However, it is regulated by law.
This provision regulates the principle of legality of crimes and punishments.
As a definitive result of the principle of legality, the criminal norm
has its direct source in the law. The law in question
is the Turkish Criminal Code (TCK). On the other hand, it is also necessary to refer to Article 5 of the TCK at this point. This is because, according to the relevant article, the general provisions of the TCK also apply to
special criminal laws and crimes in criminal laws.
The provisional law amended by Law No. 5349 of Law No. 5252.
According to the first article; “Provisions contrary to the regulations in the Turkish Criminal Code No. 5237, which is the first of the other laws,
shall be sought by the relevant laws.”
until amendments are made and no later than December 31, 2008.”
Therefore, as of December 31, 2008, it has not been harmonized.
The validity of provisions that conflict with the general provisions of the TCK,
as per Article 5, remains uncertain. In any case,
until the Supreme Court decision is issued; it has been concluded that special laws that came into force after December 31, 2008, should be considered implicitly repealed when Articles 2 and 5 of the Turkish Penal Code are considered together.
Even if there is, since the decision to repeal has been made,
it can be argued that the laws are unconstitutional, but the illegality of the law cannot be argued; provisions that have not been amended in accordance with the relevant articles and provisions referred to later,
it must be accepted that the special regulations to be made are in accordance with Article 5 of the Turkish Penal Code.
Article 18 must be accepted.
Of course, this acceptance does not preclude the claim that these special provisions are valid. It is unconstitutional.
Another direct source of criminal norms is laws.
Since they cannot be unconstitutional (Constitution, Article 11), the Turkish Constitution exists.
International agreements, if found to be in accordance with a law,
become a direct source of criminal law, provided that they are explicitly referred to.
The ECHR, which is included in Article 2 of the Constitution,
is a direct source of criminal law as a “constitutional norm”19 because the phrase “respect for human rights” explicitly refers to it.
On the other hand, if the administration fills in the explicit criminal norm (criminal norm for white) with its regulatory actions, the action is subject to criminal law.
In exceptional cases, the administration’s regulatory actions may be the direct source of the criminal norm. The following topic
will also be addressed under the principle of legality of the administration.
In the interpretation of customary rules that do not contain crimes and penalties, are explicitly referred to, and may be an indirect source of the criminal norm,
provided they are not contrary to the law. The principle of legality is explicitly stated in Article 1 of the repealed Turkish Criminal Code No. 765 and later in Article 2 of the Turkish Criminal Code No. 5237. The judge’s failure to comply with this principle constitutes a violation of the right to a fair trial (Constitution, Article 36; ECHR, Article 6) and is an absolute ground for annulment (CMK, Article 288).
I. THE PRINCIPLE OF LEGALITY
The Turkish Civil Code clearly states in Article 1 that the formal sources of Turkish law are statutes, customs, and the judge’s ruling.
>The Turkish Criminal Code, on the other hand, indicates in Article 2 that the formal source of Turkish criminal law is solely statutes.
As can be understood, the idea of enlightenment and
secularism found its reflection in Criminal Law as the “Principle of Legality.”
Essentially, we see this principle not only in criminal law,
but in all public law relations of the state (tax law, administrative
law).
This is because the law, based on the principle that it sides with the individual
against the powerful state,
has guaranteed fundamental rights and freedoms, particularly based on the criterion of the specificity of crimes and punishments, and has protected them from arbitrary applications of sovereign power. The Validity of the Principle of Legality in Private Law
The reason for the absence of a private law relationship is the same logic.
It consists of individuals with equal status on both sides.
A judge dealing with a dispute based on an individual claim must decide on the dispute in question. Here, the judge does not have the luxury of saying, “It’s not written in the law.” Indeed, in private law disputes, the parties
apply to the judge for the resolution of the dispute,
which would not be in anyone’s interest. Of course, the absence of the principle of legality in this area
does not allow the judge to act arbitrarily. If the judge cannot find a direct
regulation for the case before him, he will resort to analogy, and if he cannot find a solution in this way, he will resort to the customs and traditions valid in that legal system.
Taking the place of the judge, it will establish rules limited to that dispute and
reach a solution.
French philosopher Charles de Montesquieu (1689-1755) was the first person in Europe to propose the Principle of Legality. Montesquieu
established this principle, which characterizes the English legal system, particularly the Magna Carta,
under the influence of historical documents. According to Montesquieu, the guarantee of individual freedom is possible through the limitation of power.
The most suitable tool for this is law, which is the product of human will. Therefore, everything that is not prohibited by law is free. In Europe, this principle
was later developed by Beccaria and Voltaire. In the 19th century, the German criminal lawyer Anselmo Feuerbach
first expressed it as the Latin legal term “nullum crimen, nulla poena sine lege”13.
>In some laws, such as the 1922 Soviet Criminal Code and the National Socialist German Criminal Code, and in some periods, crimes were determined by analogy.
Although it could be expanded,14 practices and regimes contrary to the principle
and the oppressive atrocities humanity faced as a result
made it indispensable. Particularly after World War II, the principle of legality, included in the 1948 United Nations Universal Declaration of Human Rights,
states in Article 11: “1. Everyone charged with a criminal offense shall be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
2. No one shall be held guilty of any act or omission that did not constitute a criminal offense under national or international law at the time it was committed. No heavier penalty shall be imposed than the one that was applicable at the time the criminal offense was committed.
This principle has been established.
The principle is enshrined as a fundamental human right in Article 7, entitled “Legality of penalties,” of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950.
First, the principle of legality began to be explicitly regulated in the criminal laws of countries, especially after World War II.
Later, with the establishment of Constitutional Courts to review the constitutionality of laws, it began to be explicitly included in the constitutions of countries.
The principle of legality of crimes and punishments is implicit in Turkish law.
It was explicitly guaranteed in the 1924, 1961, and later the 1982 Constitutions.
According to Article 13 of the 1982 Constitution, “Fundamental rights and freedoms may be exercised only in accordance with the reasons specified in the relevant articles of the Constitution and only by law, without affecting their essence.
These restrictions cannot be contrary to the letter and spirit of the Constitution, the requirements of a democratic
society and a secular Republic, or the principle of proportionality.” Since crimes and punishments protect fundamental human rights and freedoms,
they can only be restricted by law.
Indeed, Article 38 of the Constitution, entitled “Principles Concerning Crimes and Punishments,”
clearly states: “No one may be held to have acted contrary to the law in force at the time the act was committed.No one may be punished for an act that is not a crime; no one may be given a punishment more severe than that prescribed by law for the crime committed.
The above paragraph also applies to
the statute of limitations for crimes and punishments and the consequences of criminal convictions.
Punishment and security measures in lieu of punishment