I. THE PRINCIPLE OF LEGALITY
Turkish Civil Code, 1. in the article, it is clear that the source of the form of Turkish law is the law, custom and custom, the law created by the judge
he has expressed it. Turkish Criminal Code, 2. in the article, he pointed out that the source of the form of Turkish Criminal Law is only the Law.
As it turns out, the thought of enlightenment and this current brought
the idea of secularism reflects its reflection in Criminal Law “The Principle of Legality”
he must have found it. Mainly not only in criminal law, but also in the
in all public law relations in which it is a state (tax law10, administration
2) we see this principle. Because the law says that society is an individual
in the face of the state, which is strong based on the principle that it is for the individual
it guarantees its fundamental rights and freedoms, especially based on the criterion of the certainty of crimes and punishments, and protects them from arbitrary practices of sovereign power11. The principle of legality in private law is valid
the reason why it does not exist is that, based on the same logic, the private legal relationship
it is the fact that both sides are made up of individuals who are in an equal position. Before
the judge who arrives at the dispute on an individual request must decide on the dispute in question. Here the judge does not have the luxury of saying ”it does not write in the law”. As a matter of fact, the parties to private law disputes
since he applied to the judge for the resolution of the dispute, the unresolved
it will not be in anyone’s interests. Of course, of course, there is lawfulness in this area
the absence of a principle does not give arbitrariness to the judge. Judge, what’s in front of you
in the event that the law will be applied first, it will be applied directly to a
if he cannot find an arrangement, he will apply for a comparison, if he cannot reach a solution in this way, he will apply for the customs and customs that apply to this legal order, if
if he cannot resolve the dispute in this way, he is the law as a last resort
by taking the place of the legislator, he will make a rule limited to the dispute and
you will reach a solution.
The French thinker Charles de Montesquieu (1689-1755), who first introduced the principle of legalism in Europe, was the French thinker Charles de Montesquieu (1689-1755). Montesquieu,
The character of the British legal system, in particular Magna Carta, is
with the influence of the historical documents that gave, he put forward the principle of “separation of powers”. According to Montesquieu, it is possible to guarantee individual freedom by limiting the phenomenon of power.
The most appropriate tool for this is the law, which is the work of the human will. Therefore, everything that the law does not prohibit is free. The principle is that in Europe
subsequently, it was developed by Beccaria12 and Voltaire. XIX. the German criminal jurist Anselmo Feuerbach in the XVII century wrote that “lawless crime and punishment
”nullum crimen, nulla poena sine lege“ for the first time in the form of ”nullum crimen, nulla poena sine lege
the Latin term law refers to it as13.
In some Laws, such as the Soviet Criminal Code of 1922 and the National Socialist German Criminal Code, and in some periods by comparison of crimes
although it has been found that it can be extended14 practices contrary to the principle and oppressive
the principle of persecution faced by humanity as a result of regimes over time
it has acquired an importance that cannot be given up by it15. Especially II. The principle of legality, which also entered into the United Nations Universal Declaration of Human Rights of 1948 after World War II,
Article 11 of the Declaration in the article; “1.Everyone who has been charged with a crime, at the end of an open trial, in which all the guarantees necessary for his defense are recognized,
unless he is found guilty according to the law, he is considered innocent. 2. No one may be considered guilty of any act or omission that does not constitute a crime under national or international law at the time of its commission. Offence to anyone
no more severe punishment can be given than the punishment that can be applied next,”he said
he must have found a place.
The principle is based on Article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 entitled “The legality of penalties”. it has been included in the Article as a fundamental human right.
The principle of legality, which first began to be clearly regulated in the criminal laws of countries, in particular 2. World War II
then, with the establishment of Constitutional Courts in order to check the constitutionality of the laws, as is clear in the Constitutions of the country
he’s starting to find a place.
The principle of legality of crimes and penalties In Turkish law, implicitly
1924, and clearly in the Constitution of 1961 and after 1982, the legal
it has been secured 16. Article 13 of the 1982 Constitution in accordance with the article “fundamental rights and freedoms, without touching their essence, only depending on the reasons specified in the relevant articles of the Constitution and only in accordance with the law
it can be limited. These limitations, according to the word and spirit of the Constitution, are democratic
it cannot be contrary to the requirements of the social order and the secular Republic and the principle of moderation” . Since crimes and punishments are basic human rights and freedoms
it restricts, but can be limited by law.
As a matter of fact, the article 38 of the Constitution entitled “Principles related to crimes and penalties”.
the article also clearly states that “no one is subject to the law in force at the time of processing
he cannot be punished for an act that he does not consider a crime; no one can be given a heavier punishment than the one imposed for that crime in the law when he commits the crime.
Regarding the consequences of a criminal conviction with a criminal and criminal statute of limitations
also the above paragraph applies.
Security measures that replace punishment and punishment are put in place only by law”
with its provision, it has been possible to regulate the principle of legality of crimes and penalties.
As a result of the principle of legality, the criminal norm
its direct source is also the law. The Law in question is at the very beginning
It is TCK. On the other hand, at this point, TCK has 5. we should also mention the article. Because according to the relevant article, the general provisions of the Turkish Criminal Code, special criminal laws and criminal laws on crimes
it is also applied. the Law No. 5252 has been amended by the Law No. 5349 temporarily
in accordance with the first article; “other laws, the first article of the Turkish Commercial Code No. 5237
provisions contrary to the regulations contained in the book are required in the relevant laws
it will be applied until the changes are made and no later than December 31, 2008”.
In that case, it has not been harmonized as of December 31, 2008, and
The provisions that are contrary to the general provisions of the Turkish Commercial Code, the Turkish Commercial Code
5. it is not clear what their validity will be in the face of the article. Whatever
until December 31, 2008, the special laws that came into force after the 2nd of the Turkish Commercial Code, in a decision of the Supreme Court. and 5th. when evaluating the substances together, it is concluded that it should be accepted that they are of implicit interest
although there is, we think so, since a provision has been canceled
although it can be argued that the Law is contrary to the Constitution, it cannot be argued that the law is contrary to the law, the provisions that have not been amended in accordance with the relevant articles and will be sent after that
5 of the special regulations to be adopted. it is in accordance with the article
it will be necessary to accept18. Of course, this acceptance does not prevent the special provisions in question from being contrary to the Constitution.
Another direct source of the criminal norm; since the laws
They cannot be contrary to the Constitution (Constitution, md. 11), T.C. It has a constitution.
International conventions, if they are found appropriate by law,
depending on the condition that he clearly submits, the criminal norm
they become its direct source. IHAS, Article 2 of the Constitution. item is included in
it is the direct source of the criminal norm as the ”constitutional norm“, since the phrase ”respectful of human rights” is explicitly referred to as 19.
On the other hand, if the administration fills in the open criminal norm (white criminal norm) with its regulatory actions, the transaction is subject to the provisions of the criminal Code
in exceptional cases, the regulatory actions of the administration may be the direct source of the criminal norm, since it will be in the judgment. The topic is below
it will be mentioned separately within the scope of the principle of legality of the administration.
In the interpretation of customary and customary, but not criminal and criminal provisions,
in case of explicit submission and not contrary to the law
it can be an indirect source of the criminal norm, provided that20.
Principle of legality, Article 1 of the Turkish Commercial Code No. 765. article 2 of the Turkish Commercial Code No. 5237 and after it. it is clearly stated in the article.
Failure of the judge to comply with this principle is a violation of the right to a fair trial (Constitutional art. 36; IHAS md. 6) and is the cause of absolute disruption.
