I. THE PRINCIPLE OF LEGALITY
Turkish Civil Code, 1. in its article, it has been clearly stated that the source of the form of Turkish Law is the Law, custom and custom, the law created by the judge. 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 turned out, the thought of enlightenment and the current brought
the idea of secularism has found its reflection in Criminal Law in the “Principle of Legality”. Mainly not only in criminal law, but also in all public law relations in which one party is a state (tax law10, administration
2) we see this principle. Because the law says that society is an individual
based on the principle that it is for the strong state, it secures the basic rights and freedoms of the individual in the face of the state, especially based on the criterion of certainty of crimes and punishments, and protects it from arbitrary practices of sovereign power11. The reason why the principle of legality does not apply in private law is that, based on the same logic, both sides of a private legal relationship consist of individuals who are in an equal position. A judge who has a dispute before him on an individual request must decide on this dispute. Here the judge does not have the luxury of saying ”it does not write in the law”. As a matter of fact, in private law disputes, since the parties apply to the judge for the resolution of the dispute, the non-settlement will not be in anyone’s interests. Of course, the absence of the principle of legality in this area does not give arbitrariness to the judge. The judge will apply the law first of all in the event that comes before him, a direct one that will be applied
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 custom and custom applicable to this legal order, if he cannot resolve the dispute in this way, as a last resort, he will take the place of the legislator and set a rule limited to this dispute and
you will reach a solution.
It was the French thinker Charles de Montesquieu (1689-1755) who first introduced the principle of legalism in Europe. Montesquieu introduced the principle of “separation of powers” with the influence of historical documents that give their character to the British legal system, especially Magna Carta. 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 was developed by Beccaria12 and Voltaire, later in Europe. XIX. in the XVII century, the German criminal jurist Anselmo Feuerbach first introduced the principle of “lawless crime and no punishment” in the form of “nullum crimen, nulla poena sine lege
the Latin legal term has been expressed as 13. 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 seen that it can be expanded 14 as a result of practices contrary to the principle and repressive regimes, the persecution faced by humanity has over time made the principle of importance that cannot be abandoned 15. Especially II. The principle of legalism, which also entered into the United Nations Universal Declaration of Human Rights of 1948 after World War II, is the 11th anniversary 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
a more severe punishment cannot be given than the one that can be applied next,”he said.
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. After World War II, with the establishment of Constitutional Courts to check the constitutionality of laws, the country began to find a clear place in its Constitutions.
The principle of legality of crimes and penalties In Turkish law, implicitly
1924, and, obviously, 1961 and after that, legal guarantees were provided for in the 1982 Constitution.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 cannot be contrary to the word and spirit of the Constitution, the requirements of the democratic order of society and the secular Republic, and the principle of moderation”. Since crimes and punishments limit the basic rights and freedoms of a person, but they can be limited by law.
As a matter of fact, the article 38 of the Constitution entitled “Principles related to crimes and penalties”.
“no one can be punished for an act that the law in force at the time of its commission does not consider a crime; no one can be given a heavier punishment than the punishment imposed for that crime in the law when he commits the crime. The above paragraph also applies to the crime and the criminal statute of limitations and the consequences of a criminal conviction.
It has established the principle of legality of crimes and penalties by regulating the provision that ”security measures that replace punishment and punishment are put only by law”. As a result of the principle of legality, the direct source of the criminal norm is also the law. The Law in question is TCK in the first place. 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 TCC also apply to crimes in special criminal laws and criminal laws. the Law No. 5252 has been amended by the Law No. 5349 temporarily
according to the first article; “The provisions of other laws contrary to the regulations contained in the first book of the Turkish Commercial Code No. 5237 shall be applied until the necessary changes are made to the relevant laws and no later than December 31, 2008”.
Therefore, as of December 31, 2008, the provisions that have not been harmonized and which are contrary to the general provisions of the Turkish Commercial Code are 5 of the Turkish Commercial Code. it is not clear what their validity will be in the face of the article. Although the Supreme Court in its decision stated that the special laws that came into force after December 31, 2008, TCK 2. and 5th. when evaluating the substances together, it is concluded that there should be an acceptance that they are of implicit interest
although there is, we think that if a provision is valid until it is canceled, and if it can be argued that the Laws are unconstitutional, the law cannot be argued that the law is illegal, the provisions that have not been changed in accordance with the relevant articles and will be sent after that
5 of the special regulations to be adopted. it will be necessary to agree that it complies with Article 18. 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 laws cannot be contrary to the Constitution (Constitution, art. 11), T.C. It has a constitution.
International conventions, if they are found to be in accordance with a Law, become the direct source of the criminal norm, subject to the condition that it is clearly submitted. IHAS, Article 2 of the Constitution. it is the direct source of the criminal norm as a “constitutional norm”, since it is made explicit in accordance with the phrase “respecting human rights” contained in Article 19. On the other hand, if the administration fills the open criminal norm (white criminal norm) with its regulatory actions, the transaction will be subject to the provision of the criminal code, so in exceptional cases, the regulatory actions of the administration can be the direct source of the criminal norm. The subject will be discussed separately below within the scope of the principle of legality of the administration. Custom and custom, but in the interpretation of provisions that do not include crimes and penalties, can be an indirect source of the criminal norm, provided that they are clearly submitted and do not contradict the law20. 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. (CMK, md. 288).
I. THE PRINCIPLE OF LEGALITY