WHAT DOES THE CONCEPT OF PARTICIPATION IN A CRIME MEAN?
According to Article 37 of the Turkish Criminal Code, it refers to the joint commission of a crime by two or more persons acting in concert with each other in their thoughts and actions within the scope of implementing a decision to commit a crime. The concept of participation in a crime refers to a crime that could be committed by a single person being committed jointly by more than one person through agreement and cooperation between them. It is impossible not to mention the concept of participation in crimes committed by taxi drivers. Everyone is responsible for taxi crimes in proportion to their own fault. However, participation is possible in intentionally committed crimes.
According to the Turkish Criminal Code, the concept of criminality regulated in Article 37 is divided into two categories: “joint criminality” and “indirect criminality”:
Participation in Crime Through Joint Criminal Activity (TCK m.37/1): Joint crime occurs when the actions of each perpetrator involved in the crime are necessary to make the crime concrete. The key point in joint crime is that those participating in the crime establish joint control over the action. For example, if two people agree to kill a man, and one holds the person’s hands while the other kills them with a knife, each perpetrator is punished for the crime they committed as a joint perpetrator.
Participation in Crime Through Indirect Criminality (TCK m.37/2): Indirect criminality occurs when one person commits a crime by using another person or other persons as a means to that end. The indirect perpetrator is punished in the same way as the actual perpetrator. For example, in the crime of intentionally killing a child, the indirect perpetrator is punished in the same way as the person who committed the actual crime.
Another example of participation in a crime is the concept of “Sharia.” This is regulated in Articles 38 and 39 of the Turkish Commercial Code No. 5237. The liability of the principal is not direct, as in the concept of fault, but indirect, in accordance with the “rule of connection.” The ‘principal’ situation is regulated in two ways in Articles 38 and 39 of the Turkish Commercial Code No. 5237: “incitement to commit a crime” and “aiding and abetting a crime.”
Incitement to Commit a Crime (TCK m.38): Incitement to commit a crime is when a person, even if they do not yet have the idea of committing a specific crime, is persuaded, encouraged, or otherwise incited by another person to decide to commit that crime. Incitement to commit a crime is a form of “sharia.” Since the person providing the incitement plays an important role in the decision of the person committing the crime, the person providing the incitement is also punished with the penalty for the crime committed.
Aiding and Abetting a Crime (TCK m.39): Aiding and abetting a crime means that a person who has decided to commit a crime contributes materially or morally to the commission of the crime. In other words, aiding a crime is also a form of “sharia.” For example, typical ways of aiding a crime include encouraging the perpetrator to commit the crime by saying that their decision to commit the crime is right and necessary, providing weapons for the crime of intentional homicide or intentional injury, or saying that they will hide the perpetrator after the incident. A perpetrator subject to the provisions on aiding and abetting a crime benefits from a specific reduction in punishment according to the punishment imposed for the crime committed, pursuant to Article 39 of the Turkish Criminal Code.
The existence of an intentional and unlawful act is sufficient for participation in a crime. Every person who participates in the commission of a crime is punished according to their own culpable act, without regard to personal reasons that prevent the punishment of others (TCK Art. 40/1).
However, the situation is slightly different when certain crimes are involved. Specific crimes are crimes that can only be committed by persons with specific attributes and characteristics. For example, embezzlement can only be committed by public officials. In specific crimes, only persons with a specific perpetrator status can be perpetrators. Other persons participating in the commission of these crimes are held liable as persons participating in or aiding the crime (TCK Article 40/2).
To be held liable for participation in a crime, the relevant act must have reached at least the stage of attempted crime (TCK Article 40/3).
JOINT COMMISSION OF A CRIME AND INDIRECT COMMISSION OF A CRIME (TCK 37)
In criminal law, when an act classified as a crime is committed by more than one accomplice through participation, the situation of “joint perpetrators” is indicated. Joint crime is also referred to as “criminal partnership” in practice. In this context, joint perpetrators ensure the completion of the act by establishing control over any part or the entirety of the act committed.
Two conditions must be met simultaneously to ensure mutual human dignity:
A definite decision must be made among the perpetrators to commit the crimes together.
It is essential that the perpetrators have established joint control over committing the crime together.
Since the joint perpetrator is directly related to the injustice committed, perpetrators who commit the crime together are punished according to the unjust nature of their own actions. This is because each joint perpetrator’s act carries the unjust nature arising from their own act and does not show dependence on the other perpetrator’s act. Therefore, a qualified circumstance present in one of the joint perpetrators and known to others does not affect them.
When the crime committed by joint perpetrators remains at the attempt stage, each is punished according to the provisions relating to attempted crimes; when the crime is completed, the punishment for the relevant crime is imposed.
As summarized above, indirect liability is when a person commits any crime covered by the Turkish Criminal Code by using another person as an instrument. The indirect perpetrator does not physically participate in the commission of the crime, but as a result of establishing control over the person committing the crime; as a result of establishing control over the person and their actions, their criminal liability becomes the same as that of the actual perpetrator.
If the indirect perpetrator uses persons who lack the ability to direct themselves in the commission of the crime, the penalty imposed on the indirect perpetrator is increased from 1/3 to 1/2. This is because, when the crime is committed in this manner, persons who lack the ability to direct themselves are exploited in this context.