Application of Turkish Penal Laws to Foreigners for Crimes Committed in Turkey

The fact that foreigners in Turkey can be the perpetrators or victims of an offence makes it necessary to make some explanations about the application of Turkish criminal law in terms of location. 

Jurisdictional issues surrounding foreign individuals engaged in criminal acts within Turkey requires a thorough understanding of Turkish penal laws. The Turkish Penal Code No. 5237 outlines jurisdictional principles, including territoriality, individuality, protection, substituted jurisdiction, and universality which affirm Turkey’s capacity to investigate, prosecute, and punish crimes occurring within its borders, irrespective of the nationality of those involved. 

Basic Principles on the Application of Criminal Laws with Territorial Aspects 

At the outset, it would be appropriate to state that jurisdiction is an element of the sovereignty of states. Jurisdiction includes the power to investigate and prosecute, to reach a verdict, to punish and, to execute the punishment. 

In terms of the jurisdiction of the state in criminal proceedings, there are five different principles and systems: “territoriality” based on the place where the crime was committed, “individuality according to the offender” based on the citizenship of the perpetrator, “individuality according to the victim” based on the citizenship of the victim, “protection” based on the national interests violated, and the principle of “universality” based on the international nature of the crime. The Turkish Penal Code contains provisions reflecting all these principles. 

1- Principle of Territoriality in The Turkish Penal Code: 

It refers to the fact that a state has the authority to judge and punish offences committed in its territory or in places considered as its territory.

According to Article 8 of the Turkish Penal Code 

“Application in terms of place

(1) Turkish law shall apply to offences committed in Turkey. The offence shall be deemed to have been committed in Turkey if the act is committed partially or wholly in Turkey or the result occurs in Turkey.

(2) When an offence is committed

a) in Turkish land and airspace and Turkish territorial waters,

b) In the open sea and the airspace above it, on or with Turkish naval and aircraft,

c) Turkish naval and air combat vehicles or with these vehicles,

d) on or against fixed platforms established on the continental shelf or in the exclusive economic zone of Turkey,

it shall be deemed to have been committed in Turkey.”

In accordance with the mentioned article; Turkish Penal Code is applicable to foreigners both victims and perpetrators who commit a crime in Turkey or in any place which is considered like Turkey such as Turkish airspace and territorial waters, open sea and airspace on or with a Turkish naval or aircraft, on or with Turkish combat naval or air vehicles, on or against Turkish fixed platforms on the continental shelf or in the exclusive economic zone of Turkey. 

2- The Principle of Individuality in The Turkish Penal Code: 

It refers to the state’s jurisdiction and punitive power in cases where the citizen is the perpetrator of the crime (individuality according to the perpetrator) or the victim of the crime (individuality according to the victim), regardless of the place where the crime was committed.

Article 10 titled “Offences of Duty” and Article 11 titled “Offence Committed by a Citizen” of the Turkish Penal Code contain provisions expressing the principle of individuality in terms of the perpetrator; Article 12 titled “Offence Committed by a Foreigner” contains provisions expressing the principle of individuality in terms of the victim. The first article regulates the jurisdiction of Turkey with respect offences committed abroad by a Turkish citizen official, and the second article regulates the cases of offences committed abroad by a Turkish citizen. Since the subject matter of this article is Turkey’s jurisdiction over foreign perpetrators or victims, the provisions of these articles are not given in detail. The third article regulates the criminal proceedings in crimes whose victims are Turkish and perpetrators are foreigners; therefore, it is within the scope of this article and is given and explained below. 

According to Article 12/2 of the Turkish Penal Code

“(2) If the offence referred to in the preceding paragraph is committed to the detriment of a Turkish citizen or a private legal entity established in accordance with Turkish law and the perpetrator is in Turkey, the perpetrator shall be punished in accordance with Turkish law upon the complaint of the injured party, provided that no judgement has been rendered in a foreign country for this offence.”

As stated in the above paragraph, in order for the perpetrator to be punished for crimes committed by a foreign person whose victim is Turkish, the perpetrator must be present in Turkey, the victim must file a complaint, and the perpetrator must not be sentenced in another country for this specific crime.

3- The Principle of Protection in The Turkish Penal Code: 

The principle of protection means that the state has the power to prosecute and punish if the offence is committed against the sovereign state inside or outside the country. Article 12/1 of the Turkish Penal Code clearly states that the principle of protection will be applied in case of a crime against Türkiye. 

According to the provision of the said article

“12- (1) If a foreigner commits a crime, other than the crimes listed in Article 13,  in a foreign country, to the detriment of Turkey, that requires a prison sentence of at least one year and is in Turkey, he will be punished according to Turkish law. Conducting a trial depends on the request of the Minister of Justice.”

“(4) A retrial is held in Turkey upon the request of the Minister of Justice, for the foreigner who was convicted by a foreign court for the crime falling within the scope of the first paragraph, or whose case or sentence was dropped or acquitted for any reason, or whose crime ceased to be prosecutable.”

4- The Principle of Substituted Jurisdiction in The Turkish Penal Code: 

The principle of substituted jurisdiction refers to the state’s jurisdiction to try and punish certain crimes committed abroad where the perpetrator and the victim are foreigners. Even if it does not concern Turkey or a Turkish citizen, it is indicated in Article 12/3 of the Turkish Penal Code that the state has jurisdiction, upon the request of the Minister of Justice.

According to this:

“12- (3) If the victim is a foreigner, the perpetrator will be tried upon the request of the Minister of Justice if the following conditions exist:

a) The crime requires a prison sentence of not less than three years according to Turkish law.

b) There is no extradition agreement or the extradition request has not been accepted by the government of the country where the crime was committed or the state of which the perpetrator is a national. “

5- The Principle of Universality in The Turkish Penal Code: 

It refers to the state’s jurisdiction to try and punish for the purpose of protecting the interests of the international community, regardless of the perpetrator, the victim or the place where the offence was committed. This principle is regulated under the Article 13 of Turkish Penal Code. On the other hand, the fact that Turkey reserves the authority to prosecute the crimes listed in Article 13/1-b brings to mind the principle of protection rather than the principle of universality.

“Article 13- (1) Turkish laws apply if the following crimes are committed by a citizen or a foreigner in a foreign country:

a) Crimes listed under Book Two, Part One. (genocide and crimes against humanity, immigrant smuggling and human trafficking crimes)

b) Crimes listed in the Third, Fourth, Fifth, Sixth, Seventh and Eighth Chapters under the Second Book, Fourth Part. (Crimes against the Signs of State Sovereignty and the Reputation of its Organs, Crimes against the Security of the State, Crimes against the Constitutional Order and the Functioning of This Order, Crimes against National Defense, Crimes against State Secrets and Espionage, Crimes against Relations with Foreign States)

c) Torture (articles 94, 95).

d) Intentional pollution of the environment (article 181).

e) Manufacturing and trading drugs or stimulants (Article 188), facilitating the use of drugs or stimulants (Article 190).

f) Forgery of money (Article 197), production and trade of tools used to manufacture money and valuable stamps (Article 200), forgery of seals (Article 202).

g) Prostitution (article 227).

h) (Repealed)

i) Crimes of hijacking or detaining sea, railway or air transportation vehicles (Article 223, paragraphs 2, 3) or causing damage to these vehicles (Article 152).

(2) Except for those contained in the Third, Fourth, Fifth, Sixth and Seventh Chapters under the Second Book, Fourth Part; Conducting a trial in Turkey for crimes falling within the scope of the first paragraph is subject to the request of the Minister of Justice.

(3) Even if a verdict of conviction or acquittal has been given in a foreign country for the crimes listed in subparagraphs (a) and (b) of the first paragraph, a trial will be held in Turkey upon the request of the Minister of Justice.”

How Can Be Determined Where the Crime Committed? 

How to determine where the offence was committed should also be determined under this heading. There does not seem to be a problem in terms of determining where the offence is committed in the crimes of mere action where the result arises with the realisation of the action. However, there may be difficulties in determining where the offence was committed in cases where the result can be separated from the movement and in continuous offences where the movement shows a process. 

The following three examples can be given to clarify the problem. In the first one, if the perpetrator, who is somewhere close to the Turkish border, kills a person across the border by firing his weapon, the act will be committed in Turkey and the result will be committed in a foreign country. The second example is the opposite, i.e. when a person across the border fires his weapon and kills a person in Turkey. In this case, the act takes place in a foreign country and the result is in Turkey. The third example can be considered through the crimes of membership of an organisation or deprivation of liberty, which are among the first ones that come to mind when we talk about continuous crimes. In cases where the perpetrator starts to deprive the victim of his/her liberty abroad, continues the act in Turkey and is caught in a third country, or starts the act abroad, continues the act in Turkey and is caught in Turkey, part of the act constituting the continuous offence will have occurred in Turkey or the interruption will have occurred in Turkey. 

The Turkish Penal Code regulates the application of Turkish penal laws in terms of location by introducing a rule covering these situations. According to Article 8 of the Penal Code; 

“…The offence shall be deemed to have been committed in Turkey if the act is committed partially or wholly in Turkey or the result occurs in Turkey…” 

The Turkish Penal Code No. 5237 regulates the application of Turkish penal laws in terms of location by introducing a rule covering these situations. 

Accordingly, the offence shall be deemed to have been committed in Turkey in cases where the act or the result takes place and in continuous offences where the act takes place partially in Turkey or the interruption takes place in Turkey. Accordingly, in all three examples given above, the offence may be deemed to have been committed in Turkey, the trial may be held in Turkey and the punishment may be imposed in Turkey.

Conclusion

Jurisdictional matters concerning foreign individuals involved in criminal activities within Turkey, it becomes imperative to comprehend the application of Turkish penal laws. The Turkish Penal Code outlines principles governing jurisdiction, encompassing territoriality, individuality, protection, substituted jurisdiction, and universality. These principles underscore Turkey’s authority to investigate, prosecute, and penalize crimes committed within its territory, regardless of the citizenship of the perpetrator or victim. 

How We Can Assist You

As Viridis Legal Partners, we are here for our foreign clients whether they are individuals or entities regarding the application of Turkish penal laws to foreigners involved in criminal activities. Our team of criminal lawyers in Istanbul specialises in jurisdictional complexities and provides tailored guidance to address your specific legal concerns. Whether you require assistance in understanding the nuances of Turkish penal laws, determining jurisdictional issues, or ensuring compliance with legal requirements, With our team of multilingual criminal attorneys in Turkey, we are dedicated to offering comprehensive support and personalized solutions. 

Contact us today, to be your trusted legal partner in safeguarding your rights and interests within the Turkish legal system.

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