What is the state of obligation?

State of necessity It is regulated in Article 25 of the Turkish Penal Code under the title of reasons that remove or reduce criminal liability. The 1st paragraph of the relevant article contains the provisions regarding self-defence, and the 2nd paragraph contains the provisions regarding the state of necessity. Although they are regulated together in the same article, there are many differences between the state of necessity and self-defense. These differences will be examined in detail under separate headings below.

25. When we look at the justification of the article, it will be seen that the state of necessity is regulated as a reason that eliminates culpability. As it is known, for an action to constitute a crime in the sense of criminal law, it is subject to certain conditions. One of these is that the result of the action can be attributed to the perpetrator. At this point, the state of necessity, which is considered as one of the reasons that eliminates culpability, will prevent the result from being attributed to the perpetrator and prevent the perpetrator from being punished. In parallel with our explanations, it should be noted that; The state of necessity does not decriminalize the action, it just prevents the perpetrator from being punished. If the crime is committed under a state of necessity, it does not require acquittal but rather a decision that there is no need for punishment. This situation arises from the provision in Article 223 of the Criminal Procedure Code, which states: "The charged crime is committed by fulfilling an unlawful but binding order or under a state of necessity or under the influence of force or threat."

Although there are different opinions regarding the legal nature of the state of necessity in the doctrine, it should be noted that the opinion of the Supreme Court is in this direction. As a matter of fact, in the decision of the General Criminal Assembly of the Supreme Court of Appeals dated 19.02.2013 and numbered 2013/64, "On the other hand, while the state of necessity is accepted as a reason for legality in the Turkish Penal Code numbered 765, it is also counted as a reason that eliminates culpability in the Turkish Penal Code numbered 5237, and therefore, in the application of the Turkish Penal Code numbered 5237, the person who commits a crime in case of necessity is not "acquitted". In accordance with Article 25/2 of the Turkish Penal Code, it should be decided that "there is no need to impose a penalty." This is also clearly understood from Article 223/3-b of the Criminal Procedure Code No. 5271. His statements are included.

It is also called necessity, necessity or distress. As can be clearly understood from these names, the state of necessity means helplessness and obligation to something. Finally, in the TDK dictionary, obligation; It has been defined as "necessity to be, not being other than what it is, being obligatory, obligation, necessity, suffering".

According to Article 25/2 of the Turkish Penal Code; "The perpetrator shall not be punished for the acts committed with the obligation to escape or save someone else from a serious and certain danger that he did not knowingly cause and that could not be protected in any other way, and that is aimed at a right belonging to himself or someone else, and provided that there is a proportion between the severity of the danger, the subject and the means used." In the justification of the article, the state of necessity is expressed as "the behavior carried out by a person in order to eliminate a danger to a right he or she has or someone else". In case of necessity, there is no attack directed at the person. However, this situation may come to the fore only if the danger condition is met. The conditions of the state of obligation will be examined below.

CONDITIONS OF THE STATE OF NECESSITY

In order to decide that there is no need to make a decision about the perpetrator due to the state of necessity, certain conditions must be present in the concrete case. Article 25 of the Turkish Penal Code states, "The perpetrator shall not be punished for the acts committed with the obligation to escape or save someone else from a serious and certain danger that he did not knowingly cause and that cannot be protected in any other way, and that is aimed at a right belonging to himself or someone else, and provided that there is a proportion between the severity of the danger, the subject and the means used." All conditions of the state of obligation are stated with expressions such as:

Again, in the justification of the same article, the danger-related conditions of the state of necessity are detailed and the principle of proportionality is also mentioned. According to the justification; "For the acceptance of the state of necessity, it will be investigated that the person did not knowingly cause the danger, that it is not possible to escape from the danger without resorting to a criminal act, and that the danger is serious and certain. In addition, the "principle of proportionality" between the severity of the danger and the subject and the tool used is accepted."

These conditions constitute the conditions of the state of necessity and can be listed under two groups. We stated above that speaking of necessity is only possible in the presence of danger. For this reason, the state of necessity has some conditions for danger. In addition, certain conditions must be met in order to be protected from this danger and not to be punished. These conditions constitute the conditions for protection, and these will be stated below under separate headings.

1- CONDITIONS RELATING TO NECESSARY DANGER

In order for the situation of necessity to come to the fore, the existence of a danger is required. The dangerous situation does not have to be human-caused. The state of necessity also finds application in terms of dangers caused by animals, nature or any other thing. Moreover, this point constitutes the most important point of distinction between self-defense and the state of necessity. While what is sought in legitimate defense is attack, here it is danger.

So, after our explanations above, we can list the conditions regarding the danger as follows:

a- The Danger Must Be Aimed at a Right.

According to the article, the first condition for a person to benefit from the state of necessity is that he or she acts with the motive of eliminating a danger posed to his or her own or someone else's right. Since the term "right" is included in the article, it is necessary to specify what this term means in terms of criminal law. The term "right" here is intended to be understood as all legally protected rights. Therefore, there is no difference between a danger to a person's right to property and a danger to the right to life. Again, in terms of necessity, no distinction is made between whether the danger is directed at the person himself or if it is directed at a third person. Therefore, a situation of obligation will come to the fore with the existence of other conditions for the person who avoids the danger in order to protect his own or someone else's rights.

The 15th Criminal Chamber of the Supreme Court ruled in its decision numbered 2014/4909 K. that there is a state of necessity in a case where a pregnant woman applies to the hospital with someone else's health card for the birth of her child. According to the relevant decision; "In the crime of fraud to the detriment of public institutions and organizations, fraud crime, the defendant was obliged to save her unborn child from a certain danger because she was pregnant, therefore, she used the health certificate of the other defendant in order to protect herself from this vital danger and to give birth, and therefore, in the face of the conditions of the state of necessity, the penalty was imposed. "Since there was no conclusive and convincing evidence sufficient to convict the other defendants that he knowingly let the other defendant use his health card, there was no error in accepting their acquittal."

It should not be forgotten that the legislator has not introduced a condition such as kinship in terms of third parties.

b- The danger must not have been knowingly caused.

While stating the conditions of the state of necessity, the legislator has clearly regulated that the danger must not be caused knowingly. As can be understood from here, the person will not be able to benefit from the state of necessity due to the danger he creates. However, this regulation should be limited to the dangers that the person knowingly creates. "Knowing" essentially means acting deliberately. It is possible for a person who causes danger through negligence to benefit from the state of necessity. In addition, in case of conscious negligence, the person will not be able to benefit from the obligation. Because conscious negligence comes to the fore in cases where the outcome is predictable.

c- The Danger Must Be Serious and Certain.

As we mentioned above, danger can come from any living or non-living entity. An animal attack is considered a danger, as is an avalanche, flood, etc. Natural events such as are also considered as danger. The severity of the danger is a condition that requires particular attention. In addition to the danger itself, the damage it will cause must also be severe. When evaluating this situation, the right to which the danger is directed must be examined. Namely, it is necessary to distinguish between dangers to a person's right to life, physical integrity, health, and property values ​​and minor dangers that will disturb the peace.

Another criterion that must be investigated when determining the danger in case of necessity is that the danger is certain. Imminent dangers are certainly accepted.

2- CONDITIONS REGARDING PROTECTION

i- There Should Be No Other Possibility of Protection from Danger.

The action taken by the person to protect himself should be his last resort and there should be no other way to escape from the danger. If the danger is a danger that can be eliminated by an action or actions other than this action, there can no longer be a situation of necessity. Here again, there is a condition different from legitimate defense. If the perpetrator has the opportunity to escape from danger and escape, the provisions regarding the state of necessity cannot be applied. The determination of this situation should be made meticulously according to the characteristics of the concrete case.

In the decision numbered 2012/41142 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, it was emphasized that the helplessness of the person should be determined. According to the relevant decision; "It should be taken into consideration that it should be determined whether the surgery of the defendant's child, who does not have social security but has an inguinal hernia, is urgent or not, and whether it is possible to apply Article 25/2 of the Turkish Penal Code, and that his economic and social situation as of the date of the crime is investigated to determine whether he meets the conditions for obtaining a green card, and his legal status should be evaluated and determined according to the result."

In a decision of the Supreme Court Criminal General Assembly dated 2019, it ruled that the state of necessity will not be applied in cases where it is otherwise possible to be protected from danger. The relevant decision is as follows.

"On 19.10.2013, around 02.20, while he was in the office of the defendant ..., the owner of Özden Tekel Dealer, located in Zonguldak province, Merkez district, Çınartepe District, ..., the witness, who was a friend of the defendant, came out of the said liquor store and saw 7-8 dogs barking in a pack in front of the workplace, and said to the defendant ... "Don't go out, there are dogs downstairs!" He shouted, then the defendant ... took the hunting rifle registered to his name in his office and fired a few shots into the air to scare the dogs. After the dogs dispersed, the witness ... and the defendant ... went back to the office, thinking that the dogs had gone away, and when they came out again after about 5 minutes and saw that the dogs were still waiting, the defendant ... fired a few more shots into the air with the same shotgun. A total of 7 hunting cartridge cartridges were seized on the ground in the area overlooking the back of the workplace by the law enforcement officers who came to the scene upon notice. In the incident, it is understood that there was no obligation regulated in the second paragraph of Article 25 of the Turkish Penal Code, as there was no serious and definite danger in the action of the defendant, who fired 7 shots into the air in order to disperse the dogs gathered in front of the workplace..." YCGK 2019/689 K.

According to the decision of the 2nd Criminal Chamber of the Supreme Court of Appeals No. 2005/29224 K.; "In the incident where the defendant argued about the fee with the person who claimed to be a parking attendant where he parked his vehicle, and was attacked by more than one person, and was injured in a way that left him unable to work for 5 days, the decision to convict him instead of acquittal, without taking into account the fact that there was a state of necessity in his action of firing a shot with his licensed gun to scare him, as the attack continued and there was no other way to escape, requires reversal."

ii- There Should Be No Obligation to Face Danger.

The absence of the obligation to face danger refers to certain actions that a person is obliged to perform due to his duty. For example, although there are risks in the work of public personnel such as law enforcement officers and firefighters, it is a legal obligation for these personnel to intervene in these dangers. Therefore, these people cannot stand the obligation because they are doing their duty. The state of necessity is regulated as a state that can only be benefited by people who perform that action for moral reasons even though they do not have a legal obligation.

iii- Danger and Harmful Behavior Should Be Proportional.

TCK 25/2. The article stipulates that "there must be a proportionality between the severity of the danger, the subject and the means used". This proportion must be evaluated separately and meticulously for each concrete case. As we mentioned above, the state of necessity requires a person to protect himself or someone else in a way that will cause the least harm to third parties. The harm inflicted may be equal to or less than the harm threatened, but not vice versa. In case of necessity, the perpetrator's behavior will harm perfect third parties who are not involved in the incident. In this case, in the doctrine, "the right protected must be superior to the right sacrificed." An opinion was expressed as follows. For example, while it would be proportionate for a person whose right to life is in danger to damage the property of a third party, proportionality cannot be mentioned in the full case. Again, equality of rights does not prevent the application of the state of obligation.

DIFFERENCE BETWEEN NECESSITY AND LEGITIMATE DEFENSE

1- In self-defense, attack is required, and in case of necessity, the presence of danger is required.

2- Legitimate defense is made against the attacker. However, in case of necessity, the defense is made against a third party who is not involved in the incident.

3- In legitimate defense, the attack arises from human behavior. In case of necessity, the source of the danger may be human, animal or natural event.

4- In case of legitimate defense, the action does not constitute a crime and a decision of acquittal is given. In case of necessity, the action remains a crime, but it is decided that there is no need to punish the perpetrator.

5- In case of necessity, the perpetrator has the obligation to repair the damages caused.

6- In legitimate defense, the person who is attacked has no obligation to escape.

7- In case of necessity, the perpetrator must not have knowingly caused the danger.