Review of a Constitutional Court Judgment on the Constitutionality of a Norm: Article 34 of the Turkish Criminal Code on Mental Illness

Murat Volkan Dülger^* / Onur Özkan^*

I. Introduction

Mental illness has for a very long time been accepted as a circumstance affecting criminal responsibility and forms one of the subjects of research of the sciences of criminal law and psychology. Mental illness has nonetheless been an equally controversial subject in the history of criminal law; although it was accepted as affecting criminal responsibility, trials in which this effect was not recognised have at times also been encountered. Particularly in cases in which certain mentally ill persons committed their acts in a monstrous and horrific manner and this met with a strong reaction in society, it has also happened that a ground excluding culpability such as mental illness was not applied or not accepted by the courts. Indeed, in many cases referred to in criminology as “great criminals”, trials were conducted and the heaviest penalties, first and foremost the death penalty, were imposed even though it had been established by medical expert reports that the perpetrators were mentally ill¹.

In developed countries today, as a result of socio-political developments and of the value attached to the human being, statutory provisions too tend towards the treatment, rather than the punishment, of patients with behavioural disorders where they commit an offence². In the Turkish Criminal Code (TCK), too, mental illness is regulated in Art. 32 and, by the statement that “No punishment shall be imposed on a person who, owing to mental illness, cannot comprehend the legal meaning and consequences of the act he has committed or whose ability to direct his conduct in relation to that act is significantly diminished”, is accepted as a circumstance excluding criminal responsibility. Likewise, Art. 57 of the TCK provides that mentally ill persons shall be placed under protection and treatment in high-security health institutions.

Whether a state of criminal non-responsibility such as mental illness is to be accepted at all may be seen as a rather wide field of debate. For the question whether mental illness, this mental anomaly, prevents a person from directing his conduct or from comprehending the consequences of his conduct is first and foremost a medical one. Likewise, whether such a behavioural disorder ought to exclude criminal responsibility may, particularly where the cases described above are concerned, become a sociological issue.

Here, however, we shall try to address the subject not in its psychological and sociological dimension but in its criminal law dimension. In doing so we shall assume that mental illness has been justified, and has acquired its legitimacy, from the psychological and sociological points of view. Indeed, mental illness is accepted in the TCK as a circumstance excluding criminal responsibility. We shall consider whether this state of criminal non-responsibility is compatible with the general principles of criminal law and shall examine the question of its constitutionality.

What has brought the subject to our attention in this way is the judgment of the Constitutional Court of 14/11/2019, E. 2019/37, K. 2019/87. The judgment was published in the Official Gazette of 4 February 2020³. The subject of this judgment in concrete norm review is the question of the unconstitutionality of Art. 32 of the TCK, which regulates mental illness, and of Art. 57, which regulates the security measures specific to mentally ill persons; the judgment and our views are set out below.

II. The Grounds of the Request for Annulment and the View of the Constitutional Court

In a prosecution conducted on the allegation that the accused should be punished for the offence of sexual harassment, the court, contending that Arts. 32 and 57 of the TCK were unconstitutional, applied for their annulment. In the request for annulment it was argued that, under the contested rules, mentally ill persons are not punished and are placed under treatment, but that, for reasons stemming from practice, the persons concerned are released by decision of a court or judge before sufficient time has elapsed, that this situation creates a danger for society and that it is contrary to the public interest and to the rights of victims⁴.

The Constitutional Court, considering that the procedural conditions of the request for annulment were met, decided unanimously to proceed to the examination of the merits. In its examination of the merits the Court determined that the security measure applied to mentally ill persons constitutes a lawful interference with personal liberty as regulated by Art. 19 of the Constitution. It was further found that, in criminal law, criminal responsibility can arise only if the conditions of conformity with the statutory definition of the offence (Tatbestandsmäßigkeit), unlawfulness and culpability are fulfilled; that culpability cannot be spoken of in respect of mentally ill persons; and that their lack of criminal responsibility is not unconstitutional.

The Court then examined the second and subsequent paragraphs of Art. 57 of the TCK concerning the release of mentally ill persons. The Court stated that, although the release of mentally ill persons is permitted, a security measure may be ordered anew where it becomes apparent that the dangerousness of the persons concerned has increased, and that the provision also makes release conditional on its being established by reports that the dangerousness has ceased or has diminished significantly. Accordingly, it was stated that release under these conditions would not impair the right of persons to the protection of their material and spiritual existence or the State's obligation to ensure the welfare and peace of society, and that the provision provides for the measures required to that end⁵.

The Constitutional Court lastly examined the matter from the standpoint of the principle of equality. The principle of equality, however, envisages not de facto but legal equality. It aims to prevent discrimination and privilege among persons in the same situation and ensures that they are subjected to the same treatment. In this respect, equality does not mean that everyone is to be bound by the same rules in every respect. The characteristics that persons possess may require that they be subjected to specific and different rules. The Constitutional Court stated that in this case there was no breach of the principle of equality, and that the release of mentally ill persons while their dangerousness persists is a problem stemming from practice and falls outside the review of constitutionality⁶. For all these reasons, it was decided to dismiss the request for annulment⁷.

III. Legal Assessment of the Judgment

The punishment of the perpetrator for an act that conforms to the statutory definition of the offence and is unlawful depends on his being found culpable. If the perpetrator is not found culpable, “no punishment shall be imposed” on him (Art. 223(3) of the Code of Criminal Procedure (CMK)). Whichever theory is adopted as to the essence of culpability and its effect on criminality, one of the most important components of culpability is “capacity for culpability” (imputability). It is accepted that capacity for culpability in turn consists of the capacity to understand and the capacity to will; that the capacity to understand is the ability to comprehend the meaning and consequences of the act, and that the capacity to will is the capacity of the person to direct his movements independently⁸.

Mentally ill persons, too, are persons who, on account of the mental and behavioural disorders from which they suffer, are unable to direct their acts and to comprehend the consequences of those acts, and who therefore lack capacity for culpability. Since these persons cannot be found culpable, the sanction of punishment cannot be applied to them either. Security measures may, however, be applied to them. As is also stated in the judgment of the Constitutional Court, laying down different rules for persons in such special situations will not be contrary to the principle of equality; nor will the application of a security measure to these persons violate the right to liberty and security of person.

As can be seen, Art. 32, which regulates mental illness, and Art. 57(1), which provides that security measures may be ordered, raise no question of unconstitutionality. It is nevertheless necessary to examine the provisions on release whose annulment was sought.

The statutory provisions on the release of mentally ill persons are as follows:

“Security measures specific to mentally ill persons

Article 57- (2) A mentally ill person in respect of whom a security measure has been ordered may be released by decision of a court or judge upon its being stated, in the report drawn up by the medical board of the institution in which he has been placed, that his dangerousness to society has ceased or has diminished significantly.

(3) The medical board report shall state whether, having regard to the nature of the mental illness and of the act committed, medical supervision and follow-up of the person is necessary on grounds of security and, if so, its duration and intervals.

(4) Medical supervision and follow-up shall be ensured by the public prosecutor's office sending these persons, for the duration and at the intervals indicated in the report, to a health institution that has the technical equipment and a competent specialist.

(5) Where it becomes apparent during medical supervision and follow-up that the person's dangerousness to society has increased by reason of his mental illness, a security measure for the purposes of protection and treatment shall be ordered anew on the basis of the report prepared. In that case, the procedures laid down in paragraph one and the following paragraphs shall be repeated.”

When the provisions are examined, it is seen, in summary, that the danger which the person poses to society plays a role in his release or in the ordering anew of a security measure; that this danger is established by the medical board of the institution in which the person has been placed; and that, where the danger has ceased, has diminished significantly or has increased, the requisite decisions may be given by decision of a court or judge. Indeed, it may be said at the outset that the provisions raise no question of constitutionality and that an ideal system of security measures is in place. We therefore agree with the judgment of the Constitutional Court.

On the other hand, the Court that applied for the annulment of the provisions also has a justified objection. Indeed, for reasons stemming from practice, persons are released before the conditions are met, and this creates a danger for society. We wish, lastly, to touch on this matter. Problems of injustice originating in criminal law confront us as a bleeding wound of society. The following observation must be made with regard to this bleeding: its cause is not the Turkish Criminal Code but the Law on the Execution of Sentences and the poor application of that Law⁹. In these days when amendments to the Law on the Execution of Sentences are being planned, those amendments form the subject of a different and comprehensive agenda. We would nevertheless point out that problems concerning the execution of the security measure also lie at the root of the problem relating to mental illness which is our subject here.

Just as important for public order as mentally ill persons receiving the necessary treatment and care services and being reintegrated into society through the reduction of their dangerousness is that they not be released without that dangerousness having been removed or reduced. Looking at the provisions of the TCK, the fact that no minimum period is prescribed for the application of security measures may, when combined with faulty practice, create an adverse situation for society. It must be pointed out that, for instance, where the medical board decides that the dangerousness of a schizophrenia patient has ceased or diminished, it is possible for him to be released by the court the following day¹⁰.

A case that was the subject of a judgment of the Council of State shows what consequences problems of this kind may lead to and what can be done in law in such a situation. In that case, a patient who had been taken into treatment 12 times with a diagnosis of “chronic psychosis” and was subsequently discharged with social recovery stabbed a person to death 10 days after his discharge. The family of the deceased brought a full remedy action against the hospital. In the case that came before it, the Council of State held that there had been “gross service fault” in the provision of health services, on the ground that the administration had not informed the security units in the place where the patient resided and had not made it possible for them to take the necessary measures¹¹.

As can be seen, providing mentally ill persons who pose a danger to society with the necessary care and treatment, removing or reducing the patient's state of dangerousness, and releasing patients only in those circumstances is possible only through careful work on each individual patient. Otherwise, the discharge from hospital of a mentally ill person who is an offender and a convicted person will cause loss of life and may provoke outrage in society. After carrying out the requisite examinations scrupulously, hospitals must take the requisite measures, notify the situation to the security units of the place where the patient resides, and not give rise to a service fault. In the same way, they must decide pursuant to TCK Art. 57(3) whether medical supervision and follow-up are necessary following the patient's release and, where a decision to that effect is made, carry out the supervision and follow-up in accordance with Art. 57(4).

In conclusion, the existence of a circumstance excluding criminal responsibility such as mental illness does not conflict with the fundamentals of criminal law or with constitutional principles. Likewise, the application of security measures to these persons is appropriate. During this execution, however, the medical boards of hospitals must provide the requisite care and treatment and draw up their reports scrupulously. In the event of release, the utmost care must be taken to balance individual and public interests by taking the measures necessary for society.