Criminal Law
It is the branch of law that deals with whether the necessary conditions have been met to determine the existence of a wrongdoing that constitutes a crime and consequently to apply criminal law sanctions against a person for committing this wrongdoing.
Substantive Criminal Law examines the structural elements of crime, the conditions required for criminal liability, and sanctions.
Formal Criminal Law (Criminal procedure law) consists of rules regulating the process of investigation and trial activities aimed at clarifying whether there is actually an act constituting a crime, and if so, by whom and how it was carried out, upon suspicion of a crime being committed, and the rights and powers of those involved in this process.
Criminal Enforcement Law, on the other hand, regulates how the sanctions imposed at the end of criminal proceedings will be enforced.
What is a Criminal Case?
A criminal case is a public lawsuit filed by the prosecutor’s office with an indictment for the trial of a person who is sufficiently suspected of committing a crime. The criminal case is opened after the indictment prepared by the prosecutor’s office is accepted by the court. All criminal cases are public cases. There are two main stages in criminal proceedings: the investigation stage and the prosecution stage.
The stage from learning that a crime has been committed to the court’s decision to accept the indictment is the investigation stage. During this process, the prosecutor investigates the evidence related to the crime and examines whether there is sufficient suspicion to file a public lawsuit. If sufficient suspicion is reached, an indictment is prepared and submitted to the court. With the acceptance of the indictment, the prosecution stage begins. The stage called the prosecution stage lasts from the court’s acceptance of the indictment prepared by the prosecutor’s office until the court’s verdict becomes final. During this process, the criminal case trial is conducted.
What are the Types of Imprisonment?
The types of imprisonment are as follows (TCK 46):
Aggravated life imprisonment, continues for the convict’s lifetime and is served according to the strict security regime specified in the law and regulations issued by the President.
Those sentenced to aggravated life imprisonment can benefit from conditional release if they serve thirty years in the penal institution. The crimes to which aggravated life imprisonment is applied are as follows:
- Qualified intentional homicide,
- Genocide,
- Crimes against humanity,
- Killing by torture,
- Killing by sexual assault,
- Disrupting the unity and integrity of the state,
- Crimes against the constitutional order and its functioning,
- Political or military espionage,
- Disclosing information that should remain confidential,
- Obtaining prohibited information for espionage purposes,
- Disclosing prohibited information for political or military espionage purposes.
Life imprisonment, continues for the convict’s lifetime. Those sentenced to life imprisonment can benefit from conditional release if they serve twenty-four years in the penal institution.
- The basic form of intentional homicide,
- Usurpation of military commands,
- Collaboration with the enemy,
- Spreading false news during wartime,
- Disclosing information that should remain confidential,
- Crimes committed with documents related to state security,
- Benefiting from state secrets and disloyalty in state services,
- Obtaining information related to state security.
Fixed-term imprisonment is the punishment of the convict with a temporary restriction of liberty. Fixed-term imprisonment cannot be less than one month and more than twenty years, unless otherwise stated in the law.
Some alternative sanctions have been determined for fixed-term imprisonment. These alternative measures are as follows;
- a) To judicial fine,
- b) To full compensation of the damage suffered by the victim or the public through restitution, restoration to the pre-crime state, or compensation,
- c) To attend an educational institution, which provides accommodation if necessary, for at least two years in order to acquire a profession or art,
- d) To be prohibited from going to certain places or doing certain activities for a period of half to one time the sentenced penalty,
- e) In case the crime has been committed by abusing the rights and powers provided or by acting contrary to the duty of care and diligence required; to withdraw the relevant license and permit documents, to be prohibited from practicing a certain profession and art for a period of half to one time the sentenced penalty,
- f) To be employed in a job beneficial to the public for a period of half to one time the sentenced penalty and on a voluntary basis.
- Principle of legality in crime and punishment
It is the determination of crime and its corresponding punishment only by law. This fundamental principle is included in Article 2, paragraph 1 of the Turkish Penal Code No. 5237: “No one can be punished and no security measure can be applied for an act that the law does not explicitly consider a crime.” This requires that the definition of crime be clearly and explicitly regulated by law. Crime cannot be defined with vague and ambiguous expressions
Another condition required by the principle of legality is that the law against the accused cannot be retroactive. In other words, no one can be punished for an act that was not a crime at the time it was committed, even if it is later defined as a crime. Another condition brought by the principle of legality is the prohibition of analogy for the perpetrator. In legal science, analogy refers to filling a gap in the law by finding the most similar legal rule. In criminal law, analogy cannot be applied as stated in Article 2, paragraph 3 of the Turkish Penal Code No. 5237: “Analogy cannot be made in the application of provisions containing crimes and penalties in laws.”
- Principle of fault in crime and punishment
Fault in terms of criminal law is the commission of an act knowingly and willingly by a person with the capacity to be held responsible. In other words, for the perpetrator to be punished, they must have committed the act knowingly and willingly. From this principle, the principle that only the perpetrator who personally committed the act can be punished has been derived. This principle is also included in Article 20, paragraph 1 of the Turkish Penal Code No. 5237:
“Criminal responsibility is personal. No one can be held responsible for someone else’s act.”
Elements of Crime
For an act to constitute a punishable crime, certain elements must be present. The basic elements that constitute a crime are the legal element, the material element, the element of illegality, and the moral element.
- Legal element (typicality)
It is the exact match of a committed act to the definition of crime regulated in the penal code. This element is also called typicality. For example, for the crime of theft to occur, the perpetrator must “take a movable property belonging to another from where it is located, without the consent of its possessor, with the intention of providing a benefit to himself or another”. If one of these elements defined in the law is missing, for example, if the possessor of the taken property consents, the legal element of the crime of theft does not occur.
- Material element (action/act)
For a crime to occur, the perpetrator must commit an act. By act, we mean a person changing the external world with their own will to produce a result. For example, reflex movements or movements performed by an epilepsy patient when they lose consciousness do not carry the element of act.
- Element of illegality
If the committed act is in conflict with the legal order, the element of illegality is completed. In principle, an action that fulfills the legal element is illegal. However, criminal law has introduced some exceptions to illegality, determining that some acts that complete the legal element will be lawful, the main ones are:
Reasons Eliminating Criminal Responsibility
Provision of law and order of superior: It is stated that a person who fulfills the provision of law will not be legally punished. It covers the implementation of the law article specified in every text described as law in the Constitution. Therefore, the fulfillment of the provision in the regulation and bylaw is included in this provision.
Legitimate defense: It is the act of defense by a person to repel an unjust attack against themselves or a third person. The unjust attack against themselves or a third person must be ongoing or likely to be repeated in the near future. In addition, the person who will engage in legitimate defense must defend in proportion to the attack. No punishment will be given to a person who acts in accordance with the conditions of legitimate defense.
State of Necessity: It is when a person harms another’s right or another person in order to prevent a danger coming to themselves. The danger the person faces should be severe and certain, and this danger should be directed towards their own right or the right of a third person. The person should not have knowingly caused the danger, and there should be no other way to protect themselves from the danger other than the person’s action. As in legitimate defense, there should be a proportion between the defense and the danger in order to protect from the danger. In practice, the state of necessity is often confused with legitimate defense. However, they are different from each other. In the state of necessity, the incoming danger may originate from a person or from an unavoidable danger such as a natural disaster. For example, a person who climbs onto someone else’s balcony to escape being swept away by a flood will not be punished, benefiting from the state of necessity.
Exercise of right and consent of the interested party: It is stated in the law that a person exercising their right will not be punished. The right must be legally granted to the person, and the person must use it without exceeding the limit of the right given to them. In case of exercising the right, the perpetrator will not be punished.
Temporary Causes, Being Under the Influence of Alcohol and Drugs: If a person is under the influence of alcohol or drugs due to a temporary cause or against their will, they will not be punished. However, the situation that the person describes as a temporary cause should not be a situation that will reduce their ability to will or perceive by their own will. The person must have fallen into the situation they described as a temporary cause against their own will and desire. They are obliged to prove that their ability to perceive has weakened against their own will.
Crimes committed under coercion, violence, intimidation and threat: A person will not be punished for a crime committed under irresistible coercion (physical pressure) or threat (moral pressure). If a person is induced to commit a crime through physical pressure or threat, they will not be punished.
Reasons Reducing Criminal Responsibility
Minority: The criminal responsibility of the perpetrator will be reduced or completely eliminated depending on their age. Children under the age of twelve have no criminal responsibility. No investigation or prosecution will be conducted for children under the age of twelve. However, for children between the ages of twelve and fifteen, it will be asked whether the perpetrator can perceive the legal meaning and consequences of the act. If the child cannot perceive the legal meaning and consequences of the act, they will not have criminal responsibility, but if they can perceive the legal meaning and consequence, they will be criminally responsible, and their punishment will be reduced. For a minor between the ages of twelve and fifteen, instead of aggravated life imprisonment, twelve to fifteen years; instead of life imprisonment, nine to eleven years; in other cases, the sentence will be reduced by half. For those between the ages of fifteen and eighteen, instead of aggravated life imprisonment, eighteen to twenty-four years; instead of life imprisonment, twelve to fifteen years, in other cases, it will be reduced by one-third.
Deafness and Muteness: In the case of deafness and muteness, the age situation will also be considered in the punishment to be given. A parallel regulation has been introduced for the criminal capacity of deaf and mute people in the age range specified in minority. A deaf and mute person who has not completed the age of fifteen will not have criminal responsibility for the crime they have committed. For deaf and mute people between the ages of fifteen and eighteen, the punishment to be given will be reduced to twelve to fifteen years instead of aggravated life imprisonment; nine to eleven years if it requires life imprisonment, and in other cases, the sentence will be reduced by half.
Mental Illness: If a person with a mental illness commits a crime, it will be accepted that they do not have the ability to fault. For the application of the provision regarding mental illness, the person must have the mental illness in question at the date of committing the crime. It is not important if they become mentally ill after the date of the crime. No punishment is given because a person with a mental illness is not in a position to perceive the meaning and consequence of their action. However, if there is not a complete lack of discernment due to mental illness and there is a decrease in will compared to a normal person, the sentence will be reduced.
Unjust Provocation: If the conditions of unjust provocation are present in the crime committed by the person, the sentence to be given will be reduced. Unjust provocation is when a person commits a crime under the influence of anger or severe grief caused by an injustice against them. There must be an unjust action against the person, and the perpetrator must commit the crime under the influence of grief and sorrow due to this unjust action.
Error (Mistake): If a person makes a mistake or is mistaken in the crime they have committed, their criminal responsibility will be reduced or increased. The mistake in the crime committed by the person is divided into two as deviation in target and deviation in person. If the person makes a mistake in the material elements of the crime, does not intend it, the person will not be punished. If the person does not know the qualified element of the crime they committed that requires a heavier or lesser punishment, they will be punished with its simple form, not with its qualified form.
Moral element
The final element that constitutes the crime is the knowing and willing commission of an act that is legally typical and unlawful by a person who has the capacity to be held responsible. This element is also the reflection of one of the universal principles of criminal law, the principle of no crime and punishment without fault, on the elements that constitute the crime. Even if an action carries all the elements mentioned above, if the person does not have intent, the person’s action may not require punishment due to the absence of the moral element. Punishments foreseen for acts committed as a result of negligence are excluded from this.
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