Introduction to Law Dersi 5. Ünite Özet

Introduction

After studying this chapter, you shoud understand the following main points:

• Definition of crime and criminal law
• What constitutes a crime?
• Elements of crime
• Basic knowledge with regard to criminalization theories -
• Purposes of punishment
• Relationship between criminal law and human rights law
• Reasons which would justify or excuse a criminal act

Defining Crime and Criminal Law

A crime is ‘an act committed or omitted in violation of public law, either forbidding or commanding it’.

Criminal liability is the strongest formal condemnation that society can inflict. Therefore, criminal law plays a distinctive role in society, including the following functions: to deter people from doing acts that harm others or society; to set out the conditions under which people who have performed such acts will be punished; and to provide guidance on the kinds of behaviors which are considered as acceptable by society.

Where a behavior is condemned as a crime, the values and culture of the society are considered to be the most decisive factors. For example, whilst abortion is permitted upon the woman’s request in the early weeks of pregnancy and in the later periods of time under certain circumstances (time limitation) in some countries, including Turkey and the EU countries, others ban the abortion without any exception such as in Ireland (Only the life of the woman is at risk.) As previously mentioned, the nature of criminal law has a changing characteristic that varies over time and from one country to another. A good example of how criminal behaviors can change over time can be seen from the manner in which the law on adultery acts has changed.

The purpose of criminal law is to protect society so that its members can be reasonably secure in carrying out constructive activities. Only behaviors that are detrimental to the welfare of society should be made criminal. A balance is always to be achieved between the rights of the individual and the protection of society. In the social contract, a concept originating with Thomas Hobbes and John Locke, individuals give up certain liberties in return for being protected by society. We give up the “right” to steal what we want in return for society’s protection against being victimized by others. We also give up other liberties as members of a lawful society, however, society must, in return, impose only laws that have a purpose consistent with the protection of and minimally intrusive on our individual liberties. Absolute theories of punishment: –revenge, retribution, atonement- look back to the past, to the criminal deed and aim at balancing the harm done. The legitimacy of the theories are based on the idea of justice and punishment is directly related to the guilty. Deliberately doing harm to a perpetrator reimburses harm done by him and thus tries to re-establish the balance of justice. For that matter punishment does not serve any social purpose or goal apart from the re-establishment of equivalence by punishing neither harsher nor lighter than the perpetrator’s quilt. Although retribution cannot heal wounds or repair damages, and can only re-establish the claim of law for integrity, it can reinforce the expectation of law abiding behavior. Society feels satisfied by paying back perpetrators. Society pays back perpetrators by retaliation; perpetrators pay back society by accepting responsibility through punishment.

Relative Theories of Punishment:

Relative theories of punishment, namely the prevention theories, focus on preventing the repetitive behaviors rather than on what has happened before. The legitimacy of these theories is based on the idea of its social benefit. In regard to the goal of the theories, two distinctions are usually made under the name of deterrence: In general, deterrence prevents future crime by frightening the perpetrator or the public. The so-called specific deterrence aims at the individual perpetrator. Punishment serves as a means of deterring the perpetrator. When the government punishes an individual perpetrator, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment12. In response to this, general deterrence applies to the public at large. When the public learns of a perpetrator’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced. When the public learns, for example, that a perpetrator was severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution. In another words, general deterrence addresses everybody as a potential law breaker that can be deterred by the threat of punishment. On the other hand, punishment addresses everybody as law-abiding citizens who are confirmed in their common beliefs in the law.

Unified Theories of Punishment: Trying to unite ideas of retribution with ideas of prevention in different variants, absolute and relative theories of punishment have led to so-called unified theories of punishment. According to the unification, society shall threaten to punish and the penalty shall be pronounced and executed with the aim of protecting society against further offenses but all this shall be done in a way adequate to the wrongdoers’ guilt. One of the reasons of punishment is based upon the idea that public interest can be satisfied through punishment. Punishment as a reaction to individual wrong delimited by general common interests is not distinguishable from punishment delimited by guilt. In this view, punishment is simultaneously retrospective and prospective, looks backward and forward.

At the point of the legislation, legislature should decide what behavior should be criminalized and what should not. The frequent response to this question is that it should be the behavior, which is immoral and harmful. Unlike the general opinion, not all immoral or harmful behaviors are combated by means of a crime. To this respect more motives are required to defining crimes than opting whether behavior is immoral or harmful.

• Harm principle is described that a behavior should not be criminal unless the behavior causes harm to another person. Unlike moralism, harm principle does not concern the behaviors, which are not detrimental but unpleasant or impudent.

According to legal goods principle, a legal good comprise two conditions in order to be considered worthy of protection by the criminal law: - the good must be of essential social importance and the adequate protection of the good requires the intervention of the criminal law. Legal goods are legally protected interests of the individual or other legal entities.

Criminal law consists of two sections: a general and a special part. In general, principles that are applied to every kind of crime regulated in the special part, are located in the general part. Defining the specific crimes and arranging them into the groups by subject matter pertain to the special part of criminal law. The general principles are the fundamental regulations and apply, without exception, to defined crimes in special part. Pursuant to the TPC, article 1- 76 contains general regulations that are applicable to every kind of specific crime. The special part of criminal law defines specific crimes, according to the principles set out in the general part.

Sources of Criminal Law: Legislature: According to the principle of legality, criminal prohibitions and sanctions should be based on written law. The main body of criminal law is contained in the Penal/Criminal Code. But numerous legal norms providing for criminal liability can be found in other statutes, for example, in statutes regulating commercial matters, road traffic, or the handling of potentially dangerous drugs. Such statutes typically establish certain duties and requirements and add one or more paragraphs defining as crimes, the violation of specified duties.

2. Judiciary: The role of the jurisdiction is to interpret the criminal law not to make it. Also judges have no power to establish criminal liability without a clear statutory basis. The judge has a power to interpret the statute in line with the new insights or technological developments. However, due to prohibition of making comparison, when courts are of the opinion that certain conduct not covered by a statute should be treated as criminal, they cannot extend the reach of the statute. Their only recourse is to acquit the defendant and to write an opinion alerting the legislature to the gap in the present statutory law.

3. Executive: Especially for technical matters, the Turkish law system authorize administration to execute regulations in order to regulate details whose contents, purpose and scope are determined by the statute. The statute must describe exactly the conduct that is to be criminally prohibited and the maximum sanction to be imposed.

Principles of Criminal Law:

• The Principle of Personal Responsibility
• The Principle of Legality – Nulla Poena Sine Lege, Nullum Crimen Sine Lege
• The Presumption of Innocence

Criminal Law Distinguished from Civil Law: Criminal law is not the only body of law that regulates the conduct of persons. Civil law essentially provides remedies for private wrongs that are offenses in which the state has a less direct interest. Most civil wrongs are classified as breaches of contract or torts. A breach of contract occurs when a party to a contract violates the terms of the agreement. A tort, on the other hand, is a wrongful act that does not violate any enforceable agreement, but nevertheless violates a legal right of the injured party. Common examples of torts include wrongful death, intentional or negligent infliction of personal injury, wrongful destruction of property, trespass, and defamation of character. A crime normally entails intentional conduct; thus, a driver whose car accidentally hits and kills another person would not necessarily be guilty of a crime, depending on the circumstances. If the accident resulted from the driver’s negligence, the driver would have committed the tort of wrongful death and would be subject to a civil suit for damages. Criminal law and civil law often overlap. A conduct that constitutes a crime can also involve a tort. For example, A, intentionally damages a house belonging to B. A’s act might well result in both criminal and civil actions being brought against him. On the one hand, A may be prosecuted by the state for the crime of willful destruction of property.

Liability Requirements

In view of the criminal liability, criminal law is established on a three-legged stool. The first leg consists of objective and subjective elements that are related to the question of whether a person has fulfilled each element of the statutory description of an offense. The second leg is concerned with the question of whether the person’s behavior was unlawful, and the third leg is related to the individual accountability of the person for the wrongdoing. The two main elements required for a crime to have been committed are guilty act and guilty mind, which are derived from the Latin phrase, ‘Actus non facit reum nişi mens sit rea’, meaning ‘a man is not liable for his action alone unless he acts with a guilty mind.’

Excuses

Excuses are the third step in determining the person’s individual accountability for the wrongdoing. There are several ways in which accused persons may try to reduce the level of liability for the alleged offense, or lower the level of punishment if convicted. Even though excuses do not abolish the existence of the offense, they reduce the level of or remove the liability of the perpetrator.

• Provocation
• Coercion (Duress)
• Intoxication
• Infancy
• Insanity and Diminished
• Responsibility
• Mistake
• Necessity