ABSTRACT
Before the 1839 Tanzimat reforms, criminal law in the Ottoman State used to depend on imperial orders and Islamic law. In 1840, after the declaration of Tanzimat, the criminal code called ‘Ceza Kanunname-i Hümayun’ (Royal Criminal Code) was implemented. In 1926, shortly after the declaration of the Republic, Turkish Penal Code No. 765 came into force, modelled on the Italian Penal Code of 1889. During the period when Turkish Penal Code No. 765 remained in effect, various studies were performed and many draft texts were prepared for change. However, Turkish Penal Code No. 5237 came into force on 1 June 2005. Although Turkish Penal Code No. 765 was contemporary, it did not reflect the developments experienced after the Second World War and failed to keep up with social changes. At this point the fundamental problem was not the code itself but political and social insensitivity about altering it. In addition to the deficiencies mentioned above, another fundamental reason for altering the code was that Code No. 765 was influenced by nineteenth-century criminal law philosophy. It became essential to enact a new law to eliminate these problems and to adopt new institutions such as reconciliation, which is accepted by most countries, and to criminalize new types of actions such as crimes against the environment and cyber crimes, which are directly linked to technological and industrial developments. From this perspective, the basic claim of Penal Code No. 5237 is to ensure the theoretical framework indicated above. Thus, the new Turkish penal code reformed the criminal justice system including the other basic codes such as the Criminal Procedure Code, the Code on Execution of Punishments and Security Measures and the Child Protection Act, rather than reforming a specific part of it. Some of the changes are as follows: unlike in Penal Code No. 765, the distinction between ‘crime’ and ‘misdemeanour’ has been abolished. Objective responsibility for aggravated crimes has been abolished and responsibility is just in cases of culpability. Regarding criminal attempt, the distinction between ‘full attempt’ and ‘incomplete attempt’ has been abolished, as has the distinction between ‘full attempt’ and ‘incompetent attempt’. Sanctions have been divided into penalties and security measures. The new Turkish penal code not only made changes to general provisions but also it rearranged the system and content of special provisions. However, there are some criticisms of the preparation process and the proceedings of the new Turkish penal code.
