HUKUKA GİRİŞ

It is the values and culture of a particular society which determine what conducts are regarded as criminal. It should be noted that a certain conduct which is contrary to criminal law at one point in time may not be regarded as criminal afterwards or in another country. Although there are a number of definitions concerning ‘whatcrime is’, the definition of Blackstone, a famous English jurist, stands out as the most remarkable and comprehensible.

One of the major concerns of criminal law is decreasing rate of crime.

The governing principles which lie at the core of modern criminal law are as follows:

• The principle of welfare and upholding thecommon good,

• The principle of prevention of harm toothers,

• The principle of minimal intervention: Lawshould not criminalize too much behaviour,

• The principle of social responsibility: Societyrequires a certain level of cooperation between citizens,

• The principle of proportionate response:The response of criminal law should be reasonably in proportion to the harm committed or threatened to be committed,

• The non-retroactivity principle: A personshould not be convicted or punished except in accordance with a previously declared offense,

• The thin-ice principle: Those who skateon thin ice can hardly expect to find a sign denoting the precise spot where they will fall in,

• The principle of maximum certainty: Peopleshould have sufficiently certain and clear warnings about the forbidden conducts,

• The principle of fair labelling: Offensesshould be labelled in a manner to reflect the seriousness of the law violated,

• The principle of strict construction:Ambiguities in criminal law should be construed in favour of the defendant,

• The presumption of innocence: A principleof procedural fairness that the defendant should be presumed innocent until proved guilty.

Criminal law seeks to preserve order.

Absolute theories of punishment –revenge,retribution, atonement- look back to the past, tothe criminal deed and aim at balancing the harm done. Relative theories of punishment, namely theprevention theories, focus on preventing the repetitive behaviours rather than on what has happened before. According to the unification, society shall threaten to punish and the penalty shall be pronounced and executed with the aim of protecting society against further offenses but all this shall be done in a way adequate to the wrongdoers’ guilt.

There are lots of governing principles which lie at the core of modern criminal law. One of them is ‘the principle of strict construction’ meaning “ambiguities in criminal law should be construed in favor of defendant. The correct answer is E.

Punishment comes up when the criminal proceeding is completed and the sentence is given. So first of all, a crime should be committed. Punishing people who are about to commit a crime is not one of the objektives of Criminal law. The correct answer is B.

There are some forms of punishment in a variety of ways. One of them is known as ‘incapacitation/restrain’: 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. The correct answer is C.

Sources of criminal law are classified under three different topics: Legislature (Penal/Criminal Code and other statutes), Judiciary and Executive. Customary law could be accepted as a source in private/civil law but not in criminal law. The correct answer is D.

The presumption of innocence means, with a simple definition, no one is accused until proven guilty. The burden is on the prosecution to prove the case. The principle burdens the prosecution with the proof of the  committed offense. A person however clear the evidence seems to be, is innocent until proved guilty. The correct answer is E.

The subjective element – also called the mental element- in crime is one of the most significant concepts of substantive criminal law. In general terms, an accused is held liable only if he/she has “Mens rea”. Mens rea is the state of mind or, in the case of negligence, the failure to attain a certain standart of behaviour which the offense definition requires before the accused can be convicted. The correct answer is A.

According to Article 22 of the TPC, “negligence” is the failure to foresee the results that are described in the legal definition of a crime, as a consequence of carelessness or lack of diligence. The correct answer is B.

A mistake of fact occurs whereby the perpetrator violates criminal law since his/her grasp on reality is erroneous. In such cases, the basic assumption is that the perpetrator would not have acted in the way he did had he/she known the facts of the case. In our case, A hunter mistakes a helper for a bear and shoots the helper. In this case, he does not have the intent to kill a human         being and cannot be punished because of “mistake of fact”. The correct answer is C.

An infant is a person who has not yet reached the age of majority – that is 18 (not 15) in the Turkish law system (Statement (I) is wrong). The other statements are correct. The correct answer is E.

For this reason, at the point of the legislation, legislature should decide what behaviour should be criminalised and what should not.

The frequent response to this question is that it should be the behaviour, which is immoral and harmful16. Unlike the general opinion, not allimmoral or harmful behaviours are combated by means of a crime. To this respect more motives are required to defining crimes than opting whether behaviour is immoral or harmful.

The general principles are the fundamental regulations and apply, without exception, to defined crimes in special part.

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

Consequently, a person can also be heldcriminally liable for mere nonfeasance when he/she is under a legal duty to avert a particular harmand neglects to fulfill that duty. If a person hasviolated a legal duty to avert the harm as defined in an offense description and the harm has occurred,the person becomes liable only if he/she could haveaverted the harm by fulfilling the duty to act.

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.