The crime of resisting to prevent the performance of duty occurs when force or threats are used against a public official (such as a civil servant, police officer, municipal police, lawyer, judge, etc.) to obstruct the performance of their duty. This crime is commonly referred to in public as resisting the police, resisting the municipal police, etc. The crime of resisting to prevent the performance of duty is a crime that involves optional actions. This crime arises from acts of threat or force, which are active (positive) behaviors, committed against a public official.
What is a public official?
The term “public official” refers to a person who participates in the execution of public activities through appointment or election, or in any manner, either permanently, temporarily, or for a fixed period. According to the Law No. 5237;
-Police officers, municipal police, and other civil servants,
-Judges, prosecutors, experts, witnesses, and others performing judicial duties,
-Elected officials such as members of parliament, mayors, municipal council members, and village heads,
-Appointed officials such as district election board president, polling station chairperson, etc.
They have the status of a public official under the application of the Turkish Penal Code (TCK).
What are the elements of the crime?
–Anyone can be the perpetrator of the crime of resisting to prevent the performance of duty.
–It is not sufficient for the acts of force or threat to be committed against a public officer in order to constitute the crime of resisting to prevent the performance of duty. The force or threat must be used against the public officer when they are acting within the scope of their authority or duty. In other words, actions against the public officer that occur when they are not performing their duties or when they are not engaged in an act within the scope of their duty do not constitute the crime of resisting to prevent the performance of duty.
–Once the public officer has completed their duty, the force or threat committed against them does not constitute the crime of resisting to prevent the performance of duty.
–For the crime of resisting to prevent the performance of duty to occur, the force or threat applied to the public officer must reach a certain level of intensity. An important point regarding the act of force is that even if the acts committed by the perpetrator do not reach the level of “force crime” as regulated in Article 108 of the Turkish Penal Code, the crime of resisting to prevent the performance of duty will still be constituted.
The penalty for the crime of resisting to prevent the performance of duty.
Turkish Penal Code Article 265:
(1) A person who uses force or threat to prevent a public official from performing their duty shall be punished with imprisonment for a term of six months to three years.
(2) If the crime is committed against individuals performing judicial duties, the person shall be sentenced to imprisonment from two to four years.
(3) If the crime is committed by the person making themselves unrecognizable or by multiple people acting together, the penalty will be increased by one-third.
(4) If the crime is committed by using a weapon or by taking advantage of the coercive power of existing or presumed criminal organizations, the penalty will be increased by half according to the provisions above.
(5) If aggravated circumstances occur as a result of the intentional injury during the commission of this crime, the provisions related to intentional injury will also apply.
Competent and Authorized Court
–The competent court for the trial of the crime of resisting to enforce duty is the Criminal Court of First Instance.
–The authorized court is the court of the place where the crime was committed.
Investigation and Prosecution Procedure
In the crime of resisting the performance of duty, the investigation and prosecution are not subject to complaint. The relevant authorities act ex officio as soon as they become aware of the commission of the crime. Even if the victim withdraws the complaint, the prosecution continues.
Reconciliation – Complaint Period – Statute of Limitations
–The crime of resisting the execution of duty is not one of the crimes subject to reconciliation.
–Since the crime is not one of the crimes based on a complaint, it is investigated ex officio. Therefore, there is no specific complaint period. The right to file a complaint can be exercised within the statute of limitations for the case. The statute of limitations for the basic form of the crime is 8 years.
Unjust Provocation
A public official is obligated to act in accordance with the law while performing their duties. If a public official insults, uses force, or provokes someone in an unjust manner during the course of their duties, the person who commits a crime against the official may benefit from the provisions of unjust provocation, leading to a reduction in their sentence.
Conversion to Judicial Fine – Suspension – Postponement of the Pronouncement of the Judgment
–The prison sentence for the crime of resisting to have the duty performed can, under certain conditions, be converted into a judicial fine.
–Suspension is the conditional waiver of the sentence determined by the court from being enforced in prison. It is also possible to suspend the prison sentence imposed for the crime of resisting to have the duty performed.
COURT OF CASSATION DECISIONS
4th Criminal Chamber 2015/631 E., 2019/6977 K.
“Precedent Text”
COURT: Criminal Court of First Instance
CRIME: Resisting the performance of a duty
SENTENCE: Conviction
The judgments rendered by the local court were appealed, and the case was reviewed based on the duration of the application, the nature of the decision, and the date of the offense:
According to the indictment’s described actions and the articles referenced, and in accordance with Article 14 of the Court of Cassation Law and the provisions of the Grand General Assembly of the Court of Cassation that regulate the division of duties of the Criminal Chambers, a case was filed against the defendant … for the crime of resisting the performance of a duty as defined in Article 265/1 of the Turkish Penal Code (TCK), and against the defendant … for the crime of resisting the performance of a duty and threatening with a weapon. Since it was determined that the crime of resisting the performance of a duty is an element of the crime of threatening with a weapon, a decision was made not to rule on the charges related to the weapon-related threats, and the conviction for resisting the performance of a duty was upheld. Given that the matter falls under the jurisdiction of the 18th Criminal Chamber of the Court of Cassation, it was decided, unanimously on 16/04/2019, that our chamber is INCOMPETENT and the file should be SENT to the relevant chamber.
8th Criminal Chamber 2016/5857 E., 2017/135 K.
“Case Law Text”
COURT: Criminal Court of First Instance
CRIME: Violation of Law No. 6136 and resisting the performance of a duty
JUDGMENT: -Conviction of the defendant … for the crime of resisting the performance of a duty.
-Conviction and confiscation of the defendant … for the crimes of violating Law No. 6136 and resisting the performance of a duty.
It was discussed and considered:
I- In the examination of the judgment given for the defendant … regarding the violation of Law No. 6136;
Based on the trial, the content of the file, the evidence presented and evaluated in the decision-making place, the formation of belief and discretion resulting from the investigation, the acceptance and application consistent with the formation and nature of the crime, and the legal, lawful, and sufficient reasoning explained, the defendant’s appeal objections regarding the incomplete examination are rejected, and the judgment was UNANIMOUSLY UPHELD.
II- In the examination of the judgments given for the defendants … and … regarding the crime of resisting the performance of a duty;
- The failure to consider the fact that how the defendant … committed the crime of resisting the performance of a duty should have been discussed in relation to the evidence,
- The failure to associate and evaluate whether the defendant … committed the crime of resisting the performance of a duty with the evidence and, based on the argument that the crime was committed jointly, imposing an additional sentence on the defendant … in accordance with Article 265/3 of the Turkish Penal Code,
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