but it is laid down by law”
With this provision, the principle of legality of crimes and punishments has been regulated.
As a definite consequence of the principle of legality, the penal norm
Its direct source is the law. The Law in question
It is TCK. On the other hand, at this point, we should also refer to Article 5 of the TPC. Because, pursuant to the relevant article, general provisions of the TPC, special penal laws and crimes in penal laws
is also applied. The amended temporary law of the Law No. 5252 with the Law No. 5349.
According to the first article; “The first of the other laws, the TCK numbered 5237
the provisions contrary to the regulations in the book are required by the relevant laws.
until the changes are made and until 31 December 2008 at the latest”.
Therefore, as of 31 December 2008, it has not been harmonized.
Provisions that contradict the general provisions of the TPC,
It is not clear what their validity will be against Article 5. Whatever
until a decision of the Supreme Court; It is concluded that the special laws that came into force after 31 December 2008 should be accepted as implicitly abolished when the 2nd and 5th articles of the TPC are evaluated together.
even if there is, we think that since a judgment is cancelled,
Although it can be claimed that the laws are unconstitutional, the illegality of the law cannot be claimed, the provisions that have not been amended pursuant to the relevant articles and the provisions that have been referred thereafter.
that the special arrangements to be made are in accordance with Article 5 of the TPC.
18 will have to be accepted. Of course, this acknowledgment does not preclude the assertion that these special provisions are unconstitutional.
Another direct source of the penal norm; since the laws
They cannot be contrary to the Constitution (Constitution, art. 11), T.C. It has a constitution.
International agreements, if they are found in accordance with a Law,
of the penalty norm, subject to the explicit reference
become a direct source. İHAS, which is included in the 2nd article of the Constitution,
Since the phrase “respectful of human rights” makes an explicit reference, it is the direct source of the penal norm as a “constitutional norm”19.
On the other hand, if the administration fills the clear penalty norm (penalty norm for white) with its regulatory actions, the transaction is subject to criminal law.
In exceptional cases, the regulatory actions of the administration may be the direct source of the penal norm. to the topic below
It will also be mentioned within the scope of the principle of legality of the administration.
In the interpretation of the customary provisions, which do not include crime and punishment,
expressly referred to and not be against the law
provided that it may be an indirect source of the penal norm20.
The principle of legality is clearly stated in the 1st article of the repealed TCK numbered 765 and later in the 2nd article of the TPC numbered 5237.
The judge’s failure to comply with this principle is a violation of the right to a fair trial (Constitution art. 36; ECHR art. 6) and an absolute reason for annulment. (CMK, art. 288).
I. LEGALITY PRINCIPLE
The Turkish Civil Code, in its 1st article, clearly states that the formal source of Turkish Law is Law, custom, and the law created by the judge.
expressed. In Article 2 of the Turkish Penal Code, it pointed out that the formal source of the Turkish Criminal Law is only the Law.
As it is understood, the idea of enlightenment and the
The idea of secularism reflects its reflection in Criminal Law as “Principle of Legality”.
found in. Mainly not only in criminal law, but also in
state in all public law relations (tax law10, administrative
law) we see this principle. Because the law is the individual
On the basis of the principle that it is for the individual against the powerful state,
guarantees fundamental rights and freedoms, especially based on the criterion of the specificity of crimes and punishments, and protects them from arbitrary practices of the sovereign power11. Validity of the principle of legality in private law
The reason why there is no private law relationship is the same logic.
It is composed of individuals with equal status on both sides. Before
The judge, who has a dispute upon an individual request, has to decide on the said dispute. Here, the judge does not have the luxury of saying “it is not written in the law”. As a matter of fact, parties in private law disputes
Since he applied to the judge for the settlement of the dispute,
It will not be in anyone’s interest. Of course, legality in this field
The absence of a principle does not allow the judge to be arbitrary. Judge, who comes before
In the event, first of all, there will be a direct
If he cannot find a regulation, he will resort to analogy, if he cannot find a solution in this way, he will apply to the customs and traditions that are valid in that legal order.
If he cannot resolve the conflict in this way, he will act as a last resort.
shall take the place of the maker and set the rule limited to that dispute, and
will come to a solution.
The French philosopher Charles de Montesquieu (1689-1755) was the first to introduce the Principle of Legality in Europe. Montesquieu,
It characterizes the English legal system, especially the Magna Carta.
He put forward the principle of “separation of powers” with the influence of historical documents that gave According to Montesquieu, securing individual freedom is possible by limiting the phenomenon of power.
The most appropriate tool for this is the law, which is the work of human will. Therefore, everything that the law does not prohibit is free. Principle in Europe
later developed by Beccaria12 and Voltaire. XIX. century German criminal lawyer Anselmo Feuerbach
for the first time in the form of “nullum crimen, nulla poena sine lege”
He expressed it as a Latin law term13.
In some Laws, such as the 1922 Soviet Penal Code and the National Socialist German Penal Code, and in some periods, crimes were determined by analogy.
Although it has been seen that it can be extended14 practices contrary to the principle and oppressive
oppression faced by humanity as a result of regimes
has made it indispensable to itself. Especially II. The principle of legality, which was included in the United Nations Universal Declaration of Human Rights of 1948 after World War II,
In Article 11 of the Declaration; “1. Everyone charged with a crime, at the end of a public trial at which all the guarantees necessary for his defence, have been granted,
He is presumed innocent unless found guilty according to law. 2. No one shall be deemed guilty of any act or omission which did not constitute a crime under national or international law at the time it was committed. Anyone committing a crime
A heavier penalty cannot be imposed than the one that could be imposed at the time”.
has found a place.
The principle is included as a fundamental human right in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, titled “The legality of penalties”.
First of all, the principle of legality, which started to be clearly regulated in the penal laws of countries, especially after the Second World War.
later, with the establishment of the Constitutional Courts in order to supervise the conformity of the laws to the Constitution, it was explicitly stated in the country’s Constitutions.
started to find a place.
The principle of legality of crimes and punishments is implicit in Turkish law.
1924, explicitly in the Constitution of 1961 and later in 1982.
guaranteed16. Pursuant to Article 13 of the 1982 Constitution, “fundamental rights and freedoms can only be exercised in accordance with the reasons specified in the relevant articles of the Constitution, without infringing on their essence, and only by law.
can be limited. These limitations depend on the word and spirit of the Constitution, democratic
It cannot be contrary to the requirements of the social order and the secular Republic and the principle of proportionality”. Since crimes and punishments protect basic human rights and freedoms,
but may be limited by law.
As a matter of fact, the 38th article of the Constitution titled “principles regarding crimes and punishments”.
also clearly; “No one is in breach of the law in force at the time it was committed.
cannot be punished for an act that he does not consider a crime; no one can be given a heavier penalty than the penalty for that crime in the law when he/she commits the crime.
Regarding the statute of limitations on crime and punishment and the consequences of a criminal conviction
The above paragraph also applies.
Security measures replacing punishment and punishment
