspicion,
-Lack of possibility of prosecution.
FAILURE TO OBTAIN EVIDENCE TO CREATE SUFFICIENT SUSPICION:
Sufficient suspicion exists when the probability of conviction of the suspect is higher than the probability of acquittal as a result of the available evidence. While the existence of simple suspicion is sufficient in the investigation phase, the existence of sufficient suspicion is required to proceed to the prosecution phase. In this case, only if there is sufficient suspicion that the suspect has committed the offence, the Public Prosecutor can proceed to the prosecution phase by issuing an indictment. However, if there is no evidence to raise sufficient suspicion that the suspect has committed a crime, the prosecutor will issue a decision of non-prosecution (KYOK).
NO POSSIBILITY OF PROSECUTION:
Non-possibility of prosecution means that the conditions for judgement are not met. In this case, even if there is sufficient suspicion that the offence has been committed by the suspect, if the conditions for prosecution do not exist, there will be no possibility of prosecution and a decision of non-prosecution will be made against the person. The cases where there is no possibility of prosecution are as follows;
Absence of Complaint:
In criminal law, the investigation and prosecution of some offences are subject to complaint. If these offences are committed, a complaint is required in order to initiate an investigation and proceed to the prosecution phase. For example, if the suspect commits the offence of insult, the prosecution of which is subject to complaint, if the injured party has waived his/her complaint or has not filed a complaint within the 6-month complaint period, a decision is made that there is no prosecution.
Expiration of the Statute of Limitations:
If a lawsuit is not filed within the statute of limitations from the date of the offence, or if the lawsuit is filed but the case is not terminated within the statute of limitations, the criminal case is dropped. In the investigation phase, if the statute of limitations expires, the prosecutor’s office decides not to prosecute.
The law stipulates a 6-month complaint period for offences whose investigation and prosecution are subject to complaint. In this case, the victim must exercise his/her right to complain within 6 months from the date of learning the act and the perpetrator. For example, when the person who has been harmed by the crime complains after 6 months have passed after the person who has been harmed by the crime learns that the theft crime in Article 141 of the TPC has been committed and the perpetrator, a decision is made that there is no prosecution against the suspect since the complaint period has expired by law.
Minority of Age:
It is stated in the law that children under the age of 12 do not have criminal capacity. In this case, if a child under the age of 12 commits a crime, a decision of non-prosecution will be made since there is no possibility of prosecution.
Pardon of the Offence:
Pardon of the offence comes to the agenda in case of general amnesty and special amnesty. In case of a general amnesty, the ongoing prosecution investigations are concluded with a decision of non-prosecution. In case of a special amnesty, a decision of non-prosecution may be made and a public case may be opened in the presence of certain conditions.
Lack of Criminal Capacity of the Suspect:
Due to the mental illness regulated in Article 32/1 of the TPC, a person who is unable to perceive the legal meaning and consequences of the act he/she has committed or whose ability to direct his/her behaviour in relation to this act has significantly decreased is not punished. In this case, if the person with mental illness commits an offence, the prosecutor’s office decides that there is no prosecution.
You can access our other article examples and petition examples by clicking here.