About the book
This work was written in Turkish. The summary on this page is a translation; the citation gives the original title in parentheses.
In this book, the basic subjects that undergraduate students taking the course on the general part of criminal law need to learn are treated in as much depth as possible. In our view, however, the most valuable part of the book is that, besides providing this basic knowledge, it aims to develop students’ store of knowledge, their intellectual level, their interest in philosophy and literature and their approach to the concept of morality and, most importantly, that it contains magic touches between the lines to help them become good lawyers.
Table of contents
Table of contents of the 4th edition (October 2026). The book is in Turkish; the headings below are a translation. Page numbers refer to the printed book. Select a chapter to see its sub-headings.
- Preface to the 4th Edition7
- Preface to the 3rd Edition8
- Preface to the 2nd Edition9
- Preface10
- Abbreviations45
Book OneINTRODUCTION TO CRIMINAL LAW
Chapter OneBASIC CONCEPTS AND PRINCIPLES OF CRIMINAL LAW58 headings
- § 1.THE FUNCTION OF CRIMINAL LAW, ITS PLACE WITHIN THE LEGAL ORDER AND ITS RELATIONSHIP WITH OTHER BRANCHES OF LAW51
- I.OFFENCE, PUNISHMENT AND CRIMINAL LAW51
- A.Structure of the Criminal (Offence) Norm51
- B.Distinguishing Criminal Law from Procedural Law and the Law on the Execution of Sentences58
- C.The State’s Power to Punish59
- D.Definition, Subject Matter and System of Sanctions of Criminal Law60
- E.The Term Criminal Law and the Designation of the Field61
- II.THE FUNCTION OF CRIMINAL LAW62
- A.The Social Function of Criminal Law62
- 1.The Function of Criminal Law as a Social Phenomenon62
- 2.The Legal Interest Protected by Criminal Law as a Social Function64
- a.Meaning of the Legal Interest64
- b.Functions of the Legal Interest66
- c.The Distinction between the Legal Interest and the (Legal) Object of the Offence74
- d.Change in the Protected Legal Interest77
- 3.The Purpose of the Criminal Code under the Turkish Criminal Code (TCK)80
- 4.The Purpose of Liberal Criminal Law81
- B.The Function of Criminal Law as a Scholarly Discipline83
- C.The Function and Purpose of the Course on the General Part of Criminal Law86
- III.THE PLACE OF CRIMINAL LAW WITHIN THE LEGAL ORDER AND ITS RELATIONSHIP WITH OTHER BRANCHES OF LAW87
- A.Criminal Law as a Discipline within Public Law87
- B.The Relationship of Criminal Law with Directly Related Disciplines88
- 1.Relationship with the Law of Criminal Procedure89
- 2.Relationship with the Law on the Execution of Sentences92
- 3.Relationship with the Law of Misdemeanours (Administrative Offences)94
- a.The View that Misdemeanours Should Be Decriminalised94
- b.The Distinction between Offences and Misdemeanours and the Law of Misdemeanours96
- 4.Relationship with Criminology, Victimology, Criminalistics and Forensic Medicine99
- C.The Relationship of Criminal Law with Other Branches of Law101
- 1.Relationship with Legal Philosophy and the Sociology of Law101
- 2.Relationship with Constitutional Law108
- 3.Relationship with Administrative Law109
- 4.Relationship with Public International Law111
- 5.Relationship with Civil Law and the Law of Obligations114
- 6.Relationship with Tax Law115
- § 2.CRIMINAL POLICY AND THE BASIC PRINCIPLES OF CRIMINAL LAW116
- I.CRIMINAL POLICY AND ITS INFLUENCE ON CRIMINAL LAW116
- II.THE BASIC PRINCIPLES OF CRIMINAL LAW119
- A.The Principle of the Rule of Law120
- B.The Principle of Culpability123
- 1.Meaning, Scope and Basis of the Concept of Culpability in Criminal Law123
- 2.Interdisciplinary Approaches to the Principle of Culpability128
- a.Approaches in Neurobiology128
- b.Philosophical Approaches130
- C.The Principle of the Subsidiarity of Criminal Law (Last Resort/Ultima Ratio)131
- D.The Principle of Humanity (Humanism)133
- E.The Guarantee Function of Criminal Law: The Principle of Legality of Offences and Penalties135
- 1.Emergence and Framework of the Principle135
- 2.The Liberating Character of Criminal Law138
- 3.Sub-principles Derived from the Principle of Legality of Offences and Penalties139
- a.Prohibition of Creating or Abolishing Offences and of Altering Penalties by a Source of Law Other than Statute140
- i.In General140
- ii.Prohibition of Establishing Offences and Penalties by Regulatory Acts of the Administration140
- iii.State of Emergency Decree-Laws (KHK) and Presidential Decrees142
- b.Prohibition of Establishing Offences and Penalties on the Basis of Custom (Lex Scripta)146
- c.The Principle of Certainty (Lex Certa)149
- d.Prohibition of Analogy and of Extensive Interpretation Amounting to Analogy (Lex Stricta)156
- e.Prohibition of Retroactivity (Lex Praevia)162
Chapter TwoSOURCES OF CRIMINAL LAW AND METHODS OF INTERPRETATION32 headings
- § 3.SOURCES OF CRIMINAL LAW165
- I.INTRODUCTION165
- II.DIRECT SOURCES165
- A.The Constitution165
- B.International Conventions166
- C.Laws166
- 1.The Turkish Criminal Code166
- 2.Other Laws Containing Criminal Law Norms167
- 3.Conflict between the TCK and Other Laws168
- a.Scope of Application of Article 5 of the TCK168
- b.Time of Application of Article 5 of the TCK169
- III.INDIRECT (SUBSIDIARY) SOURCES171
- A.Court Decisions171
- B.Rules of Custom172
- C.Legal Scholarship173
- § 4.INTERPRETATION IN CRIMINAL LAW174
- I.INTERPRETATION AS A SUB-DISCIPLINE OF ANCIENT RHETORIC AND HERMENEUTICS174
- II.THE MEANING OF INTERPRETATION AND ITS DIFFERENCE FROM ANALOGY175
- III.METHODS OF INTERPRETATION177
- A.Grammatical (Literal/Textual) Interpretation177
- B.Historical Interpretation178
- C.Systematic Interpretation180
- D.Purposive (Teleological) Interpretation180
- IV.TYPES OF INTERPRETATION181
- A.Formal Interpretation181
- 1.Legislative Interpretation181
- 2.Judicial Interpretation183
- 3.Doctrinal Interpretation184
- B.Substantive Interpretation185
- 1.Restrictive Interpretation185
- 2.Extensive Interpretation188
- 3.Corrective Interpretation189
Chapter ThreeSCOPE OF APPLICATION OF CRIMINAL LAW42 headings
- § 5.APPLICATION IN RESPECT OF TIME191
- I.THE MEANING OF APPLICATION IN RESPECT OF TIME191
- II.ENTRY INTO FORCE AND REPEAL OF LAWS192
- III.THE RULE ON APPLICATION IN RESPECT OF TIME195
- IV.PROHIBITION OF RETROACTIVITY196
- V.RETROACTIVITY OF THE LAW MORE FAVOURABLE TO THE PERPETRATOR201
- A.The Rule201
- 1.Criminal Laws Apply Prospectively201
- 2.A Law Producing Consequences to the Detriment of the Perpetrator Cannot Be Applied Retroactively201
- 3.A Law Producing Consequences in Favour of the Perpetrator Is Applied Retroactively201
- 4.Intervening Laws Are Taken into Account in Determining the Law More Favourable to the Perpetrator203
- B.Determining the Law More Favourable to the Perpetrator203
- 1.Rules on Security Measures206
- 2.Rules on Limitation Periods207
- C.Applying the Law More Favourable to the Perpetrator208
- VI.APPLICATION IN RESPECT OF TIME OF FIXED-TERM AND TEMPORARY LAWS210
- VII.DETERMINING THE TIME AT WHICH THE OFFENCE WAS COMMITTED210
- A.Instantaneous Offence211
- B.Uninterrupted (Permanent) Offence213
- C.Continuing (Successive) Offence214
- D.Offence of Omission214
- § 6.APPLICATION IN RESPECT OF PLACE215
- § 7.APPLICATION IN RESPECT OF PERSONS216
- I.THE MEANING OF APPLICATION IN RESPECT OF PERSONS216
- II.EXCEPTIONS ARISING FROM DOMESTIC LAW217
- A.Non-liability of the President of the Republic217
- B.Parliamentary Immunity220
- 1.Parliamentary Non-liability221
- 2.Parliamentary Inviolability224
- a.In General224
- b.Exceptional Cases in which Parliamentary Inviolability Does Not Apply227
- III.EXCEPTIONS ARISING FROM INTERNATIONAL LAW232
- A.Diplomatic Immunity232
- 1.In General232
- 2.Legal Nature and Consequences of Diplomatic Immunity234
- 3.Legal Status of Consuls and Consulates235
- B.Immunity of Foreign Military Personnel236
- 1.In General236
- 2.Persons Entitled to Immunity236
- 3.Scope of the Immunity236
- a.Exclusive Jurisdiction237
- b.Primary Jurisdiction237
Chapter FourHISTORICAL DEVELOPMENT OF CRIMINAL LAW36 headings
- § 8.INTRODUCTION TO THE HISTORY OF CRIMINAL LAW239
- I.HISTORICAL FOUNDATIONS OF CRIMINAL LAW239
- II.THE PERIOD OF PRIMITIVE CRIMINAL LAW243
- A.In General243
- B.The Offence in the Primitive Period244
- C.Punishment in the Primitive Period245
- 1.The Practice of Vengeance and Its Drawbacks245
- 2.Limitations Imposed on the Practice of Vengeance246
- III.DEVELOPMENT OF CRIMINAL LAW IN EUROPEAN SOCIETIES248
- A.Ancient Greek Law249
- B.Roman Law253
- C.Germanic Law258
- D.Medieval (Canon–Church) Law260
- E.The Common Criminal Law261
- F.Criminal Law from the Age of Enlightenment to the Present265
- 1.In General265
- 2.The Influence of Philosophical Movements on Criminal Law – The Classical School267
- a.The Contractarians267
- b.The Utilitarians268
- c.The Justice Theorists271
- d.The Mixed View – The Classical School272
- 3.Experiment and Observation in Criminal Law – The Positivist School274
- IV.DEVELOPMENT OF CRIMINAL LAW IN TURKISH SOCIETIES278
- A.Criminal Law in Turkish Societies in the Pre-Republican Period278
- 1.Criminal Law among the Early Turks278
- 2.Criminal Law among the Turks after the Adoption of Islam279
- B.Criminal Law in Turkish Society in the Republican Period281
- 1.The Period of the Turkish Criminal Code No. 765281
- 2.The Period of the Turkish Criminal Code No. 5237282
- § 9.CONTEMPORARY CRIMINAL LAW284
- I.CRIMINAL LAW IN THE TWENTIETH CENTURY284
- A.Modern Criminal Law – The Synthesis of the Classical and Positivist Schools284
- B.Criminal Law on the Pendulum between Liberal and Authoritarian Regimes286
- II.CRIMINAL LAW IN THE TWENTY-FIRST CENTURY289
- A.Preventive Criminal Law in the Fight against Crime and the Theory of Enemy Criminal Law291
- B.New Types and Fields of Criminality in the Digital World297
Book TwoTHEORY OF THE OFFENCE
Chapter OneFOUNDATIONS OF THE THEORY OF THE OFFENCE22 headings
- § 10.INTRODUCTION TO THE THEORY OF THE OFFENCE301
- I.THE METHOD OF ANALYSIS OF THE THEORY OF THE OFFENCE301
- II.THE TASK OF THE THEORY OF THE OFFENCE304
- III.HISTORICAL DEVELOPMENT OF THE THEORY OF THE OFFENCE307
- A.Period I (The Classical Theory of the Offence)308
- B.Period II (The Neoclassical Theory of the Offence)309
- C.Period III (The Finalist Theory of the Offence)310
- D.The Eclectic Theory of the Offence Prevailing Today312
- E.The Functionalist Theory of the Offence313
- IV.THE CONCEPT OF THE OFFENCE AND THE ELEMENTS OF THE OFFENCE313
- V.NON-COMPLIANCE WITH NORMS OF CONDUCT: WRONGDOING316
- A.Content of the Concept of Wrongdoing and Its Difference from Unlawfulness316
- B.Wrongdoing Inherent in the Act321
- C.Wrongdoing Inherent in the Result326
- D.Assessment and Our View329
- § 11.THEORIES EXPLAINING THE STRUCTURE OF THE OFFENCE334
- I.IN GENERAL334
- II.THE CLASSICAL THEORY OF THE OFFENCE336
- III.THE NEOCLASSICAL THEORY OF THE OFFENCE339
- IV.THE PURPOSIVE (FINAL, FINALIST) THEORY OF THE OFFENCE341
- V.THE TELEOLOGICAL THEORY OF THE OFFENCE344
- VI.THE THEORY OF THE NEGATIVE ELEMENTS OF THE OFFENCE (HOLISTIC THEORY OF WRONGDOING)346
Chapter TwoCONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE (TATBESTANDSMÄSSIGKEIT)181 headings
- Sub-chapter OneCONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE IN GENERAL
- § 12.THE CONCEPT, FUNCTION AND CHARACTERISTICS OF CONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE349
- I.THE CONCEPT OF CONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE349
- II.DEFINITION AND TASK OF CONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE350
- III.THE STATUTORY DEFINITION AS THE ABSTRACT DESCRIPTION OF THE OFFENCE351
- A.The Statutory Definition of the Offence in the Broad Sense352
- B.The Statutory Definition of the Offence in the Narrow Sense352
- C.Functions of the Statutory Definition of the Offence352
- 1.Limiting Function353
- 2.Distinguishing Function354
- 3.Warning Function354
- 4.Educational Function354
- 5.Presumption Function355
- IV.STRUCTURE OF THE STATUTORY DEFINITION OF THE OFFENCE355
- A.Elements Constituting the Statutory Definition of the Offence355
- B.Classification of the Elements Constituting the Statutory Definition of the Offence357
- 1.Written and Unwritten Elements357
- 2.Descriptive and Evaluative Elements358
- 3.Structural and Qualifying Elements of the Offence360
- 4.Material and Mental Elements361
- V.RELATIONSHIP BETWEEN CONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE AND UNLAWFULNESS362
- VI.RELATIONSHIP BETWEEN CONFORMITY WITH THE STATUTORY DEFINITION OF THE OFFENCE AND CULPABILITY363
- Sub-chapter TwoMATERIAL (OBJECTIVE) ELEMENTS OF THE OFFENCE
- § 13.THE ACT366
- I.CONTENT OF THE ACT366
- II.THEORIES EXPLAINING THE ACT369
- A.Ontological (Natural) Theories of the Act372
- 1.The Causal Theory of the Act374
- 2.The Purposive (Final) Theory of the Act378
- 3.The Social Theory of the Act390
- 4.The Individual (Personal) Theory of the Act397
- B.The Normativist Theory of the Act400
- C.Our View on the Theories of the Act402
- 1.Comparison of the Theories and Our View402
- 2.The Impact of Current Scientific Developments on the Theory of the Act and the Origin and Meaning of Purpose in the Act405
- 3.Consequences of the Theories We Adopt411
- III.FUNCTIONS OF THE ACT413
- A.Classifying Function413
- B.Defining Function414
- C.Linking Function414
- D.Delimiting Function414
- 1.The Distinction between Capacity to Act and Capacity for Culpability417
- 2.Acts Performed under the Influence of Absolute Force418
- 3.Acts Performed under the Influence of Force Majeure419
- 4.Acts Performed under the Influence of Coercive Force419
- 5.Reflex, Spontaneous, Affective and Semi-automatic Acts420
- a.The Reflex Act420
- b.The Spontaneous Act421
- c.The Affective Act422
- d.The Semi-automatic Act422
- 6.Acts of Animals423
- 7.Acts Performed in a State of Loss / Absence of Consciousness423
- 8.Assessment and Our View424
- IV.OFFENCES ACCORDING TO THE NATURE OF THE ACT425
- A.Single-Act and Multiple-Act Offences425
- 1.Single-Act Offences425
- 2.Multiple-Act Offences425
- a.Offences with Combined Acts425
- b.Offences with Divisible Acts426
- c.Offences with Alternative Acts428
- B.Offences with Unspecified and Specified Acts428
- C.Offences with Instantaneous and Uninterrupted (Permanent) Acts429
- 1.In General429
- 2.The Persisting Element in Permanent Offences and the Definition of the Permanent Offence431
- 3.Manner of Commission and Conditions of Existence of Permanent Offences432
- 4.Consequences Attached to Permanent Offences and Special Cases433
- D.Offences of Commission and Offences of Omission434
- § 14.THE RESULT436
- I.THE RESULT AS AN INDEPENDENT ELEMENT OF THE OFFENCE436
- II.FUNCTIONS OF THE RESULT437
- III.DISTINCTION AND CLASSIFICATION OF OFFENCES ACCORDING TO THE RESULT439
- A.The Distinction between Mere Conduct Offences and Result Offences439
- B.The Distinction between Offences of Harm and Offences of Endangerment440
- 1.The Concepts of Offence of Harm and Offence of Endangerment440
- 2.Classification of Offences of Endangerment among Themselves: The Distinction between Offences of Abstract Endangerment and Offences of Concrete Endangerment441
- 3.Offences of Undertaking (Attempt)445
- § 15.THE CAUSAL LINK448
- I.IN GENERAL448
- II.THEORIES EXPLAINING THE CAUSAL LINK451
- A.The Condition Theory (Theory of the Equivalence of Conditions)452
- 1.Application of the Condition Theory by Means of the “But For” (Condictio Sine Qua Non) Formula452
- 2.Scientific Rigour in the Application of the Condition Theory: The Formula of the Condition in Conformity with Natural Laws456
- B.Theories Developed to Limit the Condition Theory459
- 1.The Theory of Adequate Cause460
- 2.The Theory of Legal Significance (Relevance): Limiting the Condition Theory by Conformity with the Statutory Definition463
- 3.The Theory of Efficient Cause465
- III.PROBLEMS OF CAUSATION466
- A.Alternative (Double) Causation466
- B.Cumulative (Accumulating) Causation468
- C.Overtaking Causation470
- D.Assumed (Hypothetical) Causation471
- E.A Special Form of Alternative Causation: The Liability of Members for Decisions Taken by Collegiate Bodies473
- § 16.OBJECTIVE ATTRIBUTION475
- I.IN GENERAL475
- A.The Concept of Attribution475
- B.The Function of the Doctrine of Objective Attribution477
- C.The Framework of the Doctrine of Objective Attribution478
- II.CASES EXCLUDING OBJECTIVE ATTRIBUTION482
- A.Cases in which No Legally Prohibited (Blameworthy) Risk Is Created482
- 1.Permitted Risk484
- 2.Increasing a Risk to a Legally Insignificant Extent489
- 3.Reduction of the Risk492
- B.Cases in which the Result Does Not Arise from the Risk Created and the Perpetrator’s Control Has Ceased494
- 1.Cases in which the Result Occurs owing to an Atypical Causal Course (a Natural Event, Chance)496
- 2.Cases in which the Result Occurs owing to the Victim’s Act (Assumption by the Victim)498
- 3.Cases in which the Result Occurs owing to the Act of a Third Party (Assumption by the Third Party)503
- a.The Theory of the Adequate Attribution Relationship505
- b.The Theory of the Interruption of the Attribution Relationship506
- c.The Theory of Limited Responsibility (die Theorie der begrenzten Verantwortungsbereiche)506
- C.Cases Falling Outside the Protective Purpose (Scope) of the Norm509
- 1.Existence of a Duty Relating to the Perpetrator’s Own Protection509
- 2.The Result Would Have Occurred in the Same Way Even If the Perpetrator Had Acted with Due Care511
- D.Special Situations Excluding Objective Attribution513
- 1.Cases in which a Nexus with the Breach of Duty Is Required (Cases of Assumed Causation under Lawful Conduct)513
- 2.The Principle of Reliance514
- III.CRIMINAL-LAW CONSEQUENCES ATTACHED TO THE EXCLUSION OF OBJECTIVE ATTRIBUTION516
- IV.OUR VIEW AND OPINION518
- § 17.THE PERPETRATOR520
- I.THE PERPETRATOR AS THE PERSON COMMITTING THE OFFENCE520
- II.SPECIAL (STATUS) OFFENCE521
- A.Genuine Special Offence521
- B.Apparent Special Offence522
- C.Offence that Can Be Committed Only by the Perpetrator in Person523
- III.THE QUESTION WHETHER LEGAL PERSONS CAN BE PERPETRATORS OF AN OFFENCE524
- A.Theories Explaining the Basis of the Criminal Liability of Legal Persons525
- 1.The Fiction Theory525
- 2.The Reality Theory526
- B.Assessment of the Criminal Liability of Legal Persons with regard to General Principles526
- 1.Liability of Legal Persons from the Standpoint of the Principle of the Personal Nature of Penalties527
- 2.Criminal Liability of Legal Persons from the Standpoint of the Principle of Culpability528
- 3.Criminal Liability of Legal Persons from the Standpoint of the Theory of the Act528
- C.Assessment and Our View529
- § 18.THE VICTIM533
- I.THE CONCEPT OF THE VICTIM533
- A.In General533
- B.The Distinction between the Victim and the Person Harmed by the Offence534
- II.OFFENCES WITHOUT A SPECIFIC VICTIM534
- § 19.THE OBJECT OF THE OFFENCE537
- § 20.QUALIFYING ELEMENTS OF THE OFFENCE540
- I.THE CONCEPT OF THE QUALIFYING ELEMENT540
- II.TYPES OF QUALIFYING ELEMENTS541
- A.Objective Qualifying Elements541
- 1.Qualifying Elements Relating to the Act541
- a.Qualifying Elements Based on the Manner in which the Act Is Committed541
- b.Qualifying Elements Based on the Place and Time at which the Act Is Committed543
- 2.Qualifying Elements Relating to the Status of the Perpetrator or the Victim543
- a.Qualifying Elements Based on the Perpetrator543
- b.Qualifying Elements Based on the Victim543
- c.Qualifying Elements Based on the Relationship between the Perpetrator and the Victim544
- 3.Qualifying Elements Relating to the Object of the Offence544
- B.Subjective Qualifying Elements545
- Sub-chapter ThreeMENTAL (COGNITIVE/SUBJECTIVE) ELEMENTS OF THE OFFENCE
- § 21.THE CONCEPT OF THE MENTAL ELEMENT AND ITS PLACE WITHIN THE THEORY OF THE OFFENCE546
- § 22.INTENT552
- I.SCOPE AND ELEMENTS OF INTENT552
- A.The Concept and Elements of Intent in General552
- B.The Question of What the Knowledge Required for Intent Must Cover554
- II.THEORIES EXPLAINING INTENT558
- A.The Theory of Representation558
- B.The Theory of Will560
- C.The Mixed Theory: The Theory of Awareness and Will562
- D.Assessment and Our View563
- III.THE ELEMENT OF PURPOSE – MOTIVE565
- IV.TYPES OF INTENT568
- A.Direct Intent568
- B.Conditional (Indeterminate) Intent572
- 1.Theories of Representation: The Possibility Theory and the Probability Theory574
- 2.Theories of Will: The Indifference Theory and the Acceptance Theory575
- 3.Assessment and Our View576
- 4.Special Situations in Conditional Intent577
- 5.The Problem of Attempt in Conditional Intent580
- V.SPECIAL MANIFESTATIONS OF INTENT583
- A.Sudden Intent–Premeditated Intent583
- B.Occurrence of the Delayed Result (Dolus Generalis / Weber’s Intent)587
- 1.The Completion View589
- a.The Act View589
- b.The Causation View590
- 2.The Attempt View590
- 3.The Adequacy View590
- 4.The View Based on the Realisation of the Perpetrator’s Plan592
- 5.Our View593
- 6.Cases of Reverse Dolus Generalis594
- C.Alternative Intent – Cumulative Intent595
- VI.THE TIME AT WHICH INTENT MUST EXIST598
Chapter ThreeUNLAWFULNESS59 headings
- Sub-chapter OneTHE ELEMENT OF UNLAWFULNESS
- § 23.THE CONCEPT OF UNLAWFULNESS AND THE FUNCTION OF ITS EXPRESS MENTION IN CERTAIN OFFENCE DEFINITIONS603
- I.THE CONCEPT OF UNLAWFULNESS603
- A.Definition and the Distinction between Formal and Substantive Unlawfulness603
- B.The Relationship between Prohibitive Norm and Permissive Norm605
- C.The Place of Unlawfulness in the Structure of the Offence607
- D.The Relationship between Unlawfulness and Culpability608
- E.Content of Unlawfulness610
- F.Conformity with the Statutory Definition of the Offence Raises a Presumption of Unlawfulness610
- G.Unlawfulness Is an Assessment Made from the Standpoint of the Entire Legal Order612
- H.The Relationship between Unlawfulness and Wrongdoing617
- II.THE FUNCTION OF THE EXPRESS MENTION OF UNLAWFULNESS IN CERTAIN OFFENCE DEFINITIONS618
- A.In General618
- B.The View of Special Unlawfulness619
- C.The Doctrine of Elements Evaluating the Act as a Whole and the Solution Based on This Distinction620
- D.The View Asserting that These Expressions Have No Function622
- E.Assessment and Our View622
- Sub-chapter TwoGROUNDS OF JUSTIFICATION
- § 24.GENERAL FRAMEWORK OF THE GROUNDS OF JUSTIFICATION626
- I.IN GENERAL626
- II.THE MENTAL (SUBJECTIVE) ELEMENT OF GROUNDS OF JUSTIFICATION: THE PERPETRATOR’S ACTING IN THE KNOWLEDGE THAT THE CONDUCT IS LAWFUL631
- § 25.PERFORMANCE OF A DUTY637
- I.CARRYING OUT A PROVISION OF LAW637
- II.CARRYING OUT A LAWFUL ORDER OF A SUPERIOR640
- § 26.SELF-DEFENCE643
- I.IN GENERAL643
- II.LEGAL NATURE OF SELF-DEFENCE644
- III.CONDITIONS OF SELF-DEFENCE649
- A.Conditions Relating to the Attack649
- 1.There Must Be an Attack649
- 2.The Attack Must Be Unlawful653
- 3.The Attack Must Be Directed against a Right661
- 4.The Attack Must Be Present, or Its Occurrence or Repetition Must Be Certain664
- B.Conditions Relating to the Defence669
- 1.The Defence Must Be Necessary669
- 2.The Defence Must Be Directed against the Attack and the Attacker671
- 3.Proportionality between the Defence and the Attack672
- IV.SELF-DEFENCE FOR THE BENEFIT OF A THIRD PARTY (ASSISTING DEFENCE)680
- A.Self-Defence for the Benefit of Persons680
- B.Self-Defence for the Benefit of the State684
- C.Self-Defence for the Benefit of Animals686
- § 27.EXERCISE OF A RIGHT688
- I.Immunity of the Defence689
- II.Freedom of Expression691
- A.The Concept691
- B.Content of Freedom of Expression692
- C.Meaning and Application of Freedom of Expression693
- D.Exercise of Freedom of Expression694
- E.Its Significance for Criminal Law694
- § 28.CONSENT OF THE PERSON CONCERNED696
- I.IN GENERAL696
- II.LEGAL NATURE698
- III.CONDITIONS REQUIRED FOR CONSENT TO BE VALID699
- A.The Person Concerned Must Have the Right to Dispose Freely of the Matter699
- 1.Situations in which the Right of Disposal Exists and Does Not Exist699
- 2.Euthanasia703
- B.The Person Concerned Must Have the Capacity to Consent705
- C.The Form in which Consent Is Declared706
- IV.PRESUMED CONSENT707
- V.HYPOTHETICAL CONSENT708
- § 29.CONFLICT OF DUTIES710
Chapter FourCULPABILITY94 headings
- Sub-chapter OneCULPABILITY IN GENERAL
- § 30.THE PLACE OF CULPABILITY IN THE THEORY OF THE OFFENCE AND ITS ELEMENTS713
- I.THE BASIS OF CULPABILITY713
- A.The Concept: The Relationship between Fault and Culpability713
- B.A Value Judgement on the Blameworthiness of the Perpetrator715
- C.Secular Morality as the Basis of Blameworthiness718
- D.The Relationship between Blameworthiness and Awareness of Wrongdoing723
- E.Awareness of Wrongdoing, the Concept of Cooperation and the Rule that Ignorance of the Law Is No Excuse724
- II.THEORIES EXPLAINING CULPABILITY725
- A.General Framework726
- B.The Psychological Theory of Culpability727
- C.The Normative Theory of Culpability729
- D.The Finalist View732
- E.The Soft Theory of Culpability734
- F.Comparison of the Intent, Culpability, Strict Culpability and Soft Culpability Theories and Their Effect on Punishment736
- G.Consequences of the Theories of Culpability for Offences of Omission and the Guarantor’s Duty739
- III.ELEMENTS OF CULPABILITY745
- A.Capacity for Culpability745
- B.Awareness of Wrongdoing746
- C.Expectability748
- § 31.GROUNDS AFFECTING CULPABILITY749
- I.THE PROBLEM OF TERMINOLOGY749
- II.GROUNDS AFFECTING CULPABILITY IN THE TURKISH CRIMINAL CODE (TCK)750
- III.THE PLACE OF THE CIRCUMSTANCES AFFECTING CULPABILITY IN THE SYSTEM OF THE OFFENCE AND THE ORDER OF EXAMINATION751
- Sub-chapter TwoGROUNDS EXCLUDING OR REDUCING CULPABILITY
- § 32.MINORITY754
- I.IN GENERAL754
- II.FIRST GROUP OF MINORITY: CHILDREN WHO HAVE NOT REACHED THE AGE OF 12755
- III.SECOND GROUP OF MINORITY: CHILDREN WHO HAVE REACHED THE AGE OF 12 BUT NOT THE AGE OF 15757
- IV.THIRD GROUP OF MINORITY: CHILDREN WHO HAVE REACHED THE AGE OF 15 BUT NOT THE AGE OF 18759
- § 33.MENTAL ILLNESS762
- I.SYSTEMS DETERMINING THE EFFECT OF MENTAL ILLNESS ON THE CAPACITY FOR CULPABILITY763
- A.The Biological System763
- B.The Psychological System763
- C.The Mixed System764
- II.THE EFFECT OF MENTAL ILLNESS ON CULPABILITY IN THE TCK764
- § 34.DEAFNESS AND MUTENESS768
- § 35.TEMPORARY CAUSES, BEING UNDER THE INFLUENCE OF ALCOHOL OR NARCOTIC SUBSTANCES770
- I.THE CONCEPT OF TEMPORARY CAUSE770
- II.ASSESSMENT OF SITUATIONS THAT MAY BE REGARDED AS TEMPORARY CAUSES771
- III.THE DOCTRINE OF THE ACT FREE IN ITS CAUSE (ACTIONE LIBERA IN CAUSA)773
- IV.VIEWS EXPLAINING THE DOCTRINE OF THE ACT FREE IN ITS CAUSE774
- A.The Theory of Bringing the Act Forward/The Theory of Prior Imputation774
- B.Indirect Perpetration/The Instrument Theory775
- C.The Exception Theory777
- D.Assessment and Our View779
- V.INTOXICATION THROUGH THE EFFECT OF ALCOHOL OR NARCOTICS TAKEN INVOLUNTARILY780
- VI.INTOXICATION THROUGH THE EFFECT OF ALCOHOL OR NARCOTICS TAKEN VOLUNTARILY781
- VII.THE EFFECT OF THE CAPACITY FOR CULPABILITY ON THE OFFENCE IN PERSONS ADDICTED TO ALCOHOL OR NARCOTIC SUBSTANCES782
- § 36.UNJUST PROVOCATION783
- I.LEGAL NATURE OF UNJUST PROVOCATION784
- II.CONDITIONS OF UNJUST PROVOCATION785
- A.Existence of a Provoking Act786
- B.The Provoking Act Must Be Unjust787
- C.The Perpetrator Must Be in a State of Anger or Severe Distress on Account of the Unjust Provoking Act788
- D.The Offence Must Have Been Committed under the Influence of Anger and Severe Distress789
- E.The Perpetrator’s Act Must Be Directed against the Person Who Gave the Provocation790
- III.SPECIAL CASES OF UNJUST PROVOCATION792
- A.Unjust Provocation and Self-defence793
- B.Unjust Provocation and Premeditation793
- C.Unjust Provocation and the Motives of Blood Feud and Custom794
- IV.THE CONSEQUENCE OF UNJUST PROVOCATION795
- § 37.EXCEEDING THE LIMITS IN CASES EXCLUDING CRIMINAL RESPONSIBILITY (ART. 27(1))796
- I.EXCEEDING THE LIMITS OF GROUNDS OF JUSTIFICATION WITHOUT INTENT796
- II.THE DIFFERENCE BETWEEN EXCEEDING THE LIMITS OF GROUNDS OF JUSTIFICATION WITHOUT INTENT AND EXCEEDING THE LIMITS OF SELF-DEFENCE798
- Sub-chapter ThreeGROUNDS OF EXCUSE
- § 38.THE CONCEPT OF THE GROUND OF EXCUSE AND ITS LEGAL NATURE800
- I.THE CONCEPT OF THE GROUND OF EXCUSE AND ITS EMERGENCE800
- II.LEGAL NATURE802
- A.How the Ground of Excuse Differs from Other Circumstances Affecting or Excluding Criminal Responsibility and the Need to Recognise It as an Independent Category802
- B.The Basis of the Ground of Excuse: Expectability804
- C.The Place of the Ground of Excuse in Turkish Criminal Law Scholarship808
- § 39.NECESSITY810
- I.IN GENERAL810
- II.CONDITIONS OF NECESSITY814
- A.Conditions Relating to the Danger814
- 1.Existence of a Serious Danger814
- 2.Existence of a Present and Certain Danger815
- 3.The Danger Must Be Directed against a Right of the Person Concerned or of Another816
- B.Conditions Relating to the Protective Conduct816
- 1.Impossibility of Averting the Danger by Other Means817
- 2.Proportionality between the Protective Conduct and the Gravity of the Danger818
- C.The Will to Rescue (Subjective Element)819
- D.Circumstances Affecting Expectability819
- 1.The Danger Must Not Have Been Knowingly and Personally Caused820
- 2.Absence of a Special Legal Relationship Requiring the Danger to Be Faced821
- III.DIFFERENCES BETWEEN NECESSITY AND SELF-DEFENCE822
- § 40.EXECUTION OF AN UNLAWFUL BUT BINDING ORDER824
- I.IN GENERAL824
- II.CRITIQUE OF THE PROVISIONS ON SUPERIOR ORDERS826
- § 41.EXCEEDING THE LIMITS OF SELF-DEFENCE (ART. 27(2))830
- I.IN GENERAL830
- II.LEGAL NATURE830
- III.CASES IN WHICH THE LIMIT IS EXCEEDED832
- IV.DISTINCTION FROM UNJUST PROVOCATION835
- V.DISTINCTION FROM MISTAKE836
- § 42.IMPAIRMENT OF THE PERPETRATOR’S CAPACITY OF WILL BY FORCE AND THREAT838
Chapter FiveMISTAKE (ERROR)18 headings
- § 43.THE MEANING AND TYPES OF MISTAKE841
- I.IN GENERAL841
- II.MISTAKES EXCLUDING INTENT843
- A.Mistake as to the Material Elements of the Statutory Definition of the Offence845
- 1.Equivalent and Non-equivalent Mistakes848
- 2.Mistake in respect of Offences with Alternative Acts851
- 3.Reverse Mistake as to an Element, Double Reverse Mistake and the Offence Incapable of Commission (Impossible Attempt)852
- B.Mistake as to the Qualifying Elements of the Offence854
- C.Mistake as to the Factual Conditions of Grounds of Justification855
- III.MISTAKE AS TO GROUNDS AFFECTING CULPABILITY859
- A.Mistake as to the Factual Elements of Grounds Excluding or Reducing Culpability859
- B.Mistake as to Wrongfulness (Mistake of Prohibition)861
- 1.In General861
- 2.The Concept of Awareness of Wrongfulness and Its Relationship with Mistake as to Wrongfulness862
- 3.Mistake as to the Existence of a Ground of Justification864
- 4.Consequences Attached to Mistake as to Wrongfulness867
- IV.THE EFFECT OF MISTAKE ON THE OBJECTIVE CONDITIONS OF PUNISHABILITY868
- § 44.DEVIATION FROM THE TARGET870
Chapter SixSPECIAL FORMS OF APPEARANCE OF THE OFFENCE269 headings
- § 45.ACT BY OMISSION875
- I.OFFENCES COMMITTED BY OMISSION876
- A.Genuine Offence of Omission876
- B.Improper (Non-genuine) Offence of Omission878
- 1.Concept, Legal Nature and Elements878
- 2.Conditions for Treating the Conduct as Equivalent to Commission by a Positive Act879
- a.Duty to Prevent the Result (Guarantor Position)879
- b.Preventability of the Result (Hypothetical Causation)882
- c.Objective Attribution884
- d.Equivalence of the Omission to Commission by a Positive Act886
- 3.Sources of the Duty to Prevent the Result889
- a.Guarantor Status Arising from a Legal Provision889
- i.Duty Arising from Marriage and the Parental Relationship890
- ii.The Duty of Protection of the State (of Public Officials)892
- b.Guarantor Status Arising from Contract894
- i.The Legal Basis of the Guarantor Position Arising from Contract894
- ii.Formation of the Contract and the Theory of Trust895
- iii.The Requirement of Actual Assumption of the Duty896
- iv.Exceptions to the Requirement of Actual Assumption898
- v.Commencement and Termination of the Guarantor Position900
- vii.The Special Position of Health-care Professionals902
- c.Guarantor Status Arising from the Prior Creation of a Danger904
- 4.The Statutory Basis of Improper Offences of Omission907
- 5.Is the List of Improper Offences of Omission Exhaustive?910
- 6.The Relationship between the Guarantor Position and the Aggravated (Qualified) Form in Art. 82(1)(e)913
- II.CONFORMITY OF THE OFFENCE OF OMISSION WITH THE STATUTORY DEFINITION OF THE OFFENCE (TATBESTANDSMÄSSIGKEIT)916
- A.The Danger of the Result Occurring and the Arising of the Duty to Act916
- B.The Nature of the Act Expected of the Guarantor917
- C.Individual Capacity to Act918
- D.The Structure of the Statutory Definition of the Offence of Omission919
- III.CAUSATION IN OMISSION919
- A.Causation in Genuine Offences of Omission920
- B.The Problem of Causation in Improper Offences of Omission920
- C.The Inadequacy of the Condition Theory with regard to Omission921
- D.Quasi-causation (Quasikausalität)922
- E.Hypothetical Addition of the Alternative Conduct in Conformity with the Duty922
- F.The Court of Cassation’s Quasi-causation Approach923
- G.The Relationship between Causation and Objective Attribution924
- IV.ATTEMPT IN OFFENCES OF OMISSION924
- A.Attempt in respect of Genuine and Improper Offences of Omission924
- B.The Moment at Which the Attempt Begins in the Improper Offence of Omission927
- 1.The Theory of the Last Possible Intervention928
- 2.The Theory of the First Possible Rescue Intervention928
- 3.The Theory of the Immediate Endangerment of the Legal Interest929
- 4.Our View930
- V.THE EFFECT OF OMISSIVE CONDUCT ON CRIMINAL POLICY AND THE THEORY OF SANCTIONS931
- § 46.NEGLIGENCE933
- I.NEGLIGENCE AS A CONCEPT933
- A.The Relationship between Intent and Negligence933
- B.The Place of Negligence in the Systematic Structure of the Offence934
- C.The Problem of a Statutory Definition of Negligence935
- D.The Essence of Negligence: Breach of the Duty of Attention and Care935
- E.The Point of Reference of Negligence: The Result or All the Material Elements of the Offence?936
- II.VIEWS ON THE LEGAL STRUCTURE OF NEGLIGENCE AND THEIR CONSEQUENCES937
- A.The Negligent Offence as a Breach of a Twofold Duty of Care937
- B.The Finalist Theory’s Approach to Negligence939
- C.The Negligent Offence as a Structure Composed of Wrongfulness and Culpability940
- 1.The Classical (Causal) Theory943
- 2.The Neo-classical Theory944
- 3.Modern Doctrine944
- III.THE SYSTEMATIC STRUCTURE AND ELEMENTS OF NEGLIGENT OFFENCES947
- A.Act948
- B.Causing the Result949
- C.Breach of the Objective Duty of Care951
- 1.Content and Standard of the Objective Duty of Care951
- 2.Limitation of the Duty of Care953
- D.Objective Attributability of the Result955
- 1.Objective Foreseeability of the Result955
- 2.The Breach-of-Duty Nexus956
- 3.The Protective Scope of the Norm958
- 4.Problems Arising in the Field of Objective Attribution959
- a.Supervening Conduct of the Victim (Self-harm or Self-endangerment Not Entailing Responsibility)959
- b.Intervention of a Third Party Acting Intentionally or Culpably962
- c.The Addition of Another Person’s Negligent Conduct to the Perpetrator’s Negligent Conduct965
- E.Culpability in the Negligent Offence966
- 1.Recognisability of the Objective Duty of Care and the Ability to Fulfil It967
- 2.Expectability of Compliance with the Duty of Care on the Part of the Perpetrator968
- IV.TYPES OF NEGLIGENCE969
- A.Simple Negligence969
- B.Conscious Negligence970
- V.UNJUST PROVOCATION AND NEGLIGENT OFFENCES972
- VI.PERSONAL GROUND OF EXEMPTION FROM PUNISHMENT AND PERSONAL GROUND REQUIRING A REDUCTION OF THE PENALTY IN NEGLIGENT OFFENCES973
- VII.BORDERLINE CASES: NEGLIGENT OFFENCES COMMITTED BY OMISSION975
- A.Approaches Addressed at the Level of Conformity with the Statutory Definition of the Offence (Tatbestandsmäßigkeit)977
- 1.The Focus of Blameworthiness as a Normative Approach977
- 2.The Naturalistic-Ontological Approach979
- B.The Concurrence Solution980
- C.The Inadequacy of These Views in Negligent Offences980
- D.The Confusion of the Concepts of Negligence and Omission981
- E.The Approach of the Court of Cassation983
- F.Similar Approaches in Legal Scholarship985
- G.Our View that Negligence and Omission Should Not Be Treated as Equal986
- H.The Need for an Express Provision within the General Provisions988
- § 47.COMBINATIONS OF INTENT AND NEGLIGENCE: THE OFFENCE AGGRAVATED BY ITS RESULT991
- I.THE STRUCTURE AND ELEMENTS OF THE OFFENCE AGGRAVATED BY ITS RESULT993
- A.Objective Imputability of the Result998
- B.Subjective Imputability of the Result999
- II.PROBLEMS ARISING IN THE OFFENCE AGGRAVATED BY ITS RESULT1001
- A.The Problem of Attempt in the Offence Aggravated by Its Result1001
- 1.The Perpetrator Attempts the Basic Offence but Negligently Causes the Specific Result1002
- 2.The Perpetrator Attempts the Aggravated Result1005
- 3.The Basic Offence Remains at the Stage of Attempt and the Form Aggravated by the Result Is Absent1006
- B.The Problem of Participation in Offences Aggravated by Their Result1006
- § 48.ATTEMPT1009
- I.IN GENERAL1009
- II.THEORIES ON THE REASON FOR PUNISHING ATTEMPT1010
- A.The Objective Theory1010
- B.The Subjective Theory1012
- C.The Impression Theory1012
- D.The Approach Adopted by the Turkish Criminal Code (TCK)1013
- III.CONDITIONS OF ATTEMPT1014
- A.Preliminary Assessment: Non-completion of the Offence and Suitability of the Offence Type for Attempt1015
- B.Existence of an Intentionally Committed Offence and of the Intent to Commit That Offence1016
- C.Directly Beginning the Commission of the Offence by Suitable Acts1018
- 1.Preparatory Acts and the Reason for Their Non-punishability1018
- 2.The Suitable Act1021
- 3.The Putative (Imaginary) Offence1025
- 4.Directly Beginning the Acts of Execution1026
- a.Objective Theories1027
- i.The Formal-Objective Theory1027
- ii.The Material-Objective Theory1028
- b.Subjective Theories1030
- c.Mixed Theories1031
- d.The Approach Adopted by the TCK1032
- 5.The Concepts of Completed Attempt and Incomplete Attempt1033
- 6.Attempt at More than One Offence1035
- IV.SPECIAL CASES OF ATTEMPT1035
- V.VOLUNTARY ABANDONMENT1036
- A.In General1036
- B.Theories Explaining Why the Perpetrator Is Not Punished in Voluntary Abandonment1037
- 1.The Criminal Policy Theory1038
- 2.The Utility Theory (Pardon – Reward Theory)1039
- 3.The Purpose of Punishment Theory1039
- 4.Legal Theories1040
- C.Elements of Voluntary Abandonment1041
- 1.Non-completion of the Offence1041
- 2.The Abandonment Must Be Willed and Voluntary1044
- 3.The System Governing Voluntary Abandonment1046
- § 49.PARTICIPATION1048
- I.INTRODUCTION1048
- II.THE LEGAL BASIS OF PARTICIPATION IN AN OFFENCE1049
- III.SYSTEMS FOR DETERMINING RESPONSIBILITY IN PARTICIPATION IN AN OFFENCE1051
- A.The System of Equality (Unitary Perpetration)1051
- B.The Dualist System1052
- C.The System of Determining the Penalty according to the Perpetrator (Subjective System)1053
- D.The System Adopted in the TCK for Participation in an Offence and for the Distinction between Perpetration and Secondary Participation1054
- IV.CONDITIONS OF PARTICIPATION IN AN OFFENCE1057
- A.Plurality of Persons Taking Part in the Offence1057
- B.Existence of More than One Act of Causal Significance1057
- C.Existence of the Will to Participate in the Offence1058
- D.The Requirement that the Offence in Whose Commission There Is Participation Must Have Reached at Least the Stage of Attempt1059
- V.PERPETRATION1060
- A.The Distinction between Single-perpetrator and Multiple-perpetrator Offences1060
- 1.Single-perpetrator Offences1060
- 2.Multiple-perpetrator Offences1061
- a.Convergence Offences1062
- b.Encounter Offences1062
- B.Forms of Perpetration1062
- 1.Independent (Direct) Perpetration1063
- a.Offences That Can Only Be Committed in Person1064
- b.Special Offences1065
- c.Duty Offences1066
- 2.Co-perpetration1067
- a.In General1067
- b.Conditions of Co-perpetration1068
- i.Establishment of Joint Control over the Commission of the Offence1068
- ii.The Value of a Contribution to the Offence Made by Omission1071
- aaa)Co-perpetration by Omission1071
- bbb)Participation by Omission in an Act of Commission1073
- ccc)Preparatory Acts Do Not Confer Joint Control1075
- iii.The Joint Decision to Commit the Offence1076
- 3.Indirect Perpetration1081
- a.In General1081
- b.Forms of Indirect Perpetration1084
- i.Indirect Perpetration in the Form of Control over the Will through Coercion1084
- ii.Indirect Perpetration in the Form of Using a Person Lacking Capacity for Culpability as an Instrument1087
- iii.Indirect Perpetration by Inducing a Mistake in the Human Instrument or by Exploiting That Person’s Existing Mistake1088
- iv.Indirect Perpetration by Omission1091
- 4.Parallel Perpetration1093
- VI.SECONDARY PARTICIPATION1094
- A.In General1094
- B.The Legal Basis for Punishing Secondary Participation1095
- C.Types of Secondary Participation1096
- 1.Instigation1096
- a.In General1096
- b.Material Elements of Instigation1098
- i.The Object of Instigation1098
- ii.The Requirement of at Least One Instigator and One Person Instigated1099
- iii.The Nature of the Act of Instigation1101
- iv.The Causal Link between the Acts of the Instigator and of the Person Instigated and the Objective Attributability of the Resulting Outcome to the Instigator1102
- v.The Person Instigated Must Have Begun the Commission of the Offence after the Act of Instigation1103
- c.The Mental Element of Instigation: Intent to Instigate1103
- d.Exceeding the Intent of the Person Instigated1104
- e.Failed (Unsuccessful) Instigation1106
- f.Qualified Forms Increasing or Reducing the Penalty in Instigation1107
- 2.Aiding1109
- a.In General1109
- b.Material Aiding1111
- i.Providing the Means Used in the Commission of the Offence1111
- ii.Facilitating the Commission of the Offence by Rendering Assistance before or during Its Commission1112
- c.Psychological Aiding1112
- i.Encouraging the Commission of an Offence1112
- ii.Reinforcing the Decision to Commit an Offence1113
- iii.Promising to Render Assistance after the Commission of the Offence1113
- iv.Giving Guidance on How the Offence Is to Be Committed1114
- VII.THE RULE OF ACCESSORINESS1114
- A.In General1114
- B.Communication of Aggravated (Qualified) Forms in Offences Committed in Participation1116
- C.Participation in Special Offences1118
- VIII.SPECIAL CASES OF PARTICIPATION IN AN OFFENCE1119
- A.The Effect on Participation of the Offence Being Committed in an Organised Manner1119
- B.Indirect Perpetration Based on Organisational Control1120
- C.Attempt and Voluntary Abandonment in Participation in an Offence1122
- § 50.CONCURRENCE (JOINDER) OF OFFENCES1125
- I.INTRODUCTION1125
- A.In General1125
- B.Term and Concept1127
- C.The Subject Matter of the Concurrence of Offences1128
- 1.The Rule: Real Concurrence (Cumulation of Penalties)1128
- 2.The Exception: Concurrence (Joinder) of Offences1128
- D.The Meaning of the Concept of Plurality of Offences1129
- II.THE DISTINCTION BETWEEN UNITY AND PLURALITY OF ACTS1130
- A.The Criterion to Be Applied in Distinguishing between Unity and Plurality of Acts1130
- B.The Concept of the Natural Act1131
- C.Unity of Act in the Legal Sense1132
- 1.Statutory (Normative) Unity of Act1132
- 2.Natural Unity of Acts1133
- D.The Distinction between Unity and Plurality of Acts in Comparative Law1134
- III.NOTIONAL CONCURRENCE (IDEAL CONCURRENCE)1135
- A.Definition and Legal Nature1135
- B.Views Explaining the Imposition of a Single Penalty in Notional Concurrence1136
- 1.The View Based on Unity of Act1137
- 2.The View Based on the Principle of Non Bis In Idem1137
- 3.Our View1138
- C.Conditions of Notional Concurrence1139
- 1.Singleness of the Act1139
- 2.The Single Act Giving Rise to More than One Offence – Types of Notional Concurrence1141
- a.Notional Concurrence of the Same Kind (Homogeneous Ideal Concurrence)1142
- b.Notional Concurrence of Different Kinds (Heterogeneous Ideal Concurrence)1147
- 3.Fulfilment of the Conditions for Prosecution and Punishability in respect of Each Offence1149
- D.Special Cases of Notional Concurrence1150
- E.Application of Notional Concurrence in Cases of Deviation from the Target1153
- F.Consequences of Notional Concurrence1155
- IV.CONTINUING OFFENCE (SUCCESSIVE OFFENCE)1156
- A.Definition and Legal Nature1156
- B.Conditions of the Continuing Offence1158
- 1.Existence of More than One Act1159
- 2.Commission of Each of the Acts at Different Times1162
- 3.The Acts Must Constitute the Same Offence1165
- 4.Identity of the Victim1167
- 5.Commission of the Offences “in Execution of the Same Decision to Commit an Offence”1171
- C.The Consequence of the Continuing Offence1173
- D.Cases in Which the Continuing Offence Cannot Be Applied1174
- V.APPARENT CONCURRENCE (JOINDER)1176
- A.In General1176
- B.Principles and Types of Apparent Concurrence1177
- 1.The Principle of Priority of the Special Norm (Special Norm – General Norm Relationship)1177
- 2.The Principle of Consumption of One Norm by Another (Consuming Norm – Consumed Norm Relationship)1181
- a.In General1181
- b.Compound Offence1183
- i.In General1183
- ii.Combination of the Elements of Two Offences into an Independent Offence1185
- iii.One Offence Being an Element or an Aggravated (Qualified) Form of Another1186
- iv.Attempt in Compound Offences1190
- 3.The Principle of Subsidiarity of the Auxiliary Norm1190
- a.In General1190
- b.Transitional Offence1192
- c.Mixed Offence1194
- 4.Primary Norm – Auxiliary Norm Relationship1195
Chapter SevenCONDITIONS OF PUNISHABILITY LYING OUTSIDE THE ELEMENTS OF THE OFFENCE8 headings
- § 51.OTHER CONDITIONS OF PUNISHABILITY1197
- I.IN GENERAL1197
- II.OBJECTIVE CONDITIONS OF PUNISHABILITY1198
- III.PERSONAL GROUNDS OF EXEMPTION FROM PUNISHMENT1204
- IV.PERSONAL GROUNDS EXTINGUISHING OR REDUCING PUNISHMENT1206
- V.CONDITIONS FOR INVESTIGATION AND PROSECUTION1208
- A.Complaint1209
- B.Authorisation, Request and Decision1212
Book ThreeTHEORY OF SANCTIONS
Chapter OnePUNISHMENT147 headings
- § 52.THE PURPOSE OF PUNISHMENT AND THE TYPES OF PENALTIES1217
- I.THE CONCEPT OF PUNISHMENT, ITS HISTORY AND THE SOURCE OF THE POWER TO PUNISH1218
- A.The Concept of Sanction and the Dual-track System of Sanctions1218
- B.“Punishment” as a Part of Criminal Law Theory1219
- C.The Historical Development of Punishment1220
- D.The Source and Legitimacy of the Power to Punish1226
- 1.The Views and Their Classification1226
- 2.The Debate on the Source of the Power to Punish1228
- II.THE PURPOSE OF PUNISHMENT1232
- A.Absolute Theories1233
- 1.The Theory of Expiation1235
- a.The Views It Advances1235
- b.Criticism of the Theory1237
- 2.The Theory of Justice1238
- a.Kant’s Views1238
- b.Hegel’s Views1241
- c.Günther Jakobs’s Views1244
- d.Criticism of the Theory1244
- B.Relative Theories1246
- 1.The Theory of General Prevention1247
- a.The Views It Advances1247
- b.Criticism of the Theory1250
- 2.The Theory of Special Prevention1251
- a.The Views It Advances1251
- b.Criticism of the Theory1252
- C.Mixed Theories1255
- 1.In General1255
- 2.Andreas von Hirsch’s Views1257
- 3.Claus Roxin’s Views1257
- D.Our View and the System Adopted by the Turkish Criminal Code (TCK)1258
- III.PRINCIPLES AND CHARACTERISTICS OF PUNISHMENT1259
- A.Principles of Punishment1259
- 1.The Principle of Legality of Offences and Penalties1259
- 2.The Principle of the Personal Nature of Penalties1260
- 3.The Principle that the Penalty Must Be Proportionate to the Wrong1261
- 4.The Principle that the Penalty Must Be Proportionate to Culpability1263
- 5.The Principle of Compatibility with Human Dignity1264
- B.Characteristics of the Penalty1267
- 1.Effectiveness1267
- 2.Divisibility and Capacity for Individualisation1268
- 3.Revocability and Rectifiability1268
- 4.Low Cost1269
- IV.TYPES OF PENALTIES1270
- A.Penalties according to Their Legal Nature1270
- B.Penalties according to the Legal Interest1270
- C.Penalties under the TCK1271
- § 53.THE DEATH PENALTY1272
- § 54.IMPRISONMENT1274
- I.THE HISTORY OF IMPRISONMENT1274
- II.METHODS OF EXECUTING SENTENCES OF IMPRISONMENT1278
- A.Execution of Sentences in Congregate Confinement1278
- B.The Cellular System1279
- C.The Mixed System1279
- D.The Progressive System1280
- E.The Panopticon System1281
- III.VIEWS ON IMPRISONMENT1283
- A.Favourable Views1283
- B.Unfavourable Views1284
- IV.TYPES OF IMPRISONMENT1285
- A.Aggravated Life Imprisonment1285
- B.Life Imprisonment1286
- 1.In General1286
- 2.Reintegration into Society and the Concept of the Right to Hope1287
- C.Fixed-term Imprisonment1291
- D.Short-term Imprisonment and Alternative Sanctions to Short-term Imprisonment1292
- 1.Conditions for Conversion into Alternative Sanctions1293
- a.Conditions for Conversion into Alternative Sanctions at the Discretion of the Judge1294
- b.Mandatory Conversion into an Alternative Sanction and Its Conditions1295
- 2.The Alternative Sanctions Available for Conversion1296
- a.Conversion into a Judicial Fine1296
- b.Conversion into Other Sanctions1296
- i.Full Reparation of the Damage Suffered by the Victim or the Public by Restitution in Kind, Restoration of the Situation Prior to the Offence or Compensation1297
- ii.Attendance at an Educational Institution1298
- iii.Prohibition from Going to Certain Places or Engaging in Certain Activities1299
- iv.Withdrawal of Licences and Permits, Prohibition from Exercising a Certain Profession or Trade1299
- v.Employment on a Voluntary Basis in Work for the Public Benefit1299
- V.INSTITUTIONS AIMED AT REMEDYING THE DRAWBACKS OF IMPRISONMENT1300
- A.Institutions Preventing a Conviction1300
- 1.Prepayment1300
- 2.Victim–Offender Mediation1303
- a.The Idea of Restorative Justice and Victim–Offender Mediation1303
- b.Offences Subject to Victim–Offender Mediation and the Mediation Procedure1306
- 3.Postponement of the Institution of Public Prosecution1308
- a.In General1308
- b.Conditions1309
- i.Attainment of Sufficient Suspicion Requiring the Institution of Public Prosecution1309
- ii.The Offence under Investigation Must Be One of the Offences Specified by Law1309
- iii.The Suspect Must Not Previously Have Been Sentenced to Imprisonment for an Intentional Offence1311
- iv.The Investigation Must Give Rise to the Conviction that the Suspect Will Refrain from Committing Offences if the Institution of Public Prosecution Is Postponed1311
- v.Being More Beneficial for the Suspect and for Society than the Institution of Public Prosecution1311
- vi.Reparation of the Damage Suffered by the Victim or the Public1312
- c.The Decision, the Supervision Period and the Outcome1312
- 4.Deferment of the Pronouncement of the Judgment1313
- a.In General1313
- b.Conditions1314
- i.Imposition of a Sentence of Imprisonment of Two Years or Less or of a Judicial Fine1314
- ii.No Previous Conviction for an Intentional Offence1315
- iii.Satisfying the Court, through Personality Traits and through Attitude and Conduct at the Hearing, that No Further Offence Will Be Committed1315
- iv.Reparation of the Damage Suffered by the Victim or the Public1316
- c.The Decision1316
- d.The Supervision Period, Setting Aside or Pronouncement of the Judgment1318
- B.Institutions Relating to the Execution of Imprisonment1319
- 1.Suspension of the Sentence of Imprisonment1319
- a.In General1319
- b.Conditions1319
- i.The Sentence of Imprisonment Must Be Two Years or Less1319
- ii.The Accused Must Not Previously Have Been Sentenced to More than Three Months’ Imprisonment for an Intentional Offence1320
- iii.The Court Must Be Satisfied that the Accused Will Not Commit a Further Offence1321
- iv.Reparation of the Damage Caused1321
- c.Consequences of the Suspension of the Sentence of Imprisonment1322
- 2.Conditional Release1323
- a.In General1323
- b.Conditions1326
- i.A Certain Portion of the Sentence of Imprisonment Imposed Must Have Been Served1326
- ii.The Convicted Person Must Have Spent That Period in Good Conduct1328
- c.The Decision on Conditional Release, Its Consequences and Revocation of the Decision1329
- 3.Probation1331
- VI.EXECUTION OF SENTENCES OF IMPRISONMENT1334
- A.Commencement of Execution1334
- 1.Admission of Convicted Persons to the Institution1334
- 2.Placement of Convicted Persons in the Institution1336
- B.Postponement of Execution1336
- 1.Postponement of Execution on Grounds of Illness1337
- 2.Postponement of Execution at the Request of the Convicted Person1337
- C.Visits, Meetings and Communication1338
- D.Relaxation of Execution and Leave1340
- E.Disciplinary Penalties and Measures1341
- F.Rewards1342
- G.Types of Penal Institutions1343
- § 55.JUDICIAL FINE1347
- I.CONCEPT1347
- II.THE DISTINCTION BETWEEN JUDICIAL AND ADMINISTRATIVE FINES1348
- III.DETERMINATION OF THE JUDICIAL FINE1348
- IV.EXECUTION OF THE JUDICIAL FINE1351
- § 56.DETERMINATION AND INDIVIDUALISATION OF THE PENALTY1354
- I.DETERMINATION OF THE BASIC PENALTY AND INDIVIDUALISATION1354
- A.In General1354
- B.Matters Connected with the Wrong to Be Taken into Account in Determining the Basic Penalty1356
- C.The Gravity of the Perpetrator’s Culpability Based on Intent or Negligence1358
- D.The Effect of Conditional Intent (Dolus Eventualis) and Conscious Negligence on the Penalty1359
- E.Application of the Aggravated (Qualified) Forms of the Offence1360
- II.DETERMINATION OF THE FINAL PENALTY AND THE FACTORS AFFECTING IT1360
- A.Special Forms of Appearance of the Offence1361
- B.Grounds Reducing Culpability1362
- C.Personal Grounds of Exemption from Punishment and Personal Grounds Extinguishing Punishment1363
- D.Discretionary Grounds for Mitigation1363
- III.DEDUCTIONS FROM PENALTIES1365
Chapter TwoSECURITY MEASURES28 headings
- § 57.THE CONCEPT AND TYPES OF SECURITY MEASURES1367
- I.CONCEPT AND CONDITIONS OF APPLICATION1367
- A.Concept1367
- B.Conditions of Application1368
- 1.Dangerousness1368
- 2.Existence of an Offence Committed1369
- 3.Legality1370
- 4.Court Decision1370
- II.DEPRIVATION OF THE EXERCISE OF CERTAIN RIGHTS1370
- III.CONFISCATION1373
- A.Confiscation of Objects1374
- 1.Confiscation of Objects Connected with the Offence1375
- 2.Confiscation of Objects That in Themselves Constitute an Offence1377
- B.Confiscation of Proceeds1377
- IV.SECURITY MEASURES SPECIFIC TO CHILDREN1379
- A.Protective and Supportive Measures1380
- B.Guidance Measures1380
- V.SECURITY MEASURES SPECIFIC TO THE MENTALLY ILL1382
- VI.RECIDIVISM1383
- A.In General1383
- B.Views on Recidivism1383
- C.Conditions for the Application of Recidivism1385
- 1.A Previously Rendered Conviction1385
- 2.Commission of a New Offence within the Recidivism Period1386
- D.Exceptions to Recidivism1387
- E.Consequences of Recidivism1388
- F.Particularly Dangerous Offenders1388
- VII.SECURITY MEASURES APPLICABLE TO LEGAL PERSONS1389
Chapter ThreeCIRCUMSTANCES TERMINATING THE RELATIONSHIP OF PROSECUTION AND OF PUNISHMENT28 headings
- § 58.GROUNDS EXTINGUISHING CRIMINAL LIABILITY1393
- I.DEATH OF THE ACCUSED OR OF THE CONVICTED PERSON1393
- A.Death of the Accused1394
- B.Death of the Convict (the Convicted Person)1394
- II.AMNESTY1395
- A.Types of Amnesty1396
- 1.General Amnesty1396
- 2.Special Amnesty1397
- III.LIMITATION PERIOD1398
- A.General Information1398
- B.Legal Nature1399
- C.Limitation Period for Prosecution1400
- 1.General Information1400
- 2.Limitation Periods and the Calculation of the Limitation Period under the System Adopted by the TCK1401
- 3.Limitation Period in the Event of a Retrial for the Same Act1403
- 4.The Moment at Which the Limitation Period Begins to Run1403
- 5.Suspension or Interruption of the Limitation Period for Prosecution1404
- a.Suspension of the Limitation Period for Prosecution1405
- b.Interruption of the Limitation Period for Prosecution1406
- D.Limitation Period for the Execution of the Sentence1407
- 1.General Information1407
- 2.Limitation Periods1407
- 3.The Moment at Which the Limitation Period Begins to Run1409
- 4.Suspension and Interruption of the Limitation Period for the Execution of the Sentence1409
- a.Suspension of the Limitation Period for the Execution of the Sentence1409
- b.Interruption of the Limitation Period for the Execution of the Sentence1410
- 5.The Limitation Period for the Execution of the Sentence and Deprivations of Rights1410
- IV.WITHDRAWAL OF THE COMPLAINT1411
Book FourTHE APPLICATION OF CRIMINAL LAWS IN THE INTERNATIONAL SPHERE AND INTERNATIONAL CRIMINAL LAW
Chapter OneAPPLICATION IN TERMS OF PLACE59 headings
- § 59.THE APPLICATION OF CRIMINAL NORMS IN TERMS OF PLACE1415
- I.THE PRINCIPLE OF TERRITORIALITY (MÜLKİLİK)1415
- A.Concept1415
- B.The Concept of Territory1417
- C.Determining the Place Where the Offence Was Committed1420
- 1.In General1420
- 2.Problematic Cases in Determining the Place Where the Offence Was Committed1422
- a.Offences Remaining at the Stage of Attempt1422
- b.Offences Committed by Omission1423
- c.Offences Committed in Participation1423
- d.Transit Offences1424
- e.Offences Committed via the Internet1425
- D.The Existence of a Judgment Rendered in a Foreign Country (The Principle of Non bis in idem)1428
- II.THE PRINCIPLE OF PERSONALITY1430
- A.Concept1430
- B.The Principle of Personality with Regard to the Perpetrator1431
- C.The Principle of Personality with Regard to the Victim1432
- III.THE PROTECTIVE (REAL) PRINCIPLE1433
- A.Offences Committed in Connection with Official Duties (TCK Art. 10)1434
- B.Offences Committed to the Detriment of Türkiye (TCK Art. 12(1))1435
- C.Offences against the Security of the State (TCK Art. 13(1)(b))1435
- IV.THE PRINCIPLE OF UNIVERSALITY1436
- V.THE PRINCIPLE OF VICARIOUS JURISDICTION1437
- VI.SPECIAL ISSUES IN APPLICATION IN TERMS OF PLACE1438
- A.Deduction1438
- B.Deprivations of Rights Arising from a Foreign Conviction1439
- C.Taking Foreign Norms into Account1441
- 1.The Problem of the Applicability of Foreign Norms in Criminal Law1441
- 2.The Position in Turkish Law1442
- § 60.EXTRADITION1443
- I.THE CONCEPT OF EXTRADITION1443
- A.Concept and Legal Nature1443
- B.The Relationship between Asylum and Extradition1444
- C.The Relationship between Deportation and Extradition1445
- D.The Relationship between Exchange and Extradition1445
- II.THE SOURCES OF EXTRADITION AND THEIR RELATIONSHIP TO ONE ANOTHER1445
- III.THE CONDITIONS OF EXTRADITION1447
- A.Conditions Relating to the Act1447
- 1.The Offence for Which Extradition Is Sought Must Be of a Certain Gravity and Satisfy the Requirement of Dual Criminality1447
- 2.The Offence Must Not Have Been Committed to the Detriment of Türkiye or of a Turkish Citizen1448
- 3.Absence of a Bar to Proceedings in Respect of the Offence1448
- 4.The Request Must Not Concern an Offence Punishable by Death or by a Penalty Incompatible with Human Dignity1449
- 5.The Offence Must Fall outside the Jurisdiction of Türkiye1450
- 6.The Offence Must Not Be an Offence of Opinion, a Political Offence, a Purely Military Offence or a Fiscal Offence1450
- a.Offence of Opinion1450
- b.Political Offence or Offence Connected with a Political Offence1451
- i.The Concept of Political Offence1452
- ii.Acts Not Regarded as Falling within the Scope of Political Offences1452
- c.Purely Military Offence1454
- d.Fiscal Offence1454
- 7.Proportion between the Gravity of the Act and the Hardship That Would Result from Extradition1455
- B.Conditions Relating to the Perpetrator1455
- 1.Not Being a Turkish Citizen1455
- 2.Absence of Suspicion of Being Subjected to Discrimination in the Requesting State1456
- C.Extradition and Exchange under Special Conditions1457
- IV.THE PROCEDURE OF EXTRADITION1458
- A.The Procedure Followed in Extradition Requests Made by Türkiye1459
- B.The Procedure to Be Followed in Extradition Requests Addressed to Türkiye1459
- V.THE PRINCIPLE OF SPECIALITY (HUSUSİLİK) IN EXTRADITION1462
Chapter TwoINTERNATIONAL CRIMINAL LAW14 headings
- § 61.INTERNATIONAL CRIMES1465
- I.THE CONCEPT OF INTERNATIONAL CRIMINAL LAW1465
- II.THE SOURCES OF INTERNATIONAL CRIMINAL LAW1466
- III.INTERNATIONAL CRIMES1466
- A.The Concept of International Crime1466
- B.International Crimes1468
- 1.Genocide1468
- 2.Crimes against Humanity1469
- 3.War Crimes1470
- 4.Crimes of Aggression (Crimes against Peace)1471
- § 62.INTERNATIONAL CRIMINAL TRIALS1473
- I.THE FIRST EXAMPLES OF INTERNATIONAL CRIMINAL TRIALS1473
- II.THE ROME STATUTE AND THE INTERNATIONAL CRIMINAL COURT1475
- III.THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT1477
- Bibliography1481
- Index1539
Related publications
Dülger, Murat Volkan / Taşkın, Şaban Cankat, Criminal Procedure Law (Ceza Muhakemesi Hukuku), 3rd ed., Seçkin Publishing, Ankara, 2026.
Dülger, Murat Volkan, Offences and Sanctions Relating to the Laundering of Proceeds of Crime (The Offence of Money Laundering) (Suç Gelirlerinin Aklanmasına İlişkin Suçlar ve Yaptırımlar (Kara Paranın Aklanması Suçu)), 3rd ed., Seçkin Publishing, Ankara, 2026.
Dülger, Murat Volkan / Taşkın, Şaban Cankat, Criminal Procedure Law: Casebook (Ceza Muhakemesi Hukuku Pratik Kitabı), 6th ed., Seçkin Publishing, Ankara, 2025.
Dülger, Murat Volkan, Criminal Law and Criminal Procedure Legislation (Ceza ve Ceza Muhakemesi Hukuku Mevzuatı), 8th ed., Seçkin Publishing, Ankara, 2025.
Dülger, Murat Volkan, Criminal Law General Part: Casebook (Ceza Hukuku Genel Hükümler Pratik Kitabı), 5th ed., Seçkin Publishing, Ankara, 2024.