The Principle Of Legality In Crime And Punishment
I. PRINCIPLE OF LEGALITY
Article 1 of the Turkish Civil Code clearly states that the formal source of Turkish law is the law, custom and usage, and the law created by the judge.
expressed in Article 2 of the Turkish Criminal Code. In Article 2 of the Turkish Criminal Code, it is pointed out that the formal source of Turkish Criminal Law is only the Law.
As it is understood, the idea of enlightenment and the
The idea of secularism is reflected in the Criminal Law by the “Principle of Legality”
in the law. Essentially, not only in criminal law, but also in
in all public law relations (tax law10, administration
law) we see this principle. Because the law is the law of the individual
the individual against the powerful state, based on the principle that it is for the individual.
It guarantees fundamental rights and freedoms, especially based on the criterion of determinacy of crimes and punishments, and protects them from arbitrary practices of the sovereign power11. The principle of legality in private law is valid
the reason why there is no private law relationship based on the same logic
both sides are made up of individuals in equal positions. In front of
The judge who receives a dispute upon an individual request has to decide the dispute in question. Here, the judge does not have the luxury of saying “it is not written in the law”. As a matter of fact, in private law disputes, the parties
the judge for the settlement of the dispute, the lack of resolution
would not be in anyone’s interest. Of course, legality in this area
principle does not allow the judge to be arbitrary. The judge must decide
in the event, first of all, the law will be enforced, there will be a direct
If it cannot find a regulation, it will resort to qiyas, and if it cannot find a solution in this way, it will resort to the customs and traditions valid in that legal order.
if it cannot resolve the dispute in this way, the law itself as a last resort
will substitute the legislator and make rules limited to that dispute and
will reach a solution.
It was the French thinker Charles de Montesquieu (1689-1755) who first introduced the principle of legality in Europe. Montesquieu
The Magna Carta, in particular, gave the English legal system its character.
With the influence of historical documents, Montesquieu put forward the principle of “separation of powers”. According to Montesquieu, securing individual freedom is only possible by limiting the phenomenon of power.
The most appropriate tool for this is the law, which is the work of human will. Therefore, everything not prohibited by law is free. The principle was adopted in Europe
It was later developed by Beccaria12 and Voltaire. In the XIXth century, the German criminal jurist Anselmo Feuerbach argued that “crime and punishment without law
“nullum crimen, nulla poena sine lege” for the first time.
as a Latin legal term13.
In some Laws, such as the 1922 Soviet Criminal Code and the National Socialist German Criminal Code, and in some periods
Although it has been observed that it can be expanded,14 practices contrary to the principle and repressive
The persecution faced by humanity as a result of regimes
The principle of legality, which was incorporated into the United Nations Universal Declaration of Human Rights of 1948, especially after World War II,
Article 11 of the Declaration reads as follows: “1. Everyone charged with a criminal offense shall be entitled, at the end of an open trial, to all guarantees necessary for his defense,
shall be presumed innocent unless found guilty according to law. 2. No one shall be held guilty of any act or omission which, at the time it was committed, did not constitute an offense under national or international law. No one shall be held guilty
no heavier penalty may be imposed than the penalty that could have been imposed at the time”.
has found a place in the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The principle was enshrined as a fundamental human right in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, entitled “legality of punishment”.
The principle of legality, which first began to be explicitly regulated in the penal codes of countries, especially after World War II
then, with the establishment of Constitutional Courts to review the constitutionality of laws, the Constitution of the country explicitly
started to find a place.
The principle of legality of crimes and punishments is implicit in Turkish law
1924 and explicitly in the 1961 and later in the 1982 Constitution.
Pursuant to Article 13 of the 1982 Constitution, “fundamental rights and freedoms may be exercised without prejudice to their essence only for the reasons specified in the relevant articles of the Constitution and only by law
may be limited. These limitations shall be in conformity with the letter and spirit of the Constitution, democratic
the requirements of the social order and the secular Republic and the principle of proportionality”. Since crimes and punishments are not in violation of fundamental personal rights and freedoms
limitations, which can only be restricted by law.
As a matter of fact, Article 38 of the Constitution, titled “Principles on crimes and punishments”, clearly states that “no one shall be punished in accordance with the law in force at the time of the crime”.
Article 38 of the Constitution, titled “Principles on offenses and punishments”, clearly states that “no one shall be
No one shall be punished for an act which he has not criminalized; no one shall be punished more severely than the punishment prescribed by law for that offense at the time he committed the offense.
On the statute of limitations for crimes and punishments and the consequences of criminal conviction
the above paragraph also applies.
Punishment and security measures in lieu of punishment shall be prescribed only by law”
The principle of legality of crimes and punishments has been codified with the provision.
As a necessary consequence of the principle of legality, the criminal norm
its direct source is the law. The Law in question is first and foremost
TCK. On the other hand, at this point, we should also mention Article 5 of the TCC. Pursuant to the relevant article, the general provisions of the TPC shall apply to offenses under special penal codes and laws containing penalties.
shall also apply. Provisional Law No. 5252 amended by Law No. 5349
pursuant to the first article; “other laws, the first article of the Turkish Penal Code no. 5237
provisions contrary to the regulations in the book, the provisions required by the relevant laws
until the amendments are made and no later than December 31, 2008”.
Therefore, even if the harmonized legislation has not been adopted as of December 31, 2008
Provisions that are contrary to the general provisions of the Turkish Penal Code
5 of the Convention, it is not clear what their validity would be. Although
Until the Court of Cassation concluded in one of its decisions that the special laws that entered into force after December 31, 2008 should be considered to be implicitly repealed when Articles 2 and 5 of the TPC are evaluated together
but we believe that if a provision has been annulled, it is
and although the unconstitutionality of the laws can be claimed, the unconstitutionality of the law cannot be claimed, the provisions that have not been amended pursuant to the relevant articles and the provisions that have not been amended pursuant to the relevant articles and the provisions that have not been amended pursuant to the relevant articles
that the special arrangements to be made are in accordance with Article 5 of the TPC
Of course, this acceptance does not preclude the assertion of the unconstitutionality of these special provisions.
Another direct source of the penal norm; since laws
They cannot be contrary to the Constitution (Constitution, Art. 11), which is the Constitution of the Republic of Turkey.
International conventions, if ratified by a law,
the penal norm, subject to the condition that it explicitly refers to
become their direct source. The ECHR is a direct source of Article 2 of the Constitution.
It is the direct source of the criminal norm as a “constitutional norm” since it is explicitly referred to by the phrase “respecting human rights “19.
On the other hand, in the event that the administration fills the explicit penal norm (white penal norm) with its regulatory acts, the act
In exceptional cases, the regulatory acts of the administration may be the direct source of the penal norm. The subject will be discussed below
will be discussed separately within the scope of the principle of the legality of the administration.
Custom and usage, but only in the interpretation of provisions that do not contain crimes and punishments,
is explicitly referred to and is not contrary to the law
provided that it can be an indirect source of the criminal norm20.
The principle of legality is explicitly enshrined in Article 1 of the abrogated TPC No. 765 and subsequently in Article 2 of the TPC No. 5237.
Failure of the judge to comply with this principle is a violation of the right to a fair trial (Art. 36 of the Constitution; Art. 6 of the IHAS) and an absolute ground for reversal (CPC, Art. 288).
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