Italian philosopher Beccaria is an important thinker of the Age of Enlightenment and is considered to be the first to systematize penal law.
Beccaria emphasized the principle of lawfulness in crime and punishment, the need for fast and fair trials, the principle of proportionality of crimes and punishments, the banning of all kinds of inhuman treatment of citizens, the need of banning of torture and infustice of arbitrary practice and secret prosecution.He argues that the purpose of the punishment is the prevention of future crimes, that the individual should never commit a crime again, and others should not commit any crime. He acknowledged that crimes against society are the heaviest crimes.
He also argues that in order for the punishment to be effective, it must be fast, precise and violent, and says "One of the most important brakes that prevent crime is not the weight of the punishment but the inevitability of punishment."
In the first article of our Turkish Penal Code No. 5237, the purpose of the penal law is stated to be the protection of individual rights and freedoms, public order and security, the rule of law, public health and the environment, the protection of social peace and prevention of crime.
In the 38th article of our Constitution, the basic principles of our Turkish Penal Law are listed under the heading “principles regarding crime and punishment".
these principles are listed below.
nobody can be punished for an act that is not considered a crime while the penal code is in force.
when an individual commits the crime, no punishment can be imposed more than the penalty imposed for that crime in the law.
The security measures that replace the penalty and punishment can only be put by law.
The person is deemed not guilty until guilt is fixed by a court decision.
No one can be forced to make statements or to show evidence in this way, accusing her/his of relatives or himself/herself.
findings obtained by illegal method cannot be accepted as evidence.
Criminal responsibility is personal.
No one can be detained from liberty simply because fails to discharge a contractual obligation.
The death penalty and general confiscation penalty cannot be imposed.
The administration cannot apply an sanction that results in the restriction of one's liberty.
Except for the obligations of being a party to the International Criminal Court, the citizen cannot be given to a foreign country due to crime.
As stated in the article 37 of the Constitution under the title of "legal judicial process", "No one can be brought before a court other than the court to which she is legally subject. Extraordinary jurisdiction cannot be established, resulting in bringing someone before a court other than the court to which she/he is legally subject."
As it is known, penal law is a branch of law that includes the rules on crimes and the rules of judicial procedures on crimes.
The section that regulates the rules regarding the crimes is called “penal law” and the section where the rules about the judgment are regulated is called “penal procedure law".
The most severe sanction to be imposed on the person who commits a crime in criminal law and whose guilt is fixed is undoubtedly the sanctions binding the liberty of the person.
In the 19th article of our Constitution, the liberty and security of the person is regulated. According to this:
the person may be deprived of liberty only if the penalties and restrictions on liberty given by the courts, whose form and conditions are specified in the law, are fulfilled.
a person may be deprived of liberty if is apprehended and arrested as a requirement of a court order or an obligation stipulated by law.
It is stated that if a decision made for the correction of a minor under surveillance or in case to be brought before the competent authority may deprive liberty of minor.
A mentally ill person, drug or alcohol addict, a bum or a person who may emit a danger for the society may be deprived of his liberty if the precautionary measure is followed in accordance with the principles set out in the law for treatment, education or correction in an establishment.
It is stated that the person who wants to enter the country in an unlawful manner or who has entered or expelled or decided to return may be deprived of her liberty in case of arrest or catch.
-Persons who have strong indications about their guilt can only be arrested by a judge's decision to prevent them from escaping, destroying or changing evidence, or in other cases as required by arrest and other situations shown in law.
-Without a judge's decision, only in cases where the offender or delay is inconvenient, capture can be made and the conditions are shown in the law.
-People who are caught or arrested should be notified in writing of the reasons for their arrest and their claims and if this is not possible immediately, it should be verbally notified immediately, in collective crimes, the suspect must be notified until is brought before the judge at the latest.
-The person caught or arrested should be brought before a judge within forty-eight hours at the latest, except for the time required to be sent to the nearest court, and should be brought before a judge within four days for collective offenses; no one can be deprived of liberty without the decision of a judge after these periods have passed, these periods can be extended in cases of emergency and war.
-The relatives should be informed immediately that the person has been caught or arrested.
-Arrested persons have the right to be tried within a reasonable time and to be released during an investigation or prosecution.
-The release can be secured to ensure that the person concerned is present at the hearing during the trial or that the order is fulfilled.
-For whatever reason, the person whose liberty is restricted has the right to apply to a competent judicial authority in order to ensure that her condition is decided in a short time and that this restriction is released immediately in case of violation of the law.
-It is also stated that the damages suffered by the persons subject to a transaction apart from these principles will be paid by the State in accordance with the general principles of the compensation law.
In line with the principles adopted in our Constitution, the relevant laws and other legislation related to our criminal law have been created by taking into consideration the provisions set out in international agreements.
In the first article of which the purpose of our Turkish Penal Code is regulated, it is stated that the basic principles of criminal responsibility, crimes, penalty and security measures are regulated in order to achieve the purpose; in the second article, a regulation was made in accordance with the 38th article of our Constitution by including the principle of legality in crime and punishment.
We would like to state that the prohibition of comparison is regulated not in our Constitution, but in our Criminal Code; and that the principle of legality in crime and punishment applies not only to the crimes included in the Criminal Code, but also to administrative sanctions (misdemeanors) and also to the criminal rules and security measures in special laws.
Another important reflection of the lawfulness principle is that the executive body or administrative authorities are not able to organize crime and punishment through procedures such as Decree, regulation, circular or decision. Likewise, judicial bodies cannot create new types of crime that are not prescribed by law through case law.
