Criminal Law


The principle of freedom of evidence applies to criminal proceedings in Turkey. In better terms, in criminal cases, defendant or the appellant can bring forward to the court any type of material evidence.

During the investigation phase, the prosecutor can request from the criminal trial court to identify and investigate the evidences.

The principle of crime and punishment is applicable to Turkish criminal system. In other words, in order to convert an act or an omission into a crime, primarily it must be stated in criminal law or other laws. Actus Reus is the conduct element in the crime so it requires a wrongful, unlawful act or an omission (not performing the expected act). An omission occurs when there is a duty to act and there is a breach of that duty which then results to harm. In order to be subject to criminal liability, it must be formed from the elements required for that particular crime in law.

A criminal lawyer must first determine whether the facts presented to him by the client is subject to any crime. It must examine all the legal regulations related to the act occurred and also examine the legal regulations related to the offence stated.

A criminal lawyer must also determine whether the defendant’s actions have reached to the level of the Actus Reus which it has been tried so is it correspondent to the offence. The lawyer should also determine the conditions under which the defendant is found guilty as well as whether there is a causal link between the defendant’s actions (Actus Reus) and the resultant harm. The elements of crime can be interpreted in full details only by a well experienced criminal lawyer. Your rights can be protected by a lawyer in a best way.

Legal principles in crime and punishment

Crime and the punishment corresponding to it can be best regulated by law. This basic principle is stated in 5237 Turkish criminal code, Article 2 Para 1 ‘Law cannot punish anyone for an act that has not been criminalized and also cannot enforce safety precautions.’ Due to this, crime must be given a clear and well expressed definition and be regulated by law. It mustn’t be vague and ambiguous.

Another legal principle is that law cannot be retrospective that is to say if the act at time of commitment was not classified as a wrongful act but then later it does become wrongful, the accused cannot be liable for a criminal act.

In law, a defendant cannot be accused for his wrongful act and be guilty by comparing or relating it to a similar criminal act; it is prohibited in criminal law. The defendant can only be accused if the act itself is criminal. This principle is also stated in 5237 Turkish criminal code, Article 2 Para 3, ‘Analogy between criminal liabilities cannot be implemented in provisions of crime and punishment law’.

The fault element in crime and punishment

Mens Rea which means the fault element in a crime relates to the blameworthy mind of the accused when committing the wrongful act. Criminal liability usually requires the prosecution to establish:

a. A did something which the law prohibits

b. Was at fault in doing something which the law prohibits

It requires the defendant’s wrongful conduct to be reflected in the state of mind accompanying his conduct. He consciously chose to wrong otherwise it would be unjust to punish people who are not conscious that what they are doing is wrong.

This principle is as well stated in 5237 Turkish Criminal Code (TCK), Article 20, Para 1 ‘Criminal liability is personal. Nobody else can be held liable for the wrongdoing of the accused.’

Elements of crime

There are some elements which constitutes to a crime in order to be able to punish one for an act. These elements are: legal aspects, material aspects, illegality aspects and the moral aspect.

1. Typical legal aspects – the wrongful act committed by the accused must be exactly correspondent to the offence he had been held liable for. For example: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another without consent with the intention of permanently depriving the other of it.’ In law, even if one of the above stated elements is not present (consent was available when appropriating the property), then the accused cannot be liable for theft.


2. ​Material aspect (conduct element) –

The Actus Reus which is the conduct element in a crime includes

  • Conduct (always)

  • Any circumstances necessary to render that conduct wrongful (if any are required)

  • Result (if any required)

The prosecution must prove ALL of these in order to reach level of a criminal liability. However All crimes require proof of some prohibited voluntary conduct. It must be a voluntary bodily movement not movements such as epilepsy, loss of consciousness.


3. Illegality elementif a committed act is incompatible with the rule of law, then the illegality concept can be brought forward to make it compatible. An act committed according to the legal aspects required for a particular crime is an unlawful act. Nonetheless, there are few exceptions as listed below where such actions are not classified as illegal even though they are conferred in the legal aspect.

  • The judgment in the law and the decision of the judge (TCK art.24/ para.1)

  • Legitimate defence (TCK art.25)

  • Making use of its (victim) right and the consent of the victim (TCK art.26)

  • Duress, violence, force, fear (intimidation) (TCK art.28)

  • State of necessity; however in 2005 it has been removed from TCK as being recognized as an exception to criminal liability.


4. ​​Moral aspect -  the last element required to declare one is criminally liable is the moral aspect which relates to the intention of the accused when performing the wrongful act (Mens Rea). Mens Rea is the fault element in criminal offences basically coinciding with Actus Reus. Punishment needs prove of fault which is linked to concept of desert (deserving punishment). The moral aspect is one of the universal principles in criminal law since if this is not satisfied in spite the others, there is a very high probability that the accused would not be liable for any crime. If there is no fault, so no capacity or fair opportunity therefore punishment is not deserved. Mens Rea helps us to label crimes properly. It is a person’s intention that counts in the criminal law not his/ her motive. However crimes such as gross negligence manslaughter and careless driving does not require the moral aspect (Mens Rea) to be satisfied in order to be liable for the offence.