PERPETRATORSHIP, INCITEMENT, AND AIDING AND ABETMENT IN TURKISH CRIMINAL LAW: PARTICIPATION IN CRIME WITHIN THE FRAMEWORK OF THE PRINCIPLE OF PERPETRATORSHIP OVER ACCOMPLICESHIP

1. INTRODUCTION

While a crime can be committed by a single person, it is also possible for multiple individuals to contribute in different ways to the preparation, execution, or completion of the crime. The voluntary participation of multiple individuals in the commission of the same crime is generally examined under the heading of "complicity in a crime" in criminal law

Turkish Penal Code No. 5237 regulates complicity in crime in articles 37 to 41. Within this system, the fundamental distinction is between perpetration and complicity . Perpetration includes direct perpetration, joint perpetration, and indirect perpetration; while complicity manifests itself in the forms of instigation and aiding

This distinction is not merely theoretical. Determining whether a person is the perpetrator, instigator, or accomplice directly affects the applicable law, the punishment to be given, personal grounds for impunity, aggravating circumstances, and liability in specific crimes.

It is particularly possible for a person to both encourage the commission of a crime or incite others to commit it, and to directly participate in its execution. In this case, "priority of perpetration over complicity," which , comes into play. According to this principle, if a person's behavior reaches the level of perpetration, they are no longer held separately responsible as an instigator or accomplice for the same crime; they are punished as the perpetrator.

2. THE SYSTEM OF PARTICIPATION IN CRIME IN THE TURKISH PENAL CODE

The Turkish Penal Code's provisions regarding complicity in crime are based on the following structure:

Turkish Penal Code Article 37: Perpetration,
Turkish Penal Code Article 38: Incitement,
Turkish Penal Code Article 39: Assistance,
Turkish Penal Code Article 40: The principle of loyalty,
Turkish Penal Code Article 41: Voluntary withdrawal in case of complicity.

According to Article 37 of the Turkish Penal Code, each person who jointly commits the act defined in the law is held responsible as a perpetrator. The second paragraph of the same article also recognizes that a person who uses another person as an instrument in the commission of the crime is also a perpetrator.

In contrast, in incitement and aiding and abetting, as regulated in Articles 38 and 39 of the Turkish Penal Code, the individual is not the perpetrator of the crime. These individuals of accomplices .

Therefore, the fundamental distinction in the participation system is as follows:

The perpetratoris the person who gains control over the commission of the crime and plays a decisive role in its execution.

An accomplice is someone who participates in a crime committed by another person, either by instigating it or by assisting in its commission.

In making this distinction, what matters is not whether the person was present at the scene of the crime, but rather their function in the commission of the crime and their control over it.

3. THE CONCEPT OF LEGITIMACY

3.1. Direct culpability

Direct perpetration means that the act specified in the legal definition of the crime is personally carried out by the individual.

For example, in a crime of intentional homicide, the person who shoots the victim with a weapon, in a crime of theft, the person who takes movable property belonging to another from its location, or in a crime of intentional injury, the person who directly strikes the victim is a direct perpetrator.

In direct perpetration, the person who commits the material elements of the crime and the person who bears criminal responsibility are the same.

However, due to the nature of some crimes, certain qualifications are required to be the perpetrator. In crimes where characteristics such as being a public official, being a mother or father, or having a specific profession are sought, the specific crime provisions regulated in Article 40/2 of the Turkish Penal Code become important.

4. JOINT GUILT

According to Article 37/1 of the Turkish Penal Code:

"Each person who jointly commits the act defined in the law as a crime shall be held responsible as a perpetrator."

This provision forms the legal basis for joint culpability.

Essentially, there are two fundamental elements to consider for joint culpability:

Joint decision to commit a crime and shared control over the act.

4.1. Decision to commit a crime together

There must be a shared will among the co-perpetrators to commit the crime together.

This intention does not need to have formed long before the event. A shared intention to commit a crime can also emerge between individuals during the event itself.

For example, if two people act together to assault a victim, even without a prior explicit agreement, the decision to commit the crime jointly may be considered valid depending on the course of events.

However, merely being present at the crime scene or having a friendship with one of the perpetrators is not sufficient to establish joint perpetration. The individual must have made a conscious and functional contribution to the commission of the crime.

5. JOINT CONTROL OVER THE ACT

One of the most important criteria in determining joint culpability control over the act.

For there to be joint control over an act, the person must have played a significant role in the commission of the crime.

Therefore, in cases of joint perpetration, it is not necessary for all perpetrators to personally carry out the actions defined in the legal definition of the crime.

For example, in the division of labor to carry out a bank robbery;

A person incapacitates bank employees with a weapon

One person is collecting the money from the cash register

If the other person is keeping the getaway vehicle ready according to the plan,

Depending on the specifics of the case, it can be assumed that all three individuals shared control over the crime.

In this case, it is not automatically possible to conclude that only the person who took the money from the cash register is the perpetrator, and the others were accomplices.

What is decisive is the weight of one's contribution to the criminal plan in terms of the crime's execution.

6. THE LINE BETWEEN JOINT GUILT AND AIDING AND ABETTING

One of the most significant problems in practice regarding complicity is distinguishing between joint perpetration and aiding and abetting.

Article 37 of the Turkish Penal Code regulates joint perpetration, while Article 39 regulates aiding and abetting.

The main difference is this:

A joint perpetrator establishes shared control over the crime.

While aiding and abetting doesn't mean the perpetrator has control over the crime, it facilitates the crime.

For example, a person who provides a weapon to the perpetrator days before the crime may be considered an accomplice, unless other circumstances suggest otherwise.

Conversely, the contribution of a person who jointly plans the crime, accompanies the perpetrators to the scene, prevents the victim from escaping, and acts together with the other perpetrators after the crime is completed, may not be considered merely aiding and abetting. Depending on the specific circumstances of the case, joint perpetration may be accepted.

Therefore, in determining the status of complicity, not only the act committed by the individual but also the function of that act within a common criminal plan should be considered.

7. INDIRECT CULPRIT

According to Article 37/2 of the Turkish Penal Code:

"A person who uses another person as an instrument in the commission of a crime is also held responsible as the perpetrator."

The law also stipulates that if persons lacking criminal capacity are used as instruments in the commission of a crime, the penalty may be increased by one-third to one-half.

In indirect perpetration, the individual does not personally carry out the criminal acts; instead, they use another person an instrument .

For example, if someone entrusts a package containing drugs to a delivery person who is unaware of the truth, the delivery person, being unaware of the package's contents, does not have criminal intent. However, the person who sent the drugs through him may be held liable as an indirect perpetrator if the conditions are met.

This is where the fundamental difference between indirect culpability and instigation becomes apparent.

In instigation, the person who is directed to commit the crime is an offender who acts of their own free will and intentionally.

In indirect perpetration, the person in the background uses the person in the foreground as a tool in the commission of the crime due to their superiority over the will or legal responsibility of the person in the foreground.

8. INCITEMENT

Incitement to crime is regulated in Article 38 of the Turkish Penal Code.

According to Article 38/1 of the Turkish Penal Code:

"A person who incites another to commit a crime shall be punished with the same penalty as the crime committed."

Therefore, although the instigator is considered an accomplice, unlike the accomplice, they are generally punished according to the penalty prescribed for the perpetrator.

The essence of incitement is creating a decision to commit a crime in a person who previously had no such intention .

In this respect, instigation differs from "strengthening the decision to commit a crime," which falls under the category of aiding and abetting.

8.1. Incitement requires the formation of a decision to commit a crime

The perpetrator must decide to commit the crime as a result of the instigator's actions.

For example, from A to B:

"Kill C, and I'll give you money."

The fact that B, who previously had no intention of killing C, decides to commit the crime upon receiving this offer, is an example of incitement.

Conversely, if B has already made up his mind to kill C, then A might later..

"You're doing the right thing, you absolutely must kill him."

Saying this does not, as a rule, constitute incitement, but rather, if the conditions are met, aiding and abetting by strengthening the decision to commit a crime .

Therefore, knowing when the perpetrator decided to commit the crime is crucial in distinguishing between instigation and aiding and abetting.

9. PUNISHMENT FOR THE INSTIGATOR

The instigator shall be punished with the penalty for the crime committed, in accordance with Article 38/1 of the Turkish Penal Code.

However, it is important to note that the instigator does not become the perpetrator. The law considers the instigator an accomplice, but the punishment is based on the penalty for the crime committed.

Article 38/2 of the Turkish Penal Code also stipulates that in cases of incitement carried out by using influence stemming from an ascendant-descendant relationship, the punishment shall be increased by one-third to one-half. However, in cases where a child is incited to commit a crime, the existence of an ascendant-descendant relationship is not required for the application of this increase.

10. THE LIMITS OF INCITEMENT

For the instigator to be held liable, there must be a connection between the act committed by the perpetrator and the instigation.

If the person incited to commit a crime does so entirely outside the will of the instigator, the instigator is not automatically held responsible for that crime.

For example, if A incited B to damage C's car, and B then independently killed C, A cannot be held liable as an instigator without intentional homicide.

Conversely, if the perpetrator's action is foreseeable within the scope of incitement and is within the intent of the instigator, liability may be assessed differently.

Therefore, the scope of the instigator's intent should be examined separately when determining their responsibility.

11. HELPING

Article 39 of the Turkish Penal Code regulates aiding and abetting.

According to the law, the following actions constitute aiding and abetting:

Inciting the commission of a crime,
To strengthen the decision to commit a crime,
Promising to provide assistance after the act has been committed,
To provide guidance on how to commit the crime
Providing the tools to be used in committing the crime,
Facilitating the commission of a crime by providing assistance before or during the crime.

The accomplice's contribution facilitates the perpetrator's commission of the crime, but their control over the crime does not reach the level of co-perpetration.

12. MATERIAL AND MORAL AID

Helping behaviors can generally be categorized into two groups: material assistance and moral assistance

12.1. Spiritual support

Encouraging someone to commit a crime, reinforcing the decision to commit the crime, and promising to help after the crime has been committed are all considered moral assistance.

The difference between "encouragement" and "incitement" is particularly important here.

Incitement is the act of creating a decision to commit a crime in a person who does not have the intention of committing a crime.

In cases of encouragement or reinforcement of a decision, the individual already possesses a certain degree of intent to commit a crime.

13. FINANCIAL ASSISTANCE

Providing guidance on how to commit a crime, supplying the means to commit the crime, or facilitating its execution before or during the crime may constitute financial assistance.

For example:

Obtaining a weapon knowing that it will be used in a crime,

informing the perpetrator of the victim's home address and security system information,

to enable the perpetrator to reach the scene of the crime,

acting as a lookout during a crime,

To provide the escape vehicle,

Depending on the specifics of the case, it can be considered within the scope of providing assistance.

However, it is important to reiterate here that the fact that these actions are cited as examples of aiding and abetting in the law does not necessarily mean that Article 39 of the Turkish Penal Code will be applied in every case.

Joint culpability arises when a person's role in the criminal plot enables them to share control over the crime.

It is precisely at this point that the principle of the priority of agency over complicity becomes important.

14. PUNISHMENT FOR THE ONE WHO ASSISTS

According to Article 39/1 of the Turkish Penal Code, regarding those who provide assistance;

If the crime committed warrants aggravated life imprisonment, the sentence will be reduced to fifteen to twenty years

If the offense warrants life imprisonment, a prison sentence of ten to fifteen years is imposed.

In other cases, the sentence prescribed for the crime committed is reduced by half; however, the sentence given to the accomplice cannot exceed eight years.

Therefore, the legal classification between the perpetrator and the accomplice can be extremely important in terms of the resulting punishment.

Therefore, courts considering a person as a co-perpetrator instead of an accomplice, or conversely, applying the provisions regarding aiding a co-perpetrator, has serious legal consequences.

15. RULE OF LOYALTY

Article 40 of the Turkish Penal Code regulates the principle of dependency, which is one of the fundamental provisions of participation law

According to Article 40/1 of the Turkish Penal Code, the existence of an intentionally and unlawfully committed act is sufficient for complicity in a crime. Each accomplice is punished according to their own culpable act, independently of any personal reasons that prevent the punishment of others.

The principle of complicity is particularly important in clarifying the responsibility of those who instigate and those who assist.

For an accomplice to be punished, there must be a deliberate and unlawful act committed by the perpetrator.

However, the fact that the perpetrator cannot be punished for personal reasons does not mean that the instigator or accomplice cannot be punished in every case.

16. PARTICIPATION IN SPECIFIC CRIMES

According to Article 40/2 of the Turkish Penal Code:

“In specific crimes, only a person possessing the specific perpetrator qualification can be considered the perpetrator. Other persons who participate in the commission of these crimes are held responsible as instigators or accomplices.”

A specific crime is one in which a particular legal status or designation is required to be a perpetrator.

For example, in a crime where being a public official is a prerequisite for being the perpetrator, a person who is not a public official cannot, as a rule, acquire the status of co-perpetrator even if they contributed to the commission of the crime. If the conditions are met, they will be held responsible as an instigator or accomplice.

This provision also constitutes one of the limitations of the principle of priority of perpetration over complicity. Because in order for a person to be considered a perpetrator, they must possess the specific perpetrator qualifications required by law.

17. FOR PARTICIPATION, THE CRIME MUST REACH AT LEAST THE ATTEMPT STAGE

According to Article 40/3 of the Turkish Penal Code:

"In order to be held responsible for complicity in a crime, the crime in question must have reached at least the attempt stage."

Therefore, if one person incites another to commit a crime, but the incited person has not yet begun to carry out the crime, the provisions regarding incitement generally do not apply.

Participation in a crime is not an independent type of crime. Instigation and aiding and abetting are forms of participation that are punished depending on the main crime committed.

18. THE PRINCIPLE OF PRIORITY OF PERPETRATOR OVER ACCOMPLICE

One of the most important principles in the application of complicity provisions in Turkish criminal law "priority of perpetration over complicity," or more commonly, "priority of perpetration over complicity .

According to this principle, if a person's actions in relation to the same crime can be evaluated as both perpetration and complicity, then perpetration shall be considered the primary culpability.

In other words:

If a person has established dominance over a crime as a co-perpetrator, it is not possible to punish that same person separately as an instigator or accomplice simply because they encouraged, instigated, provided the means of committing the crime, or facilitated its commission beforehand.

The individual is held responsible only the perpetrator .

LEGAL BASIS OF PRINCIPLE 19

Perpetration is a more advanced level of participation in a crime than complicity.

Complicity is essentially a form of responsibility linked to a criminal act committed by another person. The perpetrator, on the other hand, has direct or joint control over the commission of the crime.

Therefore, when a person's behavior reaches the level of culpability, it becomes unnecessary to resort to the more secondary provisions regarding complicity.

For example, if A persuaded B to kill C, then went to the scene with B after making a plan, prevented C from escaping, and jointly controlled the execution of the killing with B, it would no longer be correct to consider A as merely the "instigator.".

A's behavior has reached the level of joint culpability.

Therefore, Article 37 of the Turkish Penal Code should be applied, not Article 38.

20. THE SUPREME COURT'S APPROACH TO THE PRINCIPLE OF PRIORITY OF PERPETRATOR OVER ACCOMPLICE

This principle is also explicitly adopted in the practice of the Supreme Court.

In a ruling, the 6th Criminal Chamber of the Supreme Court of Appeals, while evaluating the complicity system accepted by the Turkish Penal Code, explicitly stated that if the instigator also commits the crime as a joint perpetrator with the persons he instigated, then, the "principle of priority of perpetration over complicity," the person should be punished only as a joint perpetrator and not as an instigator.

The Supreme Court's approach is consistent with the systematic structure of participation law.

If a person not only had a mental influence on the commission of a crime but also participated in its execution as a co-perpetrator, criminal liability should be established under Article 37 of the Turkish Penal Code.

21. THE APPLICATION OF THE SUPREME COURT OF APPEALS REGARDING THE CRIME OF INTENTIONAL HOMICIDE

In a decision by the 1st Criminal Chamber of the Supreme Court of Appeals, it was accepted that the two individuals acted in accordance with their division of labor, and that there was unity of action and will in the process of bringing the victims to the designated location and carrying out the act of killing.

The court found that applying Article 38 of the Turkish Penal Code regarding incitement was incorrect; it ruled that the provisions on joint perpetration should be applied in accordance with the principle of priority of complicity over perpetration

This approach is particularly important from an implementation point of view.

At first glance, a person saying "kill" might appear as incitement. However, if that same person later becomes involved in a joint criminal plan and shares control over the execution of the killing, the initial act of incitement no longer creates the status of independent complicity.

The individual is a co-perpetrator.

22. PROVIDING THE MEANS OF CRIME AND THE PRIORITY OF PERPETRATOR OVER ACCOMPLICE

Article 39 of the Turkish Penal Code lists providing the means to commit a crime as an example of aiding and abetting.

However, providing a vehicle does not always mean helping.

For example, when all the actions of the person who plans the crime, shows the location of the crime, takes the perpetrators to the scene, and waits for them in the vehicle are considered together, it can be accepted that their control over the execution of the crime has reached the level of joint culpability.

In a decision by the 6th Criminal Chamber of the Supreme Court of Appeals, the actions of the person who showed the other individuals the house where the incriminating items were located and who waited in the vehicle were examined; the Chamber emphasized the principle of priority of perpetration over complicity and indicated that the act should be evaluated within the framework of Article 37 of the Turkish Penal Code in terms of participation.

This decision demonstrates that no single behavior should be considered in isolation when evaluating participation.

What matters is the person's role in the overall event.

23. THE DISTINCTION BETWEEN INCITEMENT AND JOINT PERPETRATORSHIP

The difference between instigation and joint complicity can be summarized as follows:

Instigation is the act of creating a decision in another person to commit a crime.

A co-perpetrator is someone who, along with another perpetrator or perpetrators, has control over the commission of the crime.

Therefore, the mere act of one person initiating the idea of a crime or inciting others to commit a crime does not, in itself, create joint culpability.

However, if a person not only commits the crime but also makes a substantial contribution to its execution as part of a joint criminal plan, then joint culpability may be established.

For example:

If A tells B to kill C, and B goes alone to carry out the killing, then A is the instigator and B is the perpetrator.

Conversely, if A and B plan together, A brings the victim to the scene, prevents their escape, and B carries out the fatal act, then A's situation may be considered as joint culpability.

24. THE DISTINCTION BETWEEN AIDING AND ABETTING AND JOINT OFFENSE

The more difficult problem in practice is distinguishing between the accomplice and the co-perpetrator.

The key criterion here verb control.

Aiding and abetting if a person's involvement merely facilitates the commission of the crime;

Joint culpability can exist if a person's contribution has become an essential part of the successful execution of the crime, and the person has attained a decisive position in influencing the course of the crime within the framework of a shared criminal plan.

In this assessment, in particular;

Participation in the preparation of the criminal plan,

role at the scene,

division of labor,

function in the execution of the crime,

unity of action and will with other perpetrators,

the determining factor in the occurrence of the crime,

the possibility of a person preventing or directing the completion of a crime

They should be evaluated together.

25. BEING PRESENT AT THE SCENE OF THE CRIME ALONE DOES NOT CONSTITUTE JOINT GUILT

It is important to note that being present at the scene of the crime or engaging in behavior that supports the perpetrator is not sufficient, by itself, to establish joint perpetration.

Criminal responsibility is personal.

It must be demonstrated with concrete evidence that the person had joint control over the commission of the crime.

Otherwise, declaring someone a co-perpetrator merely on the basis of being present with the perpetrator, knowing the perpetrator beforehand, or acting together after the crime is incompatible with the principle of the individuality of criminal responsibility.

Therefore, especially in cases with multiple defendants, it is necessary to determine separately which specific action each defendant committed

26. PRIORITY OF CRIMINALITY OVER ACCOMPLICE AND DETERMINATION OF PUNISHMENT

The distinction between being a perpetrator and aiding and abetting is extremely important in terms of the severity of the punishment.

While significant sentence reductions are provided for those who aid and abet under Article 39 of the Turkish Penal Code, joint perpetrators are, as a rule, liable for the full sentence prescribed by law for the crime.

Therefore, for example, considering someone a co-perpetrator simply because they acted together with the perpetrators in a case where they did not have control over the crime could prevent the application of the provisions on aiding and abetting in Article 39 of the Turkish Penal Code, leading to more serious consequences.

Conversely, classifying someone who is actually a co-perpetrator of a crime as merely an accomplice would also be contrary to the principle of complicity.

Correct legal classification is therefore one of the fundamental requirements for punishment.

27. PRIORITY OF PERPETRATOR OVER ACCOMPLICE AND INCITEMENT

The principle of priority of complicity over accomplice also applies to instigation.

The 6th Criminal Chamber of the Court of Cassation has clearly stated in various rulings:

It is accepted that if the instigator is also a co-perpetrator of the crime together with the persons he instigated, Article 37 of the Turkish Penal Code will be applied instead of Article 38.

Therefore, a person can receive both punishments for the same crime;

"You instigated this crime."

as well as

"You are a co-perpetrator of this crime"

It is not possible to assign two separate subsidiary statuses by saying this.

The status of being a perpetrator negates the element of incitement.

28. PRIORITY OF PERPETRATOR TO HELPING

The same principle applies to helping others.

A person may have obtained a weapon before the crime was committed. Under normal circumstances, this behavior constitutes aiding and abetting under Article 39/2-b of the Turkish Penal Code.

However, if the same person later went to the scene of the crime with the perpetrator and participated in the commission of the crime as a co-perpetrator, they will no longer be punished separately as an accomplice for providing the weapon.

The individual is a joint perpetrator within the scope of Article 37 of the Turkish Penal Code.

Previous acts of assistance are considered parts of a criminal plan involving joint perpetration.

29. THE LIMITS OF THE PRINCIPLE OF PRIORITY OF OFFENSE OVER ACCOMPLICE

This principle is not unlimited.

Not every active action implies joint agency.

In particular, if a person's behavior strengthens the perpetrator's decision to commit the crime, provides the means to commit the crime, or facilitates the perpetrator's actions, but this behavior does not create control over the crime, the person should remain considered an accomplice.

Similarly, a person who merely conceives the idea of a crime but has no control over its execution should be considered an instigator.

Therefore, the principle of priority of agency over complicity:

"Everyone who offers help is actually a perpetrator."

"Everyone who contributed to the criminal plot is a co-perpetrator."

This does not mean...

The principle of priority can only be applied where the conditions for culpability have actually been met

30. JOINT LIABILITY

According to Article 40/1 of the Turkish Penal Code, each accomplice shall be punished according to their own culpable act.

The Supreme Court also acknowledges that, particularly in cases of crimes committed jointly, personal reasons must be evaluated separately for each defendant.

Therefore, a personal ground for immunity from punishment or a personal reason for mitigating punishment found in one accomplice cannot automatically be applied to the other accomplices.

Similarly, personal aggravating circumstances should, as a rule, be assessed on a case-by-case basis.

This shows that committing a crime jointly does not create collective criminal responsibility.

31. VOLUNTARY WITHDRAWAL IN CASE OF PARTICIPATION

Article 41 of the Turkish Penal Code specifically regulates voluntary withdrawal in crimes committed jointly.

Accordingly, in crimes committed jointly, only the accomplice who voluntarily withdraws from the crime benefits from the provisions of voluntary withdrawal.

Therefore, the fact that one person abandoned their criminal plan does not absolve the other perpetrators of responsibility.

However, for voluntary withdrawal to have legal consequences, it is not sufficient for the person to simply say "I have withdrawn." Their actions aimed at preventing the commission of the crime must also be evaluated separately under Article 41 of the Turkish Penal Code.

32. MATTERS TO BE CONSIDERED WHEN DETERMINING PARTICIPATION STATUS IN PRACTICE

In criminal cases involving multiple defendants, the following questions must be answered in order to accurately determine the defendant's status as an accomplice:

When did the defendant make the decision to commit the crime?

Who devised the crime plan?

What was the defendant's contribution to the planning of the crime?

Has the defendant committed any of the acts constituting the crime?

Is there a division of labor between him and the other perpetrators?

Was the defendant's action necessary or important for the crime to have occurred?

Did the defendant have any directing or inhibitory control over the commission of the crime?

Was the defendant's involvement limited solely to facilitating the crime?

Did the defendant make the decision to commit the crime, or did the perpetrator already decide to commit the crime?

Is this a specific crime where the defendant must possess the special status of perpetrator?

It is impossible to make a sound assessment of participation without determining these factors.

33. THE IMPORTANCE OF THE DISTINCTION OF PARTICIPATION IN TERMS OF DEFENSE LAW

Determining the form of participation is of critical importance, especially from a defense perspective.

For a defendant to be convicted as a co-perpetrator, it is not sufficient merely to prove their presence at the crime scene or their contact with other defendants.

The prosecution and the court must present concrete facts demonstrating that the defendant jointly controlled the crime

If the defendant's conduct merely facilitated the commission of the crime, then Article 39 of the Turkish Penal Code applies;

If the perpetrator has made the decision to commit the crime but has not participated in the execution of the crime at a level of joint control, then Article 38 of the Turkish Penal Code applies;

If the perpetrator has joint control over the crime with other perpetrators, then Article 37 of the Turkish Penal Code applies

It needs to be implemented.

The general assertion that all defendants acted "in concert of thought and action," without making this distinction, and therefore being considered joint perpetrators, may become legally debatable depending on the specific circumstances of the case.

34. CONCLUSION

Under the Turkish Penal Code No. 5237, the system of complicity in crime is essentially the distinction between perpetrator and accomplice .

According to Article 37 of the Turkish Penal Code, direct perpetrators, joint perpetrators, and indirect perpetrators are individuals who have control over the commission of the crime.

Incitement and aiding and abetting are forms of complicity.

In instigation, the perpetrator brings about the decision to commit a crime in a person who does not yet have that decision. In aiding and abetting, the aider provides material or moral support to the perpetrator's commission of the crime, but does not establish control over the crime at the level of a joint perpetrator.

Therefore, the fundamental assessment in complicity law is not whether a person contributed to the crime at all, but rather the nature of that contribution and its function in the commission of the crime.

At this point, the principle of "priority of complicity to perpetration" becomes decisive.

If a person's actions in relation to the same crime can be assessed as both instigating or aiding and abetting, and if the conditions necessary for perpetration are genuinely met, then that person as a perpetrator, not as an accomplice .

The Supreme Court, in its established practice, also accepts that if a person who instigates a crime subsequently establishes joint control over the crime with the persons he instigated, then Article 37 of the Turkish Penal Code, not Article 38, should be applied.

However, the principle of priority of perpetration over complicity does not justify considering everyone who aids or instigates as a joint perpetrator. Joint perpetration requires a demonstration of shared control over the crime, a joint decision to commit the crime, and a functional contribution within a shared criminal plan.

In conclusion, the correct method for assessing complicity is not to focus solely on a single action of the perpetrator before or during the incident, but to examine holistically the role they played throughout the process, from the preparation to the completion of the crime. If the individual's function within this process constitutes control over the crime, then they should be considered perpetrators; if their function is dependent on and secondary to another perpetrator's crime, then the provisions of instigation or aiding and abetting should be applied.

This distinction is one of the fundamental safeguards of Turkish criminal law, both in terms of the principle of the individuality of crime and punishment and in ensuring that the defendant receives a punishment proportionate to their actions.

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