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The principle of freedom of evidence is valid in Turkish criminal procedure. That is, in criminal cases, the accused or the complainant can put forward all kinds of material evidence.
During the investigation phase, it may ask the Public Prosecutor to investigate the evidence requested from the Criminal Court during the trial phase. The principle of no unlawful crime and punishment applies in criminal cases. In other words, in order for an action or inaction to be the subject of a crime, it must first be regulated in the penal code or other laws. The criminal act is an act or the act of not doing the act. Actual actions, performing an action prohibited by law. The state of inaction is the absence of any action that is required by law. In order for an action to be the subject of a crime, that is, to be subject to a criminal sanction, in accordance with the principle of legality, it must also carry the elements regulated by the laws. The criminal lawyer must first determine whether the case is the subject of a crime. Criminal lawyer, all legal regulations related to the action should be examined. The criminal lawyer must identify the elements of the crime.
The criminal lawyer must determine at what stage the act of the accused has completed the act.
The lawyer must determine the conditions under which the defendant’s act, which is the subject of the crime, occurred. ; Is there a causal relationship between this damage and the act of the accused, especially if there is damage from the crime? Detailed information classified according to the type of crime is given on our site. The best criminal lawyer can determine the elements of the crime in detail. The best lawyer will defend your rights.
Principle of legality in crime and punishment
The crime and its corresponding punishment can only be determined by law. This basic principle is included in the 1st paragraph of Article 2 of the Turkish Penal Code No. 5237: “No one can be punished and a security measure cannot be applied for an act that is not expressly considered a crime in the law.” This requires that the definition of crime be clearly and clearly regulated by law. Crime cannot be defined with vague and ambiguous expressions,
Another condition required by the principle of legality is that the law against it cannot go backwards. In other words, no one can be punished for an act that was not a crime at the time it was committed, and because the act was later regulated as a crime. Another condition brought by the principle of legality is the prohibition of comparison of the perpetrator. In legal science, analogy means that if there is a gap in the law, this gap is filled by finding the most similar legal rule. Comparison in criminal law, in the 3rd paragraph of article 2 of the Turkish Penal Code No. 5237, “Comparison cannot be made in the application of the provisions of the laws that include crime and punishment.” not applicable as stated
Principle of fault in crime and punishment
In the sense of criminal law, fault is the knowing and willful perpetration of an act by a person who has the ability to imput. That is, in order for the perpetrator to be punished, he must have done the act knowingly and willingly. The principle that only the perpetrator who committed the act can be punished is derived from this principle. This principle is also included in the first paragraph of Article 20 of the Turkish Penal Code No. 5237: “Criminal responsibility is personal. No one can be held responsible for the actions of another.”
Elements of the crime
Certain elements must be present for an act to constitute a punishable offence. The basic elements that make up the crime are the legal element, the material element, the illegal element and the moral element.
1. Legal element (typicality) The legal element is that an act that has been committed is in full compliance with the definition of crime regulated in the penal code. This element is also called typicality. For example, in order for the crime of theft to take place, the perpetrator must “take a movable property belonging to someone else without the consent of the owner, in order to benefit himself or someone else”. If there is no one of these elements defined in the law, for example, if the owner of the property has the consent of the possessor, the legal element of the theft crime does not occur.
2. Material element (action/verb)
For a crime to occur, the perpetrator must commit an act. What is meant by the verb is that a person voluntarily creates a work that changes the outside world. For example, reflex movements or the movements performed by the epileptic patient when he loses consciousness do not have an element of verb.
3. Element of illegality
If the act committed is in conflict with the legal order, the illegality element is completed. In principle, an act that fulfills the legal element is unlawful. However, criminal law has brought some exceptions to illegality and determined that some acts that complement the legal element will be lawful, the main ones being:
• The provision of the law and the order of the superior (TCK art. 24/1)
• Legitimate defense (Article 25 of the TCK)
• The use of the right and the consent of the person concerned (Article 26 of the TCK)
• Offenses committed by force, violence, intimidation and threat (TCK art. 28)
4. Spiritual element
The last element that commits the crime is that the illegal act, which has the legal typicality, is done knowingly and voluntarily by a person who has the ability to impute. At the same time, this element is the reflection of the principle that there is no perfect crime and punishment, which is one of the universal principles of criminal law, on the elements that make up the crime. Even if an action has all the elements mentioned above, if the person does not have an intention, the action of the person may not require punishment due to the absence of a moral element. Penalties for acts committed as a result of negligence are excluded.