The Offence Of Instigation Under The Turkish Penal Code
Instigation is the decision of a person who does not yet have an idea about committing a certain offence to commit this offence by another person. It is accepted that the instigator shall be punished with the penalty prescribed by the law.
Article 38 of the TPC – instigation
(1) A person who incites another person to commit an offence shall be punished with the penalty of the offence committed.
(2) In the case of instigation to commit an offence by using the influence arising from the relationship of parentage and descent, the punishment of the instigator shall be increased from one third to one half. In the case of instigating children to commit a crime, the existence of the relationship of parentage and descent shall not be sought in order to increase the penalty according to the provision of this paragraph.
(3) In the event that the instigator is not known, the perpetrator or other accomplice who has made it possible to reveal the identity of the instigator may be sentenced to imprisonment from twenty years to twenty-five years instead of aggravated life imprisonment, or from fifteen years to twenty years instead of life imprisonment. In other cases, the penalty to be imposed may be reduced by one third.
As can be understood from the relevant article of the Law, there is no definition of instigation. However, in Turkish law, instigation is accepted as a person who does not yet have an idea about committing a certain offence is made to decide to commit this offence by someone else. As a matter of fact, with instigation, the main perpetrator (the one who is instigated), who has no idea of committing a crime, is made to decide to commit a crime.
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In paragraph 38/2 of the TPC, it is deemed appropriate to increase the penalty of the instigator by a certain percentage in the case of instigation to commit a crime by using the influence arising from the relationship of parentage and descendants. However, in the case of instigating children to commit a crime, the existence of the relationship of parentage and descent shall not be sought in order to increase the penalty according to the provision of this paragraph. In these cases, the legal basis for an increase in the punishment of the instigator is also the fact that the fact of instigation expresses an injustice on its own.
Paragraph 38/3 of the TPC includes a provision that serves the purpose of criminal investigation and prosecution. Accordingly, in the event that the instigator is not known, the penalty to be imposed on the perpetrator or other accomplice who helps to reveal the identity of the instigator may be reduced. In this case, the judge has discretionary power to reduce the sentence. In order for this provision to be applied, the information provided regarding the personality must enable the material truth to be revealed.
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