Areas of Application of Criminal Law

Criminal law encompasses both time and place of application. The area of ​​application is examined in terms of the principles of territoriality, individuality, protection, and universality.

The scope of application of criminal law in terms of "time"

Under the heading of application in terms of time, there are three principles: immediate application, retroactive application, and prospective application. Application in terms of time arose as a consequence of the principle of legality, which briefly means that an act not defined in the law cannot be punished as a crime and can only be punished in the manner prescribed by law. The principle of legality is the guarantee of the rule of law and prevents arbitrariness.

1. Immediate application: Article 7/1, paragraph 1 of: "No one can be punished or subjected to security measures for an act that was not considered a crime under the law in force at the time it was committed ." This principle of immediate application is effective in laws relating to criminal procedure law and execution laws, and the dangerousness of the perpetrator is the primary criterion.
2. Retroactive application of the law in favor of the accused: The problem here is the difference between the law in force at the time the act was committed and the law that came into effect after the act was committed. In criminal law, the principle of legality applies, and retroactive application becomes a prohibition against retroactive application, only preventing the punishment of an act that was not considered a crime at the time it was committed. Article 7/1, paragraph 2 of the Turkish PenalCode states: "No one can be punished or subjected to security measures for an act that was not considered a crime according to the law that came into effect after it was In this case, the resulting conclusion is that the law in effect at the time the act was committed and the law that came into effect after it was committed should be compared, and whichever is more favorable should be applied. Regarding the retroactive application of annulment decisions by the Constitutional Court, Article 153/4 of the Constitution states: "Annulment decisions do not have retroactive effect." However, the Supreme Court's Criminal General Assembly decision states that provisions favorable to the perpetrator apply to acts that have not yet been tried or are still in the trial phase.
3. Prospective application: In criminal law, prospective application is unacceptable. It means applying a repealed law to subsequent acts.

The scope of application of criminal law in terms of "place"

The Turkish Penal Code has adopted the principle of semi-territoriality. Under this heading, the principles of territoriality, personality, protection, and universality are examined

Principle of ownership

According to this principle, regardless of the nationality of the perpetrator and the victim, the laws of the place where the crime was committed shall apply. Article 8 of the Turkish Penal Code , "Turkish laws shall apply to crimes committed in Turkey. If the act is committed partially or wholly in Turkey, or if the result occurs in Turkey, the crime shall be deemed to have been committed in Turkey." Thus, it defines the scope of application in terms of location. The concept of country is defined in Article 8/2 of the Turkish Penal Code as follows : "A crime may be committed: a) in Turkish land and airspace and Turkish territorial waters; b) on the high seas and the airspace above them, on or with Turkish naval and air vessels; c) on or with Turkish naval and air combat vessels; d) on or against fixed platforms established on Turkey's continental shelf or exclusive economic zone." Regarding the high seas, the high seas do not belong to the sovereignty of any state; therefore, the flag carried by the ship is considered.

Judgment in a foreign country: Article 9 of the Turkish Penal Code states, "Anyone convicted in a foreign country for an offence committed in Turkey shall be tried again in Turkey." Whether the person has dual citizenship or has subsequently renounced their citizenship is irrelevant. The question that arises here is whether the individual will be tried more than once for the same offence. According to Article 4 of the Additional Provisional Clause 7 of the European Convention on Human Rights, "No one shall be tried or convicted again under the jurisdiction of the same State for an offence for which they have already been convicted or acquitted in accordance with the law and procedure of that State." The Turkish Penal Code clarifies that there is no violation by referring to "the same state."

The principle of individuality

The principle of individual responsibility is divided according to the perpetrator and the victim. This means that regardless of where the crime is committed, the penal laws of the state of citizenship apply. The principle of individual responsibility according to the perpetrator is examined within the framework of Articles 10 and 11 of the Turkish Penal Code (TCK). Article 10 states, "A person who has undertaken an official duty or task on behalf of Turkey in a foreign country and commits a crime as a result of this, shall be tried again in Turkey, even if a conviction has been issued against him in the foreign country." This regulates crimes committed in the course of duty. Article 11 further regulates crimes committed by citizens, stating, "If a Turkish citizen commits a crime in a foreign country, other than those listed in Article 13, which, according to Turkish law, carries a minimum sentence of imprisonment of not less than one year, and if he is in Turkey, he shall be punished according to Turkish law, provided that no judgment has been issued against him in the foreign country and that prosecution is possible in Turkey. "

According to Article 12/1-2 of the Turkish Penal Code, ifaforeigner commits an offence in a foreign country, other than those listed in Article 13, which, according to Turkish law, carries a minimum sentence of one year imprisonment, to the detriment of Turkey, and is present in Turkey, he/she shall be punished according to Turkish law. The initiation of a trial depends on the request of the Minister of Justice.

If the crime specified in the paragraph above is committed against a Turkish citizen or a private legal entity established under Turkish law, and the perpetrator is located in Türkiye, the perpetrator shall be punished according to Turkish law upon the complaint of the injured party, provided that no judgment has been rendered against him in a foreign country for this crime

The principle of universality

Article 12/3 of the Turkish Penal Code,which states, "If the victim is a foreigner, the perpetrator shall be prosecuted at the request of the Minister of Justice if the following conditions exist: a) The crime carries a minimum sentence of imprisonment of not less than three years under Turkish law. b) There is no extradition agreement, or the extradition request has not been accepted by the government of the country where the crime was committed or the state of nationality of the perpetrator," the conditions are that both the perpetrator and the victim are foreigners, the crime carries a minimum sentence of imprisonment of not less than three years under Turkish law, there is no extradition agreement, and there must be a request from the Ministry of Justice.

Principle of protection

Article 13 of the Turkish Penal Code, '(1) If the following crimes are committed by a citizen or a foreigner in a foreign country, Turkish laws shall apply:

• Crimes listed under Book Two, Part One.
• The crimes described in Chapters Three, Four, Fifth, Sixth, Seventh, and Eight under Book Two, Part Four.
• Torture (Articles 94, 95).
• Deliberate pollution of the environment (Article 181).
• Manufacturing and trafficking of narcotic or stimulant substances (Article 188), facilitating the use of narcotic or stimulant substances (Article 190).
• Counterfeiting of currency (Article 197), production and trade of tools used to manufacture currency and valuable stamps (Article 200), counterfeiting of seals (Article 202).
• Prostitution (Article 227)
• The crimes of hijacking or detaining sea, rail or air transport vehicles (Article 223, paragraphs 2, 3) or damaging such vehicles (Article 152).

Except for those in the Third, Fourth, Fifth, Sixth and Seventh Chapters under the Fourth Part of the Second Book, the trial in Türkiye for the crimes covered by the first paragraph is subject to the request of the Minister of Justice. (3) Even if a conviction or acquittal decision has been given in a foreign country for the crimes written in subparagraphs (a) and (b) of the first paragraph, the trial shall be held in Türkiye upon the request of the Minister of Justice

The required conditions are that the perpetrator is Turkish or a foreigner, the perpetrator is located in Türkiye, the act was committed in a foreign country, it is one of the crimes listed in Article 13, and there must be a request from the Minister of Justice.

You can consult with Attorney Ferhat Kule to get answers to all the details and questions you may have

Deniz Sahin