Legal Definition of the Crime
The crime of aiding and abetting a criminal is regulated under Article 283 of the Turkish Penal Code (TCK), under the heading “Crimes Against the Judiciary.” The relevant provisions of the article are as follows:
TCK Article 283:
- Anyone who provides an opportunity for a person who has committed a crime to evade investigation, arrest, detention, or the execution of a sentence shall be punished with imprisonment from six months to five years.
- If this crime is committed by a public official in connection with their duty, the penalty shall be increased by one-half.
- If this crime is committed by an ascendant, descendant, spouse, sibling, or other accomplice of the offender, no penalty shall be imposed.
These provisions specify that if the perpetrator engages in acts aimed at helping a person who has committed a crime to escape investigation, arrest, or the execution of a sentence, they shall be punished with imprisonment ranging from six months to five years.
Elements of the Crime
When the crime of aiding and abetting a criminal is evaluated in terms of both its objective and subjective elements, it has the following fundamental components:
1. Perpetrator:
Article 283 of the Turkish Penal Code (TCK) does not require any specific characteristic for the perpetrator, and it is accepted that the crime can be committed by anyone. However, paragraph three of the article provides an exceptional case of immunity from punishment for certain persons. The law states that if the crime is committed by the perpetrator’s ascendant, descendant, spouse, sibling, or other accomplice, no penalty shall be imposed. This exception establishes that actions aimed at concealing evidence related to a crime committed by oneself or close relatives are not considered criminal under penal law.
2. Victim:
In this crime, the victim is the public.
3. Act (Physical Element):
Under Article 283 of the TCK, the act consists of providing the means for a person who has committed a crime to evade investigation, arrest, detention, or the execution of a sentence. The crime is one of free-choice actions, meaning that any act by the perpetrator that facilitates the offender’s evasion of investigation, arrest, detention, or sentence execution is sufficient for the formation of the crime.
4. Protected Legal Value:
The crime of aiding and abetting a criminal is regulated under the heading “Crimes Against the Judiciary”, and the legal value protected by this type of crime is the right to a fair trial.
5. Mental Element (Mens Rea):
This crime can only be committed intentionally. The perpetrator must act with the aim of enabling a person who has committed a crime to evade investigation, arrest, detention, or execution of the sentence. If the perpetrator acts without such intent, merely providing for the offender’s basic human needs, the crime does not occur. It is legally impossible for this crime to be committed negligently.
Aggravated Circumstances of the Crime
The crime of aiding and abetting a criminal, regulated under Article 283 of the Turkish Penal Code (TCK), is also arranged with aggravated circumstances that may require a heavier penalty in certain cases.
According to TCK Article 283/2, if this crime is committed by a public official in connection with their duty, the penalty shall be increased by one-half.
This provision aims to protect the public’s perception of trust in public officials, who carry greater responsibility due to the authority they possess. By increasing the penalty, the law seeks to prevent public officials from committing crimes through abuse of their office.
Complaint Period, Statute of Limitations, and Competent Court
The crime regulated under Article 283 of the Turkish Penal Code (TCK) is not subject to a complaint; investigation procedures are initiated ex officio by the public prosecutor’s office. Although there is no complaint period for the investigation of this crime, the statute of limitations for prosecution is eight years. The competent court is the Criminal Court of First Instance.
Judicial Fine, Postponement of Pronouncement, and Suspension
According to Article 283 of the Turkish Penal Code (TCK), anyone who provides an opportunity for a person who has committed a crime to evade investigation, arrest, detention, or the execution of a sentence shall be punished with imprisonment from six months to five years.
Considering the lower and upper limits of the penalty, it is possible to convert the prison sentence into a judicial fine, to issue a decision to postpone the pronouncement of the judgment, or to suspend the execution of the sentence.
Decisions Related to the Subject
“…1. Article 270 of the Turkish Penal Code No. 5237, titled “Confession of a Crime,” provides: Anyone who falsely informs the competent authorities that they have committed or participated in a crime shall be punished with imprisonment of up to two years. If this crime is committed to save an ascendant, descendant, spouse, or sibling from punishment, the penalty may be reduced by three-quarters or completely waived.
The same law’s Article 283, titled “Aiding and Abetting a Criminal,” provides: Anyone who provides an opportunity for a person who has committed a crime to evade investigation, arrest, detention, or the execution of a sentence shall be punished with imprisonment from six months to five years.
- The case under review concerns the situation where the convict … was driving a vehicle with a blood alcohol level of 1.53‰, yet declared that the vehicle was being driven by the non-participating defendant …; and when an altercation occurred during the vehicle’s motion, other non-participating defendants wounded someone with a firearm. Upon the initiation of an investigation into the assault, it was determined that the convict … had actually been driving the vehicle.
- Since there was no evidence that the non-participating defendant … was under the influence of alcohol or drugs, the crime of endangering traffic safety, established with respect to the convict …, does not apply to defendant …. The convict …’s false declaration that the vehicle involved in the accident had been driven by defendant …—while he himself was driving under the influence of 1.53‰ alcohol—constitutes incitement to aid and abet a criminal, as it prevented investigation, inquiry, or prosecution against him for the traffic offense.
Accordingly, it was necessary to reject the request of the Office of the Chief Public Prosecutor of the Court of Cassation for annulment in favor of the law.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2021/17284, Decision No. 2023/8606, 08.11.2023)
“…Regarding the crime of aiding and abetting a criminal attributed to the defendant, defendant …, who did not suffer direct harm from this crime, does not have the right to participate in the trial concerning this crime, and even if the court granted a decision allowing participation, this does not confer the right to appeal; therefore, the appeal request is REJECTED pursuant to Article 317 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2017/11909, Decision No. 2019/13113, 04.11.2019)
“…In the appeal review concerning the defendant … regarding the crime of aiding and abetting a criminal:
In the case where it was determined that the house in which the person named … was apprehended was under the control and management of the father, another defendant …, and that the said person was hosted in a house jointly used by defendant …, it was concluded that there was no clear, sufficient, definitive, and convincing evidence that the defendant acted with the intent to aid and abet the criminal. Therefore, issuing a conviction instead of acquittal was contrary to the law.
Since the defendant’s appeal objections were found justified, the judgment is REVERSED for these reasons pursuant to Article 321 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2018/10212, Decision No. 2020/14335, 25.06.2020)
“…According to the house search and apprehension report dated 05.08.2015, it was alleged and accepted that the person named …, who was involved in the crime of intentional homicide, stayed at the residence of the defendants, who were relatives, and that the defendants, despite being aware of the incident, did not report it, thereby committing the crime of aiding and abetting a criminal.
Since, as a result of the trial against the suspect … for intentional homicide, it was not established that the crime was committed and the verdict was finalized, no criminal accusation occurred for …. Therefore, issuing a conviction against the defendants for aiding and abetting a criminal, a crime whose elements were not fulfilled, instead of acquittal, is contrary to the law.
Given that the defendants’ appeals were found justified, the judgments are REVERSED for this reason pursuant to Article 321 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2020/10582, Decision No. 2022/15522, 27.10.2022)
“…For the crime of aiding and abetting a criminal to occur, the perpetrator must provide an opportunity for a person who is a suspect, accused, or convicted of a previously committed crime to evade investigation, arrest, detention, or the execution of a sentence. The act element of this crime is providing an opportunity, and it is a crime of free-choice action.
In this context, the defendant, having left the scene of a traffic accident causing injury and later, in the identification report dated 15.02.2010, declared that the person who drove the other vehicle involved in the accident was not … and arrived at the scene later, did not commit the crime of aiding and abetting a criminal. Therefore, the defendant should have been acquitted of the alleged crime, as its elements were not fulfilled. Issuing a written conviction instead is contrary to the law.
Since the defendant’s appeal was found justified, the judgment is REVERSED for this reason pursuant to Article 321 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320, by unanimous decision on 04.11.2019.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2017/11316, Decision No. 2019/13110, 04.11.2019)
“…In the incident where the defendant …, in order to prevent the arrest of a person with an existing warrant, jumped on the complainant police officer, grabbed his collar, and said: ‘No one can take a person from me, no one can arrest them, I will not hand anyone over to the police, go away’, it was determined that the elements of the crime of aiding and abetting a criminal were not fulfilled.
Furthermore, the crime regulated under Article 294 of the Turkish Penal Code (TCK) did not occur, as the sought person had not yet been apprehended and there was no actual control over them.
Considering the defendant’s actions as a whole, they constitute the crime of resisting the execution of duty under Article 265/1 of the TCK. Without taking this into account, issuing a written conviction for aiding and abetting a criminal against the defendant was contrary to the law.
Since the defendant’s appeal was found justified, the judgment is REVERSED for this reason pursuant to Article 321 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320.
(Turkish Court of Cassation, 8th Criminal Chamber, Case No. 2019/10976, Decision No. 2020/18574, 16.11.2020)
“…In the review of the judgment issued against the defendant … for the crime of aiding and abetting a criminal:
Considering that the act undertaken would not constitute a crime for the defendant themselves, it must be noted that the crime regulated under Article 283 of the Turkish Penal Code (TCK) could occur. At the time of the incident, the defendant, who was a passenger in the vehicle and found to be under the influence of alcohol, during the investigation against their friend, defendant …, who endangered traffic safety by driving under the influence, merely declared that they themselves had driven the vehicle.
This action should have been considered as the crime of confession of a crime, but due to a misclassification of the offense, a written conviction was issued in error, contrary to the law.
Since the defendant’s appeal objections were found justified, the judgment is REVERSED for this reason.
(Turkish Court of Cassation, 16th Criminal Chamber, Case No. 2016/410, Decision No. 2016/3174, 08.04.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
