Complicity In Crime – Perpetration
What Does the Concept of Complicity in Crime Mean?
According to Article 37 of the Turkish Criminal Code, it refers to the commission of a crime by more than one person acting in concert and with a common purpose within the scope of a decision to commit a crime. The concept of complicity in crime refers to the commission of a crime that could be committed by one person, but is committed by more than one person through agreement and cooperation. It is not possible to speak of the concept of participation in crimes committed through negligence. In negligent crimes, everyone is responsible in proportion to their own fault. However, participation is possible in crimes committed intentionally.
The concept of perpetration regulated in Article 37 of the Turkish Penal Code is divided into two categories: “joint perpetration” and “indirect perpetration.”
Participation in a Crime through Joint Perpetration (TCK Article 37/1): Joint perpetration occurs when the act of each perpetrator participating in the commission of the crime is necessary for the crime to take place. The key point in joint perpetration is that those participating in the crime establish joint control over the act. For example, if two people agree to kill someone, and one holds the person’s hands while the other kills them with a knife, each perpetrator will be punished with the penalty for the crime committed because they participated in the crime through joint perpetration.
Participation in a Crime through Indirect Complicity (TCK m.37/2): Indirect complicity occurs when one person uses another person or other persons as a means to commit a crime. The indirect perpetrator is punished in the same way as the principal perpetrator. For example, if a minor is used to commit the crime of intentional homicide, the indirect perpetrator is punished in the same way as the person who committed the actual act.
Another form of participation in a crime is the concept of “complicity,” which is regulated in Articles 38 and 39 of the Turkish Penal Code No. 5237. The liability of accomplices is not direct, as in the concept of perpetration; accomplices are held liable indirectly in accordance with the “principle of connection.” The concept of ‘complicity’ is regulated in Articles 38 and 39 of the Turkish Penal Code No. 5237 in two ways: “incitement to commit a crime” and “aiding and abetting a crime.”
Participation by Incitement to Commit a Crime (TCK Article 38): Incitement to commit a crime is when a person who has not yet decided to commit a particular crime is persuaded, encouraged, or otherwise induced by another person to decide to commit that crime. Instigation is one of the forms of “complicity.” Since the instigator plays an important role in the decision-making process of the person who will commit the crime, the instigator is also punished with the penalty for the crime committed.
Participation by Aiding and Abetting (TCK m.39): Aiding and abetting means contributing materially or morally to the commission of a crime by a person who has already decided to commit it. In other words, aiding and abetting is also a form of “complicity.” For example, encouraging the perpetrator by saying that the decision to commit the crime is correct and necessary, providing a weapon for the crime of intentional homicide or intentional assault, or promising to hide the perpetrator after the incident are typical forms of aiding and abetting. The perpetrator subject to the provisions on aiding and abetting is entitled to a certain percentage of sentence reduction based on the punishment for the crime committed, in accordance with Article 39 of the Turkish Penal Code.
For participation in a crime, the existence of an intentional and unlawful act is sufficient. Every person who participates in the commission of a crime is punished according to their own culpable act, without considering personal reasons that prevent the punishment of others (TCK Art. 40/1).
However, the situation is slightly different for specific crimes. Specific crimes are crimes that can only be committed by persons with certain qualifications and characteristics. For example, embezzlement can only be committed by public officials. In specific crimes, only persons with special perpetrator status can be perpetrators. Other persons who participate in the commission of these crimes are held liable as instigators or accomplices (TCK Art. 40/2).
In order to be held liable for participation in a crime, the relevant act must have reached at least the stage of attempted crime (TCK Art. 40/3).
Joint Perpetration and Indirect Perpetration (TCK 37)
When an act defined as a crime in criminal law is committed by more than one accomplice, this is referred to as “joint perpetration.” In practice, joint perpetration is also referred to as “criminal conspiracy.” In this context, joint perpetrators establish control over any part or the entirety of the act and ensure its completion.
Two conditions must be met for joint perpetration:
There must be a decision among the perpetrators to commit the crime together.
The perpetrators must have exercised joint control over the commission of the crime.
For joint perpetration, we are not only referring to the existence of a decision to commit a crime together, but also to the fact that these individuals have established joint control over the act, so each accomplice is in the position of a “perpetrator.” In determining whether joint control over the act has been established, the roles and contributions of the accomplices in the commission of the crime should be taken into account. Joint perpetration will also apply in cases where the contribution of the accomplices to the commission of the crime completes the act of the other. Accordingly, each joint perpetrator makes an effective, functional contribution to the commission of the crime.
Since the joint perpetrator is directly responsible for the wrongdoing they have committed, the perpetrators who commit the crime together are punished according to the wrongfulness of their own actions. This is because each of the joint perpetrators’ actions derives its wrongfulness from their own actions and is not dependent on the actions of the other perpetrators. Therefore, even if the aggravating circumstances present in one of the joint perpetrators are known to the others, they do not affect them.
When the crime committed by joint perpetrators remains at the attempt stage, each is punished under the provisions for attempted crime, and when the crime is completed, they are punished under the relevant crime’s penalty.
Indirect perpetration, as summarized above, is the commission of any crime covered by the Turkish Penal Code by using another person as a tool. The indirect perpetrator does not participate in the execution of the crime but exercises control over the person who carries out the execution of the crime; as a result of exercising control over the person and their actions, the indirect perpetrator bears criminal responsibility in the same way as the principal perpetrator.
When an indirect perpetrator uses persons who lack the capacity to commit a crime, the penalty imposed on the indirect perpetrator is increased by one-third to one-half. This is because, in such cases, persons who lack the capacity to direct themselves are exploited in this context.