Article 33 of the Turkish Penal Code No. 5237 subjects the criminal liability of deaf and mute individuals to a special regulation. This regulation acknowledges that these individuals’ ability to perceive and control their behavior may vary depending on their capacity to understand the legal meaning and consequences of the act they committed, and it takes into account the impact of their learning limitations on criminal responsibility.
The Concept of Deaf and Mute
The term “deaf and mute” as stated in Article 33 of the Turkish Penal Code refers to individuals who have lost their hearing and speaking abilities either from birth or at a young age. Hearing loss limits a person’s ability to communicate effectively with their surroundings, while loss of speech can affect the individual’s ability to express themselves in social life. This situation impacts not only the physical condition of the individual but also their cognitive, psychological, and social development.
Communication is the most fundamental tool that enables an individual to interact with society, and the restrictions faced by deaf and mute individuals in this area directly affect their processes of learning and understanding social and legal norms. This is an important factor concerning criminal responsibility. The criminal capacity of these individuals should be assessed not only based on their age but also according to their developmental level, perceptual abilities, and the way they communicate with society. Therefore, the criminal responsibility of deaf and mute individuals generally requires an evaluation specific to their physical and psychological conditions.
Age-Based Criminal Responsibility
Article 33 of the Turkish Penal Code determines the criminal responsibility of deaf and mute individuals differently according to age groups. This regulation establishes a distinct approach tailored to each age group.
- Deaf and Mute Individuals Under 15 Years Old: According to the relevant regulation, deaf and mute individuals who have not yet reached the age of 15 do not have criminal responsibility. Since individuals in this age group are not criminally responsible, no criminal investigation or prosecution is conducted against them. However, child-specific security measures may be applied to these individuals to prevent them from harming public order.
- Deaf and Mute Individuals Between the Ages of 15 and 18: For deaf and mute individuals who have reached the age of 15 but not yet 18, it is mandatory to obtain both a forensic report and a social investigation report to assess their ability to understand the legal meaning and consequences of the act they committed. The forensic report aims to determine whether the individual has criminal capacity and is aware of the crime. If these individuals have committed a crime punishable by aggravated life imprisonment, their sentences are reduced to between 12 and 15 years; if the crime requires life imprisonment, the sentence is reduced to between 9 and 11 years. For other fixed-term imprisonment sentences, the penalty is halved, and the sentence for each offense cannot exceed 7 years.
- Deaf and Mute Individuals Between the Ages of 18 and 21: For individuals who have reached the age of 18 but not yet 21, it is sufficient to obtain only a social investigation report. A forensic report is not required. If these individuals have committed a crime punishable by aggravated life imprisonment, the sentence will be reduced to between 18 and 24 years; if the crime requires life imprisonment, the sentence will be reduced to between 12 and 15 years. For other fixed-term imprisonment sentences, one-third of the sentence is reduced, and the sentence for each offense cannot exceed 12 years.
- Deaf and Mute Individuals Over the Age of 21: These individuals are subject to the general provisions of criminal liability under the Turkish Penal Code. However, a forensic report may be required to assess their perception and volitional abilities. While the criminal liability of individuals in this age group is determined according to the general rules of criminal capacity, a more detailed examination may be necessary based on their specific circumstances.
Social Investigation and Forensic Report
Article 33 of the Turkish Penal Code introduces a special regulation for deaf and mute individuals who are over 15 but under 18 years old when assessing their criminal responsibility. To determine whether individuals in this age group possess criminal capacity, it is necessary to assess their ability to understand the legal meaning and consequences of the act they committed. For this purpose, both a social investigation report and a forensic report are mandatory.
The forensic report evaluates whether the individual had criminal capacity at the time of committing the offense—that is, whether they could comprehend the legal meaning and consequences of the act. In the case of deaf and mute individuals, this report includes an expert examination of the person’s method of communication, perceptual capacities, the extent to which they were aware of the events, and how this awareness impacts their criminal responsibility. For example, in addition to sensory impairments, cognitive and psychological processes are also assessed. This report helps determine during the judicial process whether the individual understood the legal significance and consequences of the offense when it was committed.
The social investigation report, on the other hand, addresses factors such as the individual’s family structure, education level, social environment, living conditions, and psychological state, evaluating their developmental process and environmental influences. This report aims to understand how deaf and mute individuals interact with society and the possible effects of this interaction on their criminal capacity. For example, how the family provided education, the individual’s school life, and social relationships may offer important clues about their capacity to commit a crime. Additionally, the psychological condition must be evaluated in this context, since emotional and cognitive development can affect the person’s level of awareness at the time of committing the offense.
SECURITY MEASURES AND CRIMINAL SENTENCE REDUCTIONS
Deafness and muteness have been regulated as grounds for sentence reduction, varying according to age groups. The criminal liability of deaf and mute individuals may result in exemption from punishment, especially if they are under 15 years old or if the deafness and muteness fully affect their criminal responsibility. In such cases, it is decided that no penalty shall be imposed due to the absence of fault at the time the offense was committed. Instead, security measures are applied.
However, it is stated that security measures specified in Article 53/1 of the Turkish Penal Code (TCK) should not be applied to deaf and mute individuals under the age of 21 (by reference of Article 33 to Article 53/4 of the TCK). Even if deaf and mute persons in this age group are sentenced to imprisonment for intentional crimes they have committed, they are not deprived of the following rights:
1- Holding a permanent or temporary public office, especially membership in the Grand National Assembly of Turkey, employment in public institutions such as state, provincial, or municipal offices, or other public duties,
2- Being deprived of civil rights such as custody, guardianship, or trusteeship,
3- Serving as a manager or auditor in legal entities such as foundations, associations, unions, companies, and political parties,
4- Being deprived of the right to freely practice a profession or art that requires permission from a public institution.
Furthermore, the provisions regarding recidivism regulated under Article 58/5 of the Turkish Penal Code do not apply to these individuals.
Supreme Court Decisions
“…The continuation of the trial and the issuance of a verdict without appointing a defense attorney for the defendant, who was understood to be deaf and mute, as required by Article 150/2 of the Criminal Procedure Code (CMK), necessitates annulment…” (Supreme Court, 4th Criminal Chamber, Case No. 2017/5248 E., Decision No. 2018/722 K., dated 16.01.2018)
“…The defendant, understood to be deaf and mute, was tried and convicted without the presence of a defense attorney, resulting in a restriction of the defendant’s right to defense. Furthermore, it was not considered that no sentence reduction could be applied according to Article 33 of the Turkish Penal Code (TCK) for the defendant, who was understood to have reached the age of 21 at the time of the offense. Considering that the defendant’s prior conviction used as a basis for recidivism had already received a sentence reduction under Article 33 of the TCK and that there were no other prior convictions, it was not taken into account that this prior conviction could not be used for recidivism purposes under Article 58/5 of the TCK. These issues necessitated annulment…” (Supreme Court, 13th Criminal Chamber, Case No. 2015/5825 E., Decision No. 2016/8511 K., dated 09.05.2016)
Lawyer Gökhan AKGÜL & Lawyer Yasemin ERAK
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