ORDER OF A SUPERIOR IN CRIMINAL LAW

Compliance with Superior Orders in Criminal Law: Legal Framework and Application

1. Introduction

In criminal law, obeying a superior's order is a significant legal ground affecting a person's criminal responsibility. This concept is particularly relevant for public officials and authorized individuals, playing a decisive role in the performance of legal and administrative duties. Obeying a superior's order can affect the offender's criminal responsibility and, under certain circumstances, may be considered a justification for lawfulness. This article will examine in detail the place, scope, and application of obeying a superior's order in criminal law.

2. Obeying a Superior's Order: Definition and Legal Basis

2.1. What is Obeying a Superior's Orders?

The act of obeying a superior's order refers to a situation where a person, while carrying out an order given by their superior, has a legal basis that gives rise to criminal liability. This concept generally applies to public officials and certain authorities, and even if they appear to have committed a crime while executing the order, criminal liability can be eliminated based on the grounds of lawfulness.

2.2. Legal Basis

Article 24 of the Turkish Penal Code regulates the reasons for obeying a superior's order:

Article 24 of the Turkish Penal Code:

1. "If a crime is committed within the scope of an obligation or authority prescribed by law, the perpetrator is not liable for criminal offenses."

This article states that obeying a superior's order constitutes a lawful act and that the crime should be evaluated within this context. However, it is crucial to determine whether the superior's order was lawful and within the limits of their authority.

3. Obedience to Superior Orders: Scope and Conditions

3.1. The Nature of the Command and the Order

• The Concept of "Superior": A superior refers to a person who possesses authority and responsibility. Public officials, administrative authorities, and other officials are considered superiors. A superior's order is generally an instruction given within the scope of their duties and authority.
• Nature of the Order: A superior's order may relate to legal and administrative duties. However, the order given by the superior must be within a legal and authorized framework. Otherwise, the order may not be considered lawful.

3.2. Legality and Limitations

The legality of a superior's order plays a critical role in determining criminal responsibility:

• Lawful Order: An order given by a superior must be within a legal framework. This means the order must comply with legal regulations and authorities. An unlawful order may invalidate the reason for the superior's order to carry it out.
• Limitations: When carrying out a superior's order, the limits of the ordering person's authority and legal regulations must be considered. In cases of exceeding authority, the superior's order may not be considered lawful.

4. Following Superior Orders: Practice and Examples

4.1. Application Areas

The areas of application for the reason of obeying a superior's order are as follows:

• Public Officials: Public officials obey the orders given by their superiors while performing their duties. These orders are generally necessary for the smooth functioning of public services.
• Judicial and Administrative Decisions: Implementing decisions made by judicial and administrative authorities is considered fulfilling a superior's order. Such decisions may not be considered a crime due to their legality.

4.2. Examples

• Example 1: If a police officer detains a person on the order of their superior, this action is considered fulfilling a superior's order. If the superior's order is lawful and within their authority, the police officer will not incur criminal liability.
• Example 2: If a civil servant performs a specific action in accordance with an administrative order, this action is also considered fulfilling a superior's order. If the order is lawful and within the scope of authority, criminal liability is eliminated.

5. Obedience to Superior Orders and Criminal Liability

5.1. Termination of Criminal Liability

Following a superior's order is considered a reason to eliminate criminal liability. This means that the perpetrator acted in accordance with an order given by a superior and therefore did not have the intent to commit a crime. However, the order must be lawful and within the scope of authority.

5.2. Legal Review

When evaluating whether the reason for obeying a superior's order is valid, courts consider the following factors:

• Legality of the Order: Whether the superior's order is lawful.
• Limits of Authority: Whether the order given by the superior is within the limits of their authority.
• Nature of the Crime: Whether the act constitutes a crime and the influence of the superior's order on the commission of the crime.

6. Conclusion

In criminal law, obeying a superior's order is a ground for justification and generally applies to public officials and authorities, affecting criminal liability. Article 24 of the Turkish Penal Code defines the legal framework for obeying a superior's order and has a significant impact on its place in criminal law. If the superior's order is lawful and within the scope of authority, it can eliminate criminal liability and play a critical role in ensuring justice.