Criminal Law​

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Criminal law, more precisely, although it is only referred to as criminal law in the doctrine, in the full sense of crime and criminal law; It is called the branch of law that is examined under public law, which examines the punishments given and the security measures applied for the rehabilitation of the individuals who commit these crimes by categorizing the crimes existing in the society and determining their elements. Crime and criminal law has been enacted in the Turkish legal system with the Turkish Penal Code No. 5237.

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When we examine the Turkish Criminal Law, it is the law that has been ruled by the law numbered 5237 and started to impose some sanctions in cases where individuals act against the law.Our extreme and criminal law is divided into 2 in general terms. While there are general provisions between Articles 1 and 80 of the law, which is divided into 2 as general provisions and special provisions, special provisions of the crime and penal law are formed as of Article 81. Why did the legislator divide the criminal law into two as general and special provisions? When we look at the reasons why it is divided into 2, we can see that the legislator, by making a logical move, provides convenience both to the judges and prosecutors who will apply the law and to the lawyers who will defend their representatives.

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Acting on the basis of the crime, the legislator examines the principles and provisions that can be applied to all existing crimes under the heading of general provisions, by addressing crimes that consist of different elements separately, specifying their elements, and under which conditions, how many years of imprisonment or judicial fine, or which security It has examined and ruled that the measure will be applied separately for each crime under special provisions.

 

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What is Criminal Law?

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The point that we have been expressing since we started the article is what behaviors the legislator considers as a crime within the borders of his country. In other words, in which cases the legislator will hold the individual responsible for a crime and process the process until sanctions are imposed on him. When we look at the Turkish criminal law system and at the general international level, there are basic principles determined by many countries within the criminal law system.

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The legislator develops and directs the criminal law system based on these principles. The legislator puts these principles under provision in Article 2 and Article 3 of Law No. 5237 and clearly reveals for what purpose the law was created and by adhering to which principles.

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Principle of Legality in Crime and Penalty Article 2

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• No one can be punished and no security measures can be applied for an act that is not clearly considered a crime by law. No penalty and security measures other than the penalties and security measures written in the law can be imposed.

• No crime or punishment can be imposed with the regulatory actions of the administration.

• Comparisons cannot be made in the implementation of the provisions of the laws that include crime and punishment. Provisions involving crime and punishment cannot be broadly interpreted to lead to analogy.

 

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Principle of Justice and Equality Before the Law Article 3

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• Penalties and security measures commensurate with the gravity of the act committed are imposed on the offender.

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• In the implementation of the Penal Code, no discrimination can be made between persons in terms of race, language, religion, sect, nationality, color, gender, political or other ideas or thoughts, philosophical belief, national or social origin, birth, economic and other social positions, and no one can be granted privileges.

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The legislator not only protected its citizens but also ensured the system to act more regularly by enforcing the principle of legality in crime and punishment, which is very important in Turkish Criminal Law, and the principle of equality before the law, in a way that would not give rise to any opposing views. The legislator has clearly stated the purpose of enacting this law in Article 1 of the Turkish Penal Code No. 5237 and has stipulated the purposes for which the Turkish Criminal Law will act. The article of the law is as follows:

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Purpose of the Criminal Code Article 1

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Purpose of the Criminal Code; to protect individual rights and freedoms, public order and security, the rule of law, public health and the environment, public peace, and to prevent crime. In the law, the basic principles of criminal responsibility and the types of crimes, punishment and security measures are regulated in order to achieve this aim.

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The Turkish Penal Code No. 5237, which is one of the principles of criminal law, is also one of the principles of criminal law, in order to express under which conditions a crime can occur and under what conditions an individual will be held responsible and subject to sanctions, even though he/she has committed a crime, without examining the concepts such as crime, criminal, perpetrator, victim, participant and complainant. It is also necessary to express the principle of fault in crime and punishment, which is stipulated in Article 20. The provision of the law is as follows and is quite explanatory:

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Personality of Criminal Responsibility Article 20

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•  Criminal liability is personal. No one can be held responsible for the actions of another.

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• Criminal sanctions cannot be imposed on legal entities. However, the sanctions, which are in the nature of a security measure foreseen in the law due to the crime, are reserved. If we briefly summarize the issues we have explained above with the articles of the law and our explanations, we can state the following: 

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Turkish Criminal Law, like other legal systems, stipulates which behaviors and acts will constitute a crime within the borders of its own country and under which conditions these crimes should be attributed to the individual and sanctioned. First of all, in order for the individual to act that would constitute a crime, it must be stipulated that such behavior will constitute a crime in other relevant laws, especially the Turkish Penal Code, such as the Anti-Smuggling Law.

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Any act not covered by the law will not constitute a crime. In the same way, the law that defines and rules the crime should also stipulate the sanctions, namely imprisonment, judicial fines and security measures to be applied to the person who committed the crime, within the provision of the law or in the relevant parts of the law.

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This principle is called the principle of legality in crime and punishment. In addition, it is also among the provisions of the law that if another person other than the person accused of the crime is not responsible for this crime, he will not be sanctioned.

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The principle expressed as the personality of crime and punishment prevents his father from sleeping instead of the 17-year-old boy who killed his mother, and holds everyone responsible for their own behavior.

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Just as the legislator dealt with the principles and purpose within the provisions of the law and clearly expressed it to his citizens, he also defined the concepts in the same law, and acted to prevent confusion and ensure the correct interpretation of the wording of the law. Article 6 of the Law No. 5237 includes the definitions of the concepts used in the law. Based on these definitions, we will try to explain concepts such as criminal, crime, participant, victim, complainant:

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The Concept Based on Crime and Criminal Law What is Crime ?

 

The center of law is man. Regardless of the issue, the legislator creates a law based on the actions of the individual while creating the law, and protects both the safety and peace of the public and the interests of its citizens. When we look at the crime and criminal law, the lawmaker has expressed provisions in the laws to prevent certain behaviors in order to protect something in many areas from the security of the state to the life and property of its citizens. In other words, any behavior that violates an interest that is contrary to the order of the legal system and protected by the legal order - this interest does not matter in any way, as long as there is a provision for its protection by law - is called a crime. Being illegal is not a sufficient element for the crime to occur. In addition, as stated in the law, 2 elements are required for a behavior to constitute a crime:

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• An act contrary to the provision made by the legislator for the protection of a benefit will have taken place.

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• As a result of the violation of the interest, the individual will be punished by the law for acting against the law.

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• The point that the element wants to express is this: no act without punishment constitutes a crime. In order for an illegal act to be considered a crime, it must be punished by the legislator.

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Definitions of Perpetrator, Participant, Victim and Damaged Concepts

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As we explained above, the legislator tried to prevent confusion by defining the concepts in the provisions established on the basis of the law in Article 6 of the Law No. 5237. Some of these concepts are:

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Perpetrator: There are no definitions only in Article 6 of the TCK and definitions are made under other provisions as well. The perpetrator is also stated in Article 37 as follows:

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Each person who performs the act together in the legal definition of the crime is responsible as the perpetrator.

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According to the provision of the law, the person who commits the crime is called the perpetrator, who acts unlawfully in a way that causes him to be punished by performing the execution actions of the crime. In the Turkish Criminal Law system, only real persons who can be perpetrators, that is, who can commit crimes, are real persons. In other words, legal entities cannot commit any crime and cannot be punished. However, security measures can be applied to them when the conditions are met.

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Victim: Every crime has a victim as well as a perpetrator. A victim is a person who has been wronged because of the crime committed by the perpetrator. In more common terms, the person or persons against whom a crime is committed are called victims. The concept of victim is often confused with the victim of crime. However, the concepts of victim and victim are quite different concepts. After expressing this, it is necessary to explain two different concepts. Just as the perpetrator can only be a real person, the victims can only be real people. However, persons who have been harmed by crime can be legal entities.

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Let's explain the difference between the victim and the victim with the following simple example: Suppose that a person with person x kills a person with person Y and Y has a wife named Z. Person X is the perpetrator here because he killed person Y by violating the right to life protected by law. Who is the person who died here, that is, who the crime was committed, who is Y. For this reason, the victim is also Y, but the person who is sad because Y is dead and may suffer financial difficulties is also Z, and Z is the one who suffered from the crime because of this.

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We can clearly say this: the victim is always the person who is harmed by the crime, but not every person who is harmed by the crime is the victim.

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Complaint and Litigation Process in Criminal Law which is Public Law

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The legal system is divided into 2 main headings.

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• Private law

• Public Law

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In private law, the legislator mostly protects individual interests by regulating the relations between citizens. For example, in the law of obligations, there is no prison sentence for the person who commits the violation as a result of the violation of the contract. Here, because the dispute between the parties can still be resolved between the parties. In public law, the legislator aims to ensure that the country lives in peace and tranquility while protecting the state's own interests, while ensuring the safety of its citizens. He makes arrangements accordingly.

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For example, the injury of a person to another person is evaluated within the criminal law system, which is within the scope of public law. The legislator also states that the events examined under the criminal law are of the nature of a public lawsuit and that in most cases, the victim initiates an investigation and prosecution against the perpetrator regardless of his complaint.

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In other words, when an act that will constitute a crime takes place, the legislator takes action to restore the disrupted public order by initiating proceedings against the perpetrator without seeking any complaint from the victim. For this reason, law-trained persons, called prosecutors, prepare indictments about the perpetrator and try to protect and restore the interests of the victim and the society by ensuring that the case is referred to the judiciary because of committing this crime.

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Importance of Lawyer in Criminal Cases

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When we look at criminal cases, especially when we look at serious crimes such as sexual abuse and sexual assault, it will be very difficult for the victim to protect and defend himself due to the trauma he has experienced.

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For this reason, working with a lawyer (criminal lawyer) in order for the individual to wish for justice will not only be in his favor, but it will also enable the litigation process to continue faster. 

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