The basic principle of criminal law; The crime and its corresponding punishment are determined by law. This basic principle is included in the 1st paragraph of Article 2 of the Turkish Penal Code No. 5237: “No one can be punished and a security measure cannot be applied for an act that is not clearly considered a crime in the law.” This requires the definition of crime to be regulated clearly by law. Crime cannot be defined with vague and ambiguous expressions.
Another condition required by the principle of legality is that the law cannot go into the past. In other words, no one can be punished for an act that was not a crime at the time it was committed, or because the act was later regulated as a crime.
Another condition brought by the principle of legality is the prohibition of comparison against the perpetrator. In legal science, analogy means that if there is a gap in the law, this gap is filled by finding the most similar legal rule. Comparison in criminal law, in the 3rd paragraph of Article 2 of the Turkish Penal Code No. 5237, “Comparison cannot be made in the implementation of the provisions of the laws that include crime and punishment.” not applicable as stated.
Principle of Flaw in Crime and Punishment
In the sense of criminal law, fault is the knowing and willful committing of an act by a person who has the ability to imput. That is, in order for the perpetrator to be punished, he must have done the act knowingly and willingly. The principle that only the perpetrator who committed the act can be punished is derived from this principle. This principle is also included in the first paragraph of Article 20 of the Turkish Penal Code No. 5237: “Criminal responsibility is personal. No one can be held responsible for someone else’s actions.”
Elements of Crime
Certain elements must be present for an act to constitute a punishable offence. The basic elements that make up the crime are the legal element, the material element, the illegal element and the moral element.
The legal element is that an act that has been committed is in full compliance with the definition of crime regulated in the penal code. This element is also called typicality. For example, in order for the crime of theft to take place, the perpetrator must “take a movable property belonging to someone else without the consent of the owner, in order to benefit himself or someone else”. If there is no one of these elements defined in the law, for example, if the owner of the property has the consent of the possessor, the legal element of the theft crime does not occur.
Material Element of Crime
For a crime to occur, the perpetrator must commit an act. What is meant by the verb is that a person voluntarily creates a work that changes the outside world. For example, reflex movements or movements performed by an epileptic patient when he loses consciousness do not have an element of verb.
Moral Element of Crime
The legal typicality is that the current unlawful act is done knowingly and voluntarily by a person who has the ability to impute. At the same time, this element is the reflection of the principle that there is no perfect crime and punishment, which is one of the universal principles of criminal law, on the elements that make up the crime. Even if an action carries all the elements mentioned above, if the person does not have the intention, the action of the person may not require punishment because of the absence of the moral element. Penalties stipulated for acts committed as a result of negligence are excluded from this.