What is the Prohibition of Self-Defense?

In modern legal systems, attempts by individuals to obtain their rights through their own means, or in short, "to administer justice on their own," are considered contrary to the foundations of the legal order. In our legal system, this the "prohibition of self-justice ." This concept, particularly situated at the intersection of Enforcement and Bankruptcy Law and Criminal Law, is of vital importance for maintaining order in society, preventing arbitrary practices, and protecting the state's jurisdiction.

What is the act of seeking justice?

Literally, "ihkak-ı hak" means the fulfillment or delivery of a right. However, in legal terminology, this expression is generally used to mean "the acquisition of a right by the individual themselves, without resorting to legal means.".

In a state governed by the rule of law, being in the right does not mean that a person can resort to violence, threats, or illegal coercive methods to obtain that right. If a creditor attempts to forcibly seize a debtor's belongings by going to their home without initiating legal proceedings (e.g., debt collection), this constitutes a violation of the prohibition against self-justice.

The Legal Basis of the Prohibition of Self-Justice

Our legal system prohibits "seeking redress through unlawful means." The state has a monopoly on judicial authority. When a claim for receivables or rights arises, the determination and enforcement of these rights can only be carried out through courts and enforcement offices.

The fundamental logic behind the prohibition of self-justice is to protect public order. If everyone attempted to take matters into their own hands, chaos, violence, and disorder would prevail in society. Therefore, the law sends a message to its citizens: "I am offering you a way (judiciary and enforcement) to seek your rights; using your own methods is a crime."

The Right to Justice from the Perspective of Criminal Law

According to the Turkish Penal Code (TCK), self-defense is regulated as a specific type of crime. Article 150/1 of the TCK (related articles concerning robbery) and, in particular, within the framework of general legal principles, the use of force or threat to obtain one's rights constitutes a crime.

For example, using force against someone who hasn't paid their debt, threatening them, or seizing their property without their consent, removes the creditor from the position of a "legitimate creditor" and places them in the position of a "criminal." The important point here is that the fact that a person is genuinely a creditor or has a legitimate reason does not legitimize committing the crime of self-justification. In other words, the defense of "I was always in the right" does not negate the crime of obtaining rights through unlawful means.

The Right to Claim in the Context of Enforcement and Bankruptcy Law

Execution and Bankruptcy Law is, in essence, the most concrete manifestation of the prohibition against self-justice. The Execution and Bankruptcy Law (EBL) enables creditors to obtain their rights by using the power of the state (seizure, sale, eviction, etc.).

A creditor cannot interfere with a debtor's assets without a court order or a negotiable instrument, and without applying to the enforcement office. No action outside the enforcement office can legally be considered "compulsory enforcement." The most important points to consider in this process are as follows:

• Usurpation of Authority: Individuals cannot perform actions that should be carried out by an enforcement officer or government official.

• Arbitrary Intervention: Going to a debtor's workplace or home and attaching a "debt settlement" label to their belongings or forcibly seizing their property is a crime under Criminal Law and also gives rise to liability for damages under Civil Law and Contract Law.

What happens when the prohibition against taking justice into one's own hands is violated?

If a person resorts to non-legal means (enforcement proceedings, litigation) to collect a debt or obtain a right, they may face the following consequences:

1. Criminal Case: Under the Turkish Penal Code, they may be prosecuted for crimes such as "deprivation of liberty," "threat," "intentional injury," or "robbery."

2. Liability for Damages: The party may be obligated to pay compensation for material and moral damages arising from unlawful acts committed against the debtor or rights holder.

3. Difficulty in Proving: By being put in a disadvantageous position despite being in the right, one may weaken their ability to prove or collect their existing debt.

Results and Professional Support

The prohibition against self-justice is a rule that reminds us that "procedure is as important as substance" in the process of securing a right. Being right is not enough to remain right; you must also seek your rights through legal means.

When you experience problems with your debts or receivables, initiating a professional legal process is always the healthiest approach, rather than making impulsive and emotional decisions. At MG Law, we are here to support you in all your disputes under Enforcement and Bankruptcy Law, ensuring you utilize your legal rights in the fastest and most effective way. To avoid making irreversible legal mistakes while trying to achieve justice on your own, don't neglect seeking expert advice.

Exceptions to the Prohibition of Self-Defense:

In our previous article, we stated that "self-justice" (an individual's attempt to take justice into their own hands) is prohibited in our legal system and that the state has a monopoly on judicial authority. However, in certain situations within the ordinary course of life, the law grants individuals the right to protect their own rights personally, in cases that are so urgent or necessary that they cannot wait for state intervention. These situations exceptions to the prohibition of self-justice .

Within the framework of the Turkish Civil Code (TMK) and the Turkish Code of Obligations (TBK), these powers granted to individuals for the protection of rights are limited and should not be confused with "abuse of rights".

1. Self-defense (Right to defend oneself)

The best-known exception in our legal system is self-defense. According to Article 64 of the Turkish Code of Obligations, a person may take actions necessary to repel an unlawful attack that has occurred or is certain to occur against themselves or another person, in a manner proportionate to the circumstances at the time.

• The condition is: the attack must be ongoing or the threat of an attack must be imminent.

• Example: The force you use to defend yourself during an attack is not self-defense, but legitimate defense. Here, the right is not for collecting a debt, but directly for the protection of bodily integrity or property.

2. State of Necessity (Iztirar Hali)

Article 63 of the Turkish Code of Obligations defines a state of necessity as the situation where a person damages another's property in order to save themselves or another from a grave and imminent danger.

• Condition: The danger must not have been created by the person who suffered the harm, and the harm must be proportionate to the magnitude of the danger.

• Examples: Having to demolish a neighbor's garden wall while escaping a fire, or necessarily exceeding legal speed limits to get someone involved in a road accident to the hospital. In these cases, the individual has actually committed a "harmful" act without resorting to legal means, but the law makes an exception for "protection of rights or prevention of greater harm."

3. The Use of Force Necessary for the Protection of Rights

Article 64/2 of the Turkish Code of Obligations allows for limited use of force by individuals to protect their own rights. The text of the law summarizes this as follows: "In order to protect their own rights, individuals are permitted to use force proportionate to their rights until the assistance of the state's law enforcement forces arrives."

For this exception to apply, three essential conditions must be met simultaneously:

1. State aid must be insufficient to provide adequate assistance: the loss of time, forfeiture of rights, or irreparable harm must be the cause.

2. The use of force must be necessary: ​​there must be no other way to protect the right.

3. Proportionality: The force used should not exceed what is necessary to eliminate the danger. For example, while it is legitimate to apprehend someone who has stolen your bag, beating the thief for several minutes after catching them no longer falls under the scope of self-defense or protecting rights; it becomes a crime of "self-justice."

4. Protection of Possession (Turkish Civil Code, Article 981)

According to the Turkish Civil Code, the possessor of movable or immovable property may use any force necessary to defend against unlawful attacks on their property.

• Key point: The possessor may use force to the extent appropriate to reclaim their property or stop the attack. However, this authority is limited to the moment of the attack. Using force against the other party after the attack has ended, with the intention of simply "going and reclaiming my property," is also prohibited.

Points to Consider in Exceptions to the Right to Self-Employment

These exceptions do not grant "freedom to act outside the law." On the contrary, a "narrow corridor ." Any action that exceeds the boundaries of these exceptions will directly result in you facing charges under the Turkish Penal Code (assault, unlawful detention, threats, damage to property).

It is important to note that the exceptions of "state of necessity" or "use of force" do not apply to debtor-creditor relationships, title cancellation lawsuits, or inheritance disputes. These areas are routine legal processes that must be resolved through the judicial power of the state.

In summary;

The law only permits citizens to take justice into their own hands in cases of "immediate and unavoidable dangers." Exceeding this limit can easily lead to being unjustly accused even when you are in the right. At MG Law, we advise that instead of violating the prohibition against self-justification with impulsive reactions, you should initiate enforcement and litigation processes without delay. Don't hesitate to seek professional support to initiate your legal processes and avoid losing your rights.

Prohibition of Self-Defense: Exceptions and Supreme Court Practices

The prohibition against self-justice forbids individuals from circumventing state authority and obtaining their rights through force. However, our legal system allows for limited instances of "self-justice" in specific exceptional circumstances, where a delay in state intervention would cause irreparable harm.

Exceptions and Examples in Supreme Court Practices

When examining claims of self-defense, the Supreme Court considers whether the act constitutes "a proportionate use of force for the purpose of protecting rights." Here are some notable approaches from the Supreme Court:

1. Protection of Possession (Turkish Civil Code Article 981) and the Court of Cassation's Opinion

The possessor may use appropriate force to repel an unlawful attack on his property.

• The 4th Criminal Chamber of the Supreme Court of Appeals, December 7, 2015, Case No. 2013/30621, Decision No. 2015/39325: The decision addressed the situation where the defendant prevented work from being carried out in an area he claimed to own. The Supreme Court of Appeals stated that "it is necessary to investigate who owns and possesses the place where the incident occurred, and if the place is in the possession of the defendant, the use of force should be evaluated within the scope of Article 981 of the Civil Code," thus considering insufficient investigation as grounds for reversal.

2. State of Necessity (Iztirar Hali)

Damaging someone else's property to prevent a danger is considered lawful if it is proportionate to the magnitude of the danger.

• The 9th Criminal Chamber of the Court of Cassation, June 8, 2010, Case No. 2008/15262, Decision No. 2010/6954: Regarding the defendants who broke the lock on the gate and entered the organized industrial site because security guards were unavailable due to the risk of fire, the court ruled that the act of "necessity" and therefore, no punishment should be imposed.

3. Protection of Property (Civil Code Article 740)

• Supreme Court 3rd Criminal Chamber Practices: The process of cutting branches and roots that extend onto a neighbor's land and cause damage is a right under Article 740/1 of the Turkish Civil Code. However, the Supreme Court questions whether a "warning and time-giving" procedure was followed. If the property owner cuts down the tree and causes damage without notifying the neighbor and without any court order, the court must decide whether the act constitutes "intent to cause damage."

The Supreme Court's Approach to Actions Violating the Prohibition of Self-Defense

The general tendency of the Supreme Court in "debtor relationships" very narrowly.

• There are no exceptions in contractual relationships: The Supreme Court emphasizes that a legal dispute between the parties (for example, non-payment of a debt) can never be a justification for self-justification.

• The "Reclaiming One's Own Property" Fallacy: The act of the defendant taking a car, which he had sold in installments, from its location without the buyer's consent because he hadn't received payment, is characterized by the Supreme Court self-justice (Turkish Penal Code Article 308) (e.g., Supreme Court 6th Criminal Chamber, decision dated May 18, 1983). Although the defendant believes he is reclaiming his own property, the crime is committed because the legal process (enforcement proceedings) was not followed.

• Eviction and Occupation Cases: In Supreme Court jurisprudence, a landlord throwing a tenant's belongings out or forcibly entering the premises to evict them is not considered "protection of rights"; on the contrary, it constitutes a crime under the Turkish Penal Code.

In summary;

The fundamental lesson to be drawn from the Supreme Court's decisions is this: using force to protect a right (Civil Code Article 981, Turkish Code of Obligations Article 64) and using coercion to collect a debt (Turkish Penal Code Article 308) are clearly distinguished from each other.

• Protection of Rights: The situation is immediate and urgent at the time of the attack (e.g., fire, catching a thief).

• Forced Execution (Enforcement of Rights): This is when a creditor intervenes in a debtor's property or person to collect a debt. This method is never an exception in our legal system.

A professional approach that respects this distinction will protect you from unnecessary criminal proceedings. In any disputes you may encounter in your enforcement proceedings, using the legitimate means provided by the Enforcement and Bankruptcy Law is the safest course of action, avoiding the trap of "taking justice into our own hands.".