This situation is regulated as a form of participation in the first paragraph of Article 37 of our Criminal Code. According to this paragraph,
“Each person who participates in the commission of the crime is liable as a perpetrator.”
As understood from the paragraph, joint perpetration is an act committed jointly by more than one person in the legal definition.
The decision to commit the crime together must be present in all perpetrators, and superiority in joint action must be established.
However, in this case, the act can be attributed to each of the perpetrators.
The establishment of superiority in committing the crime constitutes the objective element of joint perpetration, while the decision to commit the crime together constitutes
the subjective element.
Since the act committed is attributed to each perpetrator, each is held responsible as a perpetrator for the crime committed.
However, in some types of crimes, more than one person may be held responsible for the crime.
Its acceptance as a qualified case (TCK Article 102/3-d, 103/3-a, 106/2-c, 109/3-b, 119/1-c,
149/1-c, 265/3) are criticized by some authors in the doctrine, who state that
punishing the same act committed by more than one person a second time violates the principle of ”
idem”.
According to the authors, the conditions should be considered for the removal of such regulations
or, if they are to remain, for their non-application as joint perpetration.
However, regulations concerning the commission of a crime by more than one person are accepted as joint perpetration in doctrine and practice. It should be noted that it is unjust and affects the content because it facilitates the commission of the crime with multiple persons.
This is particularly true in actions involving the victim where coercive force is involved. It also applies in cases where the victim’s resistance is broken. The Istanbul Convention also imposes this provision on the parties as a qualified circumstance when the crimes specified in the convention are committed jointly by two or more persons. Therefore, such a regulation is an appropriate law because it has a place in law, affects the content of injustice, and constitutes an international obligation. However, the point we wish to criticize is that such crimes are not included among the crimes mentioned above. For example, why is there no such regulation for crimes such as intentional injury, torture, and cruel treatment? In this sense, our laws need to be reviewed.