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BASIC CONCEPTS OF PUBLIC LAW

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 Page 1

BASIC CONCEPTS OF PUBLIC LAW

I) LOGIN

A) The Concept of Public Law

Rules governing the relationship between the state and a person or another state
it constitutes the whole public law. The relationship between the state and a person is public
the state's use of public power in the relationship in question to be subject to law rules
is required. Ex. Expropriation process is a public law relationship. Litter between the parties
Moreover, the situation arises.

B) Public Law - Private Law Distinction

The distinction between public law and private law is a classic dating back to Roman law.
is the product of classification. Today, some borders between the two have been erased and disappeared.
Although it seems to have been lifted, it is still of great importance. Public law and private
Some criteria can be used to separate law;

- Criterion of Interest: While public interest is at the forefront in public law, in private law
individual interests are important. For example, debts arising from a sales contract
There is an individual interest in performance. In tax debt, public benefit is important, not individual.
It carries.

- Sovereignty Criteria: If there is inequality between the parties, one represents public power
If it is, the public law relationship comes up. The relationship between the equals is the relationship between private law.
creates.
Forcing private parties to do something they do not want in private law relations
and he cannot give orders. It is essential that the will of the parties match. Public Law
In their relations, one of the parties is the order and the other is obliged to implement it.

- Freedom of Will Criteria: As an extension of the sovereignty criterion in public law

the parties cannot decide otherwise. Decisions on public law are mandatory. Private law
Most of the rules are in the form of a reserve law rule and the will of the parties is important. For example,
There is a status relationship between the civil servant and the administration, determined by the rules of administrative law.
However, in sales contracts, the parties can shape the contract as they wish.

II) BASIC PRINCIPLES OF LAW

one
A) Rule of Law
The principle of the rule of law is in the material sense, the value of human dignity and human
It refers to the receipt of that base. Accordingly, human beings in no way
Not reduced, all the activities of the state are to improve the material and moral existence of man.
targets. The reflection of the principle of the rule of law to the criminal law in terms of material is related to the content.
Criminal law rules are arranged in a state of law with a focus on protecting human rights
are they. State of law recognizing human rights, establishing the necessary system to protect
means. Consequently, criminal law rules primarily maintain human existence,
material, moral and economic, which must be protected in terms of improving personality
It should aim to protect its values.

1For detailed information on this topic, see. Adem Sözüer, Turkish Criminal Law Reform Legislation , 1st ed., Alfa,
Istanbul, March 2013.
 one

Page 2

B) Equality Principle
The principle of equality is one of the fundamental principles of the rule of law. This principle is 10th of our Constitution.
article and TCK m. It is stated in 3. Another aspect of the principle of equality is discrimination
It is prohibited. Article 14 of the European Convention on Human Rights and Protocol 12 m.1
no prohibition of discrimination:
Different treatment of those who are in similar situations to talk about discrimination
needs to be done. Therefore, treating different people differently does not create discrimination.
This is not enough. The legitimate treatment of different treatments for people in similar situations
should not have purpose. Therefore, this different treatment is an objective and reasonable
If he is right, discrimination will not be mentioned again. Discrimination basics language, religion, gender,
it can be for a variety of reasons such as political opinion, ethnicity, physical disability. Discrimination exposed
output can also be differentiating, excluding, prioritizing, restricting or recording. This
a discrimination that satisfies the conditions is against the principle of equality, the rule of law and the Constitution.

C) Sovereignty, Legal Security and Administrative Stability

In terms of the concept of sovereignty, it addresses the issue based on two different sources.
There are benefits. When the Constitution of the Republic of Turkey is examined, the authority that the Sovereignty belongs to NATION
A " STATE AUTHORITY " not used in the Constitution, which is used by ORGANS,
are the prominent elements that cannot be used.

Sovereignty is one of the three elements of the State ( nation, country, sovereignty ).
It stands out.
The nation element refers to a certain community of people. Country element, the state
Express the area (piece of land) on which the nation is settled, subject to sovereignty
would.
So in order to talk about the concept of sovereignty; SOIL ISSUE, A PARTICULAR
HUMAN COMMUNITY AND GOVERNMENT is required.
Where does the state have the power to set legal rules and ensure compliance with these rules?
The question he received was discussed throughout human history. Sovereignty expressing state authority
The concept (domination), in general, "The original, superior, single, indivisible and infallible legal
It is defined as power. Sovereignty, independence of the state, legally equal with other states
to be in a state, to impose orders and prohibitions, to force them to accept them when necessary, and
is that there is no other rival power ".
The concept of popular sovereignty was put forward by JJRousseau. Nowadays
Rousseau, which influences the understanding of sovereignty, is a social source of sovereignty.
accepts the existence of the contract. Community contract with all the rights of each member
to leave himself to society and accept the supremacy of the general will
It requires. If you look at the French Declaration of Human and Citizen Rights ,
As in our Constitution, the source of sovereignty is taken from the nation, nobody clearly from the nation
It is stated that he cannot use a power that does not originate.
The concepts of LEGAL SECURITY AND ADMINISTRATIVE STABILITY are actually sovereignty.
It has close relevance, as it defines its limits.

2nd
Page 3

D) Binding and Superiority of the Constitution

First of all, in the Turkish Constitution in terms of binding and superiority of the Constitution.
It is located under the heading of “GENERAL PRINCIPLES”.

ARTICLE 11 - Constitutional provisions, legislative, executive and judicial organs, administration

are the basic rules of law linking authorities and other organizations and individuals.
Laws cannot be against the Constitution.
In the relationship between the Constitution and other legal texts (law, regulation, regulation etc.),
Constitutional structure that is not only about being the upper law norm.
it appears to have. Namely, regulations explain the content of laws,
exists to demonstrate the mode of administration. In other words, the justification law of the regulation
It is to explain. It cannot bring innovation outside the field regulated by law. The purpose of the law,
An arrangement that does not explain the Constitution, but does not contradict the Constitution
It is to do. So laws, regulations and other legal texts were drawn by the Constitution.
they are within the scope of the area. It determines the area that should not be contrary to the Constitution.

Page 4
 III) JUDICIARY ORGANIZATION
In our country, disputes are mainly resolved in eight jurisdictions.

JUDICIARY HANDLES

General Forensic Administrative jurisdiction

Constitution Conflict Choice Account

Judgment (General-Military) Judgment Jurisdiction Jurisdiction Jurisdiction

(Private Law-Criminal)

Council of State- Constitution High Conflict SAI

Supreme Court AYİM Court Court Election

Board

A) Judicial justice
1) Criminal Justice
Whether a crime has been committed; if so, by whom and what is the sanction
is the subject of criminal law disputes.

1. Dispute Resolution
The courts of first instance are divided into general courts and specialized courts .

a) Courts of First Instance

Criminal justice in courts of first instance general courts and special courts be
It is divided into two.

General courts are criminal courts of peace, criminal courts of first instance and heavy criminal courts . These courts
They look at cases that do not fall within the sphere of specialized courts.
Examples of Specialized Courts , Juvenile Courts Intellectual and Industrial Rights Courts
shown. Specialized Courts make trials specific to some criminals or some types of crime.

b) Appeal
An Appeal may be filed against the decisions of the courts of first instance. Appeal, second degree
is a remedy, the decisions made by the courts of first instance are both material and legal
is examined from the direction. Regional Courts of Justice will review and decide on this application .
However, this regulation has not been put into operation yet.

c) Appeal
It is the remedy applied against the decisions made by the courts of first instance.
On appeal, only the relevant decision needs to be examined legally. But in practice
financial examination is also carried out. The appeal body is the Supreme Court. Issued by the Supreme Court
decisions are final.

Page 5

FORENSIC JUDICIARY ORGANIZATIONS

LEGAL GRADE COURT
Supreme Court
 Grand General Assembly

General Assembly of Law Criminal General Assembly

21 Legal Department 11 Criminal Division

SECOND GRADE COURTS

Regional Courts of Justice

Legal Offices Criminal Chambers

FIRST GRADE COURTS

Civil Courts Criminal Courts

Magistrate's Law Civil Law Magistrates Criminal Court of First Instance Heavy Criminal Specialization Criminal
(Child Mah.,
Traffic Neighborhood etc.)
B) Administrative Jurisdiction
ADMINISTRATIVE JURISDICTION
SUPERIOR COURTS

Council of state Regional Administrative Courts Military Administrative Judiciary

Jurisprudence Unification Board (Military and Administrative Supreme Administrative Court issued by the Administrative and Tax Courts
Decisions + IYUK m. Made to the Decisions numbered 45 Court
Examine Appeals)

Administrative Litigation Boards Tax Litigation Boards

Administrative Litigation Offices Tax Litigation Offices

FIRST GRADE COURTS

Administrative Courts Tax Courts Council of state

Single Judge in Board Single Judge in Board (Lawsuits)

The Council of State Law
m. Lawsuits Numbered 24

Page 6

C) Military Judiciary
1. Courts of First Instance
Military justice is enforced by military courts and disciplinary courts .

Military courts , military personnel mentioned in article 9 of Law No. 353

military offenses and their military or military service or military service
They are in charge of looking at cases related to the crimes they committed in relation to their services and duties. This
courts; military crimes committed by military persons and their soldiers against
 oristoindeal
It with Belongs
charge. cases of to
crimes they
crimes committed
against in connection
the security withthe
of the state, military service and
constitutional duties.
order and the functioning of this order
all cases are heard in court courts.
Disciplinary Courts belong to disciplinary offenses mentioned in Law 477 of soldiers.
they look at the cases. Three days to the upper disciplinary court for the decisions of these courts
an appeal can be filed. Decisions on the objection are final and in the given provisions
In the event of a violation of the law, the Chief of General Staff, Military
On the written order of the Military Supreme Court Prosecutor to apply to the Supreme Court
It can request from the Minister of National Defense.

2. Appeal
Decisions by military courts are also appealed at the Military Court of Cassation
It is. Its duties are similar to the Supreme Court in judicial justice. Issued by the Military Supreme Court
decisions are final.

D) High Council of Judges and Prosecutors

High Council of Judges and Prosecutors, independence of the courts and guarantee of judges
It is established according to the principles and functions. M of the Constitution. 159 / f. According to 8, the Board, judicial and administrative judges,
accepting, assigning and transferring prosecutors into the profession, giving temporary authorization, promotion and first class
allocation, staff deployment, to remain in the profession decisions concerning those deemed appropriate, disciplinary action
performs giving and dismissal procedures; Abolition of the Ministry of Justice, a court
or decides their proposals to change the jurisdiction; also, the Constitution and
Performs other duties assigned by law.

E) Ministry of Justice
The Ministry of Justice is the head of the HSYK Board.

The duties of the Ministry of Justice, the Organization of the Ministry of Justice and 29.03.1984
It is listed in Article 2 of the Law on Duties. Accordingly, the duties of the Ministry of Justice
Let's take a look;
a) Opening and organizing courts envisaged to be established in laws, penal execution and
To plan and establish justice institutions of all degrees and types such as correctional institutions, enforcement and bankruptcy offices
and to develop and supervise in terms of administrative duties,
b) Judges on the abolition of a court or changing the jurisdiction; and
Prosecutors make proposals to the High Council

c) The authority granted by the laws to the Minister of Justice in relation to the public prosecution
to conduct studies and procedures on the use of

d) To perform the duties assigned by the Law of Attorneys and Notaries to the Ministry,
e) To carry out the services related to the keeping of the criminal record

f) To perform the duties assigned by the Turkish Commercial Code and the Trade Registry Regulation to the Ministry,

Page 7

g) To carry out the procedures related to foreign countries in matters related to justice services,

h) To make the necessary researches and legal arrangements on justice services,

Reporting an idea,

i) Law and draft decree laws issued by the Ministries

to examine the suitability of the Turkish legal system and the law-making technique before its submission,

j) To organize execution and correction works according to the provisions of the relevant legislation,

k) To carry out enforcement and bankruptcy procedures through the enforcement and bankruptcy offices,

l) To perform other duties assigned by law.

IV) PRINCIPLES RIGHTING THE JUDICIARY SYSTEM

According to article 9 of our Constitution, “jurisdiction is independent on behalf of the Turkish Nation.
used by courts ”, and Article 138“ judges are independent in their duties ”
He says. Independent and impartial action when all judicial bodies perform their duties
 they must. Being
also means not to equidistant to impartiality
have a favoritist judgment subjects,
attitude. Independence is the in favor of one
judges
It means not to take orders from any person or institution while performing its duty.

a) Independence and Impartiality

M of the Constitution. 2. According to the Republic of Turkey is a state of law. A variety of state of law
It consists of constructive elements and perhaps the most important of these constructive elements is independent and
it is the right to be tried before a neutral court.
M of the Constitution. According to 9, jurisdiction is exercised by independent courts on behalf of the Turkish Nation.
Constitution titled 'Independence of Courts'. According to 138; 'Judges are
They are independent; In accordance with the Constitution, the law and the law, the judgment according to their conscience
they give. No organ, authority, authority, or person can bring courts to exercise jurisdiction.
and cannot give orders and instructions to judges; cannot send circulars; can not give advice and suggestions.
With the exercise of judicial power in the Legislative Assembly on a lawsuit in progress
The relevant question cannot be asked, interviews or statements can be made. Legislative and
the executive bodies and the administration must comply with court orders; these bodies and the administration,
can not alter court orders in any way, and their enforcement
do not delay. ' As can be seen, although the courts' independence in the title of the article
In fact, content is about the independence of judges. Judges law and
decides according to his conscientious opinions. Ensuring trust in justice, reaching fair decisions
influence can be given by judges away from pressure and direction.
administrative procedures and activities of courts and judges are obliged to obey the orders and instructions.
Independence is limited to solving disputes, that is, judicial activities.
In addition to the legislative and executive, other
it should also be protected against courts. First instance, District Court and Supreme Court
It does not give the authority to give orders and instructions to one another.
not remain on paper, the principle of independent courts and judges, the functioning of
Another important issue for the decisions made by the judicial authorities is that
is to be applied unchanged. Failure to fulfill judicial decisions at the same time
It is a crime.
Constitution for the independence of judges m. Regulations included in 138
although these are not sufficient. Because judges are directly pressured about their duties.
as well as personalities such as appointment, promotion, dismissal, relocation, salary, retirement

Page 8

Because of the law may be exposed to indirect pressure. Therefore, the Constitution m. 138, m. 139
and it should be evaluated together with 140. Contains the title of 'judgeship and prosecution order'
M of the Constitution. According to 139 'Judges and prosecutors cannot be dismissed, unless they want them in the Constitution.
cannot retire before the age shown; abolition of a court or staff
cannot be deprived of monthly, appropriation and other personal rights, even though. by trade
those convicted of a crime requiring removal, their duty to health
those who are understood to be unfulfilled or that it is not appropriate for them to stay in the profession.
Exceptions to the law about those decided are reserved. ' 'Judge and prosecution profession'
Constitutional heading m. According to 140 'Judges and prosecutors judges and administrative judges judges and
They serve as prosecutors. These duties are carried out by professional judges and prosecutors.
Judges perform their duties according to the independence of the courts and the guarantee of judges.
Qualifications, appointments, rights and duties, monthly and appropriations of judges and prosecutors in the profession
progress, change of duties and places of duty temporarily or permanently,
disciplinary prosecution and disciplinary action against them, related to their duties or
investigations and trials for their crimes during their duties
decision making, situations of guilt or inadequacy that require dismissal and in-service
their education and other personal affairs are based on the independence of the courts and the
according to the law. '
When we evaluate all these regulations together, the independence of a court
 While investigating, the order of the members to be appointed and dismissed, the term of office, the orders to the members
Whether there is an authority that has the power to grant, any members
whether the measures to ensure protection are taken and the courts are generally
it will be checked if it gives an independent view.
Although independence and impartiality seem interconnected, they are different concepts. Impartiality
some of the court or some of the court members at their parties' level, or
it does not have a feeling or interest against them. Subjective neutrality, court
Its member expresses the judge's personal impartiality and is assumed until otherwise fixed. Lens
impartiality, the court's impression on the person as an institution, that is, trust in those seeking rights
that gives a neutral look.

B) Judicial Guarantee
The guarantee of the judge, to be able to fully realize the independence of the judges,
to work in peace and tranquility, away from material and spiritual pressure.
are the personal safeguards recognized. 'Of the courts that are tied tightly in the State of Law
independence and its principal element are the principles of judicial guarantee,
usually no influence, especially neutral, without the influence of the executive
to be sure that they will fulfill their duties, to trust the courts and judges,
believed in this regard, any judgment, in order not to remain uneasy.
forms the basis of the order. This arrangement will handle anything that may disrupt or person in good order
The methods that can raise suspicion should not have a place in that order. ' (AY. Mah.
10.1.1974, E. 972/49, K. 974/1, AMKD. c: 12, p. 29)
Applying abstract law rules to the concrete case regarding the conflicting interests and conscientiously
the judge will decide accordingly, impartiality and independence while performing this duty
has to take a proper attitude. The judge will ensure the impartiality and independence of the
One of the major advances in the profession of judges security, the protection of financial interests and
Providing personal rights guarantees. Judge assurance granted to judges
it is not a privilege but an accepted principle for the public. Judge's legislative, executive and
There are even regulations in our Constitution to ensure independence against the judiciary.
It is located. A significant part of these arrangements retain and spend financial resources,

Page 9

to the executive who follows the personnel regime and uses the public authority the most.
It is directed.
Within the scope of the guarantee of judges, both in teaching and in the constitutions;
Failure dismissal of judges, they can not be retired, without the consent of their duties
not being able to be changed, deprived of their monthly and allowances2, no other task
the jurisdiction in the legislatures due to a lawsuit in progress
There is no question about questioning and no interview.
Indeed, in our constitution, judges and prosecutors cannot be dismissed, unless they want to
they cannot retire before the age shown in the constitution; A court or staff
deprived of pensions, benefits and other personal rights, even though
arrangements that cannot be made are included. With these arrangements, the judge and
assurance that prosecutors can be independent of pressure groups
It was requested. On the other hand, he was convicted of an offense requiring layoff
who are clearly understood as unable to fulfill their duties in terms of health or in the profession
judges and prosecutors who were found unsuitable for their stay
as an exception.
The most controversial point regarding the guarantee of the judge is the military judges.
Considering the ECHR's relevant decision on this issue, the military judges are at the command of the executive
they are subject to military, military discipline, and registry evaluation; both administrative to promote
and that their judicial superiors need a positive record; decisions on their appointment,
with the independence and impartiality of the courts as they are taken by the administrative authorities and the military
It states that the concerned concerns can be objectively excused. (ECHR's 25 September
2001, Turkey Kızılöz-case 'applicant no: 32962/96)
 One of the most controversial issues in our country regarding the guarantee of the judge is the Judges.
and the structure and powers of the Council of Prosecutors. To the regulation in article 159 of the Constitution
According to this board, the board is established on the basis of the independence of the courts and the guarantee of judges.
It makes. The head of the board, which consists of twenty two original and twelve substitute members, is the Minister of Justice and of course
the Undersecretary of the Minister of Justice and four members of the President
The issue of the appointment is stated as the intervention of the executive in the judiciary.
It is claimed that it poses a threat to the independence of judges. Judicial and administrative jurisdiction of the Board
accepting, assigning and transferring judges and prosecutors to the profession, giving temporary authority, promotion and
the first category, staff deployment, those not deemed appropriate decision on the continuation in the profession
imposing, disciplinary action, dismissal; Justice
The Ministry's decision to abolish a court or change the jurisdiction
deciding their proposals, as well as the duties of judges and prosecutors; law, statute,
in accordance with regulations and circulars (administrative circular for judges)
checking what they don't do; committing a crime due to or during their duties
investigate that they do not work, whether their actions and actions comply with adjectives and duties, and
when necessary, examination and investigation proceedings, proposal of the relevant department and Judges
and with the approval of the President of the High Council of Prosecutors,
to judicial authorities against decisions other than those related to the dismissal sentence
Judges and Prosecutors Board,
it is clear that they have important powers. Therefore, on the structure of the board belongs to the executive
It is claimed that the presence of persons will damage the assurance of the judge.

2 'While the Court is examining whether a court is' independent' in terms of Article 6/1 of the Convention,
the way members are appointed and their term of office, whether there are existing safeguards against external pressure and
repeats the need to see if it gives an image of independence. See. Findlay - February 25, 1997
UK Decision, Reports 1997-1, p.281, §73). '

Page 10

Speaking about what matters are available for judges, which briefly
we can also mention that there is no guarantee in matters. First, the geographic guarantee of the judges
we can say that Dismissal, retirement ahead of time and adequate salary
geographic inequalities are an important factor,
It is more remarkable than the city in which it operates in our country, and the possibilities are scarce.
pressure on judges threatened to assign to a city in which there was a security problem or
You can create. For this reason, the opinion that the consent of the judge should be taken in these matters.
It is introduced. However, in the Constitution, the consent or opinion of the judge on this matter is taken.
There is no regulation regarding the necessity.
Secondly, the lack of assurance of judges not to be appointed to the prosecution class
It is claimed that it will shadow their independence. Judges and Prosecutors Law
According to the judge, it is possible to be appointed to the prosecutor's office without the consent of the judge,
This also against the High Council of Judges and Prosecutors as well as against institutions
It is claimed in the doctrine that their independence should be ensured.
In response to all these criticisms, especially in the High Council of Judges and Prosecutors
Despite the presence of the Minister of Justice and the Undersecretary, other members of the board are independent judges.
It is formed; From the general course of the country's justice policy to the Minister of Justice and justice
is responsible for the good functioning of its services and if there is a glitch in these matters
Justice in the board, since this will be accounted for by the minister of justice, not independent judges.
It is claimed that the necessity and validity of the presence of his minister. Comparative law
When we look, for example, the Supreme Council of Judges in France ( Conseil supéreur de la
Magistrature ), one is judges ( magistrats du siège ), the other is prosecutors ( magistrats du parquet )
who are authorized to set up two ( formation ) is formed.

C.) Natural Judge

While the state of law spoke of impartial and independent judges and courts,
It is also necessary to briefly touch upon the assurance of the judge (natural judge). Article 37 of the Constitution
According to him, 'No one can be brought before a court other than the court he is subject to by law. One
 the result of bringing
Extraordinary anyone
authorities withbefore a courtcannot
jurisdiction other than the court to
be established which he istolegally
'. According subject
this article, to courts
which
it should be specified by law and precisely that it will deal with crimes. After anyone committed the crime
it cannot be tried in a court established. According to the Constitutional Court's decision 1963/71
the natural judge was established in general and for all, his duties and powers were determined by law.
the courts. Established to try certain people or crimes after the crime has been committed
courts are extraordinary courts and these are against legal (natural judge) security
constitutes. According to the Constitutional Court's decision dated 20 October 1990 and numbered 1990/30:
"Legal judges of the rule of law (statutory judge), natural judge (a judge of course) as
It should be understood. The concept of natural judge is, in a narrow sense, of committing crime or
It is defined as the law determining the place of jurisdiction to see the case before its birth.
In other words, the principle of the natural judge is that the judicial authorities have committed the crime or
prevent the establishment or appointment of judges after the contention occurs
creates; it does not allow the appointment of a judge based on the defendant or the sides of the case ”.
The principle of natural judge is against the interference of the legislature and executive body.
Remains. According to this principle, the court to conduct the judgment should be established by law. Executive
the body cannot establish a court. The legislature can also establish a court by law, but the person is guilty of
Can not be tried in the established court after processing. The natural judge principle is extraordinary
prohibits the establishment of authorities, the same principle as the ordinary court and the natural judge
things are. Another point to be mentioned here is the exceptional courts and special courts.
is that it is different from each other. Exceptional courts, the court in accordance with the Constitution

10

Page 11

are the courts that exist outside their organization and are set up for one or more concrete actions.
Private courts, on the other hand, were established by law to try a specific category of offender or crime.
courts and the establishment of special courts is suitable for the Constitution. Special
Examples of courts are Military courts, juvenile courts and commercial courts
shown.
General and abstract determination of the proceedings related to judges and an ongoing
Making regulations that will lead to the change of the judge of the case is also legal (natural)
is against the assurance of the judge.
Due to the importance of the independence of the courts, judges' guarantees are foreseen.

D) The Innocence of Innocence

M of the Constitution. 38/4, İHEB m. 11, ECHR art. 6/2 and MSHS m. Explicitly stated in 14/2
A person is considered not guilty until the guilt is fixed. Persons in private law
It is possible to include the shinas that contain the responsibility, and the burden of proof will be replaced.
subject. In Criminal Procedure Law, all
which can not be a presumption on the ground. The person is considered innocent, whether the crime has been committed and by whom
it belongs to the prosecution and court to prove that it was committed. No one would prove that he was not guilty
It can not be forced.
According to the ECtHR case-law, “… while performing their duties, members of a court
it should not start with the assumption that, among other principles, the accused committed the accused crime;
The burden of proof belongs to the prosecutor and all doubts should be used in favor of the accused. ”(Barbera, Messeque,
Jabardo / Spain). In its decision dated 20.03.2001, the ECtHR applied the “presumption of innocence”.
reveals his field as follows: “It also constitutes a guarantee for the accused
The main result of the crime of innocence in the crime case and its application area, in fact, is proof
It relates to his obligation: his claim (that a crime has been committed) in a way that leaves no room for reasonable suspicion.
The proof belongs to the claimant (ie the accuser). As a rule, the defendant is obliged to prove his innocence
It is not. The natural consequence of the principle is that the accused will benefit from doubt; failure to prove the claim
in the event that the case will result in acquittal. A serious proof in the proof of the claim
Despite the absence of a start, the defendant was obliged to comment on the incident.
avoiding (the right to remain silent) and based on some other facts, the crime is fixed and sentenced
Making the decision is a violation of the guilt of innocence ”.
The presumption of innocence is not only the judicial authorities, but also administrative authorities and private individuals.
 also covers. For example, while the Press acts within the scope of freedom of reporting, innocence
should not act contrary to his carine. Don't judge this karine like during the trial
Presumption of innocence should be observed before and after acquittal.
One of the reasons for the investigation to be made confidential (CMK m. 157)
is to ensure the right not to be stained. Therefore, during the investigation phase, the police, the gendarmerie,
statements taken by the prosecutor, wiretapping minutes and other evidence
It cannot be given to its organs. Photograph and film during judicial proceedings inside and outside the courthouse
forbidding (CMK m. 183) to protect people's right not to get stained
the ayes have it.
The right to remain silent of the presumption of innocence, to give evidence and evidence against one's own
It is also closely tied with the ban that it cannot be forced. Accordingly, to show the person's identity
Apart from enduring legally recognized powers for obtaining evidence in Criminal Procedure
it does not have to cooperate with the judicial authorities to find out the crime.
Such as blood, urine, or other tissue samples, as noted in the Saunders v. The United Kingdom case, or
the use of materials such as a document acquired in connection with a warrant is against itself
it does not constitute a violation of the prohibition of enforcement of evidence and declaration. “Sûkut is confession” principle

11th

Page 12

It is forbidden in Criminal Procedure Law, silence is never accepted in the sense of accepting crime
It is not. CMK m. With the principle of not being able to make a statement against himself in 48
hence it relates to the presumption of innocence. According to this article, the witness himself and CMK m.
Answer the questions that may be punished for their relatives mentioned in 45/1
can avoid giving.
Another reflection of the presumption of innocence is the principle that the suspect takes advantage of suspicion. This
According to the principle, when judges decide according to the available evidence and conscientious conviction, conviction
a simple suspicion that the crime was committed by the accused is sufficient to give the verdict.
There must be satisfactory reasons for this. The Constitutional Court
“Presumption of innocence” in the decision dated 29.01.1980 and 1979/38 E, 1980/11 K.
It is explained as follows: '… Our Criminal Trial Law adopted in principle
"Presumption of innocence" is an indispensable "right" for the accused. This right, the defendant's convict decision
It requires that it be considered innocent until it is given… 'Illegal crime and punishment, without trial
convictions and unprotected judgment, proving guilt claims
the necessity, the suspicion cannot be interpreted against the defendant and the suspect
'innocence integrated with the principles of the necessity of benefiting and the system of' conscientious evidence '
his karinesi gains a contemporary character. Instead of the 'innocence presumption', the guilt presumption
his acceptance will cause him to be considered guilty unless proven to be innocent,
anxiety of not being able to prove innocence and the arbitrary or improper and inadequate body of the accusing body
the accusations will leave the innocent person in a constant sense of fear and insecurity ... '

V. RESOURCES IN LAW AND INTERPRETATION

A) Resources in Law
1) Written Resources

a) Constitution
The constitution is the main structure and nature of a state, such as legislative, executive and judicial
and the relations between these elements and the fundamental rights and rights that citizens have.
These are the general rules of law that regulate freedoms.

b) Law
General, abstract, objective and continuity that can be applied to everyone and similar events
written legal rules, which have qualifications, appear as law.
c) International Agreements
International treaties are made between persons authorized by international law.
 and to create rights and obligations in accordance with international law,
are the legal actions aimed at changing or eliminating a legal status.

d) Decree Laws
The authority granted by the legislature or directly from the constitution
on the basis of the legislature, which was adopted by the Council of Ministers,
are regulatory processes that are subject to and are considered lawful in the hierarchy of norms.

e) Regulation

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Regulations, to demonstrate the enforcement of the law or to specify the works ordered by the law
for; Ministers, provided that they are not against the law and are subject to a review of the Council of State
They are issued by the board.

f) Regulations
It concerns the fields of duty of the Prime Ministry, ministries and public legal entities.
to ensure the enforcement of laws and regulations and on condition that they do not contradict them
are the regulations issued.

2) Unwritten Resources
Unwritten legal rules bearing the elements of continuous application and necessity belief,
and it appears as menstrual rules. A pattern of behavior in a particular society
or among a profession group or in a certain region for a long time, stable
repetition in a continuum, continuous practice, adopted and constantly
In order for the applied behavior pattern to become the custom and menstrual rule, that behavior
If the observance of the pattern is an obligation for that community, it is imperative.
takes place as an element of belief.

3) Auxiliary Resources
If a judge is required to resolve a legal dispute, written and
are the sources applied after unwritten sources.

a) Doctrines: It is recommended that legal scientists

their opinions, thoughts and opinions.

b) Case-law: These are the rules of law consisting of the decisions made by the courts.
When judges make a decision about the incident, the superior
they decide by taking the decision of the courts forward. consideration
this superior court decision, appears as "case law".

B) Interpretation of Resources in Law

1) Types of Comments
1. Legislative Interpretation : The legislator, who sets the rule in the legislative interpretation,
the meaning of the rule of law by determining the way of his will
clarifies. Legislative interpretation of all courts and executive
connects the organ.
2. Judicial Interpretation: Courts during the application of the law to concrete events
is the comment made by. The validity of the judicial interpretation makes this interpretation
it is limited to the concrete event before the court.
 3. Scientific Comment:ofItabstract
This interpretation is the comment
solutions,made by legalofscientists.
irrespective A certain
the concrete event,
not binding in any way.

2) Interpretation Methods

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1. Verbal Interpretation Method: In this method , the meaning of a law article, this article
words, places of these words in sentences, syntax of matter,
determined by looking at the punctuation marks. Grammar rules and words
dictionary meaning plays an important role. Distinctive feature of the lazy interpretation method,
not to comment based on the words of the law, but to the words of the law
It meets at the point of staying and asking not to go out of it.
2. Historical Interpretation Method: The law of the legislator in this method of interpretation
the purpose it pursues while putting it is researched and for this purpose,
that is, the negotiations and discussions in the commission and the parliament, the law
justification is taken.
3. Logical Interpretation Method: The meaning of the matter
bind, its situation against other substances, systematic of law, plan
It is determined by looking at its location in it. In this method of interpretation part of the law and
The section titles and the edge titles of the item play an important role.
4. Systematic Interpretation Method: Making sense of the individual legal rules
rather, all the rules of law form a coherent whole
recommends interpretation. Links that make the rules of law consistent with each other
on it. The meaning of a norm to be interpreted according to this method is related to that norm.
should be determined taking into account all norms.
5. Conceptual Interpretation Method: According to this method, a certain legal norm
when interpreting law rather than social reality or concrete reality
It is necessary to act from the abstract content of the norm. The biggest of this method
feature is to be indifferent to the social purposes that the law is directed and in law
to give importance to generalization and concept creation.
6. The Case-law of Benefits: According to this understanding, every legal dispute
there is a conflict of interests and the main task of the judge is
is to balance the interests involved in its dispute.
7. Theological (Purpose, Functional) Interpretation Method: The text of the law and preparation
material, as well as the purpose of the law and especially the needs of time
It should be taken. According to this method, according to the needs of the time when the laws were applied
It should be reviewed.

3) Logic Rules Used in the Interpretation

1. Comparison: The rule established in a law for a certain actual situation, that situation
another situation that looks like but has no provision on
It is applied.
2. Evidence (otherwise opposed to the concept): A rule of law is that a particular situation
Considering the feature finds application in areas where the possibility of making any edits. if
if there is such an arrangement, that is, the rule of law takes into account the nature of a particular situation
by taking a particular result in that legal situation,
all other situations are subject to contrary legal consequences.
3. Functionality (Priority): There will be few in the majority, or which is true for the whole.
that something will be true for parts, an accepted thing for a more important situation.
He argues that the provision should also be applied to a less important situation.

4) Application of Interpretation in Law

Since the regulations in the law are abstract, their application to the concrete event
Comment on the subject is inevitable. Being free to comment in every branch of law
 however, there are limitations on some issues. When we look at the private law field here
The limits of the judge's authority to comment are very broad. Article 2 of the Civil Code 2.

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When we look at the paragraph of 'If there is no applicable law in the law, judge, custom and custom law
According to him, if this was not the decision he would make if he was a lawmaker,
Data. ' We see the phrase. Therefore, in the field of civil law, the concrete before the judge
If there is no article in the law to be applied to the event, the dispute lawmaker
pretending to solve it. Compensation of sanctions in private law, such as reinstatement
The fact that it is limited to the issues allowed the comparison to be applied in this area. But the public
In the field of law, the judge's interpretation power is more limited. Discipline in administrative law
In terms of law and when we look at the criminal law, in accordance with the principle of legality,
we see that comparison and expansionary interpretation are prohibited; TCK m. 2 / f. 3 “The crime of the law
and no punishment can be made in the implementation of its punitive provisions. Including crime and punishment
provisions cannot be interpreted broadly, which will lead to apocalyptic. ” The prohibition of comparison is a rule of law
Is required. In this way, people are protected from the arbitrary practices of judges and executive and
legal security is provided.
When we look at the comparison in disciplinary and criminal law not being appropriate, in these areas
we see that the sanctions imposed on violations are heavier in nature. Eg private
while there is a compensation sanction in law, in disciplinary law,
they lose their freedom without possibility and lose their freedom in criminal law. Even
Criminal fines with low amount in criminal law and extortion payments in private law
in comparison, the judicial fine is more severe for the person
I can say. Therefore, regulations on criminal and disciplinary law should
It should be prepared by complying with, and the explanatory interpretation should be avoided.
Comparison is prohibited in discipline and criminal law, but benchmark rule in procedural law
is free. In a dispute before a judge, there are no rules regarding the trial
can not leave the discrepancy on the pretext of continuing. However, no comparison can be made in 3 areas. These;
in exceptional clauses (eg criminal law testimony is mandatory and withdrawal from testimony
It is exceptional. Those who have the right to hesitate to testify cannot be expanded by comparison.), Limiting
in the provisions (for example, detention restricts freedom and therefore reasons for detention)
cannot be expanded by comparison), protection measures (eg conditions and duration of communication interception)
No comparison can be made.)

VI) INJURY AND LEGAL VALUE IN CRIMINAL LAW

CONCEPT
Unlike criminal law, the principle of legality is not valid in private law. MK m. 1 for a
According to the law, “The law is applied in all matters that it mentions with its word and essence. Applicable in law
if there is no provision, according to the judge, customary and customary law, if this is not there, he is the lawmaker
Whatever rule he would make, he decides accordingly. Judge, scientific when making a decision
It benefits from opinions and judicial decisions. ” As can be seen, the law of the judge in private law
There is also a function to create.
Located in relation to criminal offenses in criminal law concept of tort it is in private law.
Both are in a relationship with each other. For example, theft is both a crime and an unfair act.
Most crimes like this are also unfair acts.
On the other hand, it should be noted that the concept of wrongful act and crime is always interrelated.
not overlap. Because damage is an element in terms of the formation of unfair verb. But in danger crimes
These crimes are not unfair since they are not harmed. Again, every injustice
it is not a crime. Because the lawmaker has noticed which verbs are wrong and their enforcement
in terms of crimes and their sanctions, while not making clear regulations in the law
The lawfulness principle applies.

15
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Crime and misdemeanor due to the difference in quantity between unfair acts
discrimination is made. Because of this difference in quantity, these verbs constitute an injustice
only those who are punished are considered a crime. Accordingly, injustice
Some verbs that are not considered as crimes but are considered as misdemeanors. Fault,
Misdemeanors as an injustice stipulated by administrative law
It is defined in the 2nd article of our law. Administrative sanctions imposed on misdemeanors, administrative
are fines and administrative measures. “ Administrative crime” due to administrative sanctions imposed on misdemeanors
It is also called . Contrary to our old law no. 765, Turkish Penalty No 5237
Our law has removed the distinction between felony and misdemeanor. In our criminal law we only include crimes
another, under the name of the Law of Misdemeanors, by removing the misdemeanors from our penal code.
regulated within the law.
In terms of criminal law, crime is punished by law enforcement
it can be defined as a connected verb. But with this formal recipe, what style of behavior
It does not clarify the problem that it will occur and that the state will punish it. Crime
Making the definition is an authority that the constitution gives to the legislator. However, the existence of this authority,
he justifies the lawmaker to criminalize any behavior as he wishes
not enabling. For example, “a six-month prison sentence for a beard public official
it should not be deemed legitimate because the crime arrangement in the form of “ being judged” was made by law.
Therefore, the law-maker identifies an act as a crime and criminal law
Some principles and criteria are needed to justify its binding sanctions. This principle
and the criteria to the legislator, what behavior will punish, what behavior is unpunished
it will be guiding in terms of giving up.
What are the principles and criteria in question is a pluralist democratic law
It can be put forward from the duty of criminal law in the society. Punishment today
The duty of law is to ensure that citizens
to live together in freedom and peace. This task is briefly called “legal
protection of values ” . In Article 1 of the TCK, the basic
its purpose is expressed as “protecting the rights and freedoms of the people… the peace of the society” .
We must state that the protection of legal values, social order and peace,
it is the duty of not only criminal law but also other branches of law. But criminal law
sanctions to the rights and freedoms of the person, other legal sanctions (civil law, administration
law, etc.) much more serious interventions. Therefore criminal law
as a last resort to sanctions when other branches of law are inadequate
To apply. If a legal value is against a behavior that violates that legal value, for example
if it can be protected by compensation sanctions, the linking that behavior to criminal law sanctions
not necessary. This issue is expressed as “the ultimate ratio of criminal law ” (ultima ratio).
Criminal law application in compulsory cases, the legal values of the duty of this branch of law
results in an auxiliary quality in terms of protection and “criminal law
assistant quality ” .
The source of legal values is essentially the constitution. However, this constitution, law
the state and its human dignity and its rights and freedoms
it must be of a safe nature. Legal values are individuals' freedom
for the functioning of a state system based on the principles of development and realization of its rights
what is required is all facts or motivated goals. For example; life, body integrity, sexual
immunity, immunity of private life, honor and right to property, etc. But just this kind
an effective judicial system, an honest public administration, public peace, not individual legal values,
public legal values such as trustworthy money and the environment.
they need to be protected to ensure their survival. So false testimony,

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 counterfeiting in money, bribery, hatred of people and hatred against hostility (hate crimes) against the environment
crimes have been created.
Criminal law is the last tool to protect legal values and help
the nature of the law is that the legislator makes various criminal arrangements that include criminal sanctions.
brings boundaries in terms of. We can state the principles and criteria regarding these limitations as follows:
The right of the person to develop in freedom and to the rights and freedoms of the social order
Crimes that do not serve to function properly should not be created. Therefore, arbitrary
the creation of crimes against punishment, with the task of protecting legal values
incompatible. Criminal law regulations aimed solely at achieving ideological goals
Legal values cannot be created with. For example, in Germany for a while, “German blood
"To marry the Jews is a crime in order to ensure its purity." 3
.
A peaceful coexistence that does not harm or cause harm.
punishment by making the act criminal for another purpose by lawmaker
There should be no legal value that must be protected by Turkish law. For example some
in countries, even if it does not pose any danger and does not contain humiliation,
Making the statement “no genocide” criminalized, the right to explain the thought
it is not correct to make arrangements that result in a violation.
Criminal arrangements should not be made only on the grounds that they are against moral values.
For this reason, the behaviors that take place in the private life area with the mutual consent of individuals are criminal
It is not foreseen. Again, although morally negative, some
behavior should not be punished for not violating the rights of others. Therefore
reading obscene non-violent publications without children,
Watching and selling are no longer criminals (TCK art. 226). Likewise, an abstract lie,
Although it is an immoral act, it requires the intervention of criminal law.
it is not behavior. However, the lie violates someone else's rights or in certain ways.
When it is said, crimes such as false testimony and slander fraud may occur. This
As it is understood from the examples, the penalty and security measures, the function of protecting legal values
In view; but some immoral behavior that does not violate someone else's rights, punishment
The enforcement of law enforcement is not accepted. In other words, morality and
although the law has a common basis, it can be reprimanded for unethical or similar reasons
even if it does not violate the conditions for peaceful coexistence,
contradiction does not fall under the intervention of criminal law 4 .
It should be noted that human dignity is one of the most basic legal values to be protected.
It is one. Behavior that harms someone else's dignity, torture, forced experimentation, sexual
verbs such as attack, violate the most important rules of living together in peace
they have to be punished for. On the other hand, sometimes the person's dignity
even if some of their hurtful behaviors are against human dignity, this just reason alone
is not enough for punishment. Suicide, for example, damages the value of human dignity
Even if it is considered a behavior, the person who attempted suicide is not punished.
In a pluralistic society, people are negative according to their own values.
folding the behaviors they see, the basic coexistence of peaceful coexistence
is one of the conditions. Some of the behavior of the people against unpleasant, negative emotions
their justification, justify the application of criminal law sanctions in terms of these behaviors
It does not make it. However, if a behavior is damaged by individuals' sense of living in safety, this
criminal law may need to interfere with behavior. Because one's

3 Claus Roxin, Strafrecht Allgemeiner Teil , Bd. I (AT I), 3. Aufl. München 1997, p. 15.
4 Roxin, AT I, p. 16 et al.

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Living without fear or humiliation is a necessity to live together in peace. This

For this reason, incitement to commit crimes, religion, race etc. therefore humiliation, insult
 Verbs are organized as crime.
Penalty for applying to criminal law sanctions for the protection of legal values
Another limitation that emerges from the law being the last tool,
It is removed. It should be noted that misdemeanors also violate legal values and this
there is no difference between crime and misdemeanors. But the last of the criminal law
a limitation criterion in the separation of crime and misdemeanors as a tool and its qualification
It is. The legislator, the social discomfort caused by an act, is better than punishment
or at least as effective as it, but administrative fines, such as an administrative fine
If it can resolve with sanctions, then it should not apply to criminal law sanctions. Law
In cases where the government needs to react to contradictory behaviors,
The danger that the behavior shows socially is not severe,
instead of punishment, it requires that it be covered by sanctions on misdemeanors. Crimes and
the fact that there is no essentially a difference in quality between misdemeanors, Misdemeanors
In the justification of the Law, " the classification in question is the difference in quantity between injustices
It is based on " in the above 5 .

VII) BASIC PRINCIPLES OF CRIME POLICY

The duty of the state is to protect individual rights and freedoms. In terms of legislator
It is imperative to consider the principles of criminal policy and criminal procedure. Crime
The basic principles of the policy, the state of law, defect and humanity (humanism)
It is. In terms of criminal procedure, the natural judge principle, the presumption of innocence,
Some principles such as independent and impartial judiciary, right of defense, right to a fair trial, etc.
It is concerned. A constitution should allow to implement these principles. Therefore
In our country, criminal law, legislation and regulations regarding the criminal law in the constitution and
applications should be evaluated in terms of these principles.
I. Rule of Law
The principle of the rule of law is expressed in two ways: form and material.
In the material sense, the principle of the rule of law is the basic norm of the constitutional values system.
It is based on the protection of dignity and is considered in the creation of the content of criminal law.
reveals the criteria to be taken. Criminal law as a requirement of this principle
compliance with equality and proportionality in their regulations and practices, and criminal law sanctions
it is only necessary to ensure that the society lives together in peace.
should be applied when there is. In addition, criminal law sanctions
and their execution is not cruel or degrading, it is a behavior
acting on emotional grounds such as prejudices in determining punishability
Failure to; in judges' decisions, not the personal value judgments, but the lawmaker
Depending on the measurements, objective reasons and general valid information can be counted 6.
The principle of the rule of law in the form of a form, restricting the rights and freedoms of the person
It states that regulations can only be made with laws in a formal sense. This
in criminal proceedings and measures that interfere with fundamental rights and freedoms
equally valid. The form of the rule of law principle guarantees the most powerful criminal law
must be valid in the field. Historical development of the principle of legality in terms of material criminal law

5 Özgenç, p. 96-102.
6 Jescheck / Weigend, p. 26-27.

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In the process, it is seen that four basic prohibitions emerged depending on this principle. These; custom
and the prohibition of menstrual law, the application to the past, the prohibition of comparison and uncertain criminal laws
is a ban on putting.
No illegal crime and punishment - Nullum crimen, nulla poena sine lege
The principle of lawfulness in crime and punishment, acts which are deemed a crime and sanctions related to them
It means that it is clearly determined by law in advance. This principle is based on
 the basic idea is that criminal punishment is the arbitrariness of criminal investigation authorities and courts.
lawmaker with a democratic legitimacy of criminal law sanctions
is to be determined by. As a matter of fact, in Article 2/1 of the TCK, “The law clearly
Nobody can be punished and security measures cannot be applied for a verb he does not count. the Law
other than written penalties and security measures,
hükmoluna not. " With the arrangement in the form of work, crimes and penalties can only be foreseen by law.
the ayes have it. In this respect, an important innovation envisaged in the Turkish Penal Code
“Crime and punishment cannot be imposed through the regulatory actions of the administration.” (TCK art. 2/2)
And regulations. Accordingly, crime and punishment can only be achieved through legislative savings of the Turkish Grand National Assembly.
It will also be possible. As stated in the rationale of this regulation, "white provision" means "open
punishment norm ”and especially the definition of crime with the so-called “ framework law ”
prevented from being done 7 .
Ban on custom and custom punishment - Nullum Crimen Sine Lege Scripta
According to this rule, the person can not be punished on the basis of customary law.
it will not be punished more severely than prescribed by law. The rationale for this rule is
lawmaker with only democratic legitimacy of crimes and criminal law sanctions
is to be determined by. Custom and menstrual law, only in the field of criminal law
has a limited application area as an indirect source 8. In Article 2/1 of the TCK
statement that crime and criminal law sanctions should be clearly prescribed in the law
criminal law about the person based on customary and customary law.
enforcement of sanctions is not possible.

Principle of uncertainty - Nullum Crimen Sine Lege Certa

Another rule revealed by the principle of lawfulness is the principle of certainty.
It is called, and this principle raises the ban on making vague criminal laws.
Accordingly, the definitions of crime and its legal consequences are avoided by avoiding very expandable concepts.
lower and upper limits on the amount of penalties to be made as clearly as possible
The gap between should not be excessively clear 9 . Representative of the people with the rule of determination
the will of the legislator to find a clear statement in the legal texts and this
Thus, it is aimed to prevent subjective-arbitrary decisions of the judge. Uncertain
In the presence of laws, the state's power of punishment is securely limited
Will not. In this case, citizens will remain unprotected against arbitrariness and punishment
The assurance function of law will not function effectively. The judge is very wide-
creation of a subjective field of interpretation, as well as an intervention effect on the legislative field
a situation contrary to the principle of separation of powers will have arisen. This
Therefore, the compliance of criminal judge's decisions with the law can be effectively controlled.
and such an audit is only good if the law complies with the specificity rule.
can be done in a way 10. Clear and distinct nature of the provisions of the law on crimes

7 Mahmut Koca / İlhan Üzülmez, Turkish Criminal Law General Provisions , 5. bs., Ankara, Seçkin, 2012, p. 56-58
8 Jescheck / Weigend, p. 134; Özgenç, p.106-112; Koca / Saduz, p. 51.
9 Jescheck / Weigend, p. 136-137; Özgenç, p. 112, 113.

10 Jescheck / Weigend, p. 137.

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not to use concepts that are very extensible and have different meanings.
In terms of meeting the term “explicitly” is included in article 2/1 of the TCK .
Comparison - Nullum Crimen Sine Lege Stricta
Word in the interpretation of regulations including prohibition of comparison, criminal and criminal law enforcement
It is concerned. Comparison is similar to the rule of law for an event not regulated by law.
Adapting to an event, in other words, "the creation of a new law" means
It comes. Gaps in regulations including the prohibition of comparison and criminal and penal sanctions
it is intended to prevent filling in through comments. Because of any emptiness
In the case of law, in accordance with the lawfulness principle, only if the legislator
should fix 11th. Comparison ban on abolished 765 TCK, not explicitly prescribed by law
 they were
Courts areconsidered together
extender since as a result
the scope of theofcomparison
the provisions on the principle
prohibition of legality.
is not determined byBut
law.
Under the name of the comment they were making applications that were astounding. Comparison with these applications
It was dolanıl. This is why the new Turkish Penal Code 2/3. article, both
the principle of comparison prohibition, “Compares
It is done. " Prescribed as; both “Criminal and punitive provisions will lead to a fierce
it cannot be interpreted broadly. ” The scope of the prohibition of comparison has been determined. thus
The assurance function of the lawfulness principle is aimed to be realized effectively.
Prohibition of walking to the past - Nullum Crimen Sine Lege Praevia-
A verb that does not require criminal law enforcement when it is committed, by a new law
It cannot be punished as a force against the past. In the same way when processed
from the sanction prescribed by the previous law about a verb that requires a penal sanction in the Law
The law, which stipulates that I did a heavier one, cannot be enforced in the past. The lawfulness principle
these requirements are stated in the TCK, “A crime that is not considered a crime according to the law in force
No punishment can be imposed on anyone for the act and security measures cannot be applied. After processing
According to the law enacted, nobody can be punished for an act that is not considered a crime and
Security measures cannot be applied. If such a penalty or security measure has been imposed
execution and legal consequences are spontaneously removed. ” It is predicted as (art. 7/1). back
If the prohibition of walking has consequences for the person, “When the crime is committed,
If the provisions of the law in force and the laws that came into force later are different, the offender
The law in its favor is enforced and executed. ” The application of the provision (art. 7/2) is in question.
With this provision, the laws that give rise to a favorable situation have been
It can be applied. In terms of laws regarding the enforcement regime, the principle of immediate implementation
and such arrangements are only forward from the moment they come into force
Shall apply. However, there are sanctions that impose liberty as binding and such
Even if the regulations regarding the duration of the penalties are a measure or execution clause,
they are subject to the prohibition of walking into the past and the principle of applying it in favor: “Postponing the prison sentence,
excluding those related to conditional release and recurrence; provisions on the enforcement regime, immediately
It applied. " (art. 7/3).

During the period of the repealed Turkish Penal Code, time related to temporary and temporary laws
There were various discussions about the application in terms of. Abolished in this regard
The absence of a clear legal regulation in the Law is a serious
it was a problem. This problem can be resolved by making an arrangement in the new Law.
It has been given. According to this regulation, a temporary or temporary law of a crime is in force

11 Jescheck / Weigend, p. 135; Özgenç, p. 113 et al.

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temporary or temporary law about that crime.

implementation will continue (art. 7/4).
II. Defect Policy
The principle of defect is only if the person is defective due to a crime committed first
It states that it can be punished. In this sense, a function of the flaw principle based on punishment
has. If the person is not defective in connection with the crime he committed, about the person
only security measures can be applied. The second function of the principle is with the fault of the person
is to be punished proportionally. In this respect, the flaw principle is a criterion that limits the punishment.
and serves to ensure fair punishment. Especially when people commit
penalties in the society due to their deterrence, general prevention, etc.
demands to be increased in the form may arise. However, the lawmaker's defect principle
arrangements for punishment disproportionate to the person's fault at this point
should not. The principle of imperfection, the personality of penalties in our Constitution (AY article 38/7)
is accepted within the scope of and is also responsible for the act of someone else
It also states that it cannot be kept. As a requirement of this, legal persons in the TCK are fined
 responsibilities were not accepted. In contrast, within the framework of the activity of a legal person
enforced only by law as a sanction against the legal person due to the crimes committed
security measures will be implemented (TCK art. 20/2).
In criminal law, in order for the person to be sanctioned, the caste or
It must be flawed because of its behavior based on negligence. In some cases, criminal
the actual person who committed the act was more severe than what he meant, or another outcome.
if caused, the person willfully act in terms of heavy or other consequences
It does not. A typical example of this situation is that the perpetrator who wants to injure the victim,
The deliberate act that he performed as a result of the death of the person. No. 765
In such cases, the objective responsibility was envisaged in the abolished TCK. Due to the result
Such flawless responsibilities that apply to aggravated crimes, flawless punishment
it clearly contradicted the principle of no. TCK titled “aggravated crime due to its outcome”
Article 23, on the other hand, is caused by a heavier or other consequence that the person does not mean.
in terms of the heavier or other consequence that occurs if it causes
In order to be held responsible, he must at least act with negligence. So 5237
With the TCK, the provisions of the abolished TCK in which objective responsibility is envisaged in these crimes.
it was replaced by a regulation based on subjective responsibility.
One of the most basic indicators of the flaw principle in a law is that the law of injustice
Whether or not it is included. “The act it has committed ”, which has been added to the 30th article of the TCK as paragraph 4.
The person who makes an inevitable mistake about creating an injustice is not punished. ”Provision
This important requirement of the flaw principle was also fulfilled. Except for the injustice error in TCK
error states are also systematically regulated (TCK art. 30 / 1-3). These regulations
In the Law, the distinction between injustice and flaw, which is accepted by modern crime theory, means caste and negligence.
regarding the acceptance of injustice not as a type of defect but as a form of realization.
It is based on theoretical principles.
The weight of the defect in the determination of the concrete penalty in the TCK is regarded as one of the basic measures.
It was. The judge in determining the concrete penalty, TCK 61/1. specified in the article
the upper and lower limit of the penalty in the definition of crime committed by taking into account the reasons
will determine the basic penalty between. TCK art. One of the reasons in 61/1 is “Perpetrator
the weight of the flaw based on caste or taxi . Thus, the principle of no perfect punishment is a
The consequence of the principle of “punishment proportional to the defect” is clearly prescribed in the law.

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Subjective responsibility is not only for crimes but also for misdemeanors.
It applies. As a matter of fact, as per the provision in article 9 of the Law on Misdemeanors,
In cases where there is no clear provision in the law, it can be processed both deliberately and negatively.
III. Humanism Principle
The principle of humanism is that when the sentence is imposed and during the execution of this sentence,
the social responsibility of the person committing the crime and the society
aims to gain (CGIK art. 3). In accordance with this principle, nobody, with human dignity
can not be subjected to incompatible punishment or treatment (AY article 17), punishment and security
cruel, inhuman, degrading and degrading behavior in the execution of his measures
can not be found (CGIK art. 2/2). For example, death penalty, indefinite deprivation of rights, castrate
The absence of punishments such as body is a requirement of the principle of humanism.

VIII) CRIME AND STRUCTURAL ELEMENTS

Crime is a verb that violates the legal value in its shortest definition; in other words, a
It is unfair. For the occurrence of a crime, the existence of a verb that is appropriate to the type and illegal is sufficient.
In order for crime to occur, the person's defect is not sought. Because the imperfection
It is an issue addressed in the context of punishment. So a verb is the offender's fault
Even if it is committed without this crime, this act is criminal.

- Material Aspect
 The first issue to be examined within the scope of the structural elements of the crime is the material
elements are. This coverage verb, the result in the resulting crimes, the causal link between the verb and the result
and whether that result will be objectively attributed to the perpetrator, perpetrator, victim, subject of crime
It enters.
- Fail; It is the person who performs the typical movement, the subject of the crime. However, real persons fail
can.

- The victim; It is the person who is injured due to the crime committed.

- Subject of crime; It expresses what the perpetrator did on the verb. For example, property damage
someone else's belonging to the crime of giving.

- Verb; It is the voluntary behavior appearing by man in the outside world.

- The conclusion; In some types of crime, the external

are the changes taking place in the world.

- Causality Link; It is the link between the perpetrator's action and the result. It is a completely natural phenomenon and
concerns natural sciences. Occurred in the outside world after the act
if the changes are in a proper connection with the verb in question, and this link
If the result is appropriate for the type, there is a causal link in the event.

- Objective Attribution; In order for the perpetrator to be responsible for the typical outcome,
is the examination that needs to be done after the determination, requires a normative evaluation. One
the movement creates a hazard that exceeds the allowable risk for the subject of the crime and this danger is
If it is realized as appropriate result, we can objectively attribute this result to the perpetrator.

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- Spiritual Aspect
The spiritual element of crime refers to the spiritual connection between the person and the verb he committed. crime
for the occurrence of the material elements envisaged in the crime type as well as the moral - subjective elements
it must also happen. In other words, the person is deliberately concerned with the material elements of the crime.
or behave negatively. In modern crime theory, caste and negligence are not defect types.
are the ways injustice takes place. The fault is about the perpetrator due to an injustice committed.
is a condemnation judgment.

Caste
Interconnection of the knowing and asking elements of the caste and to what extent or
There are two types of casts in the context that they should be concentrated;

1- Direct Caste
2- Possible Caste

1- Direct Caste
TCK m. According to 21 / (1), the occurrence of the crime depends on the existence of the caste. Caste is the law of crime
It is the realization of the elements in the definition on purpose.
All material aspects of crime are included in the scope of the knowing element of caste. Your crime is legal
Despite being included in the definition, the issues that are not effective in the content of the injustice intent
is not covered. For example, objective punishment requirements.
The willingness of the intent is the will to realize the material elements of the crime.
express. In the eventual crimes, besides the actual meaning of the perpetrator, other consequences
 If the emergence in is surely close, the perpetrator is deemed to want these results as well.
2- Possible Caste
In the case of a possible caste, one of the elements in the legal definition of crime is concrete
Although it is predicted that it could happen in the event, the occurrence of these elements
It is accepted.
Negligence
TCK m. Verbs committed by negligence, according to 22 / (1) , where the law clearly states
Punished.
Because of the violation of the obligation of negligence, attention and care,
The result stated in the legal definition is carried out unforeseen. Taksir is also conscious
and unconscious.

1- Conscious Taksir
In the conscious taxonomy, a harmful result occurs from the verb that the offender intends to commit.
predicts that it may come, but contrary to the obligation of attention and care, this
ignoring his obligation, trusting that the expected outcome will not be realized
nevertheless behaving in a dangerous manner in terms of protected legal value.
it does not detain itself.

2- Unconscious Negligence
The distinctive feature of the unconscious negligence is the voluntary movement, which can be in the form of execution or neglect.
existence and one of the elements in the legal definition is not foreseen. But this
the lack of anticipation, due to the violation of the "necessary attention and care" obligation

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must. Because the necessary attention and care has not been given,
the outcome is not predicted to occur.

Caste-Purpose-Saika
Action in perpetrator against legal value protected by crime type in the definition of deliberate crimes
Other subjective elements such as purpose, motive, which indicate the will will be included.
The aim (purpose) is the target that the perpetrator envisaged to achieve with the verb. The result of the offender
it does not matter whether he / she sees it or not.
The motive is the inner factor, the impulse, which forces the perpetrator to commit the unfair act. Motive but your crime
It is important if it is included as an element in the legal definition.

- Unlawfulness
The existence of two conditions in order to be able to determine that the element of contravention occurred
is necessary;
1) The act in contradiction with the criminal law rules,
2) A law within or outside the criminal law for the processing of the same act
is not allowed by the rule.
Criminal law is used for the processing of the act in contradiction with the criminal law rules.
if such a verb is permitted by a rule of law inside or outside
If it is ordered to be processed, then the existence of a reason for compliance with law
It will be discussed. If there is a reason for lawfulness, the verb is lawful
it will be determined.
Unlawfulness and injustice are different concepts. A verb is either lawful or
It is not. Wrongfulness is the qualification of the act that is unlawful and it is a rating in terms of quantity.
can be subjected to. Not all injustice is a crime; but every crime is an injustice.
Reasons for compliance with the law; exercise of the right, fulfillment of the duty, legitimate
defense and consent of the person concerned.
 - Defect
As we mentioned above, the defect is not an element of crime. Defect about the perpetrator
any effect on the injustice of the verb, since it is a value judgment
It will create. In order for crime to occur, material, moral and unlawful elements
it is necessary and sufficient.

Cases Affecting the Defect;

- Age Age
- Mental Illness
- Deaf and Mute
- Temporary Causes, Influence of Alcohol or Drugs
- Reasons for Excuses
- Unlawful Binding Order
- Must State
- In Legitimate Defense Due To The Excitement, Fear And Bustle Of The Border
overcoming

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- Effect of Algebra or Threat

- Unfair Drive
- Error Cases Affecting Defects

VII) SPECIAL FORMATS OF CRIME

A) Initiative
TCK m. (1) According to 35, the person, in a favorable manner, commits a crime
fails to start execution directly and complete it for reasons that are not available
is held responsible for the attempt. (2) In case of a crime attempt, the perpetrator, damage caused or
according to the severity of the danger, from thirteen to twenty years instead of aggravated life imprisonment
up to nine to fifteen years' imprisonment rather than life imprisonment
Punished. In other cases, from one-fourth to three-quarters of the sentence imposed.
The reason for the punishment of the crime attempt;

1. Objective Theories
These theories are objectively created by the act of attempted cause of punishment for the crime.
they base on danger.

2. Subjective Theories
The will of the perpetrator regarding the crime is reflected to the outside world.

3. Mixed Theories
The reason for the punishment of the enterprise is based on subjective basis, but objective
It is limited by criteria. - Theory of Impact

According to our Law;

Objective Elements of the Enterprise

1. The Beginning of Enforcement : A certain closeness and connection with the type of crime to be committed
In the event that the acts in it are made, the execution of the crime will be deemed to have started.
 The preparatory actions of the crime that is meant to be committed passes through to the enforcement actions.
must be started. Preparatory movements are directly differentiated from executive actions.
objective criterion has been accepted with the statement of "starting". In terms of time and effect of the verb
if the victim is in close contact with the subject of the crime,
it must be accepted.

2nd. Eligibility Factor: The tool used in attempted crime in the legal definition of crime
it must be suitable to produce the prescribed verb. But availability is only used
it should be found in all verbs, including the subject of the crime, not in terms of means.

3. Failure to Complete the Crime: In the legal definition of the crime started to be executed
The material elements envisaged should not be realized. For example; death in killing crime
as the result did not occur

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Subjective Aspect of the Enterprise

The caste in the completed crime and the caste sought at the stage of enterprise are the same. directly
It is possible to attempt crime by caste or possible caste. The perpetrator's execution of the crime is not his own will
on some cases related to objective conditions or the realization of the crime
Despite his suspicion and this uncertainty, the execution of the crime or giving up
The existence of a crime caste should be accepted in cases where the crime begins to be executed.
For example; take them if they enter the house for theft and find something worth stealing there
who takes the person or child in his / her decision to a secluded place for sexual abuse, but
In the case of crying, the caste element has been realized in terms of the person thinking of giving up.
There is no attempt for negligent crimes.

B) Affiliate
It is a situation where more than one person participates in the execution of a criminal act.

C) Concentration
It is the unification of crimes.
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