Republic of Turkey
Supreme Court
4th Criminal Chamber 2006/5382 2006/13684 July 11, 2006
Passive resistance against a public official (Making it difficult to board a police vehicle and attempting to flee – The act of passive resistance is excluded from the scope of the offense / An acquittal must be granted)
Passive resistance (Due to the act being excluded from the scope of the offense / an acquittal must be granted – Making it difficult to board a police vehicle and attempting to flee) Making it difficult to board a police vehicle
and attempting to flee (Passive resistance against a public official – Passive resistance is an act excluded from the scope of criminal liability) Use of force
against a public official (Creating obstacles to prevent boarding a police vehicle and attempting to flee – The act of passive resistance is excluded from the scope of criminal liability / An acquittal must be granted)
765/Art. 260
5237/Art. 265
SUMMARY:
The defendant’s refusal to provide identification and his attempt to obstruct police intervention, resulting in his attempt to flee while being placed in the police vehicle and his injury due to his own negligence (even though no physical act was committed); the act of creating obstacles to prevent them from boarding the vehicle and attempting to flee constitutes the crime of passive resistance as defined in Article 265 of the Turkish Penal Code No. 765 and No. 5237. The relevant provision states that while resistance involving threats and coercion is a crime, passive actions against a public official that do not involve threats or coercion are not considered criminal.
CASE:
The defendant is charged with the crime of resisting a public official, in violation of Article 4 of the Turkish Penal Code No. 765 regarding the Enforcement of Sentences (Laws Nos. 260 and 647), and is subject to a fine pursuant to Article 77; pursuant to Article B. 1, the decision of the Criminal Court of First Instance dated December 20, 2005, and numbered 2004/215, which included a request for the violation of the Principle, and the decision of the Ministry of Justice dated May 25, 2006, and numbered 2005/853, pursuant to Law No. 22134, the case file was forwarded to the relevant unit by the Prosecutor General’s Office’s notice dated June 14, 2006, No. 120203, and was accordingly reviewed and deliberated.
DECISION:
The notice states: “Based on the scope of the file, the defendant is being tried for the crime of passive violence as defined in paragraph 260 of Article 765 of the relevant Law. Although a conviction was determined under the provision, the court assessed the defendant’s action as refusing to provide identification or to leave when a police officer requested it. It was stated that ‘the act is not regulated under Article 5237 of the Turkish Penal Code, there are no elements of violence or arson in the incident, and therefore, there is no valid justification for issuing a written decision to convict the defendant instead of acquitting him.’”
Although the defendant did not commit any act, his attempt to flee while being placed in the police vehicle and the injury sustained by the police officer attempting to prevent this—which occurred due to the defendant’s own fault—constitute the offense of passive resistance as defined in Article 765 of the Turkish Penal Code, which entered into force on June 1, 2005. of the Turkish Penal Code (TCY), which came into effect on June 1, 2005. Article 265, which entered into force on June 1, 2005, regulates the crime of resistance aimed at preventing the performance of duty through the use of force or threats; and since it is understood from the notification that actions by individuals of a passive nature that do not involve threats against a public official are not considered a crime, this reasoning has been incorporated into the text.
CONCLUSION:
In accordance with Article 260 of the Turkish Commercial Code, Article 5237 of the Turkish Penal Code, and Article 265 of the Turkish Penal Code, when comparing Article 260 with Article 5237 of the Turkish Commercial Code, the provision established by the application of Article 5237 and pursuant to Article 309/1-3, it was decided by unanimous vote on July 11, 2006, to acquit the defendant of the alleged offense and not to enforce the sentence; since the act of passive resistance no longer constitutes a crime under Article 5237 of the Turkish Commercial Code.