HUKUKA GİRİŞ - Deneme Sınavı - 11

Jurisprudence and commentators haveacknowledged the following categories with regardto indirect principal:

The agent lacks criminal capacity. Example: P asks A, a 10-year-old child, to steal a packet of cigarettes. Even if she thinks thatshe is committing an offense, A is not held criminally liable as she is under 14.

Preventing undesired physical interference through crimes is of private interest whereas the others listed are of public interest. Therefore, the correct option is B.

The presumption of innocence is the principle of procedural fairness that the defendant should be presumed innocent until proved guilty. Therefore, the correct option is D.

The non-retroactivity principle forsees that a person should not be convicted or punished except in accordance with a previously declared offense. Therefore, the correct option is A.

The principle of proportionate response means that the response of criminal law should be reasonably in proportion to the harm committed or threatened to be committed. Therefore, the correct option is C.

The principle of minimal intervention foresees that law should not criminalize too much behaviour. Therefore, the correct option is C.

The principle of maximum certainty forsees that people should have sufficiently certain and clear warnings about the forbidden conducts. Therefore, the correct option is E.

Criminal law seeks: • to enforce moral values; • to punish those who deserve punishment; • to protect the public from harm; • to reform the offender; • to deter offenders and potential offenders; • to educate people about appropriate conduct and behaviour; • to preserve order; • to protect vulnerable people from exploitation and corruption. Therefore, the correct option is B.

Executing a criminal is the most extreme form of rendering a person incapable of committing future crimes. Criminals restrained in prison cannot cause further harm to the general public during the length of their sentence. Therefore, the correct option is E.

Society may seek to prevent a criminal from committing other crimes by forcing that person to undergo training, psychological counseling, or some form of moral or social education as to the need for law-abiding patterns of behavior. If successful, rehabilitation will allow the individual to reenter society as a productive human being. Therefore, the correct option is C.

When the general public observes criminals being punished for their crimes, the public is deterred from criminal conduct for fear of similar punishment. The effectiveness of this rationale depends on the degree of punishment and the degree of certainty that criminals will be caught, convicted, and punished. Therefore, the correct option is A.

Abortion is permitted upon the woman’s request in the early weeks of pregnancy and in the later periods of time under certain circumstances (time limitation) in Turkey. In Ireland, only when the woman's life is at risk, is it possible.

There are four main legality principles;

1. Punishability requires a written act of parliament and cannot be based on custom. (No Punishment without Law)

2. Criminal prohibitions must determine the prohibited conduct, they must be definite (the principle of certainty)

3. Acts cannot be punished retroactively. (the principle of non retroactivity) The penalty and any ancillary measures shall be determined by the law which is in force at the time of the act. If the penalty is amended during the commission of the act, the law in force at the time the act is completed shall be applied. If the law in force at the time of the completion of the act is amended before judgment, the most lenient law shall be applied. A law intended to be in force only for a determinate time shall be continued to be applied to acts committed while it was in force even after it ceases to be in force, unless otherwise provided by law.

4. The statutory prohibition cannot be extended by analogy to conduct not covered by the ordinary meaning of the words used. (the principle of the interdiction of analogy).  The ECHR, with its Article 7, defines the principle as ‘No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed.’

Most civil wrongs are classified as breaches of contract or torts. A breach of contract occurs when a party to a contract violates the terms of the agreement. A tort, on the other hand, is a wrongful act that does not violate any enforceable agreement, but nevertheless violates a legal right of the injured party. Common examples of torts include wrongful death, intentional or negligent infliction of personal injury, wrongful destruction of property, trespass, and defamation of character.

A crime normally entails intentional conduct; thus, a driver whose car accidentally hits and kills another person would not necessarily be guilty of a crime, depending on the circumstances.

Adultery was a punishable criminal offense according to Article 440 (men adultery) and
441(woman adultery) of the Turkish Penal Code numbered 765 (‘TPC’), which aimed to protect the institution of marriage and children. The crime of adultery damaged not only the institution of family, but also the public order.

• In 1996, the Turkish Constitutional Court decided that adultery would no longer
constitute a criminal offense for men, while Article 441 regarding the woman adultery
remained valid.

• In 1999, Article 441 of the TPC that required imprisonment for women convicted of adultery was repealed.
• From this date on, adultery would no longer constitute a criminal offense, while remaining as a cause of action for divorce under Article 161 of theTurkish Civil Code.

The objective element- also called physical or external element- that describes a voluntary act or omission, refers to the part of the definition of the offense in the statutory law which relates to the actions of the perpetrator and their consequences. A person can be legally responsible for his/her voluntary bodily movements and, in some cases, speech, but not for the effects that are beyond his/her control.

The duty derives from rendering assistance to someone in danger. Note that the Code creates a duty to act only to the extent that the citizen can do it without danger to self; further, only intervention to the extent of one’s abilities is required. This
means, for instance, that if a person cannot swim, he/she is not required to jump in the river to save a drowning person; he/she would have a duty, however, to alert others or to help the drowning victim by throwing in a life ring or doing some other affirmative act.

Article 85 of the TPC:

(1) Any person who causes the death of another by reckless conduct shall be sentenced to a penalty of imprisonment for a term of two to six years. 

(2) If the act results in the death of more than one person, or the injury of more than one person together with death of one or more persons, the offender shall be sentenced to a penalty of imprisonment for a term of two to fifteen years.

Article 182 of the TPC:

(1) Any person who discharges waste or refuse material into the earth, water or air through his recklessness such as to cause environmental damage shall be sentenced to a penalty of a judicial fine.

Where the waste or refuse material has the propensity to remain in the earth, water or air then the penalty to be imposed shall be imprisonment for a term of two months to one year.

(2) Any person who causes, by his recklessness, the discharge of waste or refuse material which has a characteristic which may cause the alteration of the natural characteristics of plants or animals, enhance or create infertility or cause an incurable illness in humans and animals, the offender shall be sentenced to a penalty of imprisonment for a term of one to five years.

Aiding refers to helping the principal at the time when the offense is committed. In order to convict the aider of a committed offense, the aider must have given some support which is described in Article 39 of the TPC as follows:

• encourages the commission of an offense,

• reinforces the decision to commit an offense,

• promises that he will assist after the commission of an act,

• provides counsel as to how an offense is to be committed,

• provides the means used for the commission of the offense,

• facilitates the execution of an offense by providing assistance before or after the commission of the offense.

In cases where the assistance of the another person becomes essential in order for the crime to succeed, the aider transforms into a joint principal.