The Concept and Elements of Crime

1. Introduction

Criminal law is the branch of law that imposes the harshest sanctions on individuals by the state to protect social order. In this context, the fundamental concept at the heart of criminal law is **“crime.”**.
A crime is not only an act subject to criminal sanctions; it is also a violation of a norm that restricts an individual's freedom and legitimizes state intervention. Therefore, the conceptual framework and elements of crime are among the most debated and important topics in the field of criminal law.

2. The Concept of Crime

2.1. Legal Definition

The Turkish Penal Code (TCK) does not provide a general definition of crime, but "no crime or punishment without law" (TCK Article 2) . According to the widely accepted definition in legal doctrine, a crime is:
"An unlawful and culpable act defined as a crime in the law."

2.2. Definitions of Crime in Doctrine

Classical understanding: Crime is an act that disrupts social order and is committed against the state.
Modern understanding: Crime is a legally defined act that violates legal values.
The Supreme Court's approach: A crime is an act that is explicitly defined as a crime in the law and involves wrongdoing and culpability.

3. Elements of the Crime

A crime is formed by the combination of multiple elements. In legal doctrine, a threefold distinction is generally made:

Material Elements
Spiritual Elements
Element of Illegality

In addition, some authors also include **“conditions of punishability”** among the elements of the crime.

3.1. Material Elements

It is the aspect of crime that can be observed in the outside world. It includes the following sub-elements:

a) Verb

It forms the basis of the crime.
It has to be human behavior (action or omission).
For example: the act of "taking movable property belonging to another" in theft.

b) Perpetrator

It is the person who committed the crime.
The perpetrator can only a human being ; legal entities are not directly perpetrators under the Turkish Penal Code, but are subject to security measures (Turkish Penal Code, Article 20).

c) Victim

This is the person who has suffered harm from the crime.
In crimes that harm the entire society, "society" is considered the victim; however, there may also be individual victims.

d) Subject of the Crime

It is what the perpetrator directs their action towards.
For example: property in crimes against property, people in crimes against persons.

e) Result

In some crimes, the focus is on the consequences of the act.
Example: death resulting from intentional homicide.

f) Causal Link

There must be a causal link between the action and the result.

3.2. Spiritual Elements

It describes the perpetrator's psychological attitude towards the crime.

a) Intent (Turkish Penal Code Article 21)

It is when the perpetrator knowingly and willingly commits the crime.
Direct intention: To want the result.
Probable intent: Saying "let it happen" even though one foresees the possibility of the outcome.

b) Negligence (Turkish Penal Code Article 22)

It is a situation where the outcome is unpredictable or, even if foreseen, is undesirable.
Negligence is divided into two types: simple negligence and conscious negligence.

c) Capacity for Fault

The perpetrator's ability to understand the legal meaning and consequences of the act committed (Turkish Penal Code, Article 31).
The capacity for culpability is limited in children, those with mental illnesses, or those with temporary impairments.

3.3. Element of Illegality

An act cannot be both lawful and legally compliant. For an act to be considered a crime, unlawful .

Grounds for Lawfulness (Turkish Penal Code Articles 24–27)

Self-defense (Turkish Penal Code Article 25/1)
State of necessity (Turkish Penal Code Article 25/2)
Exercise of the right (Turkish Penal Code Article 26/1)
Consent of the person concerned (Turkish Penal Code Article 26/2)

3.4. Criminal Liability Requirements

In some cases, even if the elements of the crime have been met, additional conditions are required for punishment.

Complaint: In cases of defamation, a complaint from the victim is required (Turkish Penal Code Article 73).
Leave of absence: Administrative leave may be required for the trial of civil servants.
Statute of limitations: Prevents the initiation of a public prosecution.

4. Discussions from the Perspective of Criminal Theory

4.1. Normative Theory

Crime is a combination of unlawfulness and culpability.

4.2. Classical Theory

A crime consists of three elements: act, unlawfulness, and fault.

4.3. The Approach of the Supreme Court

In Supreme Court rulings, a crime is generally defined as a "lawful and culpable act defined by law."

5. Examples from Supreme Court Decisions

Supreme Court of Appeals, General Assembly of the Court of Cassation, Case No. 2012/10-1300 E., Decision No. 2013/248 K.: For a crime to occur, all elements of the legal definition must be fulfilled.
Supreme Court 18th Criminal Chamber, Case No. 2015/4209: If there is no element of financial gain in migrant smuggling, no crime is committed.
Supreme Court 4th Criminal Chamber, Case No. 2006/11310: In cases of defamation, no lawsuit can be filed if there is no complaint.

6. International Dimension

The ECHR limits the concept of crime with the principle of "no crime and no punishment without law" (Article 7).
The Rome Statute regulates international crimes (genocide, crimes against humanity, war crimes) as a separate category.

7. Conclusion

The concept of crime is a cornerstone of criminal law.

Material elements → act, perpetrator, victim, consequence.
Moral elements → intent or negligence.
Illegality → absence of grounds for legality.
Conditions for punishability → complaint, permission, statute of limitations.

Crime serves to protect not only individual rights but also social order. Both legal doctrine and Supreme Court practice consider the complete fulfillment of the elements of a crime as an indispensable condition for criminal responsibility.

Law Faculty Student Ada Ceren KENDİGELEN

Illegality, grounds for legality, criminal theory, elements of crime.

Law Articles