Active regret penalty reduction

With the modernization process in criminal law, the aim has shifted towards reform rather than punishment. The phenomenon we call crime politics has made it necessary to make regulations to prevent individuals from committing crimes with their reformatory aspects. Effective remorse, which is the subject of our review, is a criminal law institution aimed at preventing individuals from committing crimes. Another aim of the institution is to detect accomplices, especially in organized crimes. Here, it became necessary to touch upon the concept of criminal path. Because, as we will explain below, effective repentance is an institution that came to the fore after some acceptances of "iter criminis", that is, the criminal path, in the doctrine. To put it more clearly, according to some views in the doctrine, the criminal path consists of the stages of decision, preparation and execution of the crime. However, effective repentance refers to actions taken to eliminate the consequences after the crime is completed. Based on this, we state that we consider the process of active repentance that comes to the fore after the completion of the crime as the last stage of the criminal path, and that we agree with the doctrine that accepts the criminal path as thought, execution, completion and ending.

Although it is possible to have an idea about effective regret from the above statements, it is necessary to benefit from definitions in order to express the subject more clearly. The active efforts made by the perpetrator to prevent the outcome after carrying out the execution actions are called effective repentance. The institution of effective remorse is regulated in Article 168 of the Turkish Penal Code No. 5237. In the justification of the article, the idea in regulating the institution is expressed as follows:

"After the crime is completed, the person can show remorse. In this case, the committed and completed crime can no longer be returned to the uncommitted state. However, after the crime is completed, by feeling remorse, the consequences of the injustice committed can be eliminated as much as possible."

The Supreme Court Criminal General Assembly uses the following statements regarding the institution of effective remorse in its ongoing jurisprudence:

The word "regret" is in the Turkish Language Association Dictionary; It is defined as "being saddened and remorseful when you see the negative consequences of a job or behavior."

In doctrine and practice; "After the commission of a crime, the perpetrator's actions aimed at eliminating the consequences, with his own free will, without any external factors, are called effective remorse".

According to the theory of crime accepted by the Turkish Penal Code, when the elements in the legal definition of crime are realized, an injustice that requires punishment emerges, and if there is no reason to eliminate culpability, a penalty or security measure is imposed on the perpetrator. However, in some cases, the legislator required the presence or absence of certain other elements in order to punish the perpetrator. These issues, excluding the accusation of injustice and fault, are handled under the heading of "situations other than the elements of the crime". Among these, those that are necessary for the punishment of the perpetrator are called "objective conditions of punishability", and those that should not be present are called "personal reasons of impunity" or "personal reasons that abolish or reduce the punishment" (M. Koca-İlhan Üzülmez, Turkish Criminal Law General Provisions, Seçkin Yayınevi, Ankara 2016, 9th Edition, p. 359). In this respect, effective remorse is among the personal reasons that necessitate the removal or reduction of the penalty.

Although it is a rule to punish individuals for the crime they have committed, in case certain conditions are met, it is a requirement of the crime policy to waive the opening of a criminal case against the person, the continuation of the case that has been filed, and the resulting punishment or execution of the convicted sentence. As it is known, crime is committed in a process, and this is called criminal path or "iter criminis". In this process, the perpetrator first decides to commit a certain crime, then makes preparations for its execution, and finally carries out the execution actions. While most crimes are completed by the execution of the act, in crimes where the outcome is included as a separate element in the legal definition, the realization of the outcome in question is required in addition to the execution of the act in order to complete the crime. With the "voluntary renunciation" regulation in Article 36 of the Turkish Penal Code, the perpetrator prevents the completion of the crime or the realization of the result by turning away from the crime path; The aim of the regulations regarding effective repentance is to encourage people to realize their mistakes after the crime is completed, to feel remorse and to eliminate the consequences of the injustice they have caused."

WHAT ARE THE CONDITIONS OF EFFECTIVE REGRET?

The crime committed by the perpetrator who wants to benefit from effective repentance must first be completed. Because, as we stated above, this institution will be applied due to the perpetrator's efforts to prevent or eliminate the damage caused by the result. In addition, effective remorse will only come to the fore in terms of the types of crimes listed in the law. In other words, it would be a wrong approach to think that every completed crime is within the scope of effective remorse. The perpetrator's actions must be active behaviors that have the power to eliminate the negative situations caused by the outcome. Otherwise, praying to eliminate the consequences or repair the damage after committing a crime will not be considered an effective effort. The perpetrator's efforts must arise from his will. Again, for example, if the perpetrator who committed the crime of theft returns the stolen goods due to a threat, it cannot be considered as effective remorse.

Following these explanations, we feel the need to customize the subject and make detailed evaluations under headings. So, we can list the conditions for effective repentance as follows.

1-The crime committed must be completed.

In order for the provision of effective remorse to be applied, the crime must be completed. Effective repentance cannot be mentioned for crimes that remain at the attempt stage, but "voluntary renunciation" may be on the agenda if the conditions are met. As we mentioned above, effective repentance only comes to the fore after the crime is completed. Here, it is necessary to make the following distinction carefully: although the moment of completion of the crime and the moment of termination are sometimes the same, these two concepts are different from each other.

2- There must be a regulation in the law that allows effective repentance.

Effective remorse will only be applicable in terms of the types of crimes listed in the law. In accordance with the principle of legality, effective remorse provisions can only be applied for the types of crimes specified in the law. Some of these crime types are included in Article 168 of the Turkish Penal Code, and some are regulated in other articles. In addition, some special laws contain effective repentance regulations. We will explain this issue in detail under a separate heading below.

3- The perpetrator must act actively as prescribed by law.

As can be understood from the name and our definitions, behaviors that are considered effective regret must be active behaviors. The active attitude that the perpetrator must show in order to benefit from effective remorse; These may be in the form of providing effective cooperation in the fight against crime, contributing to the clarification of the crime by providing information, contributing to the fight against organized crime, the perpetrator putting an end to the unlawful situation, effective repentance through extradition or compensation, and requesting treatment by applying to the official authorities.

The 18th Criminal Chamber of the Supreme Court of Appeals made the following evaluations on the subject:

"Another condition for effective repentance is that the perpetrator has an active behavior as prescribed by law. Indeed, when the regulations regarding effective remorse are examined, we examine the following: "serving and helping to reveal the crime and catching other criminals", "releasing the victim in a safe place without harming his/her person", "completely eliminating the damage suffered by the victim by returning or compensating him in the same way", "relieving other accomplices and counterfeitly produced money or valuable stamps" It is seen that the perpetrator is required to take active actions aimed at eliminating the consequences of the injustice committed by the crime he committed, as much as possible, in various ways such as "informing the authority of the places where it is produced or stored", "disbanding the organization or ensuring the dissolution of the organization with the information he gives", "reneging from slander", "telling the truth". It is not possible to apply the provision of effective repentance to the perpetrator who does not take any active behavior to eliminate the consequences of the injustice he committed as required by the law. As a matter of fact, this is the behavior that should be exhibited in naming the institution. "The word "active" has been preferred due to this feature. The action of a third party based on the will of the perpetrator should also be considered sufficient as long as this action is caused by the perpetrator." 2017/3349 K.

3.1.- The Defendant Delivering the Drugs with His Own Consent

We feel the need to provide information here regarding drug trafficking and drug use and possession crimes.

If the defendant who is tried for the above crimes has handed over the incriminating substances on his own to a search warrant or to law enforcement officers who do not have the authority to search, he should benefit from effective remorse provisions. The two Supreme Court decisions we share below are important in terms of this issue. According to the conclusion of the two decisions, if the defendant has handed over the incriminating substances to guards who do not have the authority to search, he will benefit from the provisions of effective remorse.

If the defendant has spontaneously surrendered an element of crime that cannot be obtained as a result of a rough body search, that is, cannot be obtained as a result of a preventive search, he should benefit from the provisions of effective remorse. However, if he has delivered an item that could be found as a result of a rough inspection, he will not be able to benefit from effective remorse this time. The criterion that needs to be taken into consideration here is whether there is a search warrant and whether the incriminating substances can be seized as a result of this search. Different possibilities will arise depending on the search authority and limit. It should not be forgotten that evidence seized as a result of searches conducted without a search warrant is considered unlawful. Under this heading, the voluntary deliveries made by the defendant and their consequences are examined. The decisions subject to review are as follows:

"From the incident report and the entire file, the defendant, who was considered suspicious by the market and neighborhood guards on the date of the crime due to his anxious behavior, was approached and asked to present his ID. After it was understood that the defendant did not have an ID card, it was understood that the defendant voluntarily handed over the drugs in the packages he had in his possession to the officers after being asked whether there were any criminal elements on him. According to the Market and Neighborhood Watchmen Law No. 772, which was in force on the date of the crime, stopping, asking for ID, "Considering that the powers to conduct a rough body search are not regulated, it has been deemed unlawful not to observe that the provisions of effective remorse should be applied in accordance with the third paragraph of Article 192 of Law No. 5237 on the defendant, who was found to have served and aided the discovery of his own crime by spontaneously handing over the drugs in his possession that were above the personal use limit upon being asked." Y10. CD. K. 2023/2567

"According to the incident, arrest and custody report, there was intelligence information about the defendant that he was selling drugs, and although the defendant was stopped by the law enforcement officers and handed over the drugs he had taken off him when asked about the crime, law enforcement officers had a legal duty to check the identity and conduct a physical physical examination of the suspect whose situation they suspected within the scope of the Police Duties and Powers Law No. 2559. "In view of the fact that it is possible to seize the drugs in question depending on the quantity, it was determined that it was appropriate not to apply the provisions of effective repentance to the defendant, and we did not agree with the opinion of the Communiqué." Y10. CD. K. 2024/23883

4- Regret must be shown by the perpetrator himself.

According to the following decision of the Supreme Court Criminal General Assembly:

"There is no doubt that Article 523 of Law No. 765 is a regulation based on the "principle of return and compensation". This issue, which was the subject of discussions at the beginning, was found in many Supreme Court Decisions, especially the Unification of Jurisprudence Decision No. 10-16 dated 29.06.1955 and the decision of the General Criminal Assembly of the Supreme Court of Appeals No. 248-288 dated 11.11.1997. accepted and emphasized.

During the regulation of Article 168 of Law No. 5237; The article states: "...the perpetrator, instigator or aider must personally show remorse and completely compensate for the damage suffered by the victim by returning it in kind or compensating it..." By adding the phrase, it was intended to prevent possible hesitations. Because the phrase "showing remorse personally" in the text is a clear indication that the regulation attaches importance not to "restitution and compensation alone" but to "restitution and compensation as a result of regret". Thus; This issue was brought up during the discussions held in the Parliamentary Commission regarding the article and the Chairman of the session said, "Isn't the important thing to eliminate the damage, Sir?" In response to the question, Prof., one of the drafters of the law. Dr. İzzet Özgenç; He replied, "No, this is not the joke that this article protects. The joke that this article protects is not just to relieve the victim's grievance. It is to make the person feel remorse..." ( TR Ministry of Justice, Department of Publications, Turkish Penal Code with Minutes, Ankara-February/2005, p.616 )" 2008/147 K.

If the damage is partially compensated, the victim's consent will be required.

5- The Perpetrator's Behavior Must Be Voluntary.

According to the following decision of the Supreme Court Criminal General Assembly:

"As a result of these explanations, in cases where return and compensation are made through coercive enforcement, the damage is repaired by third parties against the consent of the perpetrator or without his knowledge, the goods are thrown away by the perpetrator while running away to avoid being caught, or the goods are seized on the perpetrator who was caught while running away, the conditions for the application of Article 168 of the Turkish Penal Code will not be met, since the real remorse of the perpetrator cannot be mentioned. However, in order for the provisions of effective repentance to be applied, the victim must While fulfilling the condition of reparing the damage suffered by restitution or compensation, the regret felt does not necessarily have to be expressed verbally, but can also be shown through actions; and provided that the defendant at least makes words or behaviors that show his regret or consent to restitution and compensation, and does not show any opposition, it may be possible to apply the provisions of effective remorse about the defendant, depending on the characteristics of the case, in case the damage caused by the crime is remedied by third parties on behalf of the defendant. 2021/357 K

6- Regret must be shown within the periods stipulated by the law.

There is no common provision regarding at what stage of the trial effective repentance will be shown. For some crimes, remorse must be demonstrated before the investigation begins, while for some crimes, it is required to be demonstrated before or after the verdict is given during the prosecution phase. For this reason, regulations specific to crime types should be considered.

WHAT CRIMES ARE ACTIVE REGRET PROVISIONS APPLIED?

Effective remorse provisions are applied for the following crimes regulated in the Turkish Penal Code:

• Crime of Loot
• Theft Crime
• Crime of Fraud
• Crime of Damage to Property
• Crime of Abuse of Trust
• Fraudulent Bankruptcy Crime
• Crime of Negligent Bankruptcy
• Crime of Gratuitous Benefit
• Organ and Tissue Trafficking Crime
• Crime of Depriving a Person of Liberty
• Crime of Causing Construction Pollution
• Crime of Manufacture and Trafficking of Drugs or Stimulating Substances and Possession of Use
• Crime of Counterfeiting Money
• Crime of Establishing an Organization for the Purpose of Committing a Crime
• Crime of Misuse of Bank or Credit Cards
• Embezzlement Crime
• Crime of Extortion
• Crime of Bribery
• Crime of Slander
• Crime of Perjury
• Crime of Perjury
• The Crime of Destroying, Concealing or Altering Criminal Evidence
• Crime of Laundering Assets Derived from Crime
• Crime of Abuse of Protection Duty
• The Crime of Being a Manager or Member of an Armed Organization
• The Crime of Escape from a Convict or Detainee
• Crime of Bringing Prohibited Items into the Execution Institution or Detention House
• Crime of Agreement for a Crime

In addition, effective repentance provisions are applied in terms of smuggling crimes regulated in the Tax Procedure Law. According to the additional paragraph of Article 359 of the Tax Procedure Law No. 213:

"If it is determined that the tax has been lost due to the acts written in this article, half of the assessed tax, delay interest and delay interest, and half of the penalties imposed and the corresponding delay interest are paid during the investigation phase, the penalty to be imposed will be reduced by half, and if it is paid until the verdict is given during the prosecution phase, the penalty to be imposed will be reduced by one third."

WHO CAN BENEFIT FROM EFFECTIVE REPENTANCE PENALTY REDUCTION?

The perpetrator of the crime, the person who instigated the crime and the person who aided the crime can each benefit from effective repentance penalty reduction. Each of the co-perpetrators can also benefit from effective repentance provisions.

In order to benefit from effective remorse, it is necessary to either clarify the crime by informing the accomplices within the time limits or to compensate for the damage. In both types, it is possible to benefit from penalty reduction due to effective repentance by adhering to special regulations.

PENALTY REDUCTION AND RATES DUE TO ACTIVE REGRET

Effective repentance penalty reduction rates vary depending on the stages and type of crime. In some cases, it is regulated that the perpetrator will not be punished at all, while it is regulated that separate reductions will be made during the investigation and prosecution stages. Again, for some types of crimes, there are provisions stating that prosecution will not be made due to effective remorse. Therefore, we would like to remind you again that special regulations should be considered for each type of crime. On the other hand, the discount rates regulated in Article 168 of the Turkish Penal Code are as follows:

After the crimes of theft, damage to property, breach of trust, fraud, fraudulent bankruptcy, negligent bankruptcy are completed, but before the prosecution is initiated, if the perpetrator, instigator or aider personally shows remorse and completely compensates for the damage suffered by the victim by returning it in kind or compensating it, the penalty to be imposed will be reduced by up to two-thirds.

If effective remorse is shown after the prosecution begins but before the verdict is given, up to half of the sentence will be reduced.

The penalty to be given to a person who shows effective remorse for the crime of plunder is reduced by half in cases falling under the first paragraph, and by up to one third in cases falling under the second paragraph.

In the crime of gratuitous exploitation, a public lawsuit cannot be filed if the perpetrator, instigator or aider shows remorse and fully compensates the damage suffered by the victim, the public or private law legal entity before the investigation is completed; If the damage is fully compensated until the verdict is given, the penalty to be imposed is reduced by up to one third. However, the person cannot benefit from the provision of this paragraph more than twice.