Basic Concepts of Turkish Criminal Law and Trial Principles

Turkish Criminal Law was completely overhauled in 2005 with the adoption of the new Turkish Penal Code (TCK No. 5237) and Criminal Procedure Code (CMK No. 5271). Moving away from the Italian Fascist-era code of 1926, the modern Turkish system conforms to contemporary European standards and human rights norms. It is a civil law system based on codified statutes, not case law (though Supreme Court precedents are highly influential).

Core Principles of TCK

1. Legality (Kanunilik İlkesi) - Article 2

“Nullum crimen, nulla poena sine lege” (No crime, no punishment without law).

• No one can be punished for an act that was not defined as a crime by codified law at the time it was committed.
• The wording of the law must be clear. Vague definitions are unconstitutional.
• No Analogy: Judges cannot create crimes by comparing similar acts. If “stealing electricity” is a crime, you can’t use it to punish “stealing Wi-Fi” unless the law explicitly covers “intangible energy.”

2. Individual Criminal Responsibility (Şahsilik İlkesi) - Article 20

Criminal liability is personal. Everyone is responsible only for their own actions.

• You cannot be punished for your father’s, spouse’s, or child’s crime.
• Collective punishment is strictly forbidden.

3. Fault Principle (Kusur İlkesi)

There is no “Strict Liability” in criminal law. Access to the act (Actus Reus) is not enough; there must be a guilty mind (Mens Rea):

• Intent (Kast): Knowingly and willingly committing the crime.
• Negligence (Taksir): Causing the result due to lack of care/attention, without wanting it (e.g., accidental killing in traffic).

Stages of a Criminal Process

1. Investigation Phase (Soruşturma)

Led by the Public Prosecutor (Cumhuriyet Savcısı).

• Confidentiality: The file is secret to protect evidence.
• Goal: To decide whether there is enough evidence to engage the court.
• Outcome:
  • Indictment (İddianame): Prosecution starts.
  • Non-Prosecution (Takipsizlik): Case closed due to lack of evidence.

2. Prosecution Phase (Kovuşturma)

The trial phase in court (Criminal Court of Peace, Criminal Court of First Instance, or Heavy Penal Court).

• Publicity: Hearings are open to the public (unless closed for morality/security).
• Directness: The judge listens to witnesses and the accused directly.
• Steps:
  1. Reading the Indictment.
  2. Forensic Interrogation of Suspect.
  3. Witness Testimony.
  4. Prosecutor’s Final Opinion (Mütalaa).
  5. Defense’s Final Statement.
  6. Verdict: Acquittal (Beraat), Conviction (Mahkumiyet), or HAGB.

Presumption of Innocence

“Everyone is innocent until proven guilty by a final court verdict.”

• The burden of proof is on the State. The suspect does not need to prove their innocence.
• In Dubio Pro Reo: Any doubt benefits the accused. If it’s 51% likely they did it, they must be acquitted. It must be 100%.

Conclusion

The Turkish criminal justice system is robust but procedural. Formalities (notifications, time limits, objection periods) are just as important as the substantive facts. Navigating it without legal counsel exposes one to significant risks.

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