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Procedures to be Applied When Foreigners Commit Crimes in Turkey
The state’s right to sovereignty, which is limited to its territory, provides the state the authority of jurisdiction to prosecute, punish, and execute the punishment of crimes committed.
An exception to this fact is the state’s limited authority of jurisdiction arising from its sovereignty expanded by universal authorities. In some cases, the state has the authority of jurisdiction for crimes committed outside its territory to maintain public order and protect its citizens.
Five main principles have been adopted within the scope of the territorial application of Criminal Laws. These five main principles are listed as follows:
- Principle of Territoriality: The state’s jurisdiction authority for the committed crimes in places considered as its territory and have effects within the country’s territory.
- Principle of Individuality: The state’s jurisdiction authority if the citizen is the offender (active personality principle) or the victim of the crime (passive personality principle) regardless of where the crime was committed.
- Principle of Protection: The state’s authority to jurisdiction in case of a committed crime against itself outside its territory.
- Principle of Substitute Jurisdiction: The state’s jurisdiction authority over certain crimes committed by a foreigner against a foreigner abroad.
- Principle of Universality: Regardless of where in the world it is committed, the use of the state’s authority to punish with the aim of protecting the interests of the international community.
Principle of Territoriality
On the strength of its sovereignty, the state has the authority to determine the areas where the penal code will be applied. As a rule, the “principle of territoriality” is adopted by the Turkish Penal Code.
The principle of territoriality provides the state full authority and jurisdiction for the crimes committed in its territory; on the other hand, it restricts other state’s authority in some respects.
Territoriality, without considering the citizenship of the crime offender or the victim, indicates the application of the state’s domestic laws in case of commitment of crime in its territory. In other words, it implies that the application of the domestic laws are limited by its territory.
The territoriality principle is a regulation concerning crimes committed within its own country; hence, it falls short for crimes committed against its own citizens or crimes committed by its citizens in a foreign country.
Therefore, other principles have been established to complement the territoriality principle. The individuality principle is one of them and forms the basis of the subject of study.
Principle of Individuality
The principle of individuality is based on the principle that “domestic law follows its citizens“. The citizen is the offender of the crime or affected victim of the crime. In that frame, The principle has two appearances: active personality principle and passive personality principle. In terms of the principle of individuality, it is not important where the crime is committed but by whom it is committed.
The occurrence of a crime committed in a foreign country based on the offender’s citizenship is called the “active personality principle” in the Criminal Law framework.
The citizens are obliged to obey the domestic laws of their home country, even in foreign states. In the context of this principle, Turkish citizens can be put on trial in Turkey in case of committing a crime in a foreign state, provided that certain conditions are met. This case is regulated by Article 11 of the Turkish Penal Code.
The “passive nationality principle” grants judicial authority to the state to which the victim is nationally affiliated. The state, in crimes committed against its citizens outside its borders, exercises its judicial authority with the understanding that “the state protects its citizens”, safeguarding the rights of its citizens. This principle is broadly regulated in Article 12 of the Turkish Penal Code.
Principle of Substitute Jurisdiction
The principle of substitute jurisdiction occurs when a foreigner commits a crime against another foreigner in a foreign country. In that manner, even if the case has no bounds with Turkey or a Turkish citizen, upon the demand of the Ministry of Justice, the state has the authority of jurisdiction relying on Paragraph 3 of Article 12 of the Turkish Penal Code.
Article 12/3 of Turkish Penal Code – If the victim is a non-citizen, the offender shall be subject to criminal proceedings upon the request of the Minister of Justice, provided the following conditions are fulfilled:
a) The offense is subject to a penalty of imprisonment under Turkish law, where the minimum limit of imprisonment is not less than three years, and
b) There is no extradition agreement, the country’s government in which the crime has been committed, or the state of which the offender is a national has refused to grant extradition.
- The main rule is to grant extradition of the non-citizen to the state that will conduct the jurisdiction.
- If the non-citizen offender cannot be deported from the country where the crime was committed, a substitute judicial system can be operated and put into force.
- The offender must be arrested in the country that will exercise its jurisdiction. The state with jurisdiction according to territoriality and other principles must not be able or unwilling to exercise its prosecution authority for actual or legal reasons.
- The application of the substitute judicial authority relying on Art. 12/3 of the Turkish Penal Code must be per International Criminal Law.
In addition, for crimes committed abroad to be prosecuted in Turkey, the crime act must constitute a crime according to the state’s domestic law.
Turkey’s Absolute Jurisdiction Authority
The miscellaneous offenses that Turkey has absolute jurisdiction over are regulated within the scope of Article 13 of the Turkish Penal Code.
(1) In the case of the following crimes committed in a foreign country, whether by a citizen or a foreigner, Turkish laws apply:
a) Crimes located under the First Section of the Second Book,
b) Crimes located in the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Chapters under the Fourth Section of the Second Book,
c) Torture (Article 94, 95),
d) Deliberate pollution of the environment (Article 181),
e) Manufacturing and trading of narcotic or stimulant drugs (Article 188), facilitating the use of narcotic or stimulant drugs (Article 190),
f) Counterfeiting money (Article 197), production and trade of tools used in manufacturing money and valuable stamps (Article 200), counterfeiting of seals (Article 202),
g) Prostitution (Article 227),
i) Hijacking or detention of sea, railway, or air transportation vehicles (Article 223 paragraphs 2, 3) or committing damage against these vehicles (Article 152).
(2) Except for those located in the Third, Fourth, Fifth, Sixth, and Seventh chapters under the Fourth Section of the Second Book, crimes falling within the scope of the first paragraph to be tried in Turkey; depends on the request of the Minister of Justice.
(3) Even if a conviction or acquittal decision has been given in a foreign country due to the crimes mentioned in subparagraphs (a) and (b) of the first paragraph, a trial is conducted in Turkey upon the request of the Minister of Justice.
The aforementioned miscellaneous offenses to which the principle of universality applies shall be prosecuted regardless of where and against whom they were committed and who committed them. In this respect, the offenders must be prosecuted ex officio in Turkey for the specified crimes committed abroad.
Speaking of the principle of universality, it is defined as ensuring that a crime committed against humanity’s shared values and the common interest and security of a state does not go unpunished and ensuring universal justice, regardless of the nationality of the perpetrator or victim and where the crime was committed. It allows for initiating judicial proceedings based on a principle outside territoriality, nationality, and the principle of reality (universality). This can either be due to authorization by the international community (treaties, customary laws, etc.) or by self-declaring jurisdiction in their own laws.
In the justification of Article 13 of the Turkish Penal Code, it is noted that in connection with the principle of universality, a sentence is rendered according to Turkish laws, regardless of whether the perpetrator is a Turkish citizen or a foreigner. Prosecution is initiated ex officio in Turkey for these crimes committed abroad.
The prosecution in Turkey of the crimes listed in Article 13 of the new Turkish Penal Code – excluding subparagraph 1, clause b) – is based on the principle of fulfilling obligations arising from international treaties to which Turkey is a party. However, Turkey’s prosecution authority stems not only from international treaties but also occurs according to Article 13.
What Procedure is Applied in The Case of Crimes at Embassies?
The procedures to be applied in case of crime in embassies are primarily related to the identity of the person who committed the crime. In some cases, several special circumstances are required to prosecute diplomats working within the embassy.
The embassy building is not considered as the territory of the state it represents. In this manner, in accordance with the principle of territoriality, the crime committed in the embassy will be prosecuted according to the domestic laws of the state where the embassy is located.
In the Vienna Convention on Consular Relations dated 1963, to which we are a party, the legislator has regulated that consular officers will only face trial in case of a serious crime. Except for serious crimes, these individuals may be declared persona non grata by the state where the embassy is located and may be requested to leave the country.
Persona non grata is known within the framework of international law. The relevant legislation is as follows:
Article 41 of the Vienna Convention on Consular Relations, 1963
Personal inviolability of consular officers:
- Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
- Except for the case provided in the first paragraph of this Article, consular officers cannot be imprisoned or subjected to any form of personal liberty restriction other than enforcing a finalized judicial decision.
- If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to them because of their official position and, except in the case specified in paragraph 1 of this Article, in a manner that will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against them shall be instituted with the minimum of delay.
Crimes Attempted in Foreign Countries With The Purpose of Achieving The Result in Turkey
Suppose the offenders’ actions remain at the attempt stage in Turkey with the intention of committing the crime abroad. In that case, Turkish authorities must state that the crime was committed in Turkey under the 1st paragraph of Article 8 of the Turkish Penal Code. As stated in the 2nd paragraph of Article 12 of Criminal Procedure Law, to prosecute the attempt following the principle of territoriality, the place where the last action was committed must be Turkey. The final action to prosecute the attempt is not obliged to be acted by the offender. The offender may have this action done through an intermediary.
In the context of a sample decision from the Court of Cassation, it’s necessary to touch upon different opinions:
“In the case where the acts of the fraud crime applied to the defendants took place in Turkey and, by deceiving the bank officials abroad, transfers were made to bank branches in Turkey, and the fraudulent crime was completed with the unjust gain being obtained in Turkey, there should have been a continuation of the trial and a decision based on its outcome. However, the decision to halt the trial due to the absence of a complaint, on the grounds that the victimized entity is a foreign bank and the crime location is a foreign country, is against the law.” Court of Cassation 11th Criminal Chamber, 13.07.2006, 4044/6680.
In contrast, it’s a predominant view in the doctrine that if actions remain in the attempt phase in a foreign country for a result to be realized in Turkey, the crime would not materialize in Turkey.
For example, a cargo loaded with a bomb in Germany is loaded with the intention of detonation in Turkey. However, the cargo staff discovered the cargo and remained in Germany without detonating. As seen in this example, there’s an act that remains in the attempt phase. In this case, according to the Turkish Penal Code, since this action remained in the attempt phase outside the borders of Turkey, it is not punishable.
For those who adopt the mixed theory, the situation is different; it’s sufficient for the perpetrator to have the intention to achieve the result, and they believe the result doesn’t need to materialize somewhere physically; hence, they can be punished. Similarly, there’s a provision in Article 9 of the German Penal Code. It anticipates that the crime will be committed in the intended place based on the perpetrator’s intention, even if the result doesn’t occur there. However, the Turkish Penal Code doesn’t have a provision to this effect.
If the perpetrator’s actions in Turkey remain in the attempt phase, intending to commit a crime abroad, then we need to state that the crime was committed in Turkey per Turkish Penal Code Article 8/1. Additionally, as in the previous example, if the bomb were to be detonated in Turkey rather than Germany, the crime would be considered committed in Turkey.
As stated in Criminal Procedure Code Article 12/2, to punish an attempt under the territoriality principle, the last act of execution must occur in Turkey. For the attempt to be punished, the last act of execution doesn’t necessarily have to be performed by the perpetrator directly; they can have it executed through an intermediary.
Translation: Gamze ABUZAR