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The Public Prosecutor's Discretionary Power

November 17, 2025
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1. Introduction: The Discretionary Power of the Public Prosecutor and the Role of the KYOK (Criminal Procedure Code) in Criminal Procedure

In criminal proceedings, the investigation phase begins with the discovery of suspicion of a crime and ends with the initiation of a public prosecution or the decision to dismiss the case. At the center of this phase the public prosecutor . The prosecutor is responsible for gathering evidence both for and against the accused, taking the necessary steps to ascertain the material truth, and ultimately deciding whether or not to initiate a public prosecution .

The prosecutor's authority at this point of selection is called "discretionary power." However, this power is not unlimited; the Code of Criminal Procedure, the Constitution, and human rights standards . The prosecutor cannot act arbitrarily; every decision must be based on concrete evidence and the contents of the case file.

In this context:

  • A decision of no grounds for prosecution (KYOK)is the most typical outcome of a prosecutor's discretion to not initiate public prosecution.

  • against this decision pursuant to Article 173 of the Code of Criminal Procedure .

  • Furthermore, the decision-making and investigation process is evaluated in light of judicial review , individual applications to the Constitutional Court, and the case law of the European Court of Human Rights

especially for those searching using keywords such as "discretionary power of the public prosecutor in investigations," "appeal against a decision of no grounds for prosecution," and "period for a decision of no groundsfor prosecution."

2. The Position and Role of the Public Prosecutor in Criminal Investigations

2.1. Purpose of the Investigation and the Role of the Prosecutor

According to the Code of Criminal Procedure, the primary purpose of an investigation is to ascertain the material truth and determine whether a crime has been committed, who the perpetrator is if so, and whether sufficient suspicion exists. To this end, the prosecutor:

  • It evaluates reports and complaints,

  • He gives instructions to law enforcement,

  • It gathers evidence and takes protective measures

  • If necessary, they take the suspect's statement and listen to witnesses

  • At the end of the process, the court either prepares an indictment or decides that there are no grounds for prosecution.

Here, the prosecutor's discretion in the investigationbecomes clear in terms of which evidence to collect and when, which protective measures to apply, which aspects to investigate, and ultimately whether or not to initiate a public prosecution.

2.2. The Delicate Balance Between the Principle of Legality and Discretionary Power

The fundamental principle in criminal law is the principle of legality. As a rule, the prosecutor is obligated to conduct an investigation as soon as they learn of a suspicion of a crime and to initiate public prosecution when sufficient suspicion is established. At this point:

  • The prosecutor's discretion is not a free-flowing judgment of the "I'll decide whether to file charges or not, if I feel like it" type

  • On the contrary, it is a limited discretion exercised according to the specifics of the case, the evidence, and the legal requirements

  • The prosecutor may decide not to initiate public prosecution by evaluating factors such as whether the elements of the crime have been met, the existence of grounds for legal justification, the statute of limitations, the requirement for a complaint, and the nature of effective repentance.

This structure must be carefully implemented to prevent the criminal justice system from being overwhelmed by "unnecessary caseloads" on the one hand, and on the other hand, to avoid creating a " perception of impunity " among victims and society.

3. The Concept of Discretionary Power and Its Legal Limits

3.1. Legal Basis of Discretionary Power

The discretionary power of the public prosecutor essentially from the provisions of the Code of Criminal Procedure, the "freedom to seek justice" and "right to a fair trial" enshrined in the Constitution, and the general principles of criminal law. The prosecutor:

  • It assesses the seriousness and concreteness of the complaint or report ,

  • It weighs whether the evidence in the file creates sufficient suspicion ,

  • It examines whether the legal conditions for initiating a public prosecution have been met .

In this process, the prosecutor's discretion is a power of assessment limited by law.

3.2. Prohibition of Arbitrariness, Principle of Proportionality and Equality

Like all decisions made by the prosecutor during the investigation phase, the decision not to prosecute is also:

  • the prohibition of arbitrariness: The prosecutor cannot act according to personal opinion, political views, or social pressures.

  • with the principle of proportionality : the depth of the investigation, the measures taken, and the final decision must be proportionate to the gravity of the incident and the evidence presented.

  • The principle of equality must be observed: Issuing completely opposite decisions in similar cases is incompatible with the principles of predictability and legal certainty.

The prosecutor's discretionary power is considered , precisely within the framework of these principles, an administrative/judicial activity open to judicial review

4. Decision of No Grounds for Prosecution (DGPC)

4.1. Legal Nature of KYOK and its Impact on the Investigation

A decision of no grounds for prosecutionby the prosecutor when they conclude, after conducting an investigation, that there is insufficient suspicion or a legal impediment to initiating a public prosecution . This decision:

  • This is a decision that concludes the investigation phase .

  • As a rule, it does not constitute a "final judgment"; under certain circumstances, it is possible to reopen the investigation with new evidence.

  • For the victim or person harmed by the crime, this can lead to a perception of serious loss of rights, as it means "no lawsuit will be filed"

Therefore, both the appeals process against the KYOK decision and the subsequent judicial review mechanisms are of great importance.

4.2. Main Circumstances Requiring the Issuance of a KYOK (Knowledge, Quality, and Environment)

The prosecutor may decide not to prosecute at the end of the investigation if the following conditions exist:

  1. The elements of the crime are not present

    • The fact that the act is not defined as a crime in the law,

    • The absence of the material or moral element of the crime,

    • Lack of credibility, etc.

  2. Existence of grounds for legality

    • Self-defense,

    • The exercise of the right,

    • With the consent of the person concerned,

    • Like enforcing the law.

  3. Reasons that eliminate criminal liability

    • Young age,

    • Mental illness,

    • Temporary causes (temporary loss of consciousness, etc.),

    • Situations that eliminate or reduce the defect.

  4. Absence of complaint or withdrawal of complaint

    • In cases where prosecution depends on a complaint, failure to file the complaint within the prescribed time limit,

    • Lack of a valid complaint,

    • Proper withdrawal of complaint.

  5. Statute of limitations or general obstacles to criminal prosecution

    • The statute of limitations for the case has expired

    • General amnesty for the defendant,

    • The same act must have been definitively decided before (non bis in idem),

    • Like diplomatic immunity.

  6. Lack of sufficient suspicion

    • The evidence has not reached a "sufficient" level to prove that a crime was committed and that the suspect committed the crime

    • The existing evidence remains abstract and general,

    • The evidence is contradictory and ambiguous.

The last point, in particular, is where the prosecutor's discretionary power is used most intensely. The line between "sufficient suspicion" and "strong suspicion" forms a fine line between the Court of Cassation and the indictment.

4.3. Dismissal of Case Due to Insufficient Evidence and Discretionary Power

In practice, a significant portion of KYOK (Court of Cassation) decisions "insufficient evidence ." Prosecutor:

  • We conducted the necessary research during the investigation period,

  • Having exhausted all reasonable sources of evidence,

  • However, not have reached sufficient suspicion to initiate public prosecution .

In this situation, the prosecutor may consider that not initiating public prosecution is necessary both for the rights of the accused and the right to a fair trial . Because a case opened with insufficient evidence..

  • It subjects the defendant to unnecessarily prolonged trial pressure

  • It increases the workload of the courts

  • This can lead to cases that result in acquittal, but where the "image of the guilty party persists" in society.

Conversely, the victim perceives the case as being closed . At this point, the appeal against the decision of the Supreme Court of Appeals and judicial review act as a safety valve against the prosecutor's discretionary power.

4.4. Form, Rationale and Notification of the KYOK Decision

Decision that there is no ground for prosecution;

  • File number,

  • The suspect's identity,

  • The act in question and its legal classification,

  • Summary evaluation of the evidence,

  • The reasoning behind the decision is as follows:

  • Appeal procedure, time limit and authority

It should include the following elements.

Furthermore, the decision is served to the victim, the complainant, and their legal representative, if any . This notification is critically important for the commencement of the appeal period against the KYOK ( Criminal Procedure Code). Incomplete or absent notification of the appeal process is a frequent subject of debate in practice.

5. The Limits and Abuse of Prosecutor's Discretionary Power

5.1. Prosecutor's Discretion Regarding Victim Rights

The prosecutor's discretion to "not file charges" is a sensitive issue, especially from the perspective of the victim and those harmed by the crime. The victim:

  • Justice has not been served,

  • The perpetrator went unpunished

  • The state does not protect itself

He might get carried away by that feeling. Therefore, the prosecutor's decision is KYOK (Know Your Own Court):

  • a clear, detailed, and convincing justification .

  • What evidence was collected in the case and how was it evaluated?

  • It must be clearly explained why there is insufficient suspicion to initiate public prosecution.

5.2. Discretionary Measures in Favor of and Against the Offender: The Necessity of Balance

The prosecutor must protect the rights of both the victim and the suspect during the investigation process. In this context:

  • The suspect's right to not be stigmatized

  • Presumption of innocence,

  • The right to a fair trial

This should be taken into consideration. Filing a lawsuit with insufficient evidence can turn into persecution for the suspect. Conversely, issuing a decision of no further action when there is clear and strong evidence reinforces the perception of impunity for both the victim and society

Therefore, the prosecutor's discretion precisely in the middle of a scale that contains serious human rights violations at both ends .

5.3. Problems Encountered in Practice

In practice, the following problems stand out regarding prosecutorial discretion and KYOK (High Court of Appeals) decisions:

  • Routine and шаблон (template) justifications for dismissals of cases: One-sentence justifications such as "insufficient evidence could not be obtained" make judicial review difficult.

  • Incomplete investigation: In some cases, it is observed that a decision of no further action is made before all opportunities for gathering evidence have been exhausted.

  • Political, social, or media pressure: It is alleged that in some sensitive cases, prosecutors can be either overly hesitant or overly aggressive.

  • Failure to inform the victim: Failure to properly notify the victim of the decision may effectively prevent the victim from exercising their right to appeal the KYOK (Criminal Procedure Code).

Therefore, it is vitally important for legal certainty that the KYOK decision be subject to judicial review both within the framework of Article 173 of the Code of Criminal Procedure and in light of higher norms

6. Appealing Against a Decision of No Grounds for Prosecution

6.1. Who can appeal the KYOK decision?

Article 173 of the Code of Criminal Procedure, the persons who can appeal against the KYOK decision are generally:

  • Victims of crime,

  • Complainant,

  • The legal representatives of these individuals ,

  • Their representatives (lawyers)

These can be considered as such. What is important here is that the person objecting has a legally protected interest within the scope of the case. In practice, the concept of "victim of the crime" is interpreted broadly.

6.2. KYOK Appeal Period, Authority and Procedure

The appeal period against a KYOK (Court of Cassation) decision is, as a rule, 15 days. This period begins from the date the decision is served to the victim or the complainant . Within this period:

  • An appeal letter is prepared addressed to the competent authority.

  • This petition is submitted to the Public Prosecutor's Office; the prosecutor may write their opinion against the grounds for objection

  • The file is sent to the appeals authority.

The appellate court is the high criminal court or the district criminal court authorized to conduct the prosecution during the investigation phase, (in practice, the high criminal court of the location where they are located is usually the appellate court).

6.3. The Appeals Authority's Review Powers

Appeals court:

  • the file through the documents ,

  • He may request further investigation if he deems it necessary

  • The prosecutor evaluates the KYOK decision in terms of its legality

Court:

  1. If KYOK finds the decision to be correct:

    • He rejects the appeal .

    • This refusal decision is, as a rule, final.

  2. If KYOK does not find the decision justified:

    • The court revokes the decision and instructs the public prosecutor to prepare an indictment , or

    • They may request that the incomplete investigation be completed.

It is generally accepted that the prosecutor is obliged to comply with the court's instructions regarding the preparation of the indictment. This is one of the clearest points where the prosecutor's discretion is limited by judicial review

6.4. Consequences of Accepting or Rejecting the Appeal

  • If the appeal is accepted:

    • The court handling the case overturns the KYOK decision.

    • The public prosecutor prepares an indictment and a public trial is initiated.

    • From this point on, the process continues according to the rules of the classic prosecution phase.

  • If the appeal is rejected:

    • The KYOK decision would be considered legally valid at that stage

    • However, this does not mean that investigations can never be opened for the same offense.

6.5. Second KYOK, New Evidence and Possibility of Re-investigation

Following the KYOK decision:

  • If new evidence emerges,

  • If significant evidence is obtained that was previously unknown or unassessable and could reveal the crime and the perpetrator ,

for the prosecutor to reopen the investigation . In that case:

  • Despite a previous decision by the Council of Judges and Prosecutors (KYOK), the case may be reopened

  • If necessary, a public prosecution can be initiated with a new indictment.

However, in practice , the continuous cycle of reopening the investigation into the same incident is incompatible with the principle of legal certainty. Therefore, the prosecutor must carefully weigh whether the new evidence is truly “ significant and decisive .”

7. Judicial Review of the Decision of No Grounds for Prosecution

7.1. Internal Audit Mechanism within the Framework of Article 173 of the Code of Criminal Procedure

The first and fundamental control mechanism for a KYOK (Criminal Procedure Code) decision is the appeal process outlined in Article 173 of the Code of Criminal Procedure, which has been examined in detail above. This process is, in fact , a non-hierarchical judicial control mechanism within the criminal justice system .

  • by the prosecutor's office not to file charges ,

  • It is reviewed by an independent and impartial criminal court

  • Whether the prosecutor's discretionary power was used lawfully will be evaluated.

In this respect, the KYOK objection to conduct an effective investigation is fulfilled.

7.2. The Aspect of Individual Applications to the Constitutional Court

The Constitutional Court, within the scope of individual applications:

  • Particularly in cases of alleged violations of fundamental rights such as the right to life, the prohibition of torture, the prohibition of ill-treatment, and the liberty and security of person ,

  • It strictly monitors the state's " obligation to conduct effective investigations "

In this context:

  • The prosecutor's failure to conduct an investigation,

  • KYOK's decision based on insufficient investigation,

  • The rejection of the KYOK appeal was a mere formality

The Constitutional Court a violation of rights ; in its decisions, it examines the shortcomings and effectiveness of the investigation using concrete criteria.

Such a violation decision:

  • The applicant for non-pecuniary damages .

  • This could lead to the investigation being reopened or its shortcomings being addressed.

7.3. ECHR Case Law and the Obligation to Conduct Effective Investigations

The European Court of Human Rights (ECtHR), in particular:

  • The right to life (ECHR Article 2),

  • Prohibition of torture and ill-treatment (ECHR Article 3),

  • Protection of private and family life (ECHR Article 8)

In applications related to this, it emphasizes the state's obligation to conduct an effective investigation . The investigation:

  • Independent,

  • Unbiased,

  • It was carried out at a reasonable pace,

  • It is stated that it must be conducive to achieving results.

The prosecutor's decision to dismiss the case prematurely and with insufficient reasoningmay give rise to international liability to the extent that it is incompatible with this obligation. Therefore, the "discretionary power of the public prosecutor in the investigation" is limited not only by domestic law but also by international human rights standards .

8. The Relationship Between Prosecutor's Discretion, KYOK (Council of Judges and Prosecutors), and Alternative Institutions

8.1. Postponement of the Commencement of Public Prosecution

The prosecutor may also consider postponing the initiation of public prosecution in certain circumstances. Specifically:

  • The suspect has no prior convictions for intentional crimes

  • The upper limit of the crime should not exceed a certain level,

  • The complainant's damages have been compensated

Under certain conditions, the prosecutor postpone the trial . In this case:

  • No KYOK decision will be made

  • However, an indictment is not immediately issued; if the suspect does not commit a new crime within a specified probation period, the case may be dismissed.

8.2. Relationship with Conciliation, Prepayment, Expedited Proceedings and Simplified Trial Procedures

The prosecutor's discretion in the investigation is also closely linked to the following institutions:

  • Mediation: In cases subject to mediation, the prosecutor has the authority to refer the case to the mediation office, monitor the process, and, if mediation is not achieved, to consider initiating a public prosecution or issuing a dismissal order.

  • Prepayment: In crimes subject to prepayment, whether the suspect accepts or rejects the prepayment offer determines the prosecutor's decision on the case; if payment is made, the outcome will be similar to a verdict of no further action.

  • Expedited trial and simplified trial procedures: The prosecutor proposes these procedures if the conditions are met; if the defendant accepts, the trial is significantly simplified and accelerated.

In all of these institutions, the prosecutor's lawful and balanced exercise of discretionis critically important for the victim, the suspect, and the judicial system as a whole.

9. Conclusion and Evaluation: Practical Recommendations for Lawyers and Victims

The public prosecutor's discretionary power in investigationsis a mechanism at the heart of criminal procedure, capable of producing outcomes favorable to both the accused and the victim, and directly affecting the burden on the judicial system. In this context:

  • A decision of no grounds for prosecution (KYOK)is the concrete manifestation of the prosecutor's discretion not to initiate a public trial.

  • The KYOK decision clear, understandable, and detailed reasoning ; otherwise, it becomes problematic both under domestic law and human rights law.

  • For victims and those harmed by crime the right to appeal against the decisionis a fundamental safeguard against judicial review of the prosecutor's discretion. The appeal period, the competent authority, and the procedure must be correctly implemented.

  • The appellate court's decision defines the limits of the prosecutor's discretion; if necessary, it instructs the prosecutor to prepare an indictment, thus initiating compulsory prosecution

  • The Constitutional Court and the European Court of Human Rights, in their jurisprudence, emphasize the obligation to conduct effective investigations , particularly in cases of serious human rights violations; insufficient investigations and hasty dismissals of cases can be considered human rights violations

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