What is repetition?

Criminal law determines a number of sanctions to prevent crime in order to ensure social peace. These sanctions serve, in a sense, as an "example", in other words, to see that the person who committed a crime is punished. While in ancient times, punishments were regulated only for the purpose of making an example or retaliating, modern criminal laws now bring regulations for the reformation of the criminal. In fact, with these regulations that concern the sanction phase of the crime, that is, the execution order, an effort is made to socialize the criminal and reintegrate him into society.

Despite all these efforts; For individuals who are not reformed, that is, those who commit crimes again, some changes have been considered in the execution regime to be applied due to the failure of the purpose. At this point, it will be necessary to look at the recidivism provisions and determine execution accordingly.

Recidivism is regulated by Article 58 of the Turkish Penal Code. Recidivism is defined as a person convicted of a crime committing a new crime within a certain period of time. As we mentioned above, recidivism finds its application because the first punishment does not reform the individual and is more related to the execution regime. Repetition is not a reason to increase the punishment, but brings changes in the execution regime. Although recidivism has aspects that concern criminal law, it is essentially an institution related to the execution regime. As a matter of fact, the following expressions were used in the justification of Article 58 of the Turkish Penal Code:

"Recidivism, which expresses the danger to society with the determination shown in committing a crime even though the person has been sentenced to a certain punishment for the crime he has committed before, has been seen as a reason to be taken into account during the execution of the sentence imposed on the person and even as the reason for the implementation of probation measures after execution. For this reason, the system that increases the sentence of the person due to recidivism has been abandoned."

The views of the Supreme Court CGK regarding the legal nature of recidivism are as follows:

"Recidivism, which is regulated under the title of "security measures" in the general provisions of the Turkish Penal Code No. 5237, is not a reason affecting the punishment, but an "execution regime". According to the established decisions of the Supreme Court of Appeals Criminal General Assembly, it is accepted that an acquired right cannot be mentioned in security measures that are not types of punishment."

It should be noted here that although recidivism concerns the execution stage, it is evaluated within the substantive criminal law in terms of legal nature. For this reason, the application of recidivism provisions is determined by the court that imposed the sentence and the sentence is given by the criminal court. A CGK decision on the subject is as follows:

"Although recidivism, which is regulated in Article 58 of the Turkish Penal Code No. 5237, is included in the section on security measures, the said regulation is related to substantive criminal law. Since the conviction has no legal consequences, it is not possible to make a decision on this issue at the execution stage in accordance with Articles 98 et al of the Law No. 5275. For this reason, the period to be added to the period the convict will stay in prison due to recidivism is required. "It should be clearly stated in the sentence of conviction that the recidivism provision applies." 2022/453 K.

CONDITIONS FOR APPLICATION OF RECIDIBLE CRIME

While different conditions were sought in the Turkish Penal Code No. 765 as general recidivism, special recidivism and repeated special recidivism, these distinctions were abolished with the Turkish Penal Code No. 5237. When Article 58 of the Turkish Penal Code is examined, it is seen that there are three conditions for recidivism: conviction, committing a new crime and time. In our review, we will make explanations based on this classification.

1- CONVICTION CONDITION FOR REPETITION

The first condition for recidivism is conviction. Conviction means that a person is subject to a criminal sanction for an action he has committed. In other words, a criminal conviction is sought. The penalty imposed may be imprisonment or a judicial fine. However, judicial fines strictly imposed by the court cannot be taken as a basis for recidivism. Because, in accordance with Article 272 of the CMK, judicial fines imposed without appeal cannot be taken as a basis for recidivism.

Punishments such as administrative fines, disciplinary penalties, cautionary decisions, and traffic fines do not constitute a basis for recidivism. Again, if a short-term prison sentence is converted into a precautionary measure, this measure will not constitute a basis for recidivism.

The conviction of the defendant must be final. A conviction that has not yet become final cannot be taken as a basis for recidivism.

The second crime must be committed after the date on which the first crime became final. Repetition provisions do not apply to crimes committed before the sentence is finalized. A Supreme Court decision on the subject is as follows:

"Failing to take into account that the sentence of 11 months and 20 days of imprisonment was finalized on 01.11.2015, it was executed on 08.12.2017, the date of the crime subject to appeal is 03.12.2014, and the sentence finalized after the date of the crime in question cannot be subject to the execution regime specific to repeat offenders in accordance with Article 58/1 of the Turkish Penal Code. It's not true." Y1CD. 2022/7572 K.

The sentence does not have to be executed for the recidivism provisions to apply. Finalization is sufficient.

If there is more than one conviction in the criminal record of the defendant that may be a basis for recidivism, the most severe one is taken as basis. A Supreme Court decision on the subject is as follows:

"For the defendant ... who has more than one verdict in his criminal record that can be taken as a basis for recidivism, taking more than one conviction as a basis for recidivism, without considering that the conviction subject to the heaviest penalty should be taken as a basis for recidivism, in accordance with Article 108/2 of the Law No. 5275 on the Execution of Penalties and Security Measures.." Y2CD. 2023/2616 K.

The fact that the crime remains at the attempted stage does not prevent recidivism.

CASES WHERE REPETITION CANNOT BE APPLIED

Convictions subject to general amnesty cannot be used as a basis for recidivism. However, special amnesty does not prevent recidivism.

The recidivism provisions do not apply to crimes that remain within the scope of prepayment. Prepayment prevents repetition.

Repetition provisions do not apply during the statute of limitations.

The statute of limitations does not prevent recidivism.

If a conviction is given but the sentence is postponed, the suspended sentence constitutes a basis for recidivism.

Recidivism is applied in conditional release.

As we stated above, final judicial fines imposed by the first instance court without appeal cannot be taken as a basis for recidivism.

Conciliation If conciliation is reached for the crimes within the scope of reconciliation, the recidivism provisions will not be applied.

It should also be noted that, excluding the crimes of intentional murder, intentional injury, plunder, fraud, drug or stimulant production and trade, and forgery of money or valuable stamps, recidivism cannot be applied to the sentences given by foreign courts and the sentences given for crimes committed by persons who were under the age of eighteen at the time of the crime.

An example Supreme Court decision is shared below:

"For the defendant, who has more than one sentence that can be taken as a basis for recidivism in his criminal record, considering the Article 108/2 of the Law No. 5275 on the Execution of Penalties and Security Measures, taking more than one conviction as a basis for recidivism, without considering that the conviction subject to the heaviest penalty should be taken as a basis for recidivism, and for ... 4. First Instance Penalty Although Article 58 of Law No. 5237 was applied to the defendant on the basis of recidivism, based on the conviction of the court for the crime of theft; the reconciliation provisions were rearranged with Article 253 of Law No. 5271, which was amended by Article 34 of Law No. 6763, which came into force on 02/12/2016, and the law no. 5237, which was in line with the action of the defendant. Considering that the crime of theft regulated in Article 141/1 is included in the scope of reconciliation and it is understood that the defendant does not have any other criminal record that can be used as a basis for recidivism, it is found unlawful that it is necessary to evaluate whether or not it will be a basis for recidivism based on the outcome of the adaptation trial. Y2CD. 2023/2616 K.

Finally, it is necessary to mention whether recidivism will be applied in the serial trial procedure. The Supreme Court's views on this issue are contradictory. In one of the two opinions we will share below, it is accepted that it will be applied, but in the other, the penalties given by the rapid trial procedure will not be a basis for recidivism. Relevant parts of the decision texts are as follows:

"When the explained issues are evaluated together, since the decision established by the court after the rapid trial procedure is applied is not final, it will not constitute an obstacle to the practice of recidivism. In addition, in the 7th paragraph of Article 250 of the Law No. 5271, the regulation stating "the imposition of sanctions within the scope of this article does not constitute an obstacle to the implementation of the provisions regarding security measures" is included, and the legislator has clearly accepted that recidivism should be applied when the rapid trial procedure is applied. Unless the said regulation is annulled by the Constitutional Court or amended by the legislator, there is an obligation to apply recidivism in the sentences established by applying the rapid trial procedure. In this regard, the convictions given as a result of the rapid trial procedure and whose recidivism provisions can also be applied should be taken as a basis for recidivism in accordance with Article 58 of Law No. 5237." Supreme Court of Appeals 1st Criminal Chamber 2026/1967 K.

"For the reasons explained, since the expedited trial procedure regulated in Article 250 of the CMK No. 5271 is subject to the appeal legal remedy, and as explained in the above-mentioned Supreme Court Criminal General Assembly decisions, it is not possible to take the decisions that are not subject to the appeal legal remedy as a basis for recidivism, so it will not be possible for the decisions applied to the expedited trial procedure to be taken as the basis for recidivism." Supreme Court of Appeals 6th Criminal Chamber 2025/11678 K.

2-COMMITMENT OF A SECOND CRIME IN REPETITION

In order for the recidivism provisions to be applied, a second crime must be committed after the conviction for the first crime becomes final. As we mentioned above, unconfirmed convictions cannot be used as a basis for recidivism. It is not necessary for the sentence to have been executed.

It does not matter whether the penalty for the new crime is imprisonment or a judicial fine. However, recidivism provisions apply. It is not important whether the crime remains at the attempted stage.

Repetition provisions can only be applied in the presence of crimes of the same type. If the first crime is a deliberate crime, the second one must also be a deliberate crime. Again, in case of negligence-negligence combination, recidivism provisions apply. Additionally, recidivism provisions cannot be applied solely between military crimes and other crimes.

If the defendant was under 18 years old on the date of the first crime, his conviction cannot be taken as a basis for recidivism. An example Supreme Court decision is shared below:

"The defendant had not completed the age of eighteen when he committed the crime subject to the decision of the Juvenile High Criminal Court, which is in the criminal record of the defendant and which is the basis for recidivism, and that the defendant cannot be considered a repeater due to the said decision according to the provision of 5237 SK Art. "The decision to implement the probation measure was deemed unlawful." Y2CD. 2023/1276 K.

Also, TCK 58/3. In accordance with the article; Except for the crimes of intentional murder, intentional injury, plunder, fraud, manufacturing and trading of drugs or stimulants, and forgery of money or valuable stamps; Judgments given by foreign courts are not subject to repetition.

3-TIME CONDITION FOR REPETITION

In accordance with Article 58 of the Turkish Penal Code No. 5237, in case a new crime is committed after the verdict given for a previously committed crime is finalized, recidivism provisions will be applied to the defendant. In order for the recidivism provisions to be applied, it is sufficient for the previous sentence to become final and the second crime to be committed after the finalization, and there is no need for the sentence to be executed. However, although the legislator does not require the execution of the previous sentence in order for the recidivism provisions to be implemented, it has stipulated that the recidivism provisions will not be applied if a certain period of time passes after the execution.

Accordingly, in case of a sentence of imprisonment for more than five years, five years from the date of execution of the sentence, and in case of a sentence of imprisonment of five years or less or a judicial fine, three years from the date of execution of the sentence, the recidivism provisions will not be applied.

If the penalty has not been executed, the periods will not start. Even if the defendant has been punished but the sentence has expired, the recidivism provisions will apply. Because, as we stated above, the criminal statute of limitations does not prevent the application of recidivism provisions.

For suspended prison sentences, the period starts from the date on which the sentence is deemed to have been executed.

In case of conditional release, the periods will start from the end date of the supervision period.

CONSEQUENCES OF REPETITION

We stated above that recidivism mainly affects the execution regime, but it also has some consequences in terms of criminal law. These results are as follows:

• A specific execution regime is applied for repeat offenders.
• If the punishment to be given to the defendant is determined as imprisonment or a judicial fine, the defendant is sentenced to imprisonment.
• Control measure is applied.

The basis for the probation measure is TCK 58/6. It comes from the article. Accordingly, control measures should be applied to the convict after the execution of the sentence. The supervision period is determined by the execution judgeship. CGTİHK 108/4. According to the article:

"The execution judge determines a period of supervision for the repeat offender, starting after the completion of the execution of the sentence and not less than one year."

The judge may decide to extend the supervision period for up to five years at most.

WHAT IS THE EXECUTION REGIME SPECIFIC TO REPETITORS? HOW TO APPLY?

According to Article 108 of the Law No. 5275 on the Execution of Penalties and Security Measures:

Convicted of a crime committed repeatedly;

a) Thirty-nine years of aggravated life imprisonment,

b) Thirty-three years of life imprisonment,

c) In case of conviction to more than one term of imprisonment, a maximum of thirty-two years,

d) Two-thirds of the term prison sentence,

If the prisoner is served with good behavior, he/she can benefit from conditional release. However, for crimes with a conditional release rate of more than two-thirds, the conditional release rate to which they are subject is applied.

The amount to be added to the conditional release period due to recidivism cannot be more than the heaviest penalty based on recidivism.

In case of second recidivism provisions, the convict will not be released conditionally.

It is stated in the provision that the provisions of second recidivism will be applied to the convict.

The enforcement judge determines a period of supervision for the repeat offender, starting after the completion of the execution of the sentence and not less than one year.

Provisions regarding conditional release are applied during the supervision period determined due to recidivism.

The enforcement judge may decide to extend the supervision period for the repeat offender. The audit period can be extended up to five years at most.

Repeat offenders who act contrary to the obligations and prohibitions imposed on them according to the provisions of this article, during the ongoing supervision period after the execution of the sentence is completed, are subject to disciplinary imprisonment by the decision of the execution judge. The duration of disciplinary detention cannot be less than fifteen days and more than three months.

In case of conviction to aggravated life imprisonment or life imprisonment for a crime committed against a child, the conditional release periods in the first paragraph are applied.

The conditional release periods in the first paragraph are for the crime of sexual assault defined in the second paragraph of Article 102 of the Turkish Penal Code No. 5237 dated 26/9/2004, for the crime of sexual abuse of children defined in Article 103, for the crime of sexual intercourse with a minor defined in the second and third paragraphs of Article 104, for the crime of sexual intercourse with a minor defined in Article 188. It is also applied to those who are sentenced to imprisonment for the crime of manufacturing and trafficking defined drugs or stimulants.

However, in terms of term prison sentences, the conditional release rate is applied as three quarters. Except for Article 188, one or more of the following treatments or obligations are decided by the execution judge for those sentenced to imprisonment for these crimes, during the execution of the sentence and during the supervision period if they are conditionally released:

a) Being subjected to medical treatment

b) Participating in therapeutic programs

c) Being banned from residing in the residential area where the victim of the crime lives and works,

d) Being banned from approaching the places where the victim is located,

e) Being banned from working in an environment that requires being together with children,

f) Being prohibited from performing activities that require care and supervision obligations for children.

The provisions of the ninth paragraph do not apply to children.

The procedures and principles regarding the implementation of the ninth paragraph of this article are regulated by the regulation prepared by the Ministry of Justice after obtaining the opinion of the Ministry of Health.