Has the Non-Prosecution Decision Become Final? How to Reopen the Investigation With New Evidence

When your criminal complaint concludes with a "decision that no prosecution is warranted" (commonly known as a non-prosecution decision, takipsizlik kararı) and that decision becomes final, it may appear that the matter is completely closed. However, if you possess new evidence that was not previously submitted to or considered by the public prosecutor's office, the law may afford you a second chance. In this article, we examine how an investigation can be reopened with new evidence after a final non-prosecution decision, the procedure to be followed, and the Court of Cassation's approach on this issue.

Summary of the Situation

An example frequently encountered in practice is as follows: a person files a complaint on the ground that their residence was entered without their consent, but the prosecutor's office issues a non-prosecution decision on the ground that there is insufficient evidence, and this decision becomes final. Later, the victim obtains a written document that was drawn up at the time of the incident but never entered the investigation file or was never considered by the prosecutor (for example, a signed report showing that the suspect entered the house with the help of a locksmith). At this point, the question that arises is: can the case be reopened with this new document despite the final non-prosecution decision?

The Legal Issue

In Turkish criminal procedure, it is a fundamental principle, for reasons of legal certainty, that final decisions cannot be overturned. However, the legislature has provided a narrow exception in the interest of ensuring justice: the emergence of "new evidence." Two critical questions arise here:

• What type of evidence qualifies as "new evidence"?
• To which authority, and by what procedure, must an application be made to reopen the investigation with this evidence?

Legislative Framework

The relevant provisions of Code of Criminal Procedure No. 5271 (CMK) are as follows:

• CMK Article 172/2: "After a decision that no prosecution is warranted has been rendered, a public prosecution cannot be brought for the same act unless new evidence sufficient to constitute reasonable suspicion for bringing a public prosecution is obtained, and unless a decision to this effect is rendered by the criminal judgeship of peace."
• CMK Article 173/6: Provides that, where an objection is rejected, the second paragraph of Article 172 also applies in order for a public prosecution to be brought for the same act.

What Does the Court of Cassation Say?

How Is the Concept of "New Evidence" Defined?

In its decision numbered E. 2021/265, K. 2023/260, T. 2023, the Grand Chamber of the Court of Cassation for Criminal Matters (Yargıtay Ceza Genel Kurulu) defined new evidence as "evidence that existed before the non-prosecution decision and could not be obtained, or that is present in the file but was not seen or evaluated by the public prosecutor." In other words, it is not required that the evidence be physically "newly emerged"; a document that the prosecutor never saw or evaluated may also fall within this scope.

The Procedure to Be Followed: First the Prosecutor's Office, Then the Judgeship

A frequent error in practice is applying directly to the criminal judgeship of peace with the new evidence. However, under the decision of the Court of Cassation, 11th Criminal Chamber, numbered E. 2023/5540, K. 2024/11183, T. 2024, when new evidence is claimed, an assessment by the public prosecutor must first be made. From the standpoint of procedural economy as well, the correct path is to first submit the request to the office of the chief public prosecutor conducting the investigation.

The process operates as follows:

1. Application to the Office of the Chief Public Prosecutor: A written application is made to the office of the chief public prosecutor claiming that new evidence has been obtained.
2. Assessment by the Prosecutor's Office: If the public prosecutor accepts that the evidence submitted qualifies as new evidence and constitutes sufficient suspicion for bringing a public prosecution, the prosecutor must request a decision to this effect from the criminal judgeship of peace in order to continue the investigation (Court of Cassation, 11th Criminal Chamber, E. 2024/2140, K. 2025/1957, T. 2025).
3. Approval by the Judgeship: Even if the prosecutor's office finds the new evidence sufficient, it cannot reopen the file on its own; a decision from the criminal judgeship of peace must necessarily be obtained.

Reversal in the Interest of the Law Is Not an Alternative

According to the decision of the Grand Chamber of the Court of Cassation for Criminal Matters numbered E. 2021/263, K. 2023/302, T. 2023, the remedy of "reversal in the interest of the law" (kanun yararına bozma) cannot be pursued for evidence that did not exist at the time the decision was rendered or that was not submitted to the knowledge of the prosecutor's office and later emerged. In this situation, the only legal remedy available is the new evidence procedure to be applied under CMK Article 172/2.

The Sufficient Suspicion Criterion

In its decision numbered E. 2018/6753, K. 2018/15604, T. 2018, the Court of Cassation, 2nd Criminal Chamber, emphasized that concrete and convincing new information may constitute "sufficient suspicion" requiring that a public prosecution be brought. This assessment is made according to the specific circumstances of each case.

Points to Watch

• Properly assess the nature of the evidence. It is not enough for the evidence merely to be "new"; the evidence must be strong enough to constitute sufficient suspicion warranting a public prosecution.
• Include testimonial evidence in the process as well. Requesting that the statement of the person who prepared a document (for example, a witness) be taken can strengthen the documentary evidence and increase the intensity of the suspicion.
• Show that the evidence was lawfully obtained. If the evidence was obtained through unlawful interference with a third party's private sphere or through coercion, the "exclusionary rule for unlawfully obtained evidence" may come into play and undermine the value of the evidence.
• Check the statute of limitations. When submitting new evidence, it is essential that the statute of limitations for prosecuting the alleged offense has not expired.
• Be alert to contradictory statements. A later, different statement by the person who prepared the document can weaken the document's probative value; therefore, careful preparation before starting the process is of strategic importance.

Conclusion: What Should You Do?

A final non-prosecution decision is not, as is often assumed, an absolute end. If you possess strong evidence that was not evaluated during the investigation stage, or that never entered the file at all, you may request that the investigation be reopened pursuant to CMK Articles 172/2 and 173/6. However, this process must begin not with an application directly to the court, but with an application first to the relevant office of the chief public prosecutor; if the prosecutor deems it appropriate, the file will then be sent to the criminal judgeship of peace with a request for permission to bring a public prosecution.

Such applications are processes prone to technical and procedural errors; an application made to the wrong authority can result in a loss of time. Obtaining support from a criminal defense attorney to properly assess the legal nature of the evidence in your possession and to properly structure the application is important for the process to proceed soundly.